REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2704 OF 2010

(Arising out of SLP(C) No.19935/2009)

Vikram Vir Vohra ..Appellant(s)

Versus

Shalini Bhalla ..Respondent(s)

J U D G M E N T

GANGULY, J.

1.Leave granted.

2.This appeal by the husband, impugns the judgment

and order dated 27.07.09 of Delhi High Court

which upheld the judgment and order of the

Additional District Judge passed in relation to

applications filed by both the parties under

Section 26 of the Hindu Marriage Act

(hereinafter “the Act”). The impugned judgment

1

permitted the respondent-wife to take the child

with her to Australia.

3.The material facts of the case are that the

parties to the present appeal were married as

per the Hindu rites on 10.12.2000. A child,

Master Shivam, was born to them on 05.08.02. In

view of irreconcilable differences between the

parties they had agreed for a divorce by mutual

consent under Section 13-B of the Act and filed

a petition to that effect and on 05.09.06 a

decree of divorce on mutual consent was passed

by the Additional District Judge, Delhi.

4.As regards the custody of the child there was

some settlement between the parties and

according to the appellant the same was

incorporated in paras 7 and 9 of the petition

filed under Section 13-B (2) of the Act. Those

paragraphs are as under:

“The parties have agreed that the custody

of the minor son Master Shivam shall

remain with the mother, petitioner No.1

who being the natural mother is also the

guardian of the son Master Shivam as per

law laid down by the Supreme Court of

India. It is, however, agreed that the

father petitioner shall have right of

2

visitation only to the extent that the

child Master Shivam shall be with the

father, petitioner No.2, once in a

fortnight from 10 AM to 6.30 PM on a

Saturday. Petitioner No.2 shall collect

the child Master Shivam from WZ-64, 2

nd

Floor Shiv Nagar Lane No.4, New Delhi-58

at 10 AM on a Saturday where the child is

with his mother. And on the same day at

by 6.30 PM, the petitioner No.2 would

leave the child back at the same place

with the mother i.e. petitioner No.1 and

in case he does not do so petitioner No.1

the mother shall collect the child from

petitioner No.2 on the same day. Both

parties undertake before this Hon’ble

Court that they would not create any

obstruction in implementation of this

arrangement.

The petitioner No.1 shall take adequate

care of the child in respect of health,

education etc., at her own cost. In case

the petitioner No.1 changes her address

or takes the child outside Delhi, she

shall keep petitioner No.2 informed one

week in advance about the address and

telephone nos. and the place where the

child would be staying with the mother,

to enable the petitioner No.2 to remain

in touch with the child.

The petitioner No.1 has received all her

Stridhan and other valuables, articles

and other possessions, and nothing

remains due to her from the petitioner

No.2. The petitioner No.1 and the child

Shivam has no claim to any property or

financial commitment from petitioner No.2

and all her claims are settled fully and

finally”.

5.Thereafter the respondent-wife filed

applications dated 07.11.06 and 9.05.08 and the

3

appellant-husband also filed applications dated

17.11.07 and 16.02.09 under Section 26 of the

Act seeking modification of those terms and

conditions about the custody of the child.

6.The respondent was basing her claim on the fact

that she wanted to take the child with her to

Australia where she was employed for gain with a

request to revoke the visitation rights granted

to the appellant for meeting the child. This she

felt will be conducive to the paramount interest

and welfare of the child. The appellant on the

other hand sought permanent custody of the child

under the changed circumstances alleging that it

is not in the interest of the child to leave

India permanently.

7.The Trial Court vide its order dated 06.04.09

took notice of the fact that in the joint

petition of divorce, parties voluntarily agreed

that the custody of the child shall remain with

the mother and father shall have only visiting

rights, in the manner indicated in the mutual

divorce decree. The Court modified the terms and

4

conditions of the custody and visitation rights

of the appellant about the minor child. By its

order the Trial Court had allowed the respondent

to take the child with her to Australia but also

directed her to bring the child back to India

for allowing the father visitation rights twice

in a year i.e. for two terms – between 18

th

of

December to 26

th

of January and then from 26

th

of

June to 11

th

of July.

8.Being aggrieved by that order of the Trial

Court, the appellant appealed to the High Court.

It was argued by the appellant since no decree

was passed by the Court while granting mutual

divorce, an application under Section 26 of the

Act does not lie and in the absence of specific

provision in the decree regarding the custody

and visitation rights of the child, the Trial

Court has no jurisdiction to entertain the

petition afresh after passing of the decree.

9.The High Court took into consideration the

provisions of Section 26 of the Act and was of

the view that the aforesaid provision is

5

intended to enable the Court to pass suitable

orders from time to time to protect the interest

of minor children. However, the High Court held

that after the final order is passed in original

petition of divorce for the custody of the minor

child, the other party cannot file any number of

fresh petitions ignoring the earlier order

passed by the Court.

10.The Court took into consideration that even if

the terms and conditions regarding the custody

and visitation rights of the child are not

specifically contained in the decree, they do

form part of the petition seeking divorce by

mutual consent. It was of the view that absence

of the terms and conditions in the decree does

not disentitle the respondent to file an

application under Section 26 of the Act seeking

revocation of the visitation rights of the

appellant.

11.It is important to mention here that the learned

Judge of the High Court had personally

interviewed the child who was about 7 years old

6

to ascertain his wishes. The child in

categorical terms expressed his desire to be in

the custody and guardianship of his mother, the

respondent. The child appeared to be quite

intelligent. The child was specifically asked if

he wanted to live with his father in India but

he unequivocally refused to go with or stay with

him. He made it clear in his expression that he

was happy with his mother and maternal

grandmother and desired only to live with his

mother. The aforesaid procedure was also

followed by the learned Trial Court and it was

also of the same view after talking with the

child.

