JUDGMENT

Anil R. Dave, J.

1. Leave granted.

2. Being aggrieved by the judgment of the High Court of Delhi dated the 21st of February, 2011 in CM (M) 1018 of 2010, these appeals have been filed by the parties before the High Court, who are parents of two children, whose custody is the subject matter of these appeals.

3. As the impugned order is challenged in both these appeals, both the appeals were heard together and they are being decided by this common order. For the sake of convenience, parties to the litigation have been referred to herein below as arrayed in Civil Appeal arising out of Special Leave petition No. 13254 of 2011.

4. The marriage of the Appellant and the Respondent was solemnized on 14.02.1994. From the wedlock, two sons were born, who are approximately 15 and 9 years old. The Appellant and the Respondent have been living separately since 10.04.2007, and have been involved in various litigations since then, including a petition for divorce Under Section 13(1)(i) & 1A of the Hindu Marriage Act, 1955 filed by the Appellant-father and also proceedings under the Protection of Women from Domestic Violence Act, 2005, initiated by the Respondent- mother. The Appellant, who is an IAS officer, stationed at Jammu at present, had sought certain modifications in the arrangement of custody of the children, and also permission to take transfer certificates of the children from Delhi and complete their admission in a school in Jammu, and in this respect, moved applications dated 25.05.2010 and 22.06.2010 before the Additional District Judge. The Learned Additional District Judge, vide order dated 19.07.2010 was pleased to allow the applications moved by the Appellant-father.

5. Being aggrieved by the above-mentioned judgment delivered by the Trial Court, the Respondent preferred CM (M) No. 1018 of 2010 before the High Court. By virtue of the impugned judgment, the High Court partly allowed the petition filed by the Respondent whereby the Respondent was permitted to have custody of the younger son, whereas the Appellant was to have custody of the elder son.

6. While coming to the above conclusion, the High Court has cited various decisions in support of the contention that while deciding the issue about custody of children in a matrimonial dispute, the paramount consideration is that of welfare of the child. Thereafter, on the basis of interaction with the children in the Chambers, the learned Single Judge was of the view that the elder son had a strong desire to stay with the Appellant-father. He also found that there was also an admission by the Respondent-mother that she would not be able to adequately handle the educational needs of the elder son without tutors. For the aforestated reasons, the learned Single Judge ordered that custody of the elder son should remain with the Appellant-father.

7. In the case of the younger son, the learned Single Judge observed that he, being of a very tender age, was incapable of forming a definite preference as to with whom he wanted to stay. In the circumstances, the learned Single Judge ordered that the custody of the younger son should be given to the Respondent-mother, as she would be in a better position to understand the needs of such a young child. On this basis, the custody of the younger son was directed to remain with the Respondent.

8. The learned Single Judge also recorded a finding to the effect that both the children appeared to be very happy in the company of each other as there was a strong bonding between them.

9. Being aggrieved by the said judgment, both the parties have come before this Court vide the present appeals.

10. We heard the Learned Counsel for the parties, and also spoke to the children at length.

11. The counsel appearing for the Appellant-father, at the outset, submitted that the High Court ought not to have directed separation of two children, in view of the close relationship between them and he further submitted that there could be disastrous effect of such a sep