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, 2nd  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 18th of  

December to 26th of January and then from 26th of  

June to 11th 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