& Ors. Vs. Jaya  INSC 293 (20 April 2010)
APELLATE JURISDICTION SPECIAL LEAVE PETITION (C ) NO. 8525 OF 2010 Vishnu &
Ors. ...Petitioners Versus Jaya ....Respondent ORDER Petitioner no.1
(hereinafter `the petitioner') and the respondent used to be husband and wife.
The petitioner married her after the death of his first wife who had left
behind a two and a half year old son. The petitioner and the respondent are now
separated by a decree of divorce obtained by the former. The respondent has
filed an appeal against the decree but there is no stay in the pending appeal.
15, 2003 the petitioner's son Parag (eleven and a half years old) from his
first wife died by falling into a well. The petitioner was then away from home.
He suspected that the respondent had killed the child from his first wife and
instituted a criminal case against her under section 302 of 2 the Penal Code.
The respondent was put on trial in which her two sons from the petitioner
deposed against her. Anyway, the trial ended in her acquittal.
of the petitioner's son from his first wife completely broke down his marriage
with the respondent and he eventually obtained a decree of divorce against her.
For past seven years, as also noted by the High Court the petitioner and the
respondent have been engaged in a series of litigation.
present SLP arises from the proceedings for the custody of their two children
(Kumar Gaurao and Kumar Kunal aged 11 years and 9 years respectively)
instituted on the basis of an application filed by the respondent under
sections 7 and 9 of the Guardian and Wards Act and registered as Misc. Civil
Application No.158 of 2008 in the court of the District Judge- 2, Jalgaon. The
District Judge by his order dated March 25, 2009 rejected the respondent's
petition and left the two children in the custody of their father, the present
petitioner. In appeal by the respondent, the High Court of Bombay, Aurangabad
Bench by its judgment and order dated February 3, 2010 passed in FA No.887 of
2009 with Civil Appeal No.5044 of 2009 reversed the order of the District Judge
and directed that the custody of the two children be given to the respondent
wife within 15 days of the date of the order. The petitioner, the father of the
two children has now brought the matter to this court.
the case was called out, apart from the counsel for the petitioner, the counsel
for the respondent was also present on caveat. We were informed that not only
the petitioner and the respondent were present in court, but the petitioner had
also brought along the two children whose custody is the subject matter of the
dispute. We, therefore, decided to pass any order in the matter only after
meeting the two children and the petitioner and the respondent. After rising
from the court at 2pm, we met the two children and their two parents, one by
one, in the chamber. Certain facts that came to light from the meeting may be
enumerated as follows:
elder child, Kumar Gaurao is slightly mentally retarded.
more comfortable speaking in Marathi. Nevertheless, he made his wishes quite
clear to us. The younger child, Kumar Kunal, is perfectly normal and speaks
freely in Hindi.
the children live in a house at Bhusawal with their paternal grandmother. Both
of them are going to schools.
younger boy is in class five. The paternal aunt of the children (petitioner's
sister) lives close by.
petitioner is a member of the Railway Protection Force.
sometime ago he was posted at Bhusawal and lived there together with his mother
Sometime ago, he has been transferred to Kalyan (according to him, to Mummar, 2
or 3 stations beyond Kalyan) and he can no longer live at Bhusawal. (This was
the main ground on which the High Court held that he was not in a position to
look after the children properly). According to the petitioner, he did not take
the children with him to Kalyan because at the time of his transfer the
children were in mid-session in their schools. The final exams of the children
are now over and once their results are declared, he planned to take them with
him to Kalyan where he would get them admitted in proper schools.
respondent lives in Bhopal with her mother. She is a graduate and has also done
the MBA course. According to her, she presently earns her livelihood by running
some properties in Bhusawal also. She has not got any alimony and does not
receive any maintenance from the petitioner.
respondent admitted that the two children were living with their father
continuously for the past seven years. She further admitted that during this
period she had no access to the children or even a brief meeting with them.
the children were very clear and firm that they want to live with their father
and they do not want to go with their mother. The elder son was not even able
to recall the name of the mother.
aforesaid facts and circumstances, we are of the view that if the children are
forcibly taken away from their father and handed over to the mother, it will
only traumatize them and it will not do any good to anybody.
present situation, the better course would be that the mother should first be
allowed to make the initial contact with the children, build up her
relationship with them and slowly and gradually restore her position as their
Court of course did not have the advantage of meeting all concerned in this
case but we after meeting both the children and the petitioner and the
respondent and after speaking to them for quite sometime are clearly of the
view that the course indicated above needs to be adopted.
even say that at the end of the meeting, the mother seemed to agree 6 that for
the present at least, she should accept and be satisfied with her right to
access and visitation rights to her two children. We, accordingly, stay the
operation of the order of the High Court and make the following interim
arrangement in its place:
alternate Saturday, it will be open to the respondent wife to come to Bhusawal
or Kalyan or wherever the children may be living with their father and to take
them out, if she so desires, for an overnight stay with her. She will take the
two children from their father's house at 10 in the morning of the Saturday.
She may bring the children back to their house on the same day in the evening
or if she so desires, she may keep them overnight with her and reach them back
at 10 in the morning of the following Sunday.
regard to the distance from Bhopal, it may not be possible for her to visit the
children every alternate Saturday. In that event, she will inform about her
programme to come to their place on a particular Saturday, either
telephonically or by post, for mutual convenience.
the three long vacations, namely the summer vacation, Diwali vacation and
Christmas vacation the two 7 children will spend half their vacations with the
respondent mother at her house, in Bhopal or wherever she might be living.
Before taking away the children she will duly notify the petitioner about her
whereabouts and her residential address. After the period of the children's
stay with her is over, she will duly reach the children to their father's house
and hand them over to the petitioner father.
direction comes into immediate effect and the respondent will be free to take
the children for half the period of their current vacation.
directions made above must be followed strictly without the slightest breach
from either side.
Put up this
SLP after six months.