ROXANN SHARMAversusARUNSHARMA

                     [2015] 2 S.C.R. 572



                    ROXANN SHARMA                              A

                              v.
                      ARUNSHARMA

               (Civil Appeal No.1966 of 2015)                  B

                    FEBRUARY 17, 2015

      [VIKRAMAJIT SEN AND C. NAGAPPAN, JJ.]

HinduMinorityandGuardianshipAct, 1956-s. 6-Custody C
of child - Conflicting claims by parents - Interim custody of
the minor child granted to mother while visitation rights to
father by trial court, Goa- However, High Court reversed the
said order - Mother given frequent visitation rights, 3 days in D
a week - Meanwhile, father shifted to Mumbai without
intimation - Challenged by mother- Disposal of, permitting
the mother to meetthe child, however, in view of the pendency
of proceedings in Goa court, previous order not interfered
with - Thereafter, application for visitation rights filed by E
mother at Goa - Trial court granted weekend visitation rights
for three days, child to be taken from the court - However,
Second Single Judge held that 'frequent' could not be
continuous and the child would not remain exclusively with
his mother for three days - On appeal, held: Father's F
suitability to custody is not relevant where the child is below
five years since the mother is per se best suited to care for
the infant during his tender age - Father has to plead and
prove the mother's unsuitability - On facts, Second Single G
Judge erred in nullifying the directions previously passed by
a co-ordinate Bench resulting in miscarriage of justice - s.
14 of 1890 Act acknowledges the salutary necessity of only
one court in dealing with the guardianship or custody disputes
pertaining to the minor - In such case, there are no rights of H
                             572
573       SUPREME COURT REPORTS                 [2015) 2 S.C.R.


A the parents which have to be enforced; child's welfare is the
  main - Co-ordinate Benches must respect prior orders -
  Forum shopping or court shopping to be firmly dealt with -
  Furthermore, father ought not to have left the jurisdiction of
  Goa court which was discharging its duties as parens patirae
B - Thus, temporary custody of the child given to the mother
  and visitation rights to the father- Guardianship and Wards
  Act, 1890-ss. 4(2), 26, 14.

          Allowing the appeals, the Court
c
         HELD: 1.1 The father's suitability to custody is not
  relevant where the child whose custody is in dispute is
  below five years since the mother is per se best suited to
  care for the infant during his tender age. It is for the father
D to plead and prove the mother's unsuitability since the
  child is below five years of age. In these considerations
  the father's character and background would also
  become relevant but only once the court strongly and
  firmly doubts the mother's suitability; only then and even
E then would the comparative characteristic of the parents
  come into play. This approach was not adopted by the
  Single Judge, whereas it has been properly pursued by
  the civil judge. [Para 13] [586-H; 587-A-C]

F 1.2 Inexplicably, the second Single Judge found fault with
  the order granting weekend visitation to the mother,
  ignoring the reality thattrial court was only implementing
  the directions given by the previous Single Judge. It was
G not open to the trial court to venture afresh on the question
  of the welfare of the child when the matter stood
  concluded against the father who had not filed any appeal
  against the order of the previous Single Judge. All that
  the trial court was expected to do was to allocate three
H days custody for the mother. In effect the second
          ROXANN SHARMA v. ARUN SHARMA                           574


Single Judge gave his own understanding and meaning               A
to the previous order of a co-ordinate Bench of the High
Court, which is diametrically opposite to what stood
articulated by the High Court in the previous writ
proceedings. In paraphrasing the Order, the Single Judge
in the impugned order added the word "preferably" within          B
the jurisdiction of the court, but the word "preferably" has
not been used in the previous order. The impugned order
also appears to lose sight of the factthat all three persons
were residing in the United States and have only recently         C
shifted to Goa which was, therefore, at that time, the only
abode of the parties. It has also not given due weightage
to the asseverations of the mother that she had invested
her savings in purchasing property in Goa, as well as in
Mumbai in the joint names. Keeping in view the fact that          D
father has not been able to satisfactorily show that he had
any income, prima facie, the mother's statement has
credibility. Most importantly, it was the father who initiated
proceedings in Goa, which jurisdiction has not been
opposed by the mother and, therefore, to hold against             E
the mother at the initial stages is neither just nor proper.
Given the protracted litigation which has already
transpired between the parties it seems that the second
Single Judge was derelict in not deciding the issues and
instead merely setting aside the order assailed before him        F
for an adjudication de novo. The directions previously
passed by a co-ordinate Bench have been nullified and
miscarriage of justice has resulted. [Para 15] [588-E-H;
589-A-F]
                                                                  G
1.3 The s.econd Single Judge was not justified in
intervening with the order passed by the previous Single
Judge of the High Court. Section 14 of the G&W Act
acknowledges the salutary necessity of only one court H
575      SUPREME COURT REPORTS               [2015] 2 S.C.R.


