GAYTRI BAJAJversusJITEN BHALLA

                         [2012] 8 S.C.R. 1142


A                           GAYTRI BAJAJ
                                    v.
                            JITEN BHALLA
               (Civil Appeal Nos. 7232-7233 of 2012)

                          OCTOBER 5, 2012
B
           [P. SATHASIVAM AND RANJAN GOGOi, JJ.]

         CHILD AND FAMILY WELFARE:

c        Custody of children - Held: An order of custody of minor
    children is required to be made by the court treating the
    interest and welfare of the minor to be of paramount
    importance - It is not the bettef right of either of the parent to
    custody, but the desire, interest and welfare of the minor which
0   is the crucial and ultimate consideration that must guide the
    determination required to be made by the court- In the instant
    case, the children, two minor girls, one of whom is on the verge
    of attaining majority, do not want to go with their mother and
    appear to be happy in the company of their father, who is in
    a position to look after them, provide them with adequate
E   educational facilities and also to maintain them in a proper
    and congenial manner - The children having expressed their
    reluctance to go with the mother, even for a short duration of
    time or to meet her, any visitation right to the mother would
    be adverse to the interest of the children - In the
F   circumstances, visitation cannot be made possible by an
    order of the court - The children would continue to remain in
    the custody of their father until they attain the age of majority
    - Hindu Marriage Act, 1955 - s. 13-8 - Code of Civil
    Procedure, 1908 - s.151 - Guardian and Wards Act, 1890 -
G   Hindu Minority and Guardianship Act, 1956.

         The instant appeals arose out of an application filed
    by the appellant-wife u/s 151 CPC seeking to recall/set
    aside the decree of divorce by mutual consent passed u/
H                                 1142
                                                                     .-
           GAYTRI BAJAJ v. JITEN BHALLA                   1143


s 13-B of the Hindu Marriage Act, 1955. The application           A
was filed despite the institution of a separate suit, seeking
the same/similar relief, on the ground of fraud and deceit
committed by the respondent-husband. In the joint
petition u/s 13 B it was specifically stated under the terms
of agreement between the parties that the respondent-             B
husband would have the custody of the two minor
daughters and, keeping in view their best interest and
welfare, the appellant-wife had agreed to forgo her rights
of visitation.

     In the instant appeals, the parties agitated the             C
question with regard to the custody of the children and
if such custody was to remain with the husband, whether
visitation rights should be granted to the appellant-wife.
On 16.12.2011, the Court recorded that the two children
who were aged about 17 and 11 years, were very clear              D
and categorical that they wanted to "continue to live with
their father and they do not want to go with their mother," and
made arrangements through Supreme Court Mediation
Centre for the mother to interact with the children and
also to take them for overnight stay with her as specified        E
in the order. Subsequently, the husband filed an
application seeking vacation/ modification of the order
dated 16.12.2011, mentioning details about the reluctance
of the children to go with their mother or even to meet
her; and efforts of mediator failed in persuading the             F
children. The children even declined to visit the Mediation
Centre any further. This was not controverted by the
appellant-wife.

    Dismissing the appeals, the Court
                                                                  G
    HELD: 1.1. In Mousmi Moitra Ganguli's case* it has
been held that it is the welfare and interest of the child
and not the rights of the parents which is the determining
factor for deciding the question of custody. Further, the
                                                                  H
    1144   SUPREME COURT REPORTS              (2012] 8 S.C.R.


A question of welfare of the child has to be considered in
  the context of the facts of each case and decided cases,
  on the issue may not be appropriate to be considered as
  binding precedents. [para 13] [1152-C-E]

       *Mousmi Moitra Ganguli v. Jayant Ganguli 2008 (8)
B
   SCR 260     =
               (2008) 7 SCC 673; Sheila B. Oas v. P. R.
  Sugasree 2006 (2) SCR 342       =
                                 (2006) 3 SCC 62; Gaurav
  Nagpal v. Sumedha Nagpal 2009(1) SCC 142; Rosy Jacob
                                                   =
  v. Jacob A. Chakramakkat 1973 ( 3) SCR 918 (1973) 1
C SCC 840; Thirty Hoshie dolikuka v. Hoshiam Shavdaksha
                              =
  Dolikuka 1983 (1) SCR 49 (1982) 2 SCC 544 - relied on

        Sarasvati Bai Shripad Ved v. Shripad Vasanji Ved AIR
    1941 (Born.) 103 - referred to.

