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Citation Codes
Equivalent Citations
citation codes
Case Number
Disposition

dismissed

Attorney(S)
  • Indu Malhotra, Senior Advocate (Arun K. Sinha, N.S Bajwa, Rakesh Singh, Sumit Sinha, A.D.N Rao, Atul Sharma, Abhishek Agarwal and Ms Neelam Jain, Advocates) for the Appellant;
  • Pinaki Mishra, Senior Advocate (Sunil Kr. Jain and Aneesh Mittal, Advocates) for the Respondent.
Judges
  • Justice P. Sathasivam
  • Justice Ranjan Gogoi
Acts
  • Section 13-B(2) of the Act
  • Section 151 of the Code of Civil Procedure
  • Section 13 of the Act
  • The Guardians and Wards Act, 1890
  • Section 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”)
  • The Hindu Minority and Guardianship Act, 1956
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Disposition

dismissed

Attorney(S)
  • Indu Malhotra, Senior Advocate (Arun K. Sinha, N.S Bajwa, Rakesh Singh, Sumit Sinha, A.D.N Rao, Atul Sharma, Abhishek Agarwal and Ms Neelam Jain, Advocates) for the Appellant;
  • Pinaki Mishra, Senior Advocate (Sunil Kr. Jain and Aneesh Mittal, Advocates) for the Respondent.
Judges
  • Justice P. Sathasivam
  • Justice Ranjan Gogoi
Acts
  • Section 13-B(2) of the Act
  • Section 151 of the Code of Civil Procedure
  • Section 13 of the Act
  • The Guardians and Wards Act, 1890
  • Section 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”)
  • The Hindu Minority and Guardianship Act, 1956
See more information ...
Smart Summary

Factual and Procedural Background

The appellant-wife and respondent-husband married on 10 December 1992 and have two daughters, Kirti (born 20 August 1995) and Ridhi (born 19 April 2000). Owing to irreconcilable differences, they began living separately in December 2001. On 23 May 2003 they filed a joint petition under Section 13-B of the Hindu Marriage Act, 1955, seeking divorce by mutual consent. The petition expressly provided that the husband would retain sole custody of both daughters and that the wife would relinquish visitation rights in the children’s best interests. Without waiting for the statutory cooling-off period, the trial court granted a mutual-consent divorce decree on 3 June 2003.

Almost three years later, the wife filed a suit challenging the decree as fraudulent and also moved an application under Section 151 CPC to recall it. On 25 September 2007 the trial court recalled the divorce decree. The husband’s Matrimonial Appeal No. 72 of 2007 succeeded: the Delhi High Court on 8 September 2008 set aside the recall order, leaving the wife to pursue her fraud claim in the separate suit. A review petition was dismissed on 10 July 2009. The present Supreme Court appeals challenge both High Court orders but, at the parties’ request, are confined to issues of custody and visitation.

Legal Issues Presented

  1. Whether custody of the two minor daughters should continue with the father.
  2. Whether, despite the original waiver, the mother should now be granted visitation rights.

Arguments of the Parties

Appellant-Wife’s Arguments

  • Sought visitation rights, contending that, as their mother, she should have the opportunity to rebuild a relationship with the children.

Respondent-Husband’s Arguments

  • Emphasised the daughters’ clear and consistent refusal to meet or stay with their mother, evidenced during Supreme Court-supervised mediation sessions.
  • Asserted that disrupting the present arrangement would be contrary to the children’s welfare, happiness, and educational stability.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42 Welfare of the child is paramount; court must look beyond legal rights to human factors. Used to reaffirm that children’s welfare overrides parental claims when deciding custody/visitation.
Saraswatibai Shripad Ved v. Shripad Vasanji Ved, AIR 1941 Bom 103 Early Indian articulation of welfare-centric custody principles. Cited as historical foundation supporting the welfare test.
Rosy Jacob v. Jacob A. Chakramakkal (1973) 1 SCC 840 Court’s parens patriae duty and broad discretion in custody matters. Relied on to underscore that statutory parental rights yield to children’s best interests.
Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka (1982) 2 SCC 544 Importance of moral and ethical welfare of the child. Invoked to consider emotional well-being and expressed preferences of the daughters.
Mausami Moitra Ganguli v. Jayant Ganguli (2008) 7 SCC 673 Child’s welfare, not parents’ rights, is decisive; each case turns on its own facts. Supported the Court’s fact-specific assessment of the girls’ wishes and environment.
Sheila B. Das v. P.R. Sugasree (2006) 3 SCC 62 Court must tailor custody orders to circumstances, prioritising the child’s desire and welfare. Cited to justify denying visitation that the children strongly opposed.