A in dealing with the guardianship or custody disputes
  pertaining to the minor. This petition challenged the
  proprietary of the order passed by the Civil Judge which
  in turn was in compliance with the Order wherein
  visitation rights were granted to the mother for at least
B three days in a week within the jurisdiction of the court.
  Tho annals of the turbulent marriage of the parties, the
  IVF conception of the child etc., have been duly noted
  by the first Single Judge and the Civil Judge. The Single
C Judge has then questioned the very applicability of HGM
  Act as well as G&W Act in the State of Goa, an aspect
  which had not been agitated by either the mother or the
  father in any of the earlier proceedings. There can be no
  cavil that when a Court is confronted by conflicting
o claims of custody there are no rights of the parents
  which have to be enforced; the child is not a chattel or a
  ball that is bounced to and fro the parents. It is only the
  child's welfare which is the focal point for consideration.
  Parliament is right in thinking that the custody of a child
E less than five years of age should ordinarily be with the
  mother and this expectation can be deviated from only
  for strong reasons. The need to have a continuity in
  adjudication ought to have persuaded the second Single
  Judge to have recused himself in preference to his
F Brother judge who decided the previous writ petition.
  [Para 16] [589-G-H; 590-A-F]

  1.4 Serious note is taken of the father, who without
  notifying or taking the permission of the civil judge, left
G its jurisdiction along with the child. Prima facie this
  undermines the authority of the Court and it may even
  tantamount to contempt of court. Section 26 of the G&W
  Act has been violated and that too by a person who has
H not been appointed as the guardian. Relocation is now
         ROXANN'SHARMA v. ARUN SHARMA                         576


a well known legal concept Since movement of persons           A
from one place to another or one State to another State
of the Country or even from one Country to another
Country of the Globe is no longer a rarity. Very often it
becomes necessary because the parent having custody
of the child finds a more suitable employment                  B
somewhere else. The entitlement of the left behind
spouse has, therefore, to be jurally investigated. The
mother may want to relocate to the United States where
she can be very gainfully employed as against the father       C
who has not been able to disclose any income or
sources of regular. income. But in the instant case, the
father ought not to have left the jurisdiction of Court in
Goa which was discharging its duties as parens patirae.
This seems to have been completely lost s'ght of and           o
instead the Single Judge gave prem im to the
unauthorised relocation. The criminal petitior> which was
disposed of by permitting the mother to me<. t the child,
but keeping in view the pendency of proceedings in Goa,
the court rightly did not interfere with or alter or modify    E
any of the Orders passed by the court in Goa. Forum
shopping or court shopping requires to be firmly dealt
with. The second Single Judge ought to have kept in
mind that it was the father who has started proceedings
in Goa where the Mother was then also residing having,         F
prima facie, been constrained to give up her employment
in the Calfornia, u:s to be in a position to look after her
infant son. Co-ordinate Benches must respect prior
orders. [Para 17] [590-G-H; 591-A-F]
                                                               G
1.5 Keeping in mind the facts and circumstances, the
impugned Order is set aside. It is not in consonance with
the previous order of a co-ordinate Bench and in fact
severely nullifies its salient directions. The other H
    577         SUPREME COURT REPORTS                 [2015] 2 S.C.R.


     A impugned Order is also set aside interalia for the reason
       that it incorrectly shifts the burden on the mother to show
       her suitability for temporary custody of the infant and,
       therefore, runs counter to the provisions contained in
       Section 6 of the HMG Act. It is clarified that nothing
     B presented by the father, or placed on the record
       disclosed that the mother is so unfit to care for the infant
       as justifies the departure from the statutory postulation
       in Section 6 of the HMG Act. Visitation rights succinctly
     C stated are distinct from custody or interim custody
       orders. Essentially they enable the parent who does not
       have interim custody to be able to meet the child without
       removing him/h~r from the custody of the other parent.
       If a child is allowed to spend several hours, or even days
     o away from the parent who has been granted custody by
       the court, temporary custody of the child stands
       temporarily transferred. [Para 18] [591-G-H; 592-A-D]

       1.6 The temporary custody of the child is transferred to
     E the appellant/mother directing both of them to reside in
       Goa at the given address. The respondent/father would
       have visitation rights at stipulated herein. The said orders
       are temporary in nature. The civil judge would decide
       the pending petition/application expeditiously. [Para 20]
     F [592-F-H]

          Sarita Sharma v Sushi/ Sharma 2000 (1) SCR 915: (2000)
          3 sec 14 - referred to.