0      1.2. An order of custody of minor children either
  under the provisions of the Guardians and Wards Act,
  1890 or Hindu Minority and Guardianship Act, 1956 is
  required to be made by the court treating the interest and
  welfare of the minor to be of paramount importance. It is
E not the better right of the either parent that would require
  adjudication while deciding their entitlement to custody.
  The desire of the child coupled with the availability of a
  conducive and appropriate environment for proper
  upbringing together with the ability and means of the
  concerned parent to take care of the child are some of
F the relevant factors that have to be taken into account by
  the court while deciding the issue of custody of a minor.
    What must be emphasized is that while all other factors
  are undoubtedly relevant, it is the desire, interest and
  welfare of the minor which is the crucial and ultimate
G consideration that must guide the determination required
  to be made by the court. [para 14] [1152-F-G; 1153-A]

      1.3. In the instant case, irrespective of the question
  whether the abandonment of visitation rights by the wife
H was occasioned by the fraud or deceit practiced on her,
          GAYTRI BAJAJ v. JITEN BHALLA             1145


as subsequently claimed, an attempt was made by this A
Court, even by means of a personal interaction with the
children, to bring the issue with regard to custody and
visitation rights to a satisfactory conclusion .. From the
materials on record, it is possible to conclude that the
children, one of whom is on the verge of attaining B
majority, do not w'!nt to go with their mother. Both
appear to be happy in the company of their father who
also appears to be in a position to look after them;
provide them with adequate educational facilities and
also to maintain them in a proper and congenial manner. c
The children having expressed their reluctance to go with
the mother, even for a short duration of time, this Court
holds that any visitation right to the mother would be
adverse to the interest of the children. Besides, in view
of the reluctance of the children to even meet their
                                                           0
mother, leave alone spending time with her, visitation can
not be made possible by an order of the court. Therefore,
in the facts and circumstances, the impugned orders
passed by the High Court are affirmed, visitation rights
to the appellant-wife are denied, and the children would E
continue to remain in custody of their father until they
attain the age of majority. [para 15-16] [1153-B-G]

                     Case Law Reference
    2008 (8) SCR260          relied on          para 12
                                                          F
    AIR 1941 (Born.) 103     referred to        para 12
    1973 (3) SCR 918         relied on          para 12
    1983 (1) SCR 49          relied on          para 12
                                                          G
    2009(1) sec 142          relied on          para 13
    2006 (2) SCR 342         relied on          para 13

    CIVIL APPELLAT.E JURISDICTION : Civil Appeal Nos.
7232-7233 of 2012.                                        H
    1146     SUPREME COURT REPORTS                    (2012] 8 S.C.R.


A       From the Judgment and Order of the High Court of Delhi
    at New Delhi dated 10.7.2009 in Review Petition No. 371 of
    2008 and dated 8.9.2008 in Matrimonial Appeal No. 72 of
    2007.

        lndu Malhotra, Arun K. Sinha, N.S. Bajwa, Rakesh Singh,
8
    Sumi! Sinha, ADN Rao, Atul Sharma, Abhishek Agarwal,
    Neelam Jain for the Appellant.

        Pinaki Mishra, Sunil Kumar Jain, Aneesh Mittal for the
    Respondent.
c
         The Judgment of the Court was delivered by

         RANJAN GOGOi, J. 1. Leave granted.

      2. These appeals are directed against the judgment and
D 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.

E       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 Rid hi, were
  born to them on 20.8.1995 and 19.4.2000 respectively.
F 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
G 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
H
           GAYTRI BAJAJ v. JITEN BHALLA                        1147
                [RANJAN GOGOi, J.)

marriage by mutual consent under the provisions of section 13B           A
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            B
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,    C
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.
                                                                         D
      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            E
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          F
 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                 G
 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
                                                                             H
       1148    SUPREME COURT REPORTS                   [2012] 8 S.C.R.


 A 3 ..6.2003. Aggrieved, an appeal i.e. Matrimonial appeal No. 721
   2007, was filed by the respondent-huband 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.
 B 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
C 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
   qf divorce, had clearly observed that it is open for the appellant-
  wife to establish the challenge to the said decree made in the
  suit already instituted by her. Thus, while taking the view that
D the order of the learned trial court dated 25.09.2007 recalling
  the decree of divorce was not correct, the High Court had left
  the question of validity of the decree, on ground of alleged
  fraud, open for adjudication in the suit.

E          7. Apart from the above, the parties before us have
     agitated only the question with regard to the custody of the
     children and if such custody is to remain with the husband the
     visitation rights, if any, that should be granted to the appellant-
     wife. As the above is only issue raised before us by the parties
F    we propose to deal only with the same and refrain from entering
     into any other question.

