HARSHITA BHASINversusSTATE OF WEST BENGAL & ORS

                            [2016] 9 S.C.R. 510



A                          HARSHITA BHASIN
                                     v.
                   STATE OF WEST BENGAL & ORS
                            (I.A. No. 4 of 2016)
B                                    fu

              (Special Leave Petition (Civil) No. 4754 of2014)
                           DECEMBER 14, 2016
        [T.S. THAKUR, CJI, DR. D.Y. CHANDRACHUD AND
C                  L. NAGESWARA RAO, JJ.)
           Family Law - Petition by husband - Under guardian and
    Wards Act, 1890 seeking custody of Children - Filed before Court
    in Gautam Budh Nagar, U.P. - Habeas Corpus petition filed by
    wife before Calcutta High Court - High Court refusing interim
D   custody to wife, by way of temporary arrangement directed the
    husband to bring the two children (aged 8 years and 5 years) on a
    fortnightly basis to Kolkata on a Sunday and allow the wife to meet
    them between 11 a.m. and 4 p.m. - This court confirming the
    temporary arrangement as directed by the High Court, disposed of
    the Special Leave Petition - Interim application by husband for
E   modification of the visitation orders on the ground that the minor
    children had to face inconvenience - Parties agreed to an
    arrangement that the children shall travel to Kolkata once in a month
    and the wife would travel to Delhi once in a month - Husband
    directed to pay Rs. 40, 0001- towards travel and stay expenses of the
F   wife by depositing the same in the bank account of wife by seventh
    day of every month - Guardians and Wards Act, 1890.

          CIVIL APPELLATE JURISDICTION: I. A. No. 4 of 2016 in
    Special Leave Petition (Civil) No. 4754of2014.

          Mrs. MeenakshiArora and Balbir Singh, Sr. Advs., Kabir Shankar
G   Bose, Mrs. Sarla Chandra, Ms. Harshita Bhasin, Anand Sandhu, Ms.
    Udita Singh, Vivek Singh, Shankar Ch. Ghosh, Parijat Sinha, Anip
    Sachthey and Satpal Singh, Advs., for the appearing parties.

          The following Order of the Court was delivered by

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                                    510
   HARSHITA BHASIN v. STATE OF WEST BENGAL & ORS                             511


                              ORDER                                          A
      DR. D. Y. CHANDRACHUD, J. l. The applicant, Mukul Bhasin,
was imp leaded as the fifth respondent to a petition under Article 136 of
the Constitution which was disposed of by this Court on 9 April 2014.
The first respondent to the application was the petitioner in the Special
Leave Petition. The applicant and the first respondent were married on B
11 July 2007. They have two children - Ranvir, who was born on 24
July 2008 and Hridaan, born on 16 November 20 l l. The children are
now eight and five years old. There is a matrimonial dispute and parties
have been living separately since July 2013.
        2. The applicant instituted a petition under the Guardian and Wards C
 Act, 1890 (Petition 754 of2013) before the Civil Judge (Senior Division),
 GautamBudh Nagai', UP, for dissolution of marriage and for custody of
 the children. The respondent instituted a habeas corpus petition before
 the Calcutta High Court to which the applicant filed an affidavit-in-
 opposition. An order was passed by the Calcutta High Court refusing
.interim custody to the respondent. The High Court, however, directed D
 the applicant to bring the children on a fortnightly basis to Kolkata on a
 Sunday and to allow the respondent to meet them between 11 am and 4
 pm at the residence of the respondent's advocate. This led to the Special
 Leave Petition by the respondent challenging the order refusing interim
 custody to her.                                                            E
       3. During the course of the hearing of the Special Leave Petition
this Court recorded by its order dated 13 March 2014 that it had
interviewed both the parties and the minor children to explore the
possibility of an amicable settlement.By way of a temporary
arrangement, interim custody of the children was granted to the respondent    F
for the duration of the ensuing school vacation until the reopening of the
school of the elder child, after which the children were to be restoredto
the father. Eventually, on 9 April 2014 the Special Leave Petition was
disposed of since the order of the High Court impugned was purely an
interim arrangement which did not finally determine the rights and
obligations of the parties. However, the Court which is seized of the         G
Guardianship Petition was requested to expedite its proceedings and to
pass final orders, as far as possible, within three months. The interim
arrangement regarding visitation rights made by the High Court was
directed to continue.
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512             SUPREME COURT REPORTS                          [2016] 9 S.C.R.


