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IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO. 1361  OF 2008            [Arising out of SLP(Crl.)No.5919 of 2007]

I.S.SIROHI                                       ..Petitioner(s)

                     VERSUS

COMMR.OF POLICE & ORS.                           ..Respondent(s)   

O R D E R   

1. Leave granted.

2.  This  appeal  arises  out  of  the  judgment  and  order  dated  18th

September, 2007 passed by the Delhi High Court in Writ Petition(Crl.)No.1225 of

2007 filed by Shri I.S. Sirohi, the appellant herein, who is the father-in-law of Mrs.

Deepti Sirohi, the respondent No.4 herein.  The writ petition was disposed of by the

High Court on 18/09/2007 by a non-speaking order, which    reads as follows:-  

“In  the  circumstances  of  the  case  we  feel  that  such  a  writ petition does not lie.    Dismissed.“

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3. Having regard to the nature of the  order passed, notice was issued in

the special leave petition on 12th October, 2007, and subsequently, on 7th December,

2007, after service of notice when the matter was listed, the parties were referred to

mediation  before  the  Delhi  High  Court  Mediation  Centre  and  the  matter  was

directed to be listed once a report was received in respect of such mediation.

4. When the  matter was listed on 25th February, 2008, it was directed to

be put up for final disposal, and accordingly, the same was listed before us on 26th

August, 2008.  After hearing the counsel for the respective parties, we had directed

the  matter  to  appear  today  in  Chambers,  when  the  respondent  No.4-wife  was

directed to produce the two children who were the subject matter of the reliefs

prayed for in the writ petition.  She was also directed to be personally present, and

a similar direction was given with regard to the paternal grandfather.

5. Today, when the matter was taken up, we had   occasion to speak to

the respondent-wife, the two children, Ruchira, aged approximately 10 years, and

Rajat,  aged  7  years,  the  parents-in-law  of  the  respondent  4-wife  and  their

respective counsel.

6. Since we were considering the  writ  petition wherein  a writ  in the

nature of habeas corpus, as far as the two children are concerned, had been prayed

for and which had been dismissed by a one sentence order of the High Court, we

were of the view that since the children have been separated from the paternal

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grand-parents as well as their father for almost two years, it would be in the best

interest of all concerned, and especially the children, to pass appropriate interim

orders to enable the paternal grand-parents of the children, as well as the husband

of the respondent No.4, to have access to the children.  We are fully alive to   the

fact that this is not a custody proceeding, but, in the facts and circumstances of the

case, we are of the view that the children should also not be alienated from the

company and  affection of their father or  paternal grand-parents.  In our view, the

children require the care, love and affection, both of the father's side of the family,

as well as that of the mother, and that none of them  should   be denied access to

the children.  Accordingly, after having spoken to the children and the parties, as

also their learned counsel and keeping in mind the interest of the children, we pass

the following interim order:

(1)The paternal grand-parents of the children will be entitled to meet

the  children  at  the  house  of  the  respondent  No.4-wife   every

alternate week-end, preferably on Sunday, between 9.00 A.M. and

1.00  P.M.  in  the  presence  of  a  member  of  the  family  of  the

respondent No.4-wife or a mutual friend.   During such visit, the

grand-parents  of  the  children  shall  not  be  allowed  to  take  the

children out of the house of  the respondent No.4-wife.  However,

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during holidays consisting of four or more consecutive holidays, the

appellant before us will be at liberty to keep the children with him

at least for two days during the said period.  The respondent No.4-

wife  shall  arrange   to  drop  the  children  to  the  house  of  the

appellant for the said purpose, and to take back the children to her

custody at a  day and time to be mutually fixed;      

