Vikram Vir Vohra vs Shalini Bhalla
2009 Latest Caselaw 2836 Del

*           HIGH COURT OF DELHI AT NEW DELHI

+                  MAT APP. 38/2009

                           Date of decision : 27th July, 2009

      VIKRAM VIR VOHRA                  ..... Appellant

                   Through : Mr. B.D. Kaushik, Advocate
                             Mr. Deepak Thakur, Advocate

                           Versus

      SHALINI BHALLA                    .....Respondent

            Through :       Mr. Sudhir Nandrajog, Senior
                            Advocate with
                            Mr. Siddharth Shankar Ray,
                            Mr. Pramod Kumar Sharma,
                            Advocates.
%
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?           Yes

     (3) Whether the judgment should be reported
         in the Digest ?                                  Yes

                        JUDGMENT

ARUNA SURESH, J.

1. This appeal has been preferred by the appellant

assailing the order of the Additional District Judge

(ADJ) dated 6th April, 2009 whereby the applications

of the respondent dated 7.11.2006 and 13.5.2008

filed under Section 26 of the Hindu Marriage Act

(hereinafter referred to as „Act‟) were allowed and

the applications of the appellant dated 30.11.2007

and 16.2.2009 under the same provision of law

seeking permanent custody of the child Master

Shivam were dismissed.

2. Parties to the appeal were married according to

Hindu rites on 10.12.2000. A male child namely

Master Shivam was born out of the wedlock of the

parties. Due to disputes and differences parties

mutually agreed to divorce each other. Accordingly

petition under Section 13-B (1) as first motion

petition and another under Section 13-B (2) of the

Act as second motion petition were filed. A decree

of divorce by way of mutual consent was granted in

favour of the parties vide judgment dated 5.9.2006.

3. As regards custody and visitation rights in respect

of the minor child, the parties had arrived at a

settlement, besides claim of the respondent for

dowry articles, stridhan etc. were settled. The terms

of settlement have been incorporated in para 7, 8 &

9 of the petition filed under Section 13-B (2) of the

Act which reads as under:-

"7. 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 visitation only to the extent that the child Master Shivam shall be with the father Petitioner No.2, once in a fortnight from 10 A.M. to 6.30 P.M. on a Saturday Petitioner No.2 shall collect the child Master Shivam from WZ-64, IInd Floor, Shiv Nagar, Lane No.4, New Delhi -110058 at 10 A.M. on a Saturday where the child is with his mother. And on the same day at by 6.30 P.M. 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 agreement.

8. 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.

9. 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."

4. Parties adhered to the terms and conditions of their

settlement including custody and visitation rights of

the child. These applications have been filed by the

parties seeking modification of the said terms and

conditions. Respondent has sought permission to

take Master Shivam with her to Australia where she

is presently employed for gain with a request to

revoke the visitation rights granted to the appellant

for meeting Master Shivam in the paramount

interest and welfare of the child.

5. Appellant 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.

6. The trial court modified the terms and conditions of

the settlement as regards custody and visitation

rights of the child vide the impugned order in the

following terms:-

"i) Ms. Shalini Bhalla - the natural mother shall bring the child to India for visitation with his father 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;

ii) Total travelling expenses for visits of the child from Australia to India and return journey, during the period December-January, shall be borne by Ms. Shalini Bhalla, in addition to her own traveling expenses.

iii) Half of the travelling expenses for visits of Ms. Shalini Bhalla and the child from Australia to India and return journey, during June-July, shall be borne by Ms. Shalini Bhalla - the mother whereas the other half shall be borne by the father Sh. Vikram Vir Vohra.

iv) Ms. Shalini Bhalla shall, on arrival from Australia to India during the aforesaid periods, ahdn over the child to Sh. Vikram Vir Vohra in the next morning of their arrival in India.

v) Ms. Shalini Bhalla shall give prior intimation to Sh. Vikram Vir Vohra about the schedule of her arrival along with the child to India from Australia, during the aforesaid periods.

vi) During the aforesaid periods, Master Shivam-child shall stay exclusive with his father Sh. Vikram Vir Vohra and his family members as per choice of the father. However, during this period of his stay with the father, the child shall be free to contact or be in touch with his mother telephonically.