     G Mausami Moitra Ganguli v Jayant Ganguli 2008 (8)
       SCR 260: (2008)7 SCC 673 - distinguished.

          Black's Law Dictionary 10th Edn - referred to.

                              Case Law Reference
     H
            2000 (1) SCR 915           referred to         Para 10


I
          ROXANN SHARMA v. ARUN SHARMA                          578



   2008 (8) SCR 260           distinguished        Para 11       A
CIVILAPPELLATE JURISDICTION: Civil Appeal No 1966 of
2015

From the Judgment and Order dated 02.08.2014 ofthe High
                                                                 8
Court of Bombay at Goa in Writ Petition No. 79 of 2014

                            WITH

C.A. No.1967of2015
                                                                 c
Colin Gosalves, Jubli Momalia, Satya Mitra for the Appellant.

Meenakshi Arora, Rajesh Kumar, Gaurav Kumar Singh,
Rakesh Chaurasiya, Mitter & Mitter Co. for the Respondents.
                                                                 D
       The Judgment of the Court was delivered by

      VIKRAMAJIT SEN, J. 1. Leave granted in both the
Special Leave Petitions.

2. Civil Appeal of 2015 arising out of SLP(C) No.31615 of E
 2014 assails the Judgment dated 2nd August, 2014 passed
 by the High Court of Bombay at Goa in Writ Petition No. 79 of
2014, which in turn questioned the Order dated 31.1.2014
passed by the llnd Additional Civil Judge, Senior Division at F
Margao, Goa (hereafter also referred to as the Civil Judge) in
Matrimonial Petition No. 15/2013111 filed on 18.5.2013 before
us, by the Respondent, Shri Arun Sharma (hereafter referred
to as 'Father') undi;ir Section 6 of the Hindu Minority and
Guardianship Act, 1956. In this petition the Father has prayed G
inter alia that (a) the custody of the minor child, Thalbir Sharma
be retained by him and that (b) byway of temporary injunction,
the Appellant before us (hereinafter referred to as the Mother)
be restrained from taking forcible possession,of the minor child H
579         SUPREME COURT REPORTS                      [2015) 2 S.C.R.


A     Thalbirfrom the c.ustody of the Applicant. These proceedings
      were initiated and are pending in Goa at the instance of the
      father; at that time when all three persons were residents of
      Goa. After a detailed discussion of facts, as well as of law,
      the llnd Additional Civil Judge, Senior Division Margao, Goa
B     ordered that "pending final disposal of the petition on merits,
      the respondent, Roxann Sharma is granted interim custody of
      minor child Thalbir Sharma. The applicant shall have visitation
      rights to the child. He shall inform about his visit to the child in
C     advance to the respondent upon which she shall allow applicant
      to visit the child". A reading of this order discloses that the
      learned Civil Judge favoured the opinion that the custody of
      Thalbir, a child of tender years should remain with the Mother
      and thereby the child's paramount interests would be subserved
o     and safeguarded; that the Mother holds a Master of Arts degree
      from Howard University, Washington D.C. and is a Tenured
      College Professor in Los Angeles Mission College, California;
      that the allegation of her suffering from Bi-polar disorder had
      not been persuasively proved and in any event, did not
E     disqualify her to the custody of her son; that the Father is
      allegedly an alcoholic and a drug-addict who had joined a drug
      rehabilitation clinic, and was also a member of Narcotics
      Anonymous (N.A); that Father had been previously married;
      and that he was not gainfully employed. The Impugned Order
F     is also a detailed one in which the facts have been noted and
      the statutory laws as well as precedents, have been discussed.

  3. However, in sharp divergence to the conclusion arrived at
  by the learned Civil Judge, the learned Single Judge of the
G High Court of Bombay at Goa has opined that "it cannot be
  disputed that for upbringing the child, love of the petitioner as
  well as the respondent who is the mother is very much essential
  for the healthy growth of such child. In such circumstances,
H though the custody would continue with the petitioner
          ROXANN SHARMA v. ARLIN SHARMA                        580
               [VIKRAMAJIT SEN, J.]

