VIKRAM VIR VOHRAversusSHALINI BHALLA

                     [2010] 3 S.C.R. 775


                    VIKRAM VIR VOHRA                              A
                               V.
                       SHALINI BHALLA
               (Civil Appeal No. 2704 of 2010)

                      MARCH 25, 2010
                                                                  B
   [G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]

      Hindu Marriage Act, 1955 - s. 26 - Custody of minor
child - Divorce by mutual consent - Settlement between
parlies as regards custody of minor child - Visitation rights C
granted to father - Application u/s. 26 seeking modification
of terms and custody of minor - Courls below allowing wife to
take child to Australia where she was employed for gain with
a direction to bring child back to India twice in year for allowing
visitation rights of father - Interference with - Held: Not called D
for - Welfare of child is of paramount imporlance in matters
of custody - Custody orders are interlocutory orders and are
capable of being altered and moulded keeping in mind the
qeeds of child - Judicial discretion has been properly
balanced between the rights of husband and those of wife - E
Visitation rights of father have been so structured as to be
compatible with the educational career of the child.

     The parties filed petition for divorce and decree of
divorce on mutual consent was passed. The parties
arrived at a settlement that the custody of the child shall F
remain with the mother and father shall have only visiting
rights. Thereafter, the respondent-wife as also appellant-
husband filed applications uls. 26 of the Hindu Marriage
Act seeking modification of the terms and conditions
about the custody of the child. Respondent wanted to G
take the child with her to Australia where she was
employed for gain with a request to revoke the visitation
rights granted to the appellant for meeting the child
whereas the appellant sought permanent custody of the
                             775                                  H
    776      SUPREME COURT REPORTS             [2010] 3 S.C.R.

A child. The trial court allowed the respondent to take the
  child with her to Australia but also directed her to bring
  the child back to India for allowing the father visitation
  rights twice in a year. High Court upheld the order. Hence
  the present appeal.
B
          Dismissing the appeal, the Court

      HELD: 1.1 The welfare of the child is of paramount
  importance in matters relating to child custody and the
  welfare of the child may have a primacy even over
C statutory provisions. [Para 14) [783-C)

          Mausami Moitra Ganguli vs. Jayant Ganguli (2008) 7
    sec 673, referred to.
        1.2. The child was found to be quite intelligent and
D discerning. The child is in school and from the behaviour
  of the child, it could be made out that he is well behaved
  and that he is receiving proper education. The child
  categorically stated that he wanted to stay with his
  mother. It appears that the child is about 8-10 years of age
E and is in a very formative and impressionable stage in his
  life. [Paras 13 and 14] [783-A-C)

       1.3. The submission that in view of the provisions of
  section 26 of the Hindu Marriage Act, the order of
F custody of the chilci and the visitation rights of the
  appellant cannot be changed as they are not reflected in
  the decree of mutual di~orce, is far too hyper technical
  an objection to be considered seriously in a custody
  proceeding. A child is not a chattel nor is he/she an article
G of personal property to be shared in equal halves. [Para
  15) [783-D-E]

       1.4. In a matter relating to custody of a child, the
    Court must remember that it is dealing with a very
    sensitive issue in considering the nature of care and
H
      VIKRAM VIR VOHRA v. SHALINI BHALLA                 777


affection that a child requires in the growing stages of his    A
or her life. That is why custody orders are always
considered interlocutory orders and by the nature of
such proceedings custody orders cannot be made rigid
and final. They are capable of being altered and moulded
keeping in mind the needs of the child. Even if orders are      B
based on consent, those orders can also be varied if the
welfare of the child so demands. Even though the
principles have been laid down in proceedings under the
Guardians and Wards Act, 1890, these principles are
equally applicable in dealing with the custody of a child       c
under section 26 of the Act since in both the situations
two things are common; the first, being orders relating
to custody of a growing child and secondly, the
paramount consideration of the welfare of the child. Such
considerations are never static nor can they be squeezed        0
in a strait jacket. Therefore, each case has to be dealt with
on the basis of its peculiar facts. [Paras 16, 17 and 19]
[783-F-H; 784-A, CJ                                        .