vii) At the time of stay of the child with his father Shri Vikram Vir Vohra, all expenses of the child during the said periods shall be exclusively borne by him (father) and he shall look after and take proper care of the child in all respects. In case the chi8ld during his stay with his father, during these periods, falls ill, Sh. Vikram Vir Vohra- father shall inform the natural mother of the child without delay so that the child has the moral support of the mother during his illness/treatment.

viii) On completion of the aforesaid term of stay, Shri Vikram Vir Vohra- father shall hand over the child without delay to the mother, so that she is able to take him along for return journey to Australia.

ix) In case Ms. Shalini Bhalla is ever personally unable to visit India during aforesaid period, she shall ensure visit of the child to India during the said period in the company of her mother or any other attendant, whom she deems proper, and in such eventuality Shri Vikram Vir Vohra shall bear half of the expenses, as mentioned above for the attendant/maternal grandmother of the child and that of the child."

7. Aggrieved by the said order of the trial court, the

present appeal has been filed.

8. Mr. B.D. Kaushik, learned counsel for the appellant

has made three-fold submissions.

9. It is argued that provision of Section 26 of the Act

could not have been invoked by the respondent

seeking modification of the terms and conditions of

the custody and visitation rights of the child as the

terms of settlement were not incorporated in the

decree and since there is no decree passed by the

court, 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 court has no jurisdiction to

entertain the petition afresh after passing of the

decree. It is argued that the impugned order is

manifestly illegal and erroneous besides being

without jurisdiction.

10. Second limb of argument is that it will not be in the

welfare and interest of the minor child to send him

to Australia as he would be left alone in the

company of the respondent who would be occupied

in her job and the child would be left at the mercy of

Crutches or the paid boarding houses and would be

cut from the roots of the family and he would be a

neglected child devoid of love, care and affection of

his parents.

11. Third limb of argument is that the child is growing

up and has been brought up according to Hindu

cultural values, traditions and usages. He is

familiar with the Hindu civilization and if exposed to

the foreign culture, it would be detrimental to the

ethical and moral development of the child besides

the child would find it difficult to adopt the cultural

values of Australia and therefore it is in the interest

of the child that his permanent custody is given to

the appellant.

12. Mr. Sudhir Nandrajog learned Senior counsel for the

respondent argued that the child is attached to his

mother and it is in his interest that he is allowed to

go to Australia with his mother. Respondent has no

objection if the child visits his father; the appellant

twice in a year and stays with him during the said

visits. Sicne the child is being brought up in Indian

culture by his mother, there is no likelihood of his

being exposed to the Australian culture which might

be against his welfare.

13. It is further argued that the provisions of Section 26

of the Act were rightly invoked by the respondent

when she moved an application under Section 26 of

the Act seeking modification of the terms and

conditions of the agreement regarding the custody

and visiting rights of the child as the terms and

conditions are contained in the application for

mutual divorce filed under Section 13-B (2) of the

Act. The court has the power to entertain

application under Section 26 of the Act even after

passing of the decree and pass appropriate orders.

The trial court was within its right and jurisdiction to

entertain the application and pass the impugned

order.

14. It is also argued that the order of the trial court is a

balanced order wherein the visiting rights of the

appellant have been taken care of by the court.

Therefore, according to him, the appeal is without

merits and should be dismissed.

15. Section 26 of the Act provides for custody,

maintenance and education of minor children and

declares that in any proceedings under the Act, the

court has the power to make from time to time such

interim orders as it might deem just and proper

consistently with their wishes wherever possible.

Even after the decree is passed the court has the

power of pass such an order. Provided an

application by the petitioner for the said purpose is

made to the Court.

16. Careful analysis of the provisions of Section 26 of

the Act indicate that there are certain stages of

action that may be taken by the court under the

said Act. They are:-

(a) At any time before passing of final decree, the

court can pass interim orders regarding to the

custody, maintenance and education of the

child;

(b) Such like provision could be made by the court

in the decree;

(c) Even after decree is passed, an application

may be made to the court by way of a petition

for making orders for custody, maintenance

and education of the child.

17. Therefore, under Section 26 of the Act passing of a

decree under the impugned proceedings does not

terminate the courts jurisdiction to pass certain

orders in respect of the custody of a child. The

intention of the legislature relating to Section 26 of

the Act, therefore, is explicit as it provides power to

the Court to pass order even after the decree is

passed.