        8. We have already noticed that in the joint petition filed
  by the parties seeking a decree of divorce by mutual consent
  it was clearly and categorically stated that the husband would
G have custody of the children and the wife will not insist on any
  visitation rights. It was also stated that the wife had agreed to
  do so in the interest and welfare of the children.

       9. The above issue, i.e. custody of the children has already
H rec;eived an elaborate consideration of this Court. Such
           GAYTRI BAJAJ v. JITEN BHALLA                    1149
                [RANJAN GOGOi, J.]

consideration is recorded in the earlier order of this court dated A
16.12.2011. From the aforesaid order, it appears that
proceeding on the basis of the statement made by Ms. lndu
Malhotra, learned senior counsel for the appellant- wife that if
the issue of visitation rights of the wife is considered by the
court, she would not urge any other contention, this court had B
made an endeavour to explore the possibility of an amicable
settlement of the dispute between the parties on the said score.
After interacting with both the children this court in its order
dated 16.12.2011 had recorded that the two children, who are
aged about 17 and 11 years, were very clear and categorical c
that they wanted to "continue to live with their father and they
do not want to go with their mother". This Court, therefore, was
of the view that taking away the custody of the children from
the father will not be desirable. In fact such a step would be
 adverse to the best interest of the children. However, keeping
                                                                     0
 in mind the position of the appellant as the 'tnother it was
 decided that the mother should be allowed to make an initial
 contact with the children and gradually built up a relationship, if
 possible, so as to arrive at a satisfactory solution to the
 impasse. Accordingly, the Court made the following interim E
 arrangement:

     "(i) The respondent-husband is directed to bring both
     daughters, namely, Kirti Bhalla and Ridhi Bhalla to the
     Supreme Court Mediation Center at 10 a.m. on Saturday
     of every fortnight and hand over both of them to the F
     petitioner-wife. The mother is free to interact with them and
     take them out and keep them in her house for overnight
     stay. On the next day, i.e. Sunday at 10 a.m. the petitioner-
     wife is directed to hand over the children at the residence
     of the respondent-husband. The above arrangement shall G
     commence from 17.12.2011 and continue till the end of
     January, 2012.

     (ii) The respondent-husband is directed to inform the
     mobile number of elder daughter (in the course of hearing
                                                                    H
    1150     SUPREME COURT REPORTS                   [2012) 8 S.C.R.


A        we were informed that she is having separate mobile
         phone) and also landline number to enable the petitioner-
         wife to interact with the children."

        10. What happened thereafter has been stated in an
B application filed by the respondent-husband before this Court
   (Interlocutory Application No.4/2012) seeking vacation/
   modification of the interim arrangement made by the order
   dated 16.12.2011. In the said application, it has been stated
   that pursuant to the order dated 16.12.2011 the respondent-
   father along with both the children had come to the Supreme
C Court Mediation Centre at about 10 a.m. on 17.12.2011.
   However, the children refused to go with their mother and the
   appointed Mediator, inspite of all efforts, did not succeed in
   persuading the children. At about 1.30 p.m. the respondent, who
   had left the children in the Mediation Centre, received a call that
D he should come and take the children back with him. In the
   aforesaid I.A. it has been further stated that on 30.12.2011
  when the children were due to visit the Mediation Centre once
  again, both the children started behaving abnormally since the
  morning and had even refused to take any food. After reaching
E the Mediation Centre, the children once again refused to go with
  their mother and the mediator had also failed to convince the
  children. Eventually, at about 12.00 p.m., the respondent took
  both the children home. Thereafter., both the children have
  declined to visit the Mediation Centre any further. Before the
F next date for appearance in the Mediation Centre, i.e.,
  14.01.2012 the said fact was informed to the learned counsel
  for the appellant by the respondent through his counsel by letter
  dated 13.01.2012.

G         11. Though the above facts stated in the aforesaid I.A. are
    not mentioned in the report of the Mediator submitted to this
    Court, what is stated in the aforesaid report dated 14.01.2012
    is that on 14.01.2012 the respondent and the children were not
    present and that a letter dated 13.01.2012 from the counsel for
    the respondent had been placed before the Mediator wherein
H
            GAYTRI BAJAJ v. JITEN BHALLA                      1151
                 [RANJAN GOGOi, J.]

it has been stated that though the children had earlier attended       A
the Mediation Centre they are now refusing to come to the
Centre and all efforts in this regard made by their father have
failed. It will also be significant to note that the statements made
in the I.A. have not been controverted by the appellant - wife in
 any manner.                                                           B
     12. The law relating to custody of minors has received an
exhaustive consideration of this Court in a series of
pronouncements. In Gaurav Nagpal v. Sumedha Nagpa/1 the
principles of English and American law in this regard were
considered by this Court to hold that the legal position in India      C
is not in any way different. Noticing the judgment of the Bombay
High Court in Saraswati Bai Shripad Ved v. Shripad Vasanji
Vec/2; Rosy Jacob v. Jacob A Chakramakka/3 and Thirty
Hoshie Oolikuka v. Hoshiam Shavdaksha Oolikuka 4 this
Court eventually concluded in paragraph 50 and 51 that:                D

