Supreme Court of India
NUTAN GAUTAM versus PRAKASH GAUTAM on 5 April 2019
[2019] 6 S.C.R. 461
NUTAN GAUTAM
v.
PRAKASH GAUTAM
(Civil Appeal Nos. 3409-3410 of 2019)
APRIL 05, 2019
[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]
Child and family welfare: Child custody – Interest and welfareof the child – Divorce between the parties – Direction/order by theHigh Court that the father to take the son and get him admitted atBoarding House in Public School in New Delhi and the mother totake custody of the boy in the summer vacation and to ensure thathe returns to Boarding House after summer vacation – Case of themother that after summer vacation son not willing to study in theboarding school and intends to study in the old school in Shahjanpur – Held: High Court ascertained the views of the boy and recordedthat he is very much attached and has more affiliation towards hismother – Boy has expressed his desire to continue his studies onlyin the old school – It is natural, that a boy aged 10 years would bewilling to continue in his old school as much as he is acclimatisedwith the environment of such school where he has started his studies– In the interest of the welfare of the child, the child cannot becompelled to join the Boarding House – Child be allowed to continueto study in the old school – Father given visitation rights – HinduMarriage Act, 1955.
Allowing the appeals, the Court
HELD: 1.1 In the interim order dated 21.05.2018, therespondent was permitted to take the son and get him joined atBoarding House in Public School in New Delhi, and the appellant-wife was permitted to take custody of the boy in the summervacation and to ensure that he returns to the Boarding Houseafter summer vacation. It is also not in dispute that the child wasearlier studying in the same school where he is admitted now forfurther studies. The child has now completed 3[rd] standard and isaged about 10 years. It is natural, a boy of that age who has studiedearlier in the school at Shahjanpur, willing to continue in the same
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Aschool as much as he is acclimatised with the environment ofsuch school where he has started his studies from Ist standardonwards. This Court also interacted with the boy and the boyexpressed his desire to continue his studies only in Shahjanpurschool. When the boy is not inclined to study in Public School inNew Delhi, and stay in the Boarding House, in the interest of theBwelfare of the child, he cannot be compelled to admit in PublicSchool in New Delhi, attached with the Boarding House. In suchview of the matter, it cannot be said that the appellant-wife hasviolated the direction issued by the High Court. [Para 12][465-B-F]C
1.2 From the perusal of the impugned order, it appears thatthe High Court has ascertained the views of the boy and hasrecorded that he is very much attached and has more affiliationtowards his mother-appellant. In the interest and welfare of thechild, the child shall be allowed to continue his study in the oldDSchool, Shahjanpur. Further, in the impugned order, the appellant-wife is directed to elect one forum from which she wants to getthe maintenance. As the same is also not in conformity with thelaw, the said direction is set aside. [Para 13, 14][465-G-H;466-A-B]E1.3 As the respondent-husband is a natural father of thechild, he is also entitled to visitation rights. The respondent-husband is permitted to visit his child and he is entitled to takethe child from the House of the appellant on any Sunday’s andpublic holiday’s whenever he visits Shahjanpur. The orders passedby the High Court are set aside [Para 15, 16][466-C; E]F
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3409-3410 OF 2019
From the Judgment and Orders dated 21.05.2018 and 20.08.2018of the High Court of Judicature at Allahabad in First Appeal No. 316 of2018.G
Harikumar V., Anupam Mishra , Advs. for the Appellant.
R. Basant, Sr. Adv., Prakash Gautam, Vivek Ojha, Gazab SinghChauhan, Ms. Harsh Lata, Advs. for the Respondent.
The Judgment of the Court was delivered by
R. SUBHASH REDDY, J.
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1. Leave granted.
2. These appeals are filed by the wife of the respondent hereinaggrieved by orders dated 21.05.2018 and 20.08.2018 passed by theHigh Court of Judicature at Allahabad in First Appeal NO.316 of 2018.
3. The marriage of the appellant-wife and the respondent-husbandwas solemnized in the year 2006. In the year 2009 a son was born tothem who is named Krish alias Master Krishav Gautam. In the year2012, respondent-husband filed a petition for divorce under Section13(1)(ia)(iii) of the Hindu Marriage Act, 1955. The said divorce petitionis decreed ex-parte by the Trial Court in favour of the respondent-husband. The Trial Court also directed that the son of the appellant,namely, Krish alias Master Krishav Gautam, should be admitted in Col.Satsangi’s Kiran Memorial Public School, New Delhi.
4. Aggrieved by the ex-parte order, the appellant herein filed FirstAppeal NO.316 of 2018 before the High Court of Judicature at Allahabad.Pursuant to order of the Family Court, the son of the parties has beenadmitted in Col. Satsangi’s Kiran Memorial Public School, New Delhi,and he has been put in a Boarding House of the School. By way of aninterim order dated 21.05.2018, which is impugned in these appeals, therespondent-husband was permitted to take the boy with him to Delhiand to leave him in the Boarding House till the start of the summervacations of 2018. Further, the appellant-mother was permitted to takethe child in summer vacations and leave him in the School/BoardingHouse before the reopening of the School.
5. The Family Court has also awarded an amount of Rs.10,000/-per month towards maintenance for the appellant-wife. In view of theplea of the respondent-husband that the appellant-wife is entitled formaintenance only from one forum, appellant-wife is directed to electone forum to which she wants to get maintenance.
6. After reopening of the School in the summer vacation, it appearsthat the boy, Krish @ Master Krishav Gautam, was not willing to go tostudy in the Boarding House in Col. Satsangi’s Kiran Memorial Public A
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ASchool, New Delhi. Further, fifteen days’ time was granted by the HighCourt to the appellant-mother vide Order dated 20.08.2018 to complyOrder dated 21.05.2018.