nevertheless, the respondent being the mother would definitely A
have frequent visitation rights of the minor child. Such visitation
rights shall tentative.ly be for at least 3 days in a week. The
parties are at liberty to fix such days before the learned Judge
at a mutual agreeable place preferably within the jurisdiction
of the Court". The Court, we must immediately underscore is B
located in Goa and not in Mumbai. These directions have
attained finality against the Father; the Mother would have been
entitled to visitation rights for at least three days and equally
importantly in Goa.
                                                                 c
4. Before us, it has been narrated by the Mother that
consequent upon her frantic searches for her son, Thalbir, she
had came to learn in August, 2013, that the Father along with
Thalbir was in Mumbai. She filed Criminal Writ Petition No.87
                                                               D
of 2013 which had been disposed of by Orders dated
26.8.2013 noticing that proceedings under the Hindu Minority
and Guardianship Act, 1956 (HMG Act) were pending in Goa
and directing that the Mother should have access to Thalbir in
Mumbai at a place near the residence of the Father. E
Thereafter, as already mentioned above on 31.1.2014, the
Order by which the arrangement was reversed in the Impugned
Order, came to be passed by the learned Civil Judge, Senior
Division, Margao granting custody to the Mother and visitation
to the Father in Goa.                                          F
5. We shall consider the import and amplitude of the legal
concept of Guardianship on first principles. Black Law
Dictionary 5th Edition contains a definition of Guardianship
which commends itself to us. It states that- "A person lawfully G
invested with the power, and charged with the duty, of taking
care of the person and managing the property and rights of
another person, who, for defect of age, understanding, or self
control, is considered incapable of administering his own
                                                                H
581         SUPREME COURT REPORTS                    [2015] 2 S.C.R.


A     affairs. One who legally has the care and management of the
      person, or the estate or both, of a child during its minority"
      Thereafter there are as many twelve classifications of a
      guardian but we shall reproduce only one of them, which reads
      - " a general guardian is one who has the general care and
B     control of the person and estate of his ward; while a special
      guardian is one who has special or limited powers and duties
      with respectto his ward, e.g., a guardian who has the custody
      of the estate but not of the person, or vice versa, or a guardian
C     ad /item". Black's Law Dictionary also defines 'Custody' as
      the care and control of a thing or person. The keeping,
      guarding, care, watch, inspection, preservation or security of
      a thing, carrying with it the idea of the thing being within the
      immediate personal care and control of the person to whose
o     custody it is subjected. Immediate charge and control, and
      not the final, absolute control of ownership, implying
      responsibility for the protection and preservation of the thing
      in custody. In terms of Black's Law Dictionary, Tenth Edition,
      'Visitation' mean!! a non-custodial parent's period of access
E     to a child. Visitation right means a non-custodial parent's or
      grandparent's Court ordered privilege of spending time with a
      child or grandchild who is living with another person, usually
      the custodial parent. A visitation order means an order
      establishing the visiting times for a non-custodial parent with
F     his or her children. Although the non-custodial parent is
      responsible for the care of the child during visits, visitation
      differs from custody because non-custodial parent and child
      do not live together as a family unit. Jn our opinion, visitation
G     rights have been ascribed this meaning - In a dissolution or
      custody suit, permission granted to a parent to visit children.
      In domestic relations matters, the right of one parent to visit
      children of the marriage under order of the court.

H 6. Several other statutes also contain definitions of 'guardian'
           ROXANN SHARMA v. ARUN SHARMA                         582
                 [VIKRAMAJIT SEN, J.)

such as The Juvenile Justice (Care & Protection) Act, 2000 A
which in Section 20) states that- ""guardian", in relation to a
child, means his natural guardian or any other person having
the actual charge or control over the child and recognized by
the competent authority as a guardian in course of proceedings
before that authority." Since the Juvenile Act is principally B
concerned with the welfare of the juvenile the accent
understandably and correctly is on the "person" rather than the
estate. The Tamil Nadu Elementary Education Act, 1994
defines the term guardian as - "any person to whom the care, C
nurture or custody of any child falls by law or by natural right or
by recognized usage, or who has accepted or assumed the
care, nurture or custody of any child or to whom the care, nurture
or custody of any child has been entrusted by any l\')wfUI
authority''.                                                        D

· 7. The Guardianship postulates control over both the person
  as well as the assets of a minor or of one and not the other.
  This is obvious from a reading of the definitions contained in
  Section 4 (2) of the Guardians & Wards Act, 1890 (G&WAct) E
  and Section 4(b) of the HMG Act which clarifies that "Guardian"
  means a person having the care of the person of a minor or of
  his property or of both his person and property. Section 9
  contemplates the filing of an application in respect of the
  guardianship of the person of the minor and Section 10 F
  specifies the form of that application. Section 12 deals with
  the power to make interlocutory order for protection of the
  minor and interim protection of his person and property.
  Section 14 is of importance as its tenor indicates that these
  controversies be decided by one court, on the lines of Section G
  10 of the CPC which imparts preference of jurisdiction to the
 first court. Section 17 gives primacy to the welfare of the minor.
 Sub section 2 thereof enjoins the court to give due
 consideration to the age, sex and religion of the minor, the H
583        SUPREME COURT REPORTS                   [2015] 2 S.C.R.


