2011 Supreme(SC) 1151

2011 (8) Supreme 457
SUPREME COURT OF INDIA
P. Sathasivam and J. Chelameswar, JJ.
Gaytri Bajaj — Petitioner(s)
versus
Jiten Bhalla — Respondent(s)
Special Leave Petition (C) Nos. 35468-35469 of 2009
Decided on : 16-12-2011

IMPORTANT POINT
In 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.

Headnote:Hindu Marriage Act, 1955 - Section 13-B(1) - Parties married on 10.12.1992 and two daughters were born out of said wedlock- Suit for declaration filed by petitioner wife seeking a declaratory decree that respondent husband had obtained a divorce decree by fraud- Respondent-husband filed an appeal under Section 28 of the Act - Petitioner-wife filed cross-objections to said appeal - High Court allowed the appeal filed by respondent-husband -Review petition -Dismissed -Special leave petitions thereagainst regarding custody of two children- Both of girls aged 17 and 11 were living with their father and were in his custody and petitioner-wife had no access to children or even a brief meeting with them- After interacting with children separately and putting several questions about their age, education, their future and importance of company of mother as of now, both of them were very clear and firm that they wanted to continue to live with their father and they did not want to go with their mother- In said facts and circumstances, held that if children were forcibly taken away from father and handed over to mother, undoubtedly, it would affect their mental condition and it would not be desirable in the interest of their betterment and studies- In such a situation, held that better course would be that mother should first be allowed to make initial contact with children, build up relationship with them and gradually restore her position as their mother-Held not desirable to disturb custody with father –However to meet ends of justice visitation rights provided to mother-Petitions disposed off (Paras 5 to 10)

        Child custody-In 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 statutes, 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 consideration (Para 7)

       Facts of the Case :

        A. Parties herein in the instant case married on 10.12.1992 and two daughters were born out of said wedlock. 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.

        B. Issue in consideration in present special leave petitions was regarding custody of two children.

       Findings of the Court :

        A.In 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 statutes, 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 consideration.

        B. Both of girls aged 17 and 11 were living with their father and were in his custody and petitioner-wife had no access to children or even a brief meeting with them.After interacting with children separately and putting several questions about their age, education, their future and importance of company of mother as of now, both of them were very clear and firm that they wanted to continue to live with their father and they did not want to go with their mother. In said facts and circumstances, held that if children were forcibly taken away from father and handed over to mother, undoubtedly, it would affect their mental condition and it would not be desirable in the interest of their betterment and studies. In such a situation, held that better course would be that mother should first be allowed to make initial contact with children, build up relationship with them and gradually restore her position as their mother. Hence Held not desirable to disturb custody with father. However To meet ends of justice visitation rights provided to mother.