A            4. The applicant moved the court before which the guardianship
      proceedings are pending in January 2016 for modification of the visitation
      orders on the allegation that the respondent was misusing her visitation
      rights. The trial court dismissed the application on the ground that this
      would amount to interference with the interim order of custody and
      visitation passed by the High Court and confirmed by this Court.
B
            5. The basis of the present application is set out in paragraphs 9,
      10 and 11 which reads as follows:
              "That the minor children to comply with the present
            visitation arrangement leave their home at Noida at 3:30
c           am to reach the airport in time to catch a flight to reach
            Kolkata on time for the visitation. The minor children further
            return to Delhi after the visitation between 10:30 pm and
            1:00 am on Monday morning and have to wake up for school
            by 6: 15 am on the same day. On one occasion the flight of
            the minor children had to be diverted to Lut:know and the
D           children only reached Delhi by 3:14 am. The present
            arrangement is not conducive for the minor children keeping
            in mind their tender age and their mental and physical well-
            being.
              That the present Applicant/Respondent No.5 fears that
E           the strenuous and constant travelling from Delhi to Kolkata
            and back on a regular basis shall have a negative impact on
            their physical health along with the mental psyche of the
            children and may even in the future begin to affect the
            academics, extra-curricular activities, sports and attendance
F           of the children. That the present Applicant/Respondent
            No.5 humbly submits that the present visitation arrangement
            is no longer in the best interest and welfare of the children.
              That it is due to these reasons that the present Applicant/
            Respondent No.5 is seeking modification of the order dated
G           09.04.2014 passed by this Hon'ble Court only to the limited
            extent of changing the venue of the visits from Kolkata to
            Delhi. After due consideration the present Applicant/
            Respondent No.5 humbly states that he is even willing to
            bear the Petitioner's cost of travel to Delhi to meet the
            minor children every fortnightly Sunday so as to let the
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   HARSHITA BHASIN v. STATE OF WEST BENGAL & ORS                                513
             [DR. D.Y. CHANDRACHUD, J.]

      petitionerinteract with them. It is further submitted that the            A
      Petitioner has relatives and family members who live in
      Delhi and shall not be adversely affected in anyway by
      travelling to Delhi to meet with the minor children and
      comply with the fortnightly visitation arrangement".
       6. The learned counsel appearing on behalf of the applicant B
submits that it is extremely stressful for the children to travel to Kolkata
every fortnight on a Sunday since they have to leave their home at NO IDA
at 3.30 am in order to take a flight to meet their mother at 10 am.
Moreover, it has been submitted that the children return back to New
Delhi late at night and have to attend schogl on Monday morning. The C
applicant has expressed his readiness and willingness to bear the cost of
travel of the respondent to Delhi where, it has been submitted, the children
can meet her during the hours fixed by the High Court. Having regard
to the fact that prima facie it appears tiring and stressful for the two
young children who are eight and five years of age to travel to Kolkata
in the manner· agreed, we had requested learned counsel for the parties D
to discuss the matter and indicate to the Court whether an agreement
can be broadly arrived at to facilitate the convenience of the young
children while at the same time protecting the legitimate concerns of
their mother.
      7. Ms.MeenakshiArora, learned senior counsel appearing on                  E
behalf of the respondent has fairly stated before.the Court that while the
respondent would bewi'lling to abide by any reasonable arrangement
which would obviate inconvenience to her children, this Court may require
the petitioner to provide for the airfare both for the respondent and her
mother to travel to New Delhi and the petitioner may be directed to
make arrangements to facilitate their stay in a room in a hotel in New           F
Delhi for two nights. During the course of the hearing we had indicated
a viable arrangement by which instead of being required to travel to
Kolkata every fortnight, the children shall travel once in a month to Kolkata
while the respondent will meet the children in New Delhi once in a
month. Both the learned counsel have fairly agreed to the suggestion.            G
       8. In view of the above position, we issue the following directions:-
      i) Pending the hearing and final disposal of the guardianship
proceedings, the respondent shall be entitled to visitation rights and to
meet her two minor children, Ranvir and Hridaan in the following
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514              SUPREME COURT REPORTS                          [2016) 9 S.C.R.


A     manner:
             (i) The applicant father sha11 travel with the children to Kolkata,
             on a Sunday, in the first fortnight of every month so as to enable
             the respondent mother to meet the children in the manner indicated
             in the order of the High Court dated 8 October 2013.
B            (ii) The respondent shall in the second fortnight of every month
             be entitled to visitation rights at New Delhi in the manner indicated
             in the order of the High Court dated 8 October 2013. To facilitate
             disbursement of the travel and hotel expenses of the respondent
             and her mother, the applicant shall by means of an electronic
c            transfer of funds deposit a sum of rupees forty thousand per month
             into a nominated bank account of the respondent by the seventh
             day of every month. The respondent shall make her own
             arrangements for travel to and fro from New Delhi and for stay.
             The respondent shall fetch the children from the chambers of Ms
             Udita Seth, Advocate (Chamber No.20A, R.K. Garg Block,
D            Supreme Court, Bhagwan Das Road, New Delhi) and return the
             children to the father at the same place. The period of visitation
             shall be as prescribed in the order of the High Court dated 8
             October 2013.
            9. The order of the High Court dated 8 October 2013 shall in the
E     circumstances stand modified by consent to the above extent.
              10. The Interlocutory Application is accordingly disposed of.

      Kalpana K. Tripathy                                            IA disposed of.