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Custody Orders Never Final

Custody Orders never final

  • Court: Hon’ble Supreme Court of India
  • Date: March 25, 2010
  • Case no.: CIVIL APPEAL NO.2704 OF 2010 (Arising out of SLP(C) No.19935/2009)
  • Title: Vikram Vir Vohra vs Shalini Bhalla

Trial Court proceedings:

  • Parties married on 10.12.2000, a child (master Shivam) was born on 05.08.2002. On 05.09.2006, the marriage was dissolved by a way of mutual consent. After divorce, the custody of the child remained with Mother and father had visitation rights.
  • Later, the wife filed applications dated 07.11.06 and 9.05.08 and the husband also filed applications dated 17.11.07 and 16.02.09 under Section 26 of the Act seeking modification of terms and conditions about the custody of the child.
  • The wife was basing her claim on the fact that she wanted to take the child with her to Australia where she was employed for gain with a request to revoke the visitation rights granted to the father. The father on the other hand sought permanent custody of the child under the changed circumstances alleging that it is not in the interest of the child to leave India permanently.
  • The trial court modified the terms and conditions of the custody and visitation rights of the child and allowed the wife 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 i.e. for two terms – between 18th of December to 26th of January and then from 26th of June to 11th of July.

High Court proceedings:

  • The father appealed to High court against this order. Father argued that 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, the Trial Court has no jurisdiction to entertain the petition afresh after passing of the decree.
  • The High Court took into consideration the provisions of Section 26 of the Act and was of the view that the aforesaid provision is 5 intended to enable the Court to pass suitable orders from time to time to protect the interest of minor children.
  • The High 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 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.
  • 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 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 Court and it was also of the same view after talking with the child.

Supreme Court proceedings:

  • The father then challenged the High court judgment by way of Special Leave Petition.
  • The learned judges talked with the child in chambers in the absence of his parents and found him to be quite intelligent and discerning. From the behaviour of the child, the hon’ble judges could make out that he is well behaved and that he is receiving proper education. The child categorically stated that he wants to stay with his mother. It appeared that the child is about 8-10 years of age and is in a very formative and impressionable stage in his life.
  • Giving reference to previous judgements of Mausami Moitra Ganguli vs. Jayant Ganguli – (2008) 7 SCC 673, Rosy Jacob vs. Jacob A Chakramakkal – [(1973) 1 SCC 840], Dhanwanti Joshi vs. Madhav Unde – [(1998) 1 SCC 112], Gaurav Nagpal vs. Sumedha Nagpal reported in (2009) 1 SCC 42, Thrity Hoshie Dolikuka vs. Hoshiam Shavaksha Dolikuka [AIR 1982 SC 1276], the Hon’ble Supreme Court then held that:
  1. The welfare of the child is of paramount importance in matters relating to child custody and this Court has held that welfare of the child may have a primacy even over statutory provisions.
  2. The argument of the husband 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 8 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 chattel nor is he/she an article of personal property to be shared in equal halves.
  3. 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 based on consent, those orders can also be varied if the welfare of the child so demands.
  4. The principles in relation to the custody of a minor child are well settled. In determining the question as to who 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.
  5. In the factual and legal background considered above, the objections raised by the appellant (father) do not hold much water.
  6. 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 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 that the child gets proper education and training in order to develop his faculties and ultimately to become a good citizen.
  7. Insofar as the father is concerned, he is already established in India and he 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.
  8. This Court finds that so far as the order which had been passed by the High Court, affirming the order of the Trial Court, the visitation rights of the 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 the appellant and those of the respondent.
  9. 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 mother, before taking the child to Australia, must file an undertaking to the satisfaction of the trial Court within a period of four weeks from date. No order as to costs.

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