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2012 Supreme(UK) 481
SUPREME COURT OF INDIA
Hon’ble Mr. Justice P. Sathasivam and Hon’ble Mr. Justice Ranjan Gogoi
Civil Appeal No. 7232-7233 of 2012
GAYTRI BAJAJ – Appellant
Versus
JITEN BHALLA – Respondent
Decided on : 05.10.2012
For the Appellant : Mr. Indu Malhotra, Sr. Adv., Mr. Arun K. Sinha, Mr. N.S. Bajwa, Mr. Rakesh Singh, Mr. Sumit Sinha, Mr. ADN Rao, Mr. Atul Sharma, Mr. Abhishek Agarwal, Ms. Neelam Jain, Advs. with him.
For the Respondent: Mr. Pinaki Mishra, Sr. Adv., Mr. Sunil Kumar Jain, Mr. Aneesh Mittal, Advs.
Headnote:Hindu Marriage Act, 1955, Sec. 26, Guardian and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956 — Custody of children — Determining factors — It is the welfare and interest of the of the child and not the rights of the parents — It is the desire, interest and welfare of the minor which is crucial and ultimate consideration that must guide the determination required to be made by the Court — In case, where the children have expressed their reluctance to go with the mother, even for a short duration of time — Any visitation right to the mother, adverse to the interest of the children. (Paras 12 to 15)
fgUnw fookg vf/kfu;e] 1955] /kkjk 26] xkftZ;u ,.M okMZ~l ,DV] 1890 vkSj fgUnw ekbuksfjVh ,.M xkftZ;uf’ki ,DV] 1956 & cPpksa dk laj{k.k & fu/kkZj.k & ;g cPpksa dk dY;k.k vkSj fgr gS u fd ekrk&firk dk vf/kdkj & ;g vo;Ld dh bPNk] fgr o dY;k.k gS tks vfr vko’;d gS vkSj laj{k.k ij fopkj tks ekxZn’kZu djrk gS vnkyr dk & okn esa tgk¡ cPpksa us viuh vfuPNk O;Dr djh viuh ek¡ ds ikl FkksM+s le; ds fy, jgus dh Hkh & bl izdkj ekrk ds fujh{k.k ds vf/kdkj cPpksa ds fgr esa izfrdwyA ¼izLrj 12 ls 15½
Ranjan Gogoi, J. — Leave granted.
2. These appeals are directed against the judgment and order dated
08.09.2008 passed by the High Court of Delhi in Matrimonial Appeal No. 72/2007 and the order dated 10.7.2009 declining review of the aforesaid order dated 08.09.2008.
3. The facts lies in a short compass and may be usefully recapitulated at this stage.
The appellant (wife) and the respondent (husband) were married on
10.12.1992. Two daughters, Kirti and Ridhi, were born to them on 20.8.1995 and 19.4.2000 respectively. Disputes and differences having developed between the parties a joint petition dated 23.05.2003 was presented by the parties under Section 13 B of the Hindu Marriage Act (hereinafter referred to as ‘the Act’) seeking a decree of divorce by mutual consent. In the joint petition filed it was stated by both the parties that they have been living separately since December, 2001, due to irreconcilable differences and in view of their separate residence and lack of any co-habitation as husband and wife, the parties, upon failure to effect any reconciliation of their differences, have agreed to dissolve their marriage by mutual consent under the provisions of section 13B of the Hindu Marriage Act.
4. It appears that without waiting for the period prescribed under Section 13B (2) of the Act, a second Motion was moved by the parties before the learned Court on 26.05.2003 seeking divorce by mutual consent. By order dated 3.6.2003 the learned trial court, after recording its satisfaction in the matter, granted a decree of divorce under the aforesaid provision of the Act. It may be specifically noticed, at this stage, that in the joint petition filed before the learned trial court it was specifically stated that, under the terms of the agreement between the parties, the respondent-husband was to have sole custody of the two minor daughters and the appellant-wife had agreed to forego her rights of visitation keeping in view the best interest and welfare of the children.
5. After the expiry of a period of almost three years from the date of decree of the divorce granted by the learned trial court, the appellant-wife instituted a suit seeking a declaration that the decree of divorce dated 3.6.2003 is null and void on the ground that her consent was obtained by acts of fraud and deceit committed by the respondent - husband. A further declaration that the marriage between the parties is subsisting and for a decree of perpetual injunction restraining the husband from marrying again was also prayed for in the suit. The respondent-husband filed written statement in the suit denying the statements made and contesting the challenge to the decree of divorce. While the aforesaid suit was pending. the appellant-wife filed an application under Section 151 of the Code of Civil Procedure to recall/set aside the judgment and decree dated 03.06.2003 passed in the divorce proceeding between the parties. The aforesaid application under section 151 of the Code was filed despite the institution of the separate suit seeking the same/similar reliefs. On the basis of the aforesaid application filed by the appellant-wife the learned trial court by order dated 25.09.2007 recalled the decree of divorce dated 3.6.2003. Aggrieved, an appeal i.e. Matrimonial appeal No. 72/2007, was filed by the respondent-husband in the High Court of Delhi which was allowed by the order dated 08.09.2008. The application seeking review of the aforesaid order dated 08.09.2008 was dismissed by the High Court on 10.07.2009. Both the aforesaid orders dated 08.09.2008 and 10.07.2009 have been assailed before us in the present appeals.
6. In-so-far as the validity of the decree of divorce dated 03.06.2003 is concerned we do not propose and also do not consider it necessary to go into the merits of the said decree inasmuch as the High Court, while setting aside the order of the learned trial court dated 25.09.2007 recalling the decree of divorce, had clearly ob
