IN THE SUPREME COURT OF INDIA CIVIL APELLATE JURISDICTION

SPECIAL LEAVE PETITION (C ) NO. 8525 OF 2010

Vishnu & Ors. …Petitioners

Versus

Jaya ….Respondent

O R D E R

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.  

On July 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

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.  

The death 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.

The 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.

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When  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:

1. The elder child, Kumar Gaurao is slightly mentally retarded.  

He is 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.  

2. Both  the  children  live  in  a  house  at  Bhusawal  with  their  

paternal  grandmother.  Both of  them are  going to  schools.  

The younger boy is in class five. The paternal aunt of the  

children (petitioner’s sister) lives close by.

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3. The petitioner is a member of the Railway Protection Force.  

Till  sometime  ago  he  was  posted  at  Bhusawal  and  lived  

there together with his mother and children.

4. 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.

5. The 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 a hostel.  

She has some properties in Bhusawal also. She has not got  

any alimony and does not receive any maintenance from the  

petitioner.  

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6. The 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.

7. Both 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.

  In the 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.  

In the 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  

mother.

 The High 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.  

We can even say that at the end of the meeting, the mother seemed to agree  

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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:

1. Every 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.  

Having 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.  

2. During  the  three  long  vacations,  namely  the  summer  

vacation,  Diwali  vacation and Christmas vacation the  two  

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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.  

The direction comes into immediate effect and the respondent will be  

free to take the children for half the period of their current vacation.

The  directions  made  above  must  be  followed strictly  without  the  

slightest breach from either side.  

Put up this SLP after six months.

……………………………….J   ( AFTAB ALAM )

……………………………….J  ( T.S. THAKUR )

New Delhi, April 20, 2010

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