DR. AMIT KUMARversusDR. SONILA & ORS.

                        [2018] 13 S.C.R. 561                              561


                        DR. AMIT KUMAR                                    A
                                  v.
                       DR. SONILA & ORS.
                  (Civil Appeal No. 10771 of 2018)
                        OCTOBER 26, 2018                                  B
   [KURIAN JOSEPH AND SANJAY KISHAN KAUL, JJ.]
       Hindu Minority and Guardianship Act, 1956 – s.6 –
Guardianship – Custody rights – Appellant and respondent no.1
divorced by mutual consent – In terms of the divorce decree, custody
                                                                          C
of the children (son and daughter) was to be with the appellant and
the appellant was to provide for expenses of the son, while respondent
no.1 was to provide likewise for the daughter – Appellant and
respondent no.1 were doctors with the CRPF posted in Nanded – At
the relevant time, however, appellant was transferred to Jammu
necessitating admission of the children to boarding school –              D
Respondent No.1 failed to make financial contributions as agreed
– Appellant sent legal notice to respondent no.1 – Respondent no.1
filed application seeking custody of the children as also a suit for
declaration that decree of divorce was obtained by fraud – High
Court directed the custody of the children to be with respondent
                                                                          E
no.1, with visiting rights to the appellant – Propriety of – Held:
Decision to give custody of the children to the appellant was a
conscious decision taken by the parties and can hardly be
categorised as a decision under force, pressure or fraud – Trigger
for respondent no.1 claiming custody of the children arose only
when the appellant asked her to contribute financially – Present is       F
not a case of financial difficulty, but the unwillingness of respondent
no.1 to contribute for her own daughter – Proceedings for the
custody and for cancellation of the decree of divorce were to
pressurise the appellant to not claim any amounts – High Court
gave undue importance to the conversation with the children at a
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time when naturally they would prefer to stay with a parent rather
than a boarding school – It was not as if the appellant was not
looking after the children – Children showed affection for the
appellant – It was due to the exigencies of his service conditions
that the children had to be put in a boarding school for some time,
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                                 561
562            SUPREME COURT REPORTS                     [2018] 13 S.C.R.


A     which exigency also does not remain at present – Further, appellant’s
      second marriage cannot be put against him as the parties had agreed
      that they were free to re-marry – Interference by the High Court
      was unjustified – Order of the Family Court granting divorce in
      terms of the decree was in order – Children be returned to the
      appellant by respondent No.1 – Rights and obligations as envisaged
B
      in the decree of divorce by mutual consent bind both the parties –
      Code of Civil Procedure, 1908– Order II, r.2.
            Allowing the appeal, the Court
            HELD: 1.1 The decision to give custody to the appellant,
C     of the two children, was a conscious decision taken by the parties
      at the relevant stage and can hardly be categorised as a decision
      under force, pressure or fraud. Respondent No.1 is well-educated
      and is a medical practitioner. There was a six (6) months’ hiatus
      period for the parties to think over the terms of the settlement
      before the grant of the decree of divorce, which is the statutory
D     period available for the parties to have a re-think, if they so deem
      it appropriate. The parties had clearly agreed as per clause 5
      that they were free to re-marry. As per the terms of the custody,
      the said marriage does not have any effect on the custody rights,
      at least in the terms between the parties. The appellant had also
E     borne all the expenses for both the children, as respondent No.1
      even initially failed to contribute anything towards the expenses
      for the daughter, contrary to the agreement inter se the parties.
      [Para 16] [569-B-D]
             1.2 The trigger for respondent No.1 claiming custody of
F     the children arose only when the appellant asked her to contribute
      financially. It was not a case of financial difficulty, but the
      unwillingness of respondent No.1 to contribute for her own
      daughter, while simultaneously transferring amounts to a
      colleague of hers (with whom the respondent No.1 allegedly had
      a liaison). It does appear that the proceedings initiated initially
G     for the custody and thereafter for seeking cancellation of the
      decree of divorce were clearly an endeavour to pressurise the
      appellant to not claim any amounts. Order II Rule 2 of the Code
      of Civil Procedure, 1908 specifies that where a plaintiff
      intentionally relinquishes, any portion of his claim, he shall not
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            DR. AMIT KUMAR v. DR. SONILA & ORS.                           563


