1. Divorce proceeding under Hindu Marriage Act — Dispute over child's schooling and boarding house admission — Direction to elect a single forum for maintenance. (Para 3 , 4 , 5 )
Back
Next 
2019 Supreme(SC) 399
IN THE SUPREME COURT OF INDIA
R. BANUMATHI, R. SUBHASH REDDY, JJ.
NUTAN GAUTAM - Appellant
VERSUS
PRAKASH GAUTAM - Respondent
CIVIL APPEAL No(s). 3409-3410 OF 2019 (Arising out of SLP(C) No(s).28166-28167 OF 2018)
Decided on : 05-04-2019.
Important Points
IMPORTANT POINT
While considering welfare of the child his inclination and preference should also be considered.
While considering welfare of the child his inclination and preference should also be considered.
Subject
Family Law - Child Custody
Act Referred
Headnote
(a) Matrimonial dispute – Welfare of child – Inclination of the child and where he is comfortable are also important factors – The other parent is entitled to visitation rights. (Para 13, 15)
(b) Hindu Marriage Act, 1955 – Section 13(1)(ia)(iii) – Maintenance – High Court directing wife to elect one forum from which she wants to get the maintenance – Not in conformity of law. (Para 14)
Facts of the case:
The divorce petition filed by the husband was decreed ex-parte by the Trial Court in favour of the respondent-husband. The Trial Court also directed that the son of the appellant, namely, Krish alias Master Krishav Gautam, should be admitted in Col. Satsangi’s Kiran Memorial Public School, New Delhi.
Pursuant to order of the Family Court, the son of the parties has been admitted in Col. Satsangi’s Kiran Memorial Public School, New Delhi, and he has been put in a Boarding House of the School. By way of an interim order dated 21.05.2018 passed by the High Court, which is impugned in these appeals, the respondent-husband was permitted to take the boy with him to Delhi and to leave him in the Boarding House till the start of the summer vacations of 2018. Further, the appellant-mother was permitted to take the child in summer vacations and leave him in the School/Boarding House before the reopening of the School.
After reopening of the School in the summer vacation, it appears that the boy, Krish @ Master Krishav Gautam, was not willing to go to study in the Boarding House in Col. Satsangi’s Kiran Memorial Public School, New Delhi. Further, fifteen days’ time was granted by the High Court to the appellant-mother vide Order dated 20.08.2018 to comply Order dated 21.05.2018.
Finding of the Court:
Impugned order is not sustainable.
Result: Appeal allowed.
Legal Category Hierarchy
Advocates Appeared:
For Petitioner(s) Mr. Anupam Mishra, AOR Mr. Harikumar V.,Adv. Ms. Simanta Kumar,Adv.
For Respondent(s): Mr. R. Basant,Sr.Adv. Mr. Prakash Gautam,Adv. Mr. Vivek Ojha,Adv. Mr. Gazab Singh Chauhan,Adv. Ms. Harsh Lata, AOR
For Petitioner(s) Mr. Anupam Mishra, AOR Mr. Harikumar V.,Adv. Ms. Simanta Kumar,Adv.
For Respondent(s): Mr. R. Basant,Sr.Adv. Mr. Prakash Gautam,Adv. Mr. Vivek Ojha,Adv. Mr. Gazab Singh Chauhan,Adv. Ms. Harsh Lata, AOR
Table of Contents
2. Dispute over whether child's preference and attachment to mother outweigh the benefits of a superior school in another city for child welfare. (Para 8 , 9 )
3. Child's acclimatization to current school and expressed desire to stay, coupled with attachment to mother, are critical for child welfare. (Para 12 , 13 )
4. Child welfare is paramount; a child cannot be compelled to attend a boarding school against their will and preference for a familiar environment. (Para 12 , 13 )
5. High Court orders set aside — Child permitted to continue in current school — Visitation rights granted to father — Maintenance forum election direction quashed. (Para 14 , 15 , 16 , 17 )