18. However, this provision is intended to enable the

court to pass a suitable order from time to time to

protect the interest of the minor children. At the

same time, it does not mean that after the final

order is passed in original petition filed for the

custody of the minor child, the other party can file

any number of fresh original petitions ignoring the

earlier order passed by the court. Such a fresh

application can only be filed seeking revocation,

suspension or variation of the earlier order.

19. Section 26 of the Act does not enable the parties to

the earlier petition to ignore orders passed therein

and file a fresh petition for a similar relief, contrary

to the one which was passed in the earlier petition.

20. The parties to the appeal filed various applications

seeking modification in the terms and conditions of

settlement arrived at inter se them which formed

part of the petition seeking divorce by mutual

consent. As per para 11 of the petition it was made

clear by the parties that the terms and conditions as

settled (as reproduced above) were binding upon

them. In their statement made in the court in the

proceedings on the petition under Section 13-B (2)

of the Act, they stated that they had settled all their

claims and disputes, as observed in the judgment

dated 5.9.2006.

21. Thus, even if the terms and conditions regarding the

custody and visitation rights of the child are not

specifically contained in the decree, but they do

form part of the petition seeking divorce by mutual

consent. 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.

22. Therefore, the trial court was right in holding that

Section 26 of the Act empowers the court even after

passing of the decree to pass orders and

proceedings with respect to custody, maintenance

and education of the child from time to time, on an

application by petition, as might have been made at

the time of passing of the decree. Under the

circumstances, the court rightly treated the

applications filed by the respective parties as being

filed under Section 26 of the Act after passing of the

decree of divorce.

23. Hence, I do not find any infirmity and illegality in the

observations of the trial court as regards its

jurisdiction to entertain applications under Section

26 of the Act seeking revocation/medication of the

terms and conditions of the settlement. I conclude

that the trial court had the jurisdiction to entertain

the applications under Section 26 of the Act.

24. The principles to be kept in mind by the court in

relation to custody of a minor child are well settled.

While considering the custody of a minor child,

paramount consideration of the court is the welfare

of the child and not the rights of the parents under

the statue for the time being in force. It is neither

the welfare of the father nor the welfare of the

mother which the court has to consider but, it is the

welfare of the minor and of the minor alone which is

of paramount consideration. A child cannot be

treated as a chattel. The purpose and object of the

Act is not merely the physical custody of the child

but also due protection of his rights of health,

maintenance and education. Father of course is a

natural guardian of a minor son by virtue of Section

6 of the Hindu Minority and Guardianship Act but

then, the said provision cannot supersede the

paramount consideration as to what is conducive to

the welfare of the child. Better financial resources

of either of the parents or their love for the child

can be considered as one of the relevant

consideration but not the sole determining factor for

the custody of the child. A heavy duty is cast on the

court to exercise its judicial discretion judiciously

keeping in consideration the relevant facts and

circumstances of the case, bearing in mind the

welfare of the child as the paramount consideration

while deciding the custody of the child.

25. In „Rosy Jacob vs. Jacob A. Chakramakkal,

(1973) 1 SCC 840', it was observed:-

"............The family is normally the heart of our society and for a balanced and healthy growth of children it is highly desirable that they get their due share of affection and care from both the parents in their normal parental home. Where, however, family dissolution due to some unavoidable circumstances becomes necessary the Court has to come to a judicial decision on the question of the welfare of the children on a full consideration of all the relevant circumstances. Merely because the father love his children and is not shown to be otherwise undesirable the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and, who, in addition, because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them. The children are not mere chattels nor are they mere play-things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changes social conditions, yielded to

the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them........................"

26. The principles governing the custody of the minor

child as laid down in this judgment have been

persistently followed by the Supreme Court in its

various judgment.

27. In 'Mausami Moitra Ganguli vs. Jayant Ganguli,

(2008) 7 SCC 673' referred to by both the parties,

it was observed:-

"19. The principles of law in relation to the custody of a minor child are well settled. It is trite that while determining the question as to which parent the care and control of a child should be committed, the first and the paramount consideration is the welfare and interest of the child and not the rights of the parents under a statue. Indubitably, the provisions of law pertaining to the custody of a child contained in either the Guardians and Wards Act, 1890 (Section 17) or the Hindu Minority and Guardianship Act, 1956 (Section 13) also hold out the welfare of the child as a predominant consideration. In

fact, no statue, on the subject, can ignore, eschew or obliterate the vital facto of the welfare of the minor.