    Rosy Jacob vs. Jacob A Chakramakkal (1973) 1 SCC
840; Dhanwanti Joshi vs. Madhav Unde (1998) 1 SCC 112;          E
Gaurav Nagpa/ vs. Sumedha Nagpal (2009) 1 SCC 42; Thrity
Hoshie Do/ikuka vs. Hoshiam Shavaksha Do/ikuka AIR 1982
SC 1276, referred to.

     1.5. Regarding the question of the child being taken       F
to Australia and the consequent variations in the
visitation rights of the father, it is found that the
respondent mother is getting a better job opportunity in
Australia. Her autonomy on her personhood cannot be
curtailed by Court on the ground of a prior order of            G
custody of the child. Every person has a right to develop
his or her potential. In fact a right to development is a
basic human right. The respondent-mother cannot be
asked to choose between her child and her career. It is
clear that the child is very d.ear to her and she will spare    H
    778      SUPREME COURT REPORTS             [2010] 3 S.C.R.


A no pains to ensure that the child gets proper education
  and training in order to develop his faculties and
  ultimately to become a good citizen. If the custody of the
  child is denied to her, she may not be able to pursue her
  career in Australia and that may not be conducive either
B to the development of her career or to the future
  prospects of the child. Separating the child from his
  mother will be disastrous to both. [Para 23] [785-C-E]

       1.6. The father is already established in India and he
C is also financially solvent. His visitation rights have been
  ensured in the impugned orders of the High Court. His
  rights have been varied but have not been totally ignored.
  The appellant-father, for all these years, lived without the
  child and got used to it. [Para 24] [785-F]

D      1.7. In the application filed before the Additional
  District Judge, the mother made it clear that she is ready
  to furnish any undertaking or bond in order to ensure her
  return to India and to make available to the father, his
  visitation rights subject to the education of the child. So
E far as the order which had been passed by the High
  Court, affirming the order of the trial court, the visitation
  rights of the appellant-father have been so structured as
  to be compatible with the educational career of the child.
  In this matter judicial discretion has been properly
F balanced between the rights of the appellant and those
  of the respondent. In that view of the matter, interference
  with the order passed by the High Court is not called for.
  The respondent is directed that before taking the child to
  Australia, she must file an undertaking to the satisfaction
G of the Court of Additional District Judge within the
  stipulated period. [Paras 25 and 26] [785-G-H; 786-A-C]
                        Case Law Reference:
          (2008) 1 sec 673      Referred to.         Para 14
H         (1973) 1 sec 840      Referred to.         Para 17
       VIKRAM VIR VOHRA v. SHALINI BHALLA                     779


     (1998) 1 sec 112           Referred to.           Para 18       A
     (2009) 1 sec 42            Referred to.           Para 20

     AIR 1982 SC 1276           Referred to.           Para 21

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.                  B
2704 of 2010.

    From the Judgment & Order dated 27.7.2009 of the High
Court of Delhi at New Delhi in MAT APP No. 38 of 2009.

     Jaspal Singh, Neelam Kalsi, Vimal Chandra S. Dave for           C
the Appellant.

    P.H. Parekh, J.K. Chawla, P.K. Sharma, Amit Tripathi,
Rohit Pandey for the Respondent.

     The Judgment of the Court was delivered by                      D

     GANGULY, J. 1. Leave granted.
      2. This appeal by the husband, impugns the judgment and
order dated 27.07.09 of Delhi High Court which upheld the            E
judgment and order of the Additional District Judge passed in
relation to applications filed by both the parties under Section
26 of the Hindu Marriage Act (hereinafter "the Act"). The
impugned judgment permitted the respondent-wife to take the
child with her to Australia.
                                                                     F
     3. The material facts of the case are that the parties to the
present appeal were married as per the Hindu rites on
10.12.2000. A child, Master Shivam, was born to them on
05.08.02. In view of irreconcilable differences between the
parties they had agreed for a divorce by mutual consent under        G
Section 13-B of the Act and filed a petition to that effect and
on 05.09.06 a decree of divorce on mutual consent was passed
by the Additional District Judge, Delhi.

