Gaytri Bajaj Vs. Jiten
Petition (C) Nos. 35468-35469 of 2009]
O R D E R
petitioner-wife and the respondent-husband were married on 10.12.1992 and two daughters
were born out of the said wedlock. The elder daughter was born on 20.08.1995 and
the younger daughter on 19.04.2000. It is the grievance of the petitioner-wife that
the Additional District Judge by order dated 03.06.2003 passed a decree of
divorce within eight days from the presentation of the first and second Motions
under Section 13-B(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as
"the Act"). The petitioner-wife has 1filed a suit for declaration on
01.02.2006 seeking a declaratory decree that the respondent has obtained a
decree by fraud.
10.10.2007, the respondent-husband filed an appeal under Section 28 of the Act
in the High Court of Delhi at New Delhi. The petitioner-wife filed cross-objections
to the said appeal on 07.11.2007. The learned single Judge of the High Court,
by order dated 08.09.2008, allowed the appeal filed by the respondent-husband
without deciding and adjudicating on the cross-objections filed by the petitioner-wife.
Being aggrieved by the order of the learned single Judge, the respondent-wife filed
a review petition on 13.10.2008. The said review petition was also dismissed on
10.07.2009 by the learned single Judge of the High Court. Both the said orders were
impugned in the present special leave petitions.
order dated 14.12.2009, this Court issued notice to the respondent-husband.
short question which falls for consideration in these SLPs for the present is with
regard to the custody of the two children.
the course of hearing, at one stage, considering the issue raised, namely, relating
to the custody of children, both being daughters, at the request of counsel for
both sides, we decided to interact with the children as well as their parents, namely,
petitioner-wife and respondent-husband in our Chambers to find out the actual
friction in order to arrive at the possibility of any amicable settlement. Pursuant
to the same, both parties including their children were present before us and a
detailed interaction was held with the children and their parents separately. In
the course of interaction, we were able to ascertain the following facts:
a. The date of birth of first
daughter is 20.08.1995 and presently she is aged about 17 years. The date of birth
of second daughter is 19.04.2000 and presently she is aged about 11 years. Both
of them were living with their father and are in his custody and the
petitioner-wife had no access to the children or even a brief meeting with
b. After interacting
with the children separately and putting several questions about their age,
education, their future and importance of company of mother as of now, both of them
3were very clear and firm that they want to continue to live with their father
and they do not want to go with their mother.
the aforesaid facts and circumstances, we feel that if the children are forcibly
taken away from the father and handed over to the mother, undoubtedly, it will affect
their mental condition and it will not be desirable in the interest of their betterment
and studies. In such a situation, the better course would be that the mother should
first be allowed to make initial contact with the children, build up relationship
with them and gradually restore her position as their mother.
a matter relating to the custody of children the first and the paramount
consideration is the welfare and interest of the child and not the rights of the
parents under a statute. Even the statues, namely, the Guardianship and Wards Act,
1890 and Hindu Minority and Guardianship Act, 1956 make it clear that the welfare
of the child is a predominant consideration. In a matter of this nature, particularly,
when father and mother fighting their case without reference to the welfare of the
child, a heavy duty is cast upon the Court to exercise its discretion
judiciously bearing in mind the welfare of the child as paramount
the relevant facts and circumstances of the case, we are convinced that the
interest and welfare of the children will be best served if they continue to be
in the custody of the father. In our opinion, at present, it is not desirable
to disturb the custody with the father. However, we feel that ends of justice would
be met by providing visitation rights to the mother. In fact, during the
hearing on 12.12.2011, Ms. Indu Malhotra, learned senior counsel for the petitioner-wife
represented that if such visitation rights, namely, visiting her children once in
a fortnight is ordered that would satisfy the petitioner-wife. Learned senior counsel
also represented that if the said method materializes, the petitioner-wife is
willing to withdraw all civil and criminal cases filed against the respondent-husband
which are pending in various courts.
Ranjit Kumar, learned senior counsel for the respondent-husband made it clear that
this Court is free to pass appropriate interim arrangement if the same is feasible
5and in the interest of the children. Since both are residing at Delhi, it is desirable
to pass appropriate direction for the meeting of the petitioner-wife either in the
house of the respondent-husband or in a common place like Mediation Centre of
this Court or the High Court.
accordingly, make the following interim arrangement:
respondent-husband is directed to bring both daughters, namely, Kirti Bhalla
and Ridhi Bhalla, to the Supreme Court Mediation Centre at 10 a.m. on Saturday of
every fortnight and hand over both of them to the petitioner-wife. The mother
is free to interact with them and take them out and keep them in her house for overnight
stay. On the next day, i.e., Sunday at 10 a.m. the petitioner-wife is directed
to hand over the children at the residence of the respondent-husband. The above
arrangement shall commence from 17.12.2011 and continue till the end of
respondent-husbad is directed to inform the mobile number of elder daughter (in
the course of hearing, we were informed that she is having separate mobile phone)
and also landline number to enable the petitioner-wife to interact with the
as the petitioner-wife is willing to withdraw all civil and criminal proceedings
filed against the respondent-husband, in view of the interim visitation rights
being granted to her, we hope and trust that the respondent-husband will cooperate
and persuade the children to spend time with their mother as directed above.
is also made clear that for any reason if the said visitation is not workable due
to the attitude of any of the parties or due to the children, counsel appearing
for them are free to mention before this Court for the next course of action.
up on 03.02.2012.