A  character and capacity of the proposed guardian and his
   nearness of kin to the minor. Since Thalbir is of a very tender
   age, the advisability of determining his wishes is not relevant
   at the present stage; he is not old enough to form an intelligent
   reference. Section 25 covers the custody of a ward being
 B removed from the custody of the guardian of his person, and
   adumbrates that if the Court is of the opinion that it will be for
   the welfare of the ward to return to the custody of his guardian
   shall make an order of his return.

C 8. Section 26 is of special significance in that it casts an
  omnibus embargo even on a guardian of a person appointed
  or declared by the Court from removing the ward from the limits ·
  of its jurisdiction. This is because when a dispute arises
  between the parents of a minor, the court steps in as parens
0
  patriae and accordingly appropriates or confiscates to itself
  the discretion earlier reposed in the natural parents of the minor.
  This provision appears to have been violated by the Father.
  These provisions continue to apply in view of the explicit
E explanation contained in Section 2 of the HMGAct.

  9. Section 3 of the HMG Act clarifies that it applies to any
  person who is a Hindu by religion and to any person domiciled
  in India who is not a Muslim, Christian, Parsi or Jew unless it
F is proved that any such person would not have been governed
  by Hindu Law. In the present case, the Mother is a Christian
  but inasmuch as she has not raised any objection to the
  applicability of the HMG Act, we shall presume that Thalbir is
  governed by Hindu Law. Even in the proceedings before us it
G has not been contested by the learned Senior Advocate that
  the HMG Act does not operate between the parties. Section
  6 of the HMGAct is of seminal importance. It reiterates Section
  4(b) and again clarifies that guardianship covers both the
  person as well as the property of the minor; and then
H
           ROXANN SHARMA v. ARUN SHARMA                              584
                 [VIKRAMAJIT SEN, J.]

controversially states that the father and after him the mother          A
shall be the natural guardian of a Hindu. Having said so, it
immediately provides that the custody of a minor who has not
completed the age of 5 years shall ordinarily be with the mother.
The significance and amplitude of the proviso has been fully
clarified by decisions of this Court and very briefly stated, a          B
proviso is in the nature of an exception to what has earlier
been generally prescribed. The use of the word "ordinarily"
cannot be over-emphasised. It ordains a presumption, albeit
a rebuttable one, in favour of the mother. The learned Single            C
Judge appears to have lost sight of the significance of the use
of word "ordinarily" inasmuch as he has observed in paragraph
13 of the Impugned Order that the Mother has not established
her suitability to be granted interim custody of Thalbir who at
that point in time was an infant. The proviso places the onus            o
on the father to prove that it is not in the welfare of the infant
child to be placed in the custody of his/her mother. The wisdom
of the Parliament or the Legislature should not be trifled away
by a curial interpretation which virtually nullifies the spirit of the
enactment.                                                               E

 10. We shall now consider the relevance of the precedents
cited before us by the learned Senior Counsel for the Father.
In Sarita Sharma vs. Sushi! Sharma (2000) 3 SCC 14, in
defiance of the orders passed by the Jurisdictional Court in F
the U.S., the mother, Sarita, had returned to India with two
children from their matrimonial relationsllip. The High Court
viewed that the divorce decree and custodial directions having
emanated from a competent Court deserve to be honoured,
and accordingly allowed the Habeas Corpus Petition and G
directed the mother to return the custody of the children to the
father, Sushi!. This Court was not persuaded that further
consideration by Courts in India as to whether the interests of
the children, which were paramount, stood foreclosed and H
585       SUPREME COURT REPORTS                   [2015] 2 S.C.R.


A could not be cogitated upon again. As regards Section 6 of
  the HMGAct, it opined that although it constitutes the Father
  as a natural guardian of a minor son it could not be considered
  as superseding its paramount consideration as to what is
  conducive to the welfare of the minor. These observations
B were reiterated and this Court reversed the decision of the
  High Court holding that the interests and welfare of the children
  dictated that the custody should be with their mother. This case,
  therefore, militates against the legal and factual position which
C the Father seeks to essay before us. It is also important to
  underscore the fact that both the children were over the age of
  five, a fortiori, the· custody should not have been reversed in
  the case in hand by the High Court from the Mother to the
  Father since Thalbir was then around one year old and is
o presently still less than three years old.
  11. Learned Senior Counsel has next drawn our attention to
  Mausami Moitra Ganguli vs. Jayant Ganguli, (2008) 7 SCC ·
  673. In this case also, this Court was confronted with the
E custody conflict over 10 year male child. We must be quick to
  point outthatthe Court did not consider Section 6 of the HMG
  Act after detailing the factors which were indicative of the
  position that the welfare of the child lies with continuing the
  custody with the father, this Court dismissed the mother's
F appeal. The facts are totally distinguishable. The ratio
  continues to be t_hat it is the welfare of a minor which has
  paramount importance.