6. How is the welfare of a child determined regarding schooling and boarding house admission?
The court considers the child's acclimatization to their current environment, their expressed desire, and their emotional attachment to a parent. A child cannot be compelled to join a boarding school if it contradicts their welfare and preference. (Para 12 , 13 )
7. Can a court direct a spouse to elect only one forum for claiming maintenance?
No, the court held that directing a spouse to elect only one forum from which to receive maintenance is not in conformity with the law. (Para 14 )
8. Does a non-custodial parent retain visitation rights when the child resides with the other parent?
Yes, as a natural parent, the father is entitled to visitation rights, which can be scheduled on holidays and weekends, subject to the welfare of the child. (Para 15 )
JUDGMENT :
R. Subhash Reddy, J.:
1. Leave granted.
2. These appeals are filed by the wife of the respondent herein aggrieved by orders dated 21.05.2018 and 20.08.2018 passed by the High Court of Judicature at Allahabad in First Appeal No.316 of 2018.
3. The marriage of the appellant-wife and the respondent-husband was solemnized in the year 2006. In the year 2009 a son was born to them who is named Krish alias Master Krishav Gautam. In the year 2012, respondent-husband filed a petition for divorce under Section 13(1)(ia)(iii) of the Hindu Marriage Act, 1955. The said divorce petition is decreed ex-parte by the Trial Court in favour of the respondent-husband. The Trial Court also directed that the son of the appellant, namely, Krish alias Master Krishav Gautam, should be admitted in Col. Satsangi’s Kiran Memorial Public School, New Delhi.
4. Aggrieved by the ex-parte order, the appellant herein filed First Appeal NO.316 of 2018 before the High Court of Judicature at Allahabad. Pursuant to order of the Family Court, the son of the parties has been admitted in Col. Satsangi’s Kiran Memorial Public School, New Delhi, and he has been put in a Boarding House of the School. By way of an interim order dated 21.05.2018, which is impugned in these appeals, the respondent-husband was permitted to take the boy with him to Delhi and to leave him in the Boarding House till the start of the summer vacations of 2018. Further, the appellant-mother was permitted to take the child in summer vacations and leave him in the School/Boarding House before the reopening of the School.
5. The Family Court has also awarded an amount of Rs.10,000/- per month towards maintenance for the appellant-wife. In view of the plea of the respondent-husband that the appellant-wife is entitled for maintenance only from one forum, appellant-wife is directed to elect one forum to which she wants to get maintenance.
6. After reopening of the School in the summer vacation, it appears that the boy, Krish @ Master Krishav Gautam, was not willing to go to study in the Boarding House in Col. Satsangi’s Kiran Memorial Public School, New Delhi. Further, fifteen days’ time was granted by the High Court to the appellant-mother vide Order dated 20.08.2018 to comply Order dated 21.05.2018.
7. We have heard Mr. Harikumar V., learned counsel appearing for the appellant-wife, and Mr. R. Basant, learned senior counsel appearing for the respondent-husband.
8. It is contended by learned counsel for the appellant-wife that the boy is not willing to study in the Col. Satsangi’s Kiran Memorial Public School, New Delhi, as he is attached to his mother very much and intends to study in his old school. Accordingly, he was admitted in Global International School, Shahjanpur, where he is comfortable with his studies. It is submitted at the Bar that as welfare of the child is the paramount consideration and he is good at studies by pursing his study in Global International School also at Shahjanpur, and requested to set aside the impugned order and permit the boy to continue in the same school at Shahjanpur.
9. On the other hand, Shri R. Basant, learned senior counsel appearing for the respondent, has submitted that the respondent is willing to join his son in the best school of Delhi by paying more than Rs.2,00,000/-(Rupees Two Lakhs) towards fees and it is in the interest and welfare of the child to allow him to study only at Col. Satsangi’s Kiran Memorial Public School, New Delhi. Further, It is submitted that there was a specific direction for joining the boy in the Boarding House/School at New Delhi after reopening, the appellant-wife has violated Order dated 21.05.2018 and further Order dated 20.08.2018. It is submitted that wish of the child itself is not a criteria and the welfare of the child will be best served by admitting him in Col. Satsangi’s Kiran Memorial Public School, New Delhi.
10. We have heard learned counsel on both the sides, perused Orders dated 21.05.2018 and 20.08.2018 and other m