     4. As regards the custody of the child there was some           H
    780       SUPREME COURT REPORTS                  [2010] 3 S.C.R.

A   settlement between the parties and according to the appellant
    the same was incorporated in paras 7 and 9 of the petition filed
    under Section 13-B (2) of the Act. Those paragraphs are as
    under:

          "The parties have agreed that the custody of the minor son
B
          Master Shivam shall remain with the mother, petitioner
          No.1 who being the natural mother is also the guardian of
          the son Master Shivam as per law laid down by the
          Supreme Court of India. It is, however, agreed that the
          father petitioner shall have right of visitation only to the
c         extent that the child Master Shivam shall be with the father,
          petitioner No.2, once in a fortnight from 10 AM to 6.30 PM
          on a Saturday. Petitioner No.2 shall collect the child Master
          Shivam from WZ-64, 2nd Floor Shiv Nagar Lane No.4,
          New Delhi-58 at 10 AM on a Saturday where the child is
D         with his mother. And on the same day at by 6.30 PM, the
          petitioner No.2 would leave the child back at the same
          place with the mother i.e. petitioner No.1 and in case he
          does not do so petitioner No.1 the mother shall collect the
          child from petitioner No.2 on the same day. Both parties
E         undertake before this Hon'ble Court that they would not
          create any obstruction in implementation of this
          arrangement.

        The petitioner No.1 shall take adequate care of the child
F       in respect of health, education etc., at her own cost. In case
        the petitioner No.1 changes her address or takes the child
        outside Delhi, she shall keep petitioner No.2 informed one
        week in advance about the address and telephone nos.
        and the place where the child would be staying with the
        mother, to enable the petitioner No.2 to remain in touch
G
        with the child.

          The petitioner No.1 has received all her Stridhan and other
          valuables, articles and other possessions, and nothing
          remains due to her from the petitioner No.2. The petitioner
H
       VIKRAM VIR VOHRA v. SHALINI BHALLA                         781
           tASOK KUMAR GANGULY, J.]
     No.1 and the child Shivam has no claim to any property _A
     or financial commitment from petitioner No.2 and all her
     claims are settled fully and finally".

     5. Thereafter the respondent-wife filed applications dated
07.11.06 and 9.05.08 and the appellant-husband also filed                 B
applications dated 17.11.07and'16.02.09 under Section 26 of
the Act seeking modification of those terms and conditions
about the custody of the child.

      6. The respondent was basing her claim on the fact that
she wanted to take the child with her to Australia where she              C
was employed for gain with a request to revoke, the visitation
rights granted to the appellant for meeting the child. This she
felt will be conducive to the paramount interest and welfare of
the child. The appellant on the o_ther hand sought permanent
custody of the child under the changed circumstances alleging             D
that it is not in the interest of the child to leave India permanently.

     7. The Trial Court vide its order dated 06.04.09 took notice
of the fact that in the joint petition of divorce, parties voluntarily
agreed that the custody of the child shall remain with the mother         E
and father shall have only visiting rights, in the manner indicated
in the mutual divorce decree. The Court modified the terms and
conditions of the custody and visitation rights of the appellant
about the minor child. By its order the Trial Court had allowed
the respondent to take the child with her to Australia but also
                                                                          F
directed her to bring the child back to India for allowing the
father visitation rights tvvice in a year i.e. for two terms -
between 18th of December to 26th of January and then from
26th of June to 11th of July.

