DR. AMIT KUMAR versus DR. SONILA & ORS. on 26 October 2018

[2018] 13 S.C.R. 561

DR. AMIT KUMAR

v.

DR. SONILA & ORS.

(Civil Appeal No. 10771 of 2018)

OCTOBER 26, 2018

[KURIAN JOSEPH AND SANJAY KISHAN KAUL, JJ.]

Hindu Minority and Guardianship Act, 1956 – s.6 –Guardianship – Custody rights – Appellant and respondent no.1divorced by mutual consent – In terms of the divorce decree, custodyof the children (son and daughter) was to be with the appellant andthe appellant was to provide for expenses of the son, while respondentno.1 was to provide likewise for the daughter – Appellant andrespondent no.1 were doctors with the CRPF posted in Nanded – Atthe relevant time, however, appellant was transferred to Jammunecessitating admission of the children to boarding school –Respondent No.1 failed to make financial contributions as agreed– Appellant sent legal notice to respondent no.1 – Respondent no.1filed application seeking custody of the children as also a suit fordeclaration that decree of divorce was obtained by fraud – HighCourt directed the custody of the children to be with respondentno.1, with visiting rights to the appellant – Propriety of – Held:Decision to give custody of the children to the appellant was aconscious decision taken by the parties and can hardly becategorised as a decision under force, pressure or fraud – Triggerfor respondent no.1 claiming custody of the children arose onlywhen the appellant asked her to contribute financially – Present isnot a case of financial difficulty, but the unwillingness of respondentno.1 to contribute for her own daughter – Proceedings for thecustody and for cancellation of the decree of divorce were topressurise the appellant to not claim any amounts – High Courtgave undue importance to the conversation with the children at atime when naturally they would prefer to stay with a parent ratherthan a boarding school – It was not as if the appellant was notlooking after the children – Children showed affection for theappellant – It was due to the exigencies of his service conditionsthat the children had to be put in a boarding school for some time,

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Awhich exigency also does not remain at present – Further, appellant’ssecond marriage cannot be put against him as the parties had agreedthat they were free to re-marry – Interference by the High Courtwas unjustified – Order of the Family Court granting divorce interms of the decree was in order – Children be returned to theappellant by respondent No.1 – Rights and obligations as envisagedBin the decree of divorce by mutual consent bind both the parties –Code of Civil Procedure, 1908– Order II, r.2.

Allowing the appeal, the Court

HELD: 1.1 The decision to give custody to the appellant,Cof the two children, was a conscious decision taken by the partiesat the relevant stage and can hardly be categorised as a decisionunder force, pressure or fraud. Respondent No.1 is well-educatedand is a medical practitioner. There was a six (6) months’ hiatusperiod for the parties to think over the terms of the settlementbefore the grant of the decree of divorce, which is the statutoryDperiod available for the parties to have a re-think, if they so deemit appropriate. The parties had clearly agreed as per clause 5that they were free to re-marry. As per the terms of the custody,the said marriage does not have any effect on the custody rights,at least in the terms between the parties. The appellant had alsoEborne all the expenses for both the children, as respondent No.1even initially failed to contribute anything towards the expensesfor the daughter, contrary to the agreement inter se the parties.[Para 16] [569-B-D]

1.2 The trigger for respondent No.1 claiming custody ofFthe children arose only when the appellant asked her to contributefinancially. It was not a case of financial difficulty, but theunwillingness of respondent No.1 to contribute for her owndaughter, while simultaneously transferring amounts to acolleague of hers (with whom the respondent No.1 allegedly hada liaison). It does appear that the proceedings initiated initiallyGfor the custody and thereafter for seeking cancellation of thedecree of divorce were clearly an endeavour to pressurise theappellant to not claim any amounts. Order II Rule 2 of the Codeof Civil Procedure, 1908 specifies that where a plaintiffintentionally relinquishes, any portion of his claim, he shall notH

afterwards sue in respect of the portion so relinquished.Respondent No.1 had relinquished her rights to claim custodyand the suit filed by her, thus, is also highly doubtful. The secondmarriage of the appellant cannot be put against him, nor can thefactum of the child of his second wife residing with him deprivehim of the custody rights of his two children, which was specificallyconferred on him with the consent of respondent No.1.[Paras 14, 17 and 18] [568-C-D; 569-E-H]