  12. The HMGAct postulatesthatthe custody of an infant ora
G tender aged child should be given to his/her mother unless the
  father discloses cogent reasons that are indicative of and
  presage the livelihood of the welfare and interest of the child
  being undermined or jeopardised if the custody retained by
  the mother. Section 6(a) of HMGAct, therefore, preserves the
H
            ROxANN SHARMA v. ARUN SHARMA                                 586
                 [VIKRAMAJIT SEN, J.]

right of the father to be the guardian of the property of the minor A
child but not the guardian of his person whilst the child is less
than five years old. It carves out the exception of interim
custody, in contradistinction of guardianship, and then specifies
that custody should be given to the mother so long as the child
is below five years in age. We must immediately clarify that B
this Section or for that matter any other provision including
those contained in the G&WAct, does not disqualify the mother
to custody of the child even after the latter's crossing the age
offive years.
                                                                          c
 13. We must not lose sight of the fact that our reflections must
 be restricted to aspects that are relevant for the granting of
 interim custody of a·n infant. The Trial is still pending. The
 learned Single Judge in the Impugned Order has rightly taken
                                                                          0
 note of the fact that the Mother was holding a Tenured College
 Professorship, was a post-graduate from the renowned
 Haward University, receiving a regular salary. Whether she
 had a Bi-polar personality which made her unsuitable for
 interim custody of her infant son Thalbir had not been sufficiently      E
 proved. In the course of present proceedings it has been
 disclosed that the Father has only passed High School and is
not even a graduate. It has also not been denied or disputed
before us that he had undergone drug rehabilitation and that
he was the member of Narcotics Anonymous. This is                         F
compounded by the fact that he is not in regular employment
or has independent income. As on date he is not an Income
tax assessee although he has claimed to have earned Rupees
40,000 to 50,000 per month in the past three years. We must
again clarify that the father's suitability to custody is not relevant    G
where the child whose custody is in dispute is below five years
since the mother is per se best suited to care for the infant
during his tender age. It is for the Father to plead and prove
the Mother's unsuitability since Thalbir is below five years of H
587         SUPREME COURT REPORTS                  [2015]2S.C.R.


 A    age. In these considerations the father's character and
      background will also become relevant but only once the Court
      strongly and firmly doubts the mother's suitability; only then
      and even then would the comparative characteristic of the
      parents come into play. This approach has not been adopted
 B    by the learned Single Judge, whereas it has been properly
      pursued by the learned Civil Judge.

   14. In the course of the hearings before us temporary visitation
   rights were granted to the Mother under the provision of a social
 C worker who had been appointed by the Maharashtra State
   Legal Service Authority. We have had the advantage of
   perusing her very diligent and detailed Reports which vividly
   recount the initial reluctance and antipathy of Thalbir to his
   Mother, which very quickly came to be naturalised because of
 D the maternal affection of the Mother. The Reports of the Social
   Worker lucidly indicate that at present Thalbir is extremely
   comfortable and happy in the company of his Mother but
   becomes agitated at the sight of his Father when he has to
 E return to him. The Social Worker has also fervently pleaded
   that her Reports should be kept sealed for fear of the Father.
   This is extremely disturbing to us just as we expect it should
   be to the Father also.

 F    CIVIL APPEAL No.1967 OF 2015
      (Arising out of SLP © No. 32581 of 2014)
   15. After the passing the Impugned Order in WP 79 of 2014,
   the Mother filed an application dated 20.08.2014, for grant of
 G visitation rights. . Her suggestion was that she should have
   custody ofThalbirfrom Monday to Friday at Dona Paula, Goa,
   to be returned to the Father on Fridays at 5.00 pm; thereafter,
   custody ofThalbir be restored to the Mother at 10.00A.M. on
   Monday morning in the Trial Court. The Father resisted the
 H application by stating that he had no objection to the Mother
          ROXANN SHARMA v. ARUN SHARMA                        588
                [VIKRAMAJIT SEN, J.]