afterwards sue in respect of the portion so relinquished.                 A
Respondent No.1 had relinquished her rights to claim custody
and the suit filed by her, thus, is also highly doubtful. The second
marriage of the appellant cannot be put against him, nor can the
factum of the child of his second wife residing with him deprive
him of the custody rights of his two children, which was specifically
                                                                          B
conferred on him with the consent of respondent No.1.
[Paras 14, 17 and 18] [568-C-D; 569-E-H]
       1.3 It is not as if the appellant was not looking after the
children. The children showed affection for their father. It was
due to the exigencies of the appellant’s service conditions that
the children had to be put in a boarding school for some time,            C
which exigency also does not remain at present. It was known to
the parties that they were in a transferable job. A conscious
decision was taken by the parties to give the sole custody to the
appellant, in the interest of the children. Respondent No.1, in
order to avoid the financial liability started these proceedings,         D
resulting in the impugned order, as also a separate suit
proceeding. The Single Judge gave undue importance to the
conversation with the children at a time when naturally they would
prefer to stay with a parent rather than a boarding school.
Respondent No.1 cannot be permitted to take advantage of the
visiting rights granted for the vacation period to now claim that         E
the children should continue to stay with her. [Paras 19, 20] [570-
B-D, G]
      1.4 The interference by the Single Judge, vide impugned
order was unjustified, and the order of the Family Court dated
9.12.2016 was in order. Insofar as any further facilitative directions,   F
for the purpose of visiting rights of respondent No.1 are
concerned, it would be open for the Family Court or High Court
to make necessary arrangements. Respondent Nos.2 & 3 (son
and the daughter) should be returned to the appellant by
respondent No.1, along with all relevant documents of the                 G
children, within thirty (30) days from today, before the Family
Court. In case the appellant is unable to make arrangement for a
mid-term admission for the children, he may inform respondent
No.1 and in that eventuality the children will continue to study in
the same school at present and continue to stay with respondent
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564            SUPREME COURT REPORTS                         [2018] 13 S.C.R.


A     No.1 till the end of the session. This is in order to ensure that
      the study of the children are not disturbed. It is made clear that
      the rights and obligations as envisaged in the decree of divorce
      by mutual consent will bind both the appellant and respondent
      No.1. [Paras 21, 22] [570-H; 571-A-C]
B           CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10771
      of 2018.
            From the Judgment and Order dated 25.07.2018 of the High
      Court of Judicature at Bombay, Bench at Aurangabad in Writ Petition
      No. 12432 of 2017.
C           Arvind Kumar, Adv. for the Appellant.
            Kunal Cheema, Ms. Aditi D. Parhi, Advs. for the Respondents.
            The Judgment of the Court was delivered by
            SANJAY KISHAN KAUL, J. 1. Leave granted.
D
            2. The appellant and respondent No.1 were married according to
      Hindu rites on 7.5.2004 and, from the wedlock were born a son
      (respondent No.2) and a daughter (respondent No.3), who are now about
      11 years and 8 years respectively. It appears that the marriage ran into
      problem at some stage and all endeavours for reconciliation failed. The
E     appellant and respondent No.1, both, are qualified doctors, who were
      deployed with the CRPF throughout, which position exists even today.
             3. The appellant and respondent No.1 ultimately agreed for a
      decree of divorce by mutual consent and filed a petition under Section
      13B of the Hindu Marriage Act, 1955. The first motion was filed in
F     June, 2016 and after the expiry of the statutory period of six (6) months,
      the second motion was passed and a decree of divorce was granted on
      9.12.2016.
            4. The two relevant terms of the decree of divorce for the
      purposes of this present appeal are extracted as under:
G           “5) That, petitioner No.1 and 2 are at liberty to marry with any
            other person of their choice. In future petitioner No.1 has no any
            right of husband over petitioner No.2, so also petitioner No.2 has
            lost right as wife over petitioner No.1 today.

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            DR. AMIT KUMAR v. DR. SONILA & ORS.                                 565
                  [SANJAY KISHAN KAUL, J.]