1.3 It is not as if the appellant was not looking after thechildren. The children showed affection for their father. It wasdue to the exigencies of the appellant’s service conditions thatthe children had to be put in a boarding school for some time,which exigency also does not remain at present. It was known tothe parties that they were in a transferable job. A consciousdecision was taken by the parties to give the sole custody to theappellant, in the interest of the children. Respondent No.1, inorder to avoid the financial liability started these proceedings,resulting in the impugned order, as also a separate suitproceeding. The Single Judge gave undue importance to theconversation with the children at a time when naturally they wouldprefer to stay with a parent rather than a boarding school.Respondent No.1 cannot be permitted to take advantage of thevisiting rights granted for the vacation period to now claim thatthe children should continue to stay with her. [Paras 19, 20] [570-B-D, G]

1.4 The interference by the Single Judge, vide impugnedorder was unjustified, and the order of the Family Court dated9.12.2016 was in order. Insofar as any further facilitative directions,for the purpose of visiting rights of respondent No.1 areconcerned, it would be open for the Family Court or High Courtto make necessary arrangements. Respondent Nos.2 & 3 (sonand the daughter) should be returned to the appellant byrespondent No.1, along with all relevant documents of thechildren, within thirty (30) days from today, before the FamilyCourt. In case the appellant is unable to make arrangement for amid-term admission for the children, he may inform respondentNo.1 and in that eventuality the children will continue to study inthe same school at present and continue to stay with respondent AB

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ANo.1 till the end of the session. This is in order to ensure thatthe study of the children are not disturbed. It is made clear thatthe rights and obligations as envisaged in the decree of divorceby mutual consent will bind both the appellant and respondentNo.1. [Paras 21, 22] [570-H; 571-A-C]

BCIVIL APPELLATE JURISDICTION : Civil Appeal No. 10771of 2018.

From the Judgment and Order dated 25.07.2018 of the HighCourt of Judicature at Bombay, Bench at Aurangabad in Writ PetitionNo. 12432 of 2017.

CArvind Kumar, Adv. for the Appellant.

Kunal Cheema, Ms. Aditi D. Parhi, Advs. for the Respondents.

The Judgment of the Court was delivered by SANJAY KISHAN KAUL, J. 1. Leave granted.D

2. The appellant and respondent No.1 were married according toHindu rites on 7.5.2004 and, from the wedlock were born a son(respondent No.2) and a daughter (respondent No.3), who are now about11 years and 8 years respectively. It appears that the marriage ran intoproblem at some stage and all endeavours for reconciliation failed. TheEappellant and respondent No.1, both, are qualified doctors, who weredeployed with the CRPF throughout, which position exists even today.

3. The appellant and respondent No.1 ultimately agreed for adecree of divorce by mutual consent and filed a petition under Section13B of the Hindu Marriage Act, 1955. The first motion was filed inFJune, 2016 and after the expiry of the statutory period of six (6) months,the second motion was passed and a decree of divorce was granted on9.12.2016.

4. The two relevant terms of the decree of divorce for thepurposes of this present appeal are extracted as under:

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“5) That, petitioner No.1 and 2 are at liberty to marry with anyother person of their choice. In future petitioner No.1 has no anyright of husband over petitioner No.2, so also petitioner No.2 haslost right as wife over petitioner No.1 today.

6) That, petitioner No.1 and 2 both are agree to custody of boththe children’s residing with petitioner No.1. Petitioner No.1 willprovide education, medicines, and marriage of Aarokya Kumars/o Amit Kumar. Petitioner No.2 will provide education, medi-cines and marriage of Riya Kumar d/o Amit Kumar.”

5. A perusal of the aforesaid shows that para 5 was a naturalcorollary to the decree of divorce, i.e., that either parties could re-marry.Clause 6 provides for an agreement inter se the appellant and respon-dent No.1 qua the issue of custody of both the children, which wasagreed to be with the appellant. However, possibly in view of theirsimilar financial strength, it was agreed that the appellant would providefor education, medicines and marriage of the son while respondent No.1would do the likewise for the daughter.