visiting the child on three continuous days in each week          A
between 4.00 p.m. and 5.00 p.m. However, he pleaded that
since June, 2013, he along with Thalbirwere residing in Flat
 No.2, Aashirvad Building, Sid hi Sadan Colony, Borivali West,
 Mumbai. By Orders dated 6.9.2014, the Trial Court ordered
that Thalbir should be brought to the Court every Saturday at     B
9.30A.M. to be handed over to the Mother who would in turn
produce the child in the Court at 5.00 p.m. on the following
 Monday. It is this Order which was challenged in W. P.No. 576
of2014. The second learned Single Judge has undertaken a          C
discussion on meaning of 'frequent', concluding that it cannot
be continuous; that the previous Order could not have meant
that Thalbir would remain exclusively with his Mother for three
days. On this dialectic the second learned Single Judge found
error in the Trial Court's Orders dated 6.9.2014. The Impugned    o
Order goes on to n_ote that the Mother has no permanent
residence in India and that she had not disclosed any fixed
address in Goa and the Mother was suffering from Bi-polar
disorder. Inexplicably, the second learned Single Judge found
fault with the Order granting weekend visitation to the Mother,   E
ignoring the reality that Trial Court was only implementing the
directions given by the previous learned Single Judge. It
seems plain to us that it was not open to the Trial Court to
venture afresh on the question of the welfare of Thalbir when
the matter stood concluded against the Father who had not         F
filed any Appeal against the Order of the previous learned
Single Judge. All that the Trial Court was expected to do was
to allocate three days custody for the Mother. In effect the
second learned Single Judge has given his own understanding       G
and meaning to the previous Order of a coordinate Bench of
the High Court, which.we find to be diametrically opposite to
what stood articulated by the High Court in the previous writ
proceedings. In paraphrasing the Order, the learned Single
Judge in the Impugned Order has added theword "preferably"        H
589       SUPREME COURT REPORTS                    (2015) 2 S.C.R.


A within the jurisdiction of the Court, but the word "preferably"
   has not been used in the previous Order. The Impugned Order
  also appears to lose sight of the fact that all three persons
  were residing in the United States and have only recently shifted
  to Goa which was, therefore, at that time, the only abode of the
8 parties. It has also not given due weightage to the
  asseverations of the Mother that she had invested her savings
  in purchasing property in Goa, as well as in Mumbai in the
  joint names. Keeping in view the fact that Father has not been
C able to satisfactorily show that he had any income, prima facie,
  the Mother's statement has credibility. Most importantly, it
  was the Father who initiated proceedings in Goa, which
  jurisdiction has not been opposed by the Mother and, therefore,
  to hold against the Mother at the initial stages is neither just
o nor proper. Given the protracted litigation which has already
  transpired between the parties it seems to us that the second
  learned Single Judge was derelict in not deciding the issues
  and instead merely setting aside the Order dated 6.9.2014
  assailed before him for an adjudication de novo.            The
E directions previously passed by a coordinate Bench have been
  nullified and miscarriage of justice has resulted.

  16. The learned Single Judge in Writ Petition 79 of2014 has
  categorically ordered that whilst the custody of Thalbir shall
F continue with the Father, the Mother shall get "visitation rights"
  which he temporarily fixed at least three days in a week "at a
  mutual agreeable place preferably within the jurisdiction of the
  Court," situate in Goa; the Trial is continuing in Goa. We fail to
  locate or appreciate any reason or justification for the
G intervention of the High Court in Writ Petition 576 of 2014 which
  is the subject matter of Civil Appeal of 2015 arising out of SLP
  (C) 32581 of 2014 by a different learned Single Judge. We
  have a.lready notieed the intendment of Section 14 of the G&W
H Act which acknowledges the salutary necessity of only one court
          ROXANN SHARMA v. ARUN SHARMA                        590
               [VIKRAMAJIT SEN, J.]

in dealing with the guardianship or custody disputes pertaining A
to the minor. This petition challenged the proprietary of the
Order dated 6.92014 passed by the learned Civil Judge which
in turn was in compliance with the Order dated 2.8.2014, which
it may be recalled granted visitation rights to the Mother for at
least three days in a week within the jurisdiction of the Court. B
The annals of the turbulent marriage of the parties, the IVF
conception of Thalbir etc., have been duly noted by the first
learned Single Judge and the learned Civil Judge. The learned
Single Judge has then questioned the very applicability of HGM C
Act as well as G&WAct in the State of Goa, an aspect which
had not been agitated by either the Mother or the Father in any
of the earlier proceedings. There can be no cavil that when a
Court is confronted by conflicting claims of custody there are
no rights of the parents which have to be enforced; the child iso
not a chattel or a ball that is bounced to and fro the parents. It
is only the child's welfare which is the focal point for
consideration. Parliament rightly thinks that the custody of a
child less than five Y.ears of age should ordinarily be with the
Mother and this expectation can be deviated from only for E
strong reasons. The need to have a continuity in adjudication
ought to have persuaded the second learned Single Judge to
have recused himself in preference to his learned Brother who
decided the previous Writ Petition.
                                                                F
 17. We also take serious note of the Father, without notifying
or taking the permission of the Civil 'Judge, leaving its
jurisdiction along with Thalbir. Prima facie this undermines
the authority of the Court and it may even tantamount to
contempt of court. Section 26 of the G&W Act has been violated G
and that too by a person who has not been appointed as the
guardian. Relocation is now a well known legal concept. Since
movement of persons from one place to another or one State
to another State of the Country or even from one Country to H
591         SUPREME COURT REPORTS                    [2015] 2 S.C.R.