     8. Being aggrieved by that order of the Trial Court, the             G
appellant appealed to the High Court. It was argued by the
appellant since no decree was passed by the Court while
granting mutual divorce, an application under Section 26 of the
Act does not lie and in the absence of specific provision in the
decree regarding the custody and visitation rights of the child,          H
    782      SUPREME COURT REPORTS                   [2010) 3 S.C.R.


A the Trial Court has no jurisdiction to entertain the petition afresh
  after passing of the decree.

        9. The High Court took into consideration the provisions
  of Section 26 of the Act and was of the view that the aforesaid
8 provision   is intended to enable the Court to pass suitable
  orders from time to time to protect the interest of minor children.
  However, the High Court held that after the final order is passed
  in original petition of divorce for the custody of the minor child,
  the other party cannot file any number of tresh petitions ignoring
C the earlier order passed by the Court.

        10. The Court took into consideration that even if the terms
  and conditions regarding the custody and visitation rights of the
  child are not specifically contained in the decree, they do form
  part of the petition seeking divorce by mutual consent. It was
D of the view that absence of the terms and conditions in the
  decree does not disentitle the respondent to file an application
  under Section 26 of the Act seeking revocation of the visitation
  rights of the appellant.

E       11. It is important to mention here that the learned Judge
  of the High Court had personally interviewed the child who was
  about 7 years old to ascertain his wishes. The child in
  categorical terms expressed his desire to be in the custody and
  guardianship of his mother, the respondent. The child appeared
F to be quite intelligent. The child was specifically asked if he
  wanted to live with his father in India but he unequivocally
  refused to go with or stay with him. He made it clear in his
  expression that he was happy with his mother and maternal
  grandmother and desired only to live with his mother. The
  aforesaid procedure was also followed by the learned Trial
G Court and it was also of the same view after talking with the
  child.

       12. Being aggrieved with the judgment of the High Court
  the appellant has approached this Court and hence this appeal
H by way of Special Leave Petition.
       VIKRAM VIR VOHRA v. SHALINI BHALLA                       783
            [ASOK KUMAR GANGULY, J.]
     13. We have also talked with the child in our chambers in          A
the absence of his parents. We found him to be quite intelligent
and discerning. The child is in school and from the behaviour
of the child, we could make out that he is well behaved and that
he is receiving proper education.
                                                                        B
      14. The child categorically stated that he wants to stay with
his mother. It appears to us that the child is about 8-10 years
of age and is in a very formative and impressionable stage in
his life. The welfare of the child is of paramount importance in
matters relating to child custody and this Court has held that          C
welfare of the child may have a primacy even over statutory
provisions [See Mausami Moitra Ganguli vs. Jayant Ganguli
- (2008) 7 SCC 673, para 19, page 678]. We have considered
this matter in all its aspects.

      15. The argument of the learned counsel for the appellant,        D
that in view of the provisions of Section 26 of the Act, the order
of custody of the child and the visitation rights of the appellant
cannot be changed as they are not reflected in the decree of
mutual divorce, is far too hyper technical an objection to be
considered seriously in a custody proceeding. A child is not a          E
chattel nor is he/she an article of personal property to be shared
in equal halves.

      16. In a matter relating to custody of a child, this Court must
remember that it is dealing with a very sensitive issue in
considering the nature of care and affection that a child requires      F
in the growing stages of his or her life. That is why custody
orders are always considered interlocutory orders and by the
nature of such proceedings custody orders cannot be made
rigid and final. They are capable of being altered and moulded
keeping in mind the needs of the child.                                 G

      17. In Rosy Jacob vs. Jacob A Chakramakkal -[(1973) 1
SCC 840], a three judge Bench of this Court held that all orders
relating to custody of minors were considered to be temporary
orders. The learned judges made it clear that with the passage          H
    784       SUPREME COURT REPORTS                 [2010] 3 S.C.R.

A   of time, the Court is entitled to modify the order in the interest
    of the minor child. The Court went to the extent of saying that
    even if orders are based on consent, those orders can also be
    varied if the welfare of the child so demands.