7. We have heard Mr. Harikumar V., learned counsel appearingfor the appellant-wife, and Mr. R. Basant, learned senior counselBappearing for the respondent-husband.
8. It is contended by learned counsel for the appellant-wife thatthe boy is not willing to study in the Col. Satsangi’s Kiran MemorialPublic School, New Delhi, as he is attached to his mother very muchand intends to study in his old school. Accordingly, he was admitted inCGlobal International School, Shahjanpur, where he is comfortable withhis studies. It is submitted at the Bar that as welfare of the child is theparamount consideration and he is good at studies by pursing his study inGlobal International School also at Shahjanpur, and requested to set asidethe impugned order and permit the boy to continue in the same school atShahjanpur.D
9. On the other hand, Shri R. Basant, learned senior counselappearing for the respondent, has submitted that the respondent is willingto join his son in the best school of Delhi by paying more than Rs.2,00,000/- (Rupees Two Lakhs) towards fees and it is in the interest and welfareof the child to allow him to study only at Col. Satsangi’s Kiran MemorialEPublic School, New Delhi. Further, It is submitted that there was aspecific direction for joining the boy in the Boarding House/School atNew Delhi after reopening, the appellant-wife has violated Order dated21.05.2018 and further Order dated 20.08.2018. It is submitted thatwish of the child itself is not a criteria and the welfare of the child will beFbest served by admitting him in Col. Satsangi’s Kiran Memorial PublicSchool, New Delhi.
10. We have heard learned counsel on both the sides, perusedOrders dated 21.05.2018 and 20.08.2018 and other materials placed onrecord.
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11. It is clear from the materials placed on record, in view of thedifferences cropped up between the parties, respondent-husband hasfiled petition for divorce under Section 13(1)(ia)(iii) of the Hindu MarriageAct, 1955, in the year 2012 which is decreed ex-parte and appeal againstthat order is pending before the High Court. The appellant-wife is H
presently residing at her parental house at Shahjanpur, Uttar Pradesh.The boy is studying in Global International School, Shahjanpur, UttarPradesh, while granting ex-parte decree it appears that the Trial Courtdirected that their son should be admitted in Col. Satsangi’s KiranMemorial Public School, New Delhi. In view of such direction, it appears,the boy was admitted in the said School at New Delhi and was allowedto be taken by the appellant-wife in the summer vacation of 2018.
12. It is true that in Order dated 21.05.2018, the respondent waspermitted to take the son and get him joined at Boarding House in Col.Satsangi’s Kiran Memorial Public School, New Delhi, and the appellant-wife was permitted to take custody of the boy in the summer vacationand to ensure that he returns to the Boarding House after summervacation. It is the case of the appellant that after summer vacation theboy was not inclined to go to the Boarding House/School and wanted tostudy only in his old school, namely, Global International School,Shahjanpur. It is also not in dispute that the child was earlier studying inthe same school where he is admitted now for further studies. We areinformed now that he has now completed 3[rd] standard and is aged about10 years. It is natural, a boy of that age who has studied earlier in theschool at Shahjanpur, willing to continue in the same school as much ashe is acclimatised with the environment of such school where he hasstarted his studies from Ist standard onwards. This Court also interactedwith the boy and the boy expressed his desire to continue his studiesonly in Shahjanpur school. When the boy is not inclined to study in Col.Satsangi’s Kiran Memorial Public School, New Delhi, and stay in theBoarding House, we are of the view that in the interest of the welfare ofthe child, he cannot be compelled to admit in Col. Satsangi’s KiranMemorial Public School, New Delhi, attached with the Boarding House.In such view of the matter, it cannot be said that the appellant-wife hasviolated the direction issued by the High Court vide Orders dated21.05.2018 and 20.08.2018.
13. From the very perusal of the order impugned, it appears thatthe High Court has ascertained the views of the boy and has recordedthat he is very much attached and has more affiliation towards his mother(appellant herein). In that view of the matter we are of the opinion thatthe child, namely, Krish @ Master Krishav Gautam cannot be compelledto join in Col. Satsangi’s Kiran Memorial Public School at New Delhi.
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AWe are further of the view that in the interest and welfare of of thechild, Krish @ Master Krishav Gautam shall be allowed to continue hisstudy at Global International School, Shahjanpur.
14. Further, in the impugned order, the appellant-wife is directedBto elect one forum from which she wants to get the maintenance. Asthe same is also not in conformity with the law, the said direction is liableto be set aside. Ordered accordingly.
15. As the respondent-husband is a natural father of the child,namely, Krish @ Master Krishav Gautam, he is also entitled to visitationCrights. We permit the respondent-husband to visit his child and he isentitled to take the child from the House of the appellant on any Sunday’sand public holiday’s whenever he visits Shahjanpur. The appellant-wifeshall allow the child to leave along with the respondent-father at 09:00a.m., and the respondent-husband to return the child at the house of theDappellant-wife before 06:00 p.m. on the same day. For any furthermodification of visitation rights respondent-father is at liberty to movethe High Court with appropriate application and the same shall beconsidered in accordance with law, keeping in view the welfare of thechild.
E16. For the aforesaid reasons, Orders dated 21.05.2018 and20.08.2018 passed by the High Court of Judicature at Allahabad in FirstAppeal No.316 of 2018 are set aside. We request the High Court todispose of the appeal itself as expeditiously as possible in accordancewith law.
17. In the result, the appeals are allowed with the direction’s asFindicated above. No costs.
Nidhi Jain
Appeals allowed.
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