(2)Although,  Dr.  Niren  Sirohi,  the  father  of  the  children  and  the

husband of the respondent No.4 is not a party before us, since the

writ petition for a writ in the nature of  habeas corpus has been

filed by his father, seemingly on his behalf also, we further direct

that he too will be entitled to visit the children as and when he visits

India,  upon  prior  notice  to  the  respondent  No.4-wife,  who  shall

thereupon give proper access to him to meet the children either in

her presence or in the presence of some other family member of the

respondent No.4-wife or a mutual friend, at a  date and time to be

mutually agreed upon.  In case the children agree to go out with

him for an outing, he will be at liberty to take them out, but shall

return them to the  custody  of  the  respondent  No.4-wife  by  6.00

P.M.  at  her  residence.   Dr.  Niren  Sirohi  will  under  no

circumstances be entitled to remove the children from the custody

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of the respondent No.4-wife, except in the manner aforesaid, or to

take them out of  India without  applying to this  Court for such

permission.    Ms. Asha Nair, learned advocate appearing for the

State,  shall  give  necessary  instructions  in  this  regard  to  all

concerned authorities and provide them with a copy of this order to

ensure that the same is strictly implemented.  The learned counsel

appearing on behalf of Dr. Niren Sirohi in the trial court, where the

proceeding under Section 498A Cr.P.C. is pending, undertakes to

obtain an affidavit from Dr. Niren Sirohi to that effect and to file

the same in this Court within a month  from date.

(3)The visitation rights being given to the paternal grand-parents and

Dr. Niren Sirohi should not in any way cause any interference with

the normal school routine of the children, who are attending school

in Greater Kailash-II.

7. The affidavit to be affirmed by Dr. Niren Sirohi should contain an

undertaking that he will not proceed   any further with the civil and criminal cases

pending in the U.S.A. during the pendency of this appeal before this Court and

shall  not under any circumstances remove the children from India or from the

custody  of  the  respondent  No.4-wife,  except  in  the  manner  and  to  the  extent

indicted in this order, until further orders of this Court.  Similarly, the  respondent

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No.4-wife also undertakes not to proceed with the criminal and civil proceedings

filed by her, which are pending here in India.

8. We also stay the criminal proceedings which are now pending before

the learned Magistrate in Patiala House, New Delhi, though we have been informed

by  learned  counsel  appearing  on   behalf  of  the  respondent  No.4-wife  that  the

complaint against the paternal grand-parents has since been withdrawn.   We have

been further informed that the proceedings before the Magistrate has been stayed

by the High Court and such stay is operative till 1st September, 2008.  By virtue of

this order, the stay shall continue until further orders.

9. In  addition  to  the  above,  it  has  been  mentioned  by  Ms.  Indu

Malhotra, learned senior counsel appearing for the  respondent No.4-wife, that her

client  and  Dr.  Niren  Sirohi  jointly   own  a  house  property  in  Lexington,

Massachussets,  U.S.A., and that attempts are being made by Dr. Sirohi to sell off

the same.  Though, not denied, the said  submission made by Ms. Malhotra has

been explained by  

learned  counsel  appearing  for  Dr.  Sirohi  indicating  that  since  expenses  for

maintaining such a big house consisting of  nine rooms, was costing him   about

4000/- dollars a month, he was being compelled to sell the same, and under the

prevalent  laws  in  the  U.S.A.,  he  would  have    to  keep  aside  50% of  the  said

proceeds in a separate account in the name of the  respondent No.4-wife.   We can

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see no ground to prevent  the sale from being proceeded with and completed since

it  cannot prejudice the  respondent No.4-wife, who will   be entitled to receive 50%

of the sale proceeds as her share of the property.  We, accordingly, see no reason to

interfere with the sale of the property and Dr. Sirohi may proceed with such sale, if

he so wishes, subject to depositing 50% of the sale proceeds  in the name of the

respondent No.4-wife in a separate account to her credit.

10. Let  this  matter  be  listed  on  26th November,  2008,  for  further

directions, with liberty to the parties to mention  for  variation of  this order or for

other orders, even before the said date, in the event it becomes necessary to do so.

     ....................J.     (ALTAMAS KABIR)

   ....................J.     (MARKANDEY KATJU)

NEW DELHI; AUGUST 27,   2008.