Court's Reasoning and Analysis

The Supreme Court first noted that the High Court had already left open the wife’s independent civil suit challenging the divorce decree; therefore, only custody and visitation needed adjudication in these appeals.

Key steps in the Court’s analysis:

  1. Existing Consent Terms: The original divorce petition contained an explicit waiver of visitation by the wife, purportedly in the children’s best interests.
  2. Children’s Express Wishes: During personal interaction on 16 December 2011, both daughters—then approximately 17 and 11—were “very clear and categorical” that they wished to remain with their father and avoid contact with their mother.
  3. Mediation Attempts: Court-ordered fortnightly meetings at the Supreme Court Mediation Centre failed: on two separate dates the children refused to accompany their mother despite the mediator’s efforts.
  4. Uncontroverted Evidence: The husband’s detailed account of the failed mediation and the children’s distress was placed on record without rebuttal by the wife.
  5. Application of Welfare Principle: Drawing on a line of precedent, the Court reiterated that custody determinations hinge on welfare, including emotional stability, environment, and the children’s preferences.
  6. Reluctance to Impose Forced Contact: Recognising that compelling visitation against the daughters’ wishes could harm their welfare, the Court found no practical or beneficial way to order visitation.

Holding and Implications

Appeals DISMISSED. The Supreme Court affirmed the Delhi High Court’s orders (2008 106 DRJ 651; 2009 111 DRJ 292), denied the mother any visitation rights, and directed that both daughters shall remain in their father’s custody until they attain majority.

Implications: The decision reinforces the principle that a child’s expressed preferences and overall welfare override parental claims to custody or visitation. The ruling affects only the parties; it restates existing jurisprudence without creating new legal doctrine.

Show full summary ...
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    Gaytri Bajaj v. Jiten Bhalla .

    The Judgment of the Court was delivered by

    Ranjan Gogoi, J.— Leave granted. These appeals are directed against the judgment and order dated 8-9-2008 passed by the High Court of Delhi in Jiten Bhalla v. Gaytri Bajaj (2008) 106 DRJ 651 and the order dated 10-7-2009 (2009) 111 DRJ 292 declining review of the aforesaid order dated 8-9-2008.

    2. The facts lie 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 Ridhi, were born to them on 20-8-1995 and 19-4-2000 respectively. Disputes and differences having developed between the parties a joint petition dated 23-5-2003 was presented by the parties under Section 13-B of the Hindu Marriage Act, 1955 (hereinafter referred to as “the Act”) seeking a decree of divorce by mutual consent. In the joint petition filed, it was stated 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 cohabitation as husband and wife, the parties, upon failure to effect any reconciliation of their differences, have agreed to dissolve their marriage by mutual consent under the provisions of Section 13-B of the Hindu Marriage Act.

    3. It appears that without waiting for the period prescribed under Section 13-B(2) of the Act, a second motion was moved by the parties before the learned court on 26-5-2003 seeking 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, 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 forgo her rights of visitation keeping in view the best interest and welfare of the children.

    4. 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 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 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 3-6-2003 passed in the divorce proceeding between the 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 25-9-2007 recalled the decree of divorce dated 3-6-2003. Aggrieved, an appeal i.e Matrimonial Appeal No. 72 of 2007 was filed by the respondent husband in the High Court of Delhi which was allowed by the order dated 8-9-2008 (2008) 106 DRJ 651. The application seeking review of the aforesaid order dated 8-9-2008 (2008) 106 DRJ 651 was dismissed by the High Court on 10-7-2009. Both the aforesaid orders dated 8-9-2008 (2008) 106 DRJ 651 and 10-7-2009 (2009) 111 DRJ 292 have been assailed before us in the present appeals.