       18. The aforesaid principle has again been followed in
8
    Dhanwanti Joshi vs. Madhav Unde - [(1998) 1 SCC 112].

        19. Even though the aforesaid principles have been laid
   down in proceedings under the Guardians and Wards Act,
   1890, these principles are equally applicable in dealing with the
C ·custody of a child under Section 26 of the Act since in both the
   situations two things are common; the first, being orders relating
   to custody of a growing child and secondly, the paramount
   consideration of the welfare of the child. Such considerations
   are never static nor can they be squeezed in a strait jacket.
D Therefore, each case has to be dealt with on the basis of its
   peculiar facts.

      20. In this connection, the principles laid down by this Court
  in Gaurav Nagpal vs. Sumedha Nagpal reported in (2009) 1
E SCC 42 are very pertinent. Those principles in paragraphs 42
  and 43 are set out below:

          "42. Section 26 of the Hindu Marriage Act, 1955 provides
          for custody of children and declares that in any proceeding
          under the said Act, the court could make, from time to time,
F         such interim orders as it might deem just and proper with
          respect to custody, maintenance and education of minor
          children, consistently with their wishes, wherever possible.

        43. The principles in relation to the custody of a minor child
        are well settled. In determining the question as to who
G
        should be given custody of a minor child, the paramount
        consideration is the ''welfare of the child" and not rights of
        the parents under a statute for the time being in force".

      21. That is why this Court has all along insisted on
H focussing the welfare of the child and accepted it to be the
       VIKRAM VIR VOHRA v. SHALINI BHALLA                     785
            [ASOK KUMAR GANGULY, J.]

paramount consideration guiding the Court's discretion in             A
custody order. See Thrity Hoshie Dolikuka vs. Hoshiam
Shavaksha Dolikuka - [AIR 1982 SC 1276], para 17.

     22. In the factual and legal background considered above,
the objections raised by the appellant do not hold much water.        8
      23. Now coming to the question of the child being taken
to Australia and the consequent variations in the visitation rights
of the father, this Court finds that the Respondent mother is
getting a better job opportunity in Australia. Her autonomy on
her personhood cannot be curtailed by Court on the ground of          C
a prior order of custody of the child. Every person has a right
to develop his or her potential. In fact a right to development is
a basic human right. The respondent-mother cannot be asked
to choose between her child and her career. It is clear that the
child is very dear to her and she will spare no pains to ensure       D
that the child gets proper education and training in order to
develop his faculties and ultimately to become a good citizen.
If the custody of the child is denied to her, she may not be able
to pursue her career in Australia and that may not be conducive
either to the development of her career or to the future              E
prospects of the child. Separating the child from his mother will
be disastrous to both.

      24. Insofar as the father is concerned, he is already
established in India and he is also financially solvent. His
                                                                      F
visitation rights have been ensured in the impugned orders of
the High Court. His rights have been varied but have not been
totally ignored. The appellant-father, for all these years, lived
without the child and got used to it.

    25. In the application dated 9.5.2008 filed before the            G
Additional District Judge, Delhi, the mother made it clear in
paragraph 12 that she is ready to furnish any undertaking or
bond in order to ensure her return to India and to make
available to the father, his visitation rights subject to the
education of the child. This Court finds that so far as the order     H
    786      SUPREME COURT REPORTS                    [2010] 3 S.C.R.


A which had been passed by the High Court, affirming the order
  of the Trial Court, the visitation rights of the appellant-father have
  been so structured as to be compatible with the educational
  career of the child. This Court finds that in this matter judicial
  discretion has been properly balanced between the rights of
B the appellant and those of the respondent.

       26. In that view of the matter, this Court refuses to interfere
  with the order passed by the High Court. The appeal is
  dismissed with the direction that the respondent-mother, before
  taking the child to Australia, must file an undertaking to the
C satisfaction of the Court of Additional District Judge-01, (West),
  Delhi within a period of four weeks from date. No order as to
  costs.

    N.J.                                          Ap;:>eal dismissed.