      "50. That when the Court is confronted with conflicting
      demands made by the parents, each time it has to justify
      the demands. The Court has not only to look at the issue
      on legalistic basis, in such matters human angles are            E
      relevant for deciding those issues. The Court then does
      not give emphasis on what the parties say, it has to
      exercise a jurisdiction which is aimed at the welfare of the
      minor. As observed recently in Mousmi Moitra Gangu/i's
      case the court has to give due weightage to the child's          F
      ordinary contentment, health, education, intellectual
      development and favourable surroundings but over and
       above physical comforts, the moral and ethical values have
       also to be noted. They arP. equal if not more important than
       the others.
                                                                       G

 1.   2009 (1) sec 142.
 2.   AIR 1941 (Bom.)103.
 3.   (1973) 1 sec 840.
 4.   (1982) 2 sec 544.                                                    H
        1152       SUPREME COURT REPORTS                 [2012] 8 S.C.R.


 .A.           51. The word "welfare" used in section 13 of the Act has
               to be construed literally and must be taken in its widest
               sense. The moral and ethical welfare of the child must also
              weigh with the Court as well as its physical well being.
               Though the provisions of the special statutes which
B             governs the rights of the parents and guardians may be
              taken into consideration, there is nothing which can stand
              in the way of the Court exercising its parens patriae
              jurisdiction arising in such cases."

       13. The views expressed in Para 19 and 20 of the report
C in Mousmi Moitra Ganguli v. Jayant Ganguli5 would require
  special notice. In the said case it has been held that it is the
  welfare and interest of the child and not the rights of the parents
  which is the determining factor for deciding the question of
  custody. It was the further view of this Court that the question
D of welfare of the child has to be considered in the context of
  the facts of each case and decided cases on the issue may
  not be appropriate to be considered as binding precedents.
  Similar observations of this Court contained in para 30 of the
  Report in Sheila B. Das v. P.R. Sugasree6 would also require
E a special mention.

        14. From the above it follows that an order of custody of
   minor children either under the provisions of The Guardians and
   Wards Act, 1890 or Hindu Minority and Guardianship Act, 1956
F is required to be made by the Court treating the interest and
  welfare of the minor to be of paramount importance. It is not
  the better right of the either parent that would require
  adjudication while deciding their entitlement to custody. The
  desire of the child coupled with the availability of a conducive
G and appropriate environment for proper upbringing together with
  the ability and means of the concerned parent to take care of
  the child are some of the relevant factors that have to be taken
  into account by the Court while deciding the issue of custody

       s.   c2ooa) 7 sec 673.
H      6.   (2006) 3 sec 62.
           GAYTRI BAJAJ v. JITEN BHALLA                    1153
                [RANJAN GOGOi, J.]

of a minor. What must be emphasized is that while all other        A
factors are undoubtedly relevant, it is the desire, interest and
welfare of the minor which is the crucial and ultimate
consideration that must guide the determination required to be
made by the Court.

      15. In the present case irrespective of the question whether B
the abandonment of visitation rights by the wife was occasioned
by the fraud or deceit practiced on her, as subsequently
claimed, an attempt was made by this Court, even by means
of a personal interaction with the children, to bring the issue
with regard to custody and visitation rights to a satisfactory C
conclusion. From the materials on record, it is possible to
 conclude that the children, one of whom is on the verge of
 attaining majority, do not want to go with their mother. Both
 appear to be happy in the company of their father who also
 appears to be in a position to look after them; provide them D
with adequate educational facilities and also to maintain them
 in a proper and congenial manner. The children having
 expressed their reluctance to go with the mother, even for a
 short duration of time, we are left with no option but to hold that
 any visitation right to the mother would be adverse to the interest E
 of the children. Besides, in view of the reluctance of the children
 to even meet their mother, leave alone spending time with her,
 we do not see how such an arrangement, i.e., visitation can be
 made possible by an order of the court.
                                                                     F
       16. Taking into account all the aforesaid facts, we dismiss
 these appeals, affirm the impugned orders passed by the High
 Court of Delhi and deny any visitation rights to the _petitioner
  and further direct that the children would continue to remain in
  the custody of their father until they attain the age of majority. G

 R.P.                                       Appeals dismissed.