      6) That, petitioner No.1 and 2 both are agree to custody of both          A
      the children’s residing with petitioner No.1. Petitioner No.1 will
      provide education, medicines, and marriage of Aarokya Kumar
      s/o Amit Kumar. Petitioner No.2 will provide education, medi-
      cines and marriage of Riya Kumar d/o Amit Kumar.”
       5. A perusal of the aforesaid shows that para 5 was a natural            B
corollary to the decree of divorce, i.e., that either parties could re-marry.
Clause 6 provides for an agreement inter se the appellant and respon-
dent No.1 qua the issue of custody of both the children, which was
agreed to be with the appellant. However, possibly in view of their
similar financial strength, it was agreed that the appellant would provide
for education, medicines and marriage of the son while respondent No.1          C
would do the likewise for the daughter.
       6. The parties at the relevant time were posted in Nanded and,
thus, initially the arrangement for custody worked out fine. The issue,
however, arose once the appellant was transferred out of Nanded. The
appellant was transferred to Jammu, which apparently necessitated him           D
to make arrangements for admission of respondent Nos.2 & 3 to a
boarding school in Pune, while he assessed the possibility of bringing the
children to live with him in Jammu. The undisputed fact is that at no
point of time did respondent No.1 make any financial contributions
towards her obligations, in terms of the decree of divorce by mutual            E
consent. The appellant sent a legal notice dated 28.3.2017 to
respondent No.1 pointing out this fact and demanding the payment of
unpaid amounts, apart from the amount required for securing admission
and meeting the living expenses of the daughter in the boarding school at
Pune. It is this demand which seems to have triggered off the present
dispute.                                                                        F

       7. Respondent No.1 sent a reply to the aforesaid notice through
her counsel on 15.4.2017. The said reply raised the issue that the
consent decree was not acceptable to her, and hence her counsel had
advised her to seek a modification of the terms & conditions of the
decree regarding the custody of the children. It was also alleged that          G
the transfer of respondent Nos.2 & 3 to the boarding school was a
unilateral act of the appellant and that the expenses quoted were
exorbitant.

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566            SUPREME COURT REPORTS                          [2018] 13 S.C.R.


A             8. Respondent No.1 filed an application dated 31.5.2017 under
      Section 6 of the Hindu Minority and Guardianship Act, 1956, seeking
      custody of her minor children. In the application, it is alleged that
      respondent No.1 was mentally disturbed regarding the future of respon-
      dent Nos.2 & 3, who are of a tender age, and that at the time of the
      divorce, the appellant forced and coerced the applicant “to dance on his
B
      tunes though not acceptable to the applicant.” It is further pleaded that
      respondent No.1 had not asked for absolute custody of the children only
      so that they do not get disturbed in their education. This application also
      admits that the trigger has been the notice dated 28.3.2017, sent by the
      appellant through his counsel, whereby respondent No.1 was for the
C     first time informed that the children were being put in a boarding school.
      A reference has also been made to the communication, where it was
      alleged by the appellant that the respondent No.1 wanted to get rid of
      the custody and responsibility of the children and that is the reason why
      she had given their custody to the appellant as respondent No.1 had
      decided to get re-married. There are certain other allegations made
D
      qua the problem of the visiting rights of respondent No.1 vis-a-vis the
      appellant but they are not germane to the controversy in question.
             9. The aforesaid application was resisted by the appellant by
      filing a reply where it was sought to be emphasised that the terms of the
      decree had been agreed upon, six months’ time period had been granted
E     to the parties to have a thought over the same, and only thereafter had
      they been incorporated in the decree of divorce. In the reply it has also
      been pointed out that though the marriage between the appellant and
      respondent No.1 was a love marriage, issues arose on account of an
      alleged affair between respondent No.1 and her school boyfriend, as
F     named in the reply. It was also alleged that she was caught red-handed,
      but on her begging forgiveness, the appellant decided to maintain the
      relationship. This, however, it is alleged, did not bring the liaison to an
      end. Not only this, in March 2016, she is alleged to have started an
      affair with a person working in the same organisation, who has been
      named in the application, and that on being found out, respondent No.1
G     even attempted to commit suicide on that account, for which medical
      records are available. The divorce is stated to have been agreed upon
      without making these allegations against respondent No.1, in order to
      maintain the dignity of the parties in the society at large. The District
      Judge disposed of the application on 04.09.2017. The court noticed that
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            DR. AMIT KUMAR v. DR. SONILA & ORS.                                567
                  [SANJAY KISHAN KAUL, J.]