12.Being aggrieved with the judgment of the High

Court the appellant has approached this Court

and hence this appeal by way of Special Leave

Petition.

13.We have also talked with the child in our

chambers in the absence of his parents. We

found him to be quite intelligent and

7

discerning. The child is in school and from

the behaviour of the child, we could make out

that he is well behaved and that he is

receiving proper education.

14. The child categorically stated that he wants

to stay with his mother. It appears to us

that the child is about 8-10 years of age and

is in a very formative and impressionable

stage in his life. The welfare of the child

is of paramount importance in matters

relating to child custody and this Court has

held that welfare of the child may have a

primacy even over statutory provisions [See

Mausami Moitra Ganguli vs. Jayant Ganguli –

(2008) 7 SCC 673, para 19, page 678]. We have

considered this matter in all its aspects.

15.The argument of the learned counsel for the

appellant, that in view of the provisions of

Section 26 of the Act, the order of custody

of the child and the visitation rights of the

8

appellant cannot be changed as they are not

reflected in the decree of mutual divorce, is

far too hyper technical an objection to be

considered seriously in a custody proceeding.

A child is not a chattel nor is he/she an

article of personal property to be shared in

equal halves.

16.In a matter relating to custody of a child,

this Court must remember that it is dealing

with a very sensitive issue in considering

the nature of care and affection that a child

requires in the growing stages of his or her

life. That is why custody orders are always

considered interlocutory orders and by the

nature of such proceedings custody orders

cannot be made rigid and final. They are

capable of being altered and moulded keeping

in mind the needs of the child.

17.In Rosy Jacob vs. Jacob A Chakramakkal -

[(1973) 1 SCC 840], a three judge Bench of

9

this Court held that all orders relating to

custody of minors were considered to be

temporary orders. The learned judges made it

clear that with the passage of time, the

Court is entitled to modify the order in the

interest of the minor child. The Court went

to the extent of saying that even if orders

are based on consent, those orders can also

be varied if the welfare of the child so

demands.

18.The aforesaid principle has again been

followed in Dhanwanti Joshi vs. Madhav Unde -

[(1998) 1 SCC 112].

19.Even though the aforesaid principles have

been laid down in proceedings under the

Guardians and Wards Act, 1890, these

principles are equally applicable in dealing

with the custody of a child under Section 26

of the Act since in both the situations two

things are common; the first, being orders

relating to custody of a growing child and

10

secondly, the paramount consideration of the

welfare of the child. Such considerations are

never static nor can they be squeezed in a

strait jacket. Therefore, each case has to be

dealt with on the basis of its peculiar

facts.

20.In this connection, the principles laid down by

this Court in Gaurav Nagpal vs. Sumedha Nagpal

reported in (2009) 1 SCC 42 are very pertinent.

Those principles in paragraphs 42 and 43 are set

out below:

“42. Section 26 of the Hindu Marriage

Act, 1955 provides for custody of

children and declares that in any

proceeding under the said Act, the court

could make, from time to time, such

interim orders as it might deem just and

proper with respect to custody,

maintenance and education of minor

children, consistently with their wishes,

wherever possible.

43. The principles in relation to the

custody of a minor child are well

settled. In determining the question as

to who should be given custody of a minor

child, the paramount consideration is the

“welfare of the child” and not rights of

the parents under a statute for the time

being in force”.

11

21.That is why this Court has all along insisted on

focussing the welfare of the child and accepted

it to be the paramount consideration guiding the

Court’s discretion in custody order. See Thrity

Hoshie Dolikuka vs. Hoshiam Shavaksha Dolikuka -

[AIR 1982 SC 1276], para 17 .

22.In the factual and legal background

considered above, the objections raised by

the appellant do not hold much water.

23.Now coming to the question of the child being

taken to Australia and the consequent

variations in the visitation rights of the

father, this Court finds that the Respondent

mother is getting a better job opportunity in

Australia. Her autonomy on her personhood

cannot be curtailed by Court on the ground of

a prior order of custody of the child. Every

person has a right to develop his or her

potential. In fact a right to development is

a basic human right. The respondent-mother

cannot be asked to choose between her child

12

and her career. It is clear that the child is

very dear to her and she will spare no pains

to ensure that the child gets proper

education and training in order to develop

his faculties and ultimately to become a good

citizen. If the custody of the child is

denied to her, she may not be able to pursue

her career in Australia and that may not be

conducive either to the development of her

career or to the future prospects of the

child. Separating the child from his mother

will be disastrous to both.

24.Insofar as the father is concerned, he is

already established in India and he is also

financially solvent. His visitation rights

have been ensured in the impugned orders of

the High Court. His rights have been varied

but have not been totally ignored. The

appellant-father, for all these years, lived

without the child and got used to it.

13

25.In the application dated 9.5.2008 filed

before the Additional District Judge, Delhi,

the mother made it clear in paragraph 12 that

she is ready to furnish any undertaking or

bond in order to ensure her return to India

and to make available to the father, his

visitation rights subject to the education of

the child. This Court finds that so far as

the order which had been passed by the High

Court, affirming the order of the Trial

Court, the visitation rights of the

appellant-father have been so structured as

to be compatible with the educational career

of the child. This Court finds that in this

matter judicial discretion has been properly

balanced between the rights of the appellant

and those of the respondent.

26.In that view of the matter, this Court

refuses to interfere with the order passed by

the High Court. The appeal is dismissed with

the direction that the respondent-mother,

14

before taking the child to Australia, must

file an undertaking to the satisfaction of

the Court of Additional District Judge-01,

(West), Delhi within a period of four weeks

from date. No order as to costs.

.......................J.

(G.S.SINGHVI)

.......................J.

(ASOK KUMAR GANGULY)

New Delhi

March 25, 2010

15