20. The question of welfare of the minor child has again to be considered in the background of the relevant facts and circumstances. Each case has to be decided on its own facts and other decided cases can hardly serve as binding precedents insofar as the factual aspects of the case are concerned. It is, no doubt, true that father is presumed by the statutes to be better suited to look after the welfare of the child, being normally the working member and head of the family, yet in each case the court has to see primarily to the welfare of the child in determining the question of his or her custody. Better financial resources of either of the parents or their love for the child may be one of the relevant considerations but cannot be the sole determining factor for the custody of the child. It is there that a heavy duty is cast on the court to exercise its judicial discretion judiciously in the background of all the relevant facts and circumstances, bearing in mind the welfare of the child as the paramount consideration."

This judgment has been followed in 'Nilratan

Kundu & Anr. vs. Abhijit Kundu, (2008) 9 SCC

413.

28. Having given anxious thoughtful consideration to

the facts of the present case and keeping in mind

the well settled principles as referred above, I am of

the view that the approach of the trial court while

disposing of the applications was right. The trial

court rightly did not revoke the visitation rights of

the appellant. It dealt with the submission of the

appellant in the right perspective keeping in mind

the paramount consideration and the welfare of the

child regarding his custody, education, etc. and

passed a balanced order.

29. Master Shivam was born on 5th August, 2002.

Parties started living separately from 10th April,

2004. Since thereafter Master Shivam is in the

custody of his mother, the respondent. When the

parties could not reconcile their dispute they

obtained divorce by mutual consent. Before parties

moved the court seeking divorce by mutual consent

they settled terms and conditions regarding the

custody, the visitation rights as well as claim of the

respondent for maintenance for herself and that of

Master Shivam besides her claim towards stridhan,

permanent alimony, etc. Parties adhered to these

terms and conditions as settled between them.

Soon after the divorce, respondent filed an

application on 7.11.2006 seeking permanent

custody of the child also seeking revocation of the

visitation rights of the appellant on the plea that it

was in the paramount interest and welfare of the

child that the visitation rights were revoked.

30. I had the occasion to interview the child who is aged

about 7 years in the chamber to ascertain his

wishes. The child in categorical terms expressed his

wish to be in the custody and guardianship of his

mother, the respondent. The child appeared to be

quite intelligent when questioned. It was

specifically asked to him if he wanted to go to his

father and stay with him in India but he

unequivocally refused to go with him 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.

Significantly, the trial court had also talked to the

child in the chamber before passing the impugned

order. „Thrity Hoshie Dolikuka Vs. Hoshiam

Shavaksha Dolikuka, (1982) S SCC 544' has no

application to the facts and circumstances of the

case.

31. Appellant has not revealed any circumstance which

would jeopardize the welfare and interest of the

child if he is allowed to remain in custody of his

mother.

32. Much has been said regarding the Indian cultural

environment in which the child is brought up in

India to discard the claim of the respondent to take

the child with her to Australia where she is

employed for gain. It is not highlighted as to how

the health, education or intellectual development as

well as physical comfort and moral values of the

child would be affected if he is allowed to live with

his mother in Australia. Rather, I am of the view

that bringing up of the child in favourable

surroundings as well as in physical comfort and

protection of his mother, his education and

intellectual development is likely to be more

conducive for the welfare of the child.

33. The trial court at the same time had also kept in

mind child‟s cordial relationship with his father,

whom he had been visiting twice a month while in

Delhi while directing the respondent to bring the

child twice in a year during the period as specified

to meet his father, the appellant and stay with him.

Respondent is not averse to the child visiting his

father in India and staying with him during the

period as scheduled in the order. Rather, it has

been made clear to the court during the course of

arguments that respondent shall ensure that the

impugned order of the court shall be duly complied

with.

34. Keeping in mind the welfare of the child being the

paramount consideration and not statutory rights of

the parents, I concur with the findings of the trial

court when he permitted the respondent to take the

child with her to Australia on directions contained in

last but one paragraph of the impugned judgment.

35. Hence, I find no merits in the appeal, the same is

accordingly dismissed.

36. Also pending application stands disposed of.

37. Attested copy of the order be given to the

respondent under the signature of Court Master.

(ARUNA SURESH) JUDGE July, 27 2009 vk