the paramount consideration was the interest of the children. The court        A
took into consideration that both the parties were well qualified and
enjoyed an equal occupation and status, and had mutually agreed to the
terms and conditions of the decree for divorce after the completion of
the statutory period of six months. There was, thus, no reason to
deprive the appellant of the custody of the children, but visiting right
                                                                               B
arrangements were made in view of the fact that the two parties were
based in different stations.
       10. This order was assailed by respondent No.1 before the High
Court in WP No.12432/2017 in September, 2017. While the writ petition
was still pending, respondent No.1 filed a civil suit for declaration that
the decree of divorce by mutual consent passed by the Family Court had         C
been obtained by coercion, fraud and misrepresentation and was, thus,
null and void, and hence did not affect the marriage between the parties.
This suit is stated to be still pending.
        11. During the proceedings, mediation was also endeavoured, but
it failed. The learned Single Judge of the Bombay High Court passed an         D
order on 12.6.2018, after having interacted with the children. The learned
Judge took note of the subsequent development that the appellant had
married recently, prior to the order, and that there was a biological son of
his second wife, borne out of her first wedlock, who is residing with
them, currently. The appellant had also got the children admitted to a         E
school in Jammu, by that point in time. The interaction with the children
is stated to have led the Judge to the conclusion that the son and daugh-
ter desire to live with respondent No.1, but that they also love their
father equally. The learned Judge gave preference to the desire of
respondent No.1, as a mother, and directed that the children would re-
main in the custody of the mother for a period of one year to take edu-        F
cation at a school in which they would acquire admission, at the place
where their mother lives and that the father would have visiting rights.
A number of directions were passed qua the implementation of the vis-
iting rights.
       12. The appellant, aggrieved by this order, preferred SLP (Civil)       G
No.16667/2018. Leave was granted and this appeal No.6500/2018 was
disposed of on 11.7.2018, by making a reference to the clauses in the
consent decree, which had not been noticed by the High Court, while
passing the order. The matter was then remitted to the High Court for
fresh consideration.                                                           H
568            SUPREME COURT REPORTS                          [2018] 13 S.C.R.


A           13. Based on the interaction with the children, the learned Single
      Judge of the Bombay High Court by the impugned order dated 25.7.2018,
      once again, directed the custody of the children to be with the mother,
      with visiting rights given to the father. The High Court after noticing the
      submission made on behalf of the appellant that the condition in the
      divorce decree had not been varied till date, posted the matter on
B
      19.3.2019, to be reviewed after a year.
             14. We had directed the personal presence of the appellant and
      the respondents with whom we interacted. Learned counsel for the
      appellant drew our attention to certain pleadings which would show that
      proceedings had been initiated against the officer with whom the liaison
C     of respondent No.1 was alleged. The Memorandum dated 14.3.2017
      issued by the Directorate General, CRPF referred to the imputations of
      misconduct in support of the article of charges and it is specifically
      alleged that the said officer had used immoral texts during office hours
      while communicating with respondent No.1. The details of the same
D     have also been set out. The inquiry is stated to be still pending. In the
      course of the Court’s interaction, it came to light that as per the
      appellant and his second wife, the matrimonial arrangement was with
      the understanding that Respondent Nos.2 and 3 would stay with the
      appellant, and the second wife of the appellant would take care of them.
      The second wife of the appellant is an MBA graduate and was
E     previously working with a bank, but resigned to take care of domestic
      responsibilities. The appellant also stated that while on the one hand no
      financial aid had been given by respondent No.1 to the appellant for the
      daughter, as per the obligations in the consent decree on other hand she
      had been transferring substantive amounts to the person with whom she
F     allegedly had a liaison. On the Court’s query, respondent No.1 initially
      took offence to the fact that the appellant had access to her bank details,
      but on a pointed query admitted that she did transfer the funds to her
      colleague, but stated that the same was her own business. She sought
      to plead that it was immaterial whether she was or was not a good wife,
      but that she was indeed a good mother, as had become apparent in the
G     interaction of the children with the learned Single Judge.
            15. We have given deep thought to the matter. The issue is not so
      simple as it involves the interests of these young children, respondent
      Nos.2 & 3, which is of paramount concern. While saying so, it has been

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            DR. AMIT KUMAR v. DR. SONILA & ORS.                                  569
                  [SANJAY KISHAN KAUL, J.]