    5. Insofar as the validity of the decree of divorce dated 3-6-2003 is concerned we do not propose and also do not 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 25-9-2007 recalling the decree of 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 the order of the learned trial court dated 25-9-2007 recalling the decree of divorce was not correct, the High Court had left the question of validity of the decree, on the ground of alleged fraud, open for adjudication in the suit.

    6. 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 the only issue raised before us by the parties we propose to deal only with the same and refrain from entering into any other question.

    7. 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 have the 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.

    8. The above issue i.e custody of the children has already received an elaborate consideration of this Court. Such consideration is recorded in the earlier order of this Court dated 16-12-2011 (2012) 12 SCC 478. From the aforesaid order, it appears that proceeding on the basis of the statement made by Ms Indu 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 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 (2012) 12 SCC 478 had recorded that the two children, who are aged about 17 and 11 years, were very clear and categorical 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 in mind the position of the appellant as the mother it was decided that the mother should be allowed to make an initial contact with the children and gradually build up a relationship, if possible, so as to arrive at a satisfactory solution to the impasse.

    9. Accordingly, the Court made the following interim arrangement:

    “(i) The respondent husband is directed to bring both daughters, namely, Kirti Bhalla and Ridhi Bhalla to the Supreme Court Mediation Centre at 10 a.m on Saturday of every fortnight and hand over both of them to the 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 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 the elder daughter (in the course of hearing 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 application filed by the respondent husband before this Court (Interlocutory Application No. 4 of 2012) seeking vacation/modification of the interim arrangement made by the order dated 16-12-2011 (2012) 12 SCC 478. In the said application, it has been stated that pursuant to the order dated 16-12-2011 (2012) 12 SCC 478 the respondent father along with both the children had come to the Supreme 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, in spite 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 he should come and take the children back with him. In the aforesaid IA 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 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 next date for appearance in the Mediation Centre i.e 14-1-2012 the said fact was informed to the learned counsel for the appellant by the respondent through his counsel by letter dated 13-1-2012.

    11. Though the above facts stated in the aforesaid IA are not mentioned in the report of the mediator submitted to this Court, what is stated in the aforesaid report dated 14-1-2012 is that on 14-1-2012 the respondent and the children were not present and that a letter dated 13-1-2012 from the counsel for the respondent had been placed before the mediator wherein it has been stated that though the children had earlier attended 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 IA have not been controverted by the appellant wife in any manner.

    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 Nagpal (2009) 1 SCC 42 the principles of English and American law in this regard were considered by this Court to hold that the legal position in India is not in any way different. Noticing the judgment of the Bombay High Court in Saraswatibai Shripad Ved v. Shripad Vasanji Ved AIR 1941 Bom 103, Rosy Jacob v. Jacob A. Chakramakkal (1973) 1 SCC 840 and Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka (1982) 2 SCC 544 this Court eventually concluded in paras 50 and 51 that: (Gaurav Nagpal case (2009) 1 SCC 42)

    “50. [T]hat 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 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 Mausami Moitra Ganguli case (2008) 7 SCC 673, the court has to give due weightage to the child's 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 are equal if not more important than the others.
    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 govern 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 paras 19 and 20 of the Report in Mausami Moitra Ganguli v. Jayant Ganguli (2008) 7 SCC 673 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 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 Sugasree (2006) 3 SCC 62 would also require 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 the 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 not the better right of 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 parent concerned 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 of a minor. What must be emphasised 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 consideration that must guide the determination required to be made by the court.

    15. In the present case irrespective of the question whether the abandonment of visitation rights by the wife was occasioned by the fraud or deceit practised 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 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 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 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.

    16. Taking into account all the aforesaid facts, we dismiss these appeals, affirm the impugned orders (2008) 106 DRJ 651, (2009) 111 DRJ 292 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.

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    Comments

    Gaytri Bajaj v. Jiten Bhalla .
    (Oct 5, 2012)