 A  another Country of the Globe is no longer a rarity. Very often it
    becomes necessary because the parent having custody of the
   child finds a more suitable employment somewhere else. The
    entitlement of the left behind spouse has, therefore, to be jurally
    investigated. The Mother may want to relocate to the United
 B States where she can be very gainfully employed as against
   the Father who has not been able to disclose any income or
   sources of regular income. But this is not the case or stage
    before us. Here, the Father ought not to have left the jurisdiction
 C of Court in Goa which was discharging its duties as parens
   patirae. This seems to have been completely lost sight of and
    instead the learned Single Judge has given premium to the
   unauthorised relocation. We have already mentioned the
   Criminal Petition 87/2013 which was disposed of by permitting
 o the Mother to meet Thalbir; but keeping in view the pendency
   of proceedings in Goa, the Court rightly did not interfere with
   or alter or modify any of the Orders passed by the Court in
   Goa. Forum shopping or Court shopping requires to be firmly
   dealt with. The second learned Single Judge ought to have
 E kept in mind that it was the Father who has started proceedings
   in Goa where the Mother was then also residing having, prima
   facie, been constrained to give up her employment in the
   Calfornia, U.S to be in a position to look after her infant son
   Thalbir. Co-ordinate Benches must respect prior orders.
 F
   18. We shall abjure for making any further observations as the
   Trial is still pending.         Keeping in mind the facts and
   circumstances which have been disclosed before us, we set
   aside the impugned Order dated 18.09.2014. It is not in
 G consonance with the previous order of a co-ordinate Bench
   and in fact severely nullifies its salient directions. We set aside
   the impugned Order dated 2nd August, 2014 inter alia for the
   reason that it incorrectly shifts the burden on the Mother to show
 H her suitability for temporary custody of the infant Thalbir and,
            ROXANN SHARMA v. ARLIN SHARMA                            592
                  [VIKRAMAJIT SEN, J.]

 therefore, runs counter to the provisions contained in Section A
 6 of the HMG Act. We clarify that nothing presented by the
 Father, or placed on the record discloses that the Mother is so
 unfit to care for the infant Thalbir as justifies the departure from
 the statutory postulation in Section 6 of the HMGAct. Visitation
 rights succinctly stated are distinct from custody or interim B
 custody orders. Essentially they enable the parent who does
 not have interim cu~tody to be able to meet the child without
 removing him/her from the custody of the other parent. If a
 child is allowed to spend several hours, or even days away C
 from the parent who has been granted custody by the Court,
 temporary custody of the child stands temporarily transferred.

 19. We also have taken due note of the Reports filed by the
 Social Worker and have heard the Counsel for the parties in
 this regard. We record our appreciation for the diligence with D
 which she has performed her duties. In the event that her fees/
 expenses have not been defrayed by the Father, the remainder
 shall be paid by the Maharashtra State Legal Services Authority.

  20. We transfer the temporary custody of Thalbir to the E
  Appellant/Mother with the direction that both of them shall
  reside in the address given by her, viz, House No.80, Magnolia,
  Ground Floor, Bin Waddo, Betalbatim, Goa and will not leave
  that territorial jurisdiction of the Trial Court without prior leave. F
  We further direct that the Respondent/Father shall have
  visitation rights between 2.30 p.m. and 6.00 p.m. on every
1 Tuesday and Thursday, and from 2.30 p.m. to 9.00 p.m. on
  Saturdays. These Orders are purely temporary in nature. The
 'Civil Judge should decide the Petition/application pending G
  before him with expedition, as directed by the High Court,
  without being influenced by any observations made by us
  hereinabove.

 21. After carefully reading the Reports of the Social Worker,         H
593           SUPREME COURT REPORTS               [2015] 2 S.C.R.


A Mrs. Deepali Ajay Satpute, we find it necessary to direct Mr.
  Arun Sharma, Father to neither directly nor indirectly through
  any member of his family or his friends, to communicate in any
  manner or to meet the Social Worker, Mrs. Deepali Ajay
  Satpute. This is in deference to the apprehensions that she
B has felt and expressed to the Court as a consequence of
  conversations of the Respondent and his Mother with her
  pertaining to her as well as the safety of her own son. In the
  event of the Social Worker seeking Police Protection to her
C and family, the Station House Officer of the concerned Police
  Station shall immediately provide the same and we direct so.

      22. The Appeals are allowed in these terms. The parties shall
      bear their respective costs.

D     Nidhi Jain                                     Appeals allowed.




E




F




G




H