kept in mind that these children are still young and are of an                   A
impressionable age and the interaction can only be one of the factors to
be taken into account.
       16. In our view, it clearly emerges that the decision to give
custody to the appellant, of the two children, was a conscious decision
taken by the parties at the relevant stage and can hardly be categorised         B
as a decision under force, pressure or fraud. Respondent No.1 is
well-educated and is a medical practitioner. There was a six (6) months’
hiatus period for the parties to think over the terms of the settlement
before the grant of the decree of divorce, which is the statutory period
available for the parties to have a re-think, if they so deem it
appropriate. The parties had clearly agreed as per clause 5 that they            C
were free to re-marry. As per the terms of the custody, the said
marriage does not have any effect on the custody rights, at least in the
terms between the parties. The appellant has also borne all the
expenses for both the children, as respondent No.1 even initially failed
to contribute anything towards the expenses for the daughter, contrary           D
to the agreement inter se the parties.
       17. The trigger for respondent No.1 claiming custody of the
children only arose when the appellant asked her to contribute
financially. It was not a case of financial difficulty, but the unwillingness
of respondent No.1 to contribute for her own daughter, while                     E
simultaneously transferring amounts to a colleague of hers. It does
appear that the proceedings initiated initially for the custody and
thereafter for seeking cancellation of the decree of divorce were clearly
an endeavour to pressurise the appellant to not claim any amounts. We
may also invite attention to Order II Rule 2 of the Code of Civil
Procedure, 1908 specifying that where a plaintiff intentionally                  F
relinquishes, any portion of his claim, he shall not afterwards sue in
respect of the portion so relinquished. Respondent No.1 had relinquished
her rights to claim custody and the suit filed by her, thus, is also highly
doubtful.
        18. We may hasten to add that it is not as if there can be no            G
eventuality where such terms may require modification, but that would
arise if the interests of the children so desire, and more specifically if the
appellant had failed to honour his commitments, or look after the
children. The second marriage of the appellant cannot be put against
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570             SUPREME COURT REPORTS                          [2018] 13 S.C.R.


A     him, nor can the factum of the child of his second wife residing with him
      deprive him of the custody rights of his two children, which has been
      specifically conferred on him with the consent of respondent No.1.
              19. A perusal of the impugned order shows that it is not as if the
      appellant was not looking after the children. The children showed
B     affection for their father. It was due to the exigencies of the appellant’s
      service condition that the children had to be put in a boarding school for
      some time, which exigency also does not remain at present. It was
      known to the parties that they were in a transferable job. A conscious
      decision was taken by the parties to give the sole custody to the
      appellant, in the interest of the children. The second wife of the
C     appellant is an educated lady. Merely because the appellant has
      decided to go ahead in life, and has had a second marriage, it provides
      no ground whatsoever to deprive him of the custody of the children as
      agreed upon between the appellant and respondent No.1, especially when
      he has been looking after the children and has not gone back on any of
D     his commitments. Respondent No.1, in order to avoid the financial
      liability started these proceedings, resulting in the impugned order, as
      also a separate suit proceeding. One fails to appreciate what is it that
      respondent No.1 wants by filing the suit now, by claiming that the
      decree of divorce is null and void, when there is admission of a mutual
      consent for divorce and the appellant has already re-married. We are
E     not going into the details of the allegations against respondent No.1’s
      liaison with another man in the same service, as the inquiry is still
      pending and, it may not be appropriate also, to do so in the present
      proceedings. We, however, see no reason why the appellant has been
      compelled to go through this unnecessary litigation when the parties, at
F     the threshold, after deep deliberation, and for the interest of the children,
      have given the custody to the appellant.
             20. We are of the view that the learned Single Judge has given
      undue importance to the conversation with the children at a time when
      naturally they would prefer to stay with a parent rather than a boarding
      school. Respondent No.1 cannot be permitted to take advantage of the
G
      visiting rights granted for the vacation period to now claim that the
      children should continue to stay with her.
             21. We are, thus, of the unequivocal view that the interference by
      the learned Single Judge, vide impugned order dated 25.7.2018, was
      unjustified, and the order of the Family Court dated 9.12.2016 was in
H     order.
               DR. AMIT KUMAR v. DR. SONILA & ORS.                            571
                     [SANJAY KISHAN KAUL, J.]

       22. Insofar as any further facilitative directions, for the purpose    A
of visiting rights of respondent No.1 are concerned, it would be open for
the Family Court or High Court to make necessary arrangements.
Respondent Nos.2 & 3 should be returned to the appellant by
respondent No.1, along with all relevant documents of the children, within
thirty (30) days from today, before the Family Court. In case the
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appellant is unable to make arrangement for a mid-term admission for
the children, he may inform respondent No.1 and in that eventuality the
children will continue to study in the same school at present and
continue to stay with respondent No.1 till the end of the session. This is
in order to ensure that the study of the children are not disturbed. We
also make it clear that the rights and obligations as envisaged in the        C
decree of divorce by mutual consent will bind both the appellant and
respondent No.1. Needless to say that after the children attain the age
of majority, they would have their own choice.
       23. The appeal is accordingly allowed, leaving the parties to bear
their own costs.                                                              D


Divya Pandey                                                Appeal allowed.



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