6. The parties at the relevant time were posted in Nanded and,thus, initially the arrangement for custody worked out fine. The issue,however, arose once the appellant was transferred out of Nanded. Theappellant was transferred to Jammu, which apparently necessitated himto make arrangements for admission of respondent Nos.2 & 3 to aboarding school in Pune, while he assessed the possibility of bringing thechildren to live with him in Jammu. The undisputed fact is that at nopoint of time did respondent No.1 make any financial contributionstowards her obligations, in terms of the decree of divorce by mutualconsent. The appellant sent a legal notice dated 28.3.2017 torespondent No.1 pointing out this fact and demanding the payment ofunpaid amounts, apart from the amount required for securing admissionand meeting the living expenses of the daughter in the boarding school atPune. It is this demand which seems to have triggered off the presentdispute.

7. Respondent No.1 sent a reply to the aforesaid notice throughher counsel on 15.4.2017. The said reply raised the issue that theconsent decree was not acceptable to her, and hence her counsel hadadvised her to seek a modification of the terms & conditions of thedecree regarding the custody of the children. It was also alleged thatthe transfer of respondent Nos.2 & 3 to the boarding school was aunilateral act of the appellant and that the expenses quoted wereexorbitant.

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A8. Respondent No.1 filed an application dated 31.5.2017 underSection 6 of the Hindu Minority and Guardianship Act, 1956, seekingcustody of her minor children. In the application, it is alleged thatrespondent No.1 was mentally disturbed regarding the future of respon-dent Nos.2 & 3, who are of a tender age, and that at the time of thedivorce, the appellant forced and coerced the applicant “to dance on hisBtunes though not acceptable to the applicant.” It is further pleaded thatrespondent No.1 had not asked for absolute custody of the children onlyso that they do not get disturbed in their education. This application alsoadmits that the trigger has been the notice dated 28.3.2017, sent by theappellant through his counsel, whereby respondent No.1 was for theCfirst time informed that the children were being put in a boarding school.A reference has also been made to the communication, where it wasalleged by the appellant that the respondent No.1 wanted to get rid ofthe custody and responsibility of the children and that is the reason whyshe had given their custody to the appellant as respondent No.1 haddecided to get re-married. There are certain other allegations madeDqua the problem of the visiting rights of respondent No.1 vis-a-vis theappellant but they are not germane to the controversy in question.

9. The aforesaid application was resisted by the appellant byfiling a reply where it was sought to be emphasised that the terms of thedecree had been agreed upon, six months’ time period had been grantedEto the parties to have a thought over the same, and only thereafter hadthey been incorporated in the decree of divorce. In the reply it has alsobeen pointed out that though the marriage between the appellant andrespondent No.1 was a love marriage, issues arose on account of analleged affair between respondent No.1 and her school boyfriend, asFnamed in the reply. It was also alleged that she was caught red-handed,but on her begging forgiveness, the appellant decided to maintain therelationship. This, however, it is alleged, did not bring the liaison to anend. Not only this, in March 2016, she is alleged to have started anaffair with a person working in the same organisation, who has beennamed in the application, and that on being found out, respondent No.1Geven attempted to commit suicide on that account, for which medicalrecords are available. The divorce is stated to have been agreed uponwithout making these allegations against respondent No.1, in order tomaintain the dignity of the parties in the society at large. The DistrictJudge disposed of the application on 04.09.2017. The court noticed that H

the paramount consideration was the interest of the children. The courttook into consideration that both the parties were well qualified andenjoyed an equal occupation and status, and had mutually agreed to theterms and conditions of the decree for divorce after the completion ofthe statutory period of six months. There was, thus, no reason todeprive the appellant of the custody of the children, but visiting rightarrangements were made in view of the fact that the two parties werebased in different stations.

10. This order was assailed by respondent No.1 before the HighCourt in WP No.12432/2017 in September, 2017. While the writ petitionwas still pending, respondent No.1 filed a civil suit for declaration thatthe decree of divorce by mutual consent passed by the Family Court hadbeen obtained by coercion, fraud and misrepresentation and was, thus,null and void, and hence did not affect the marriage between the parties.This suit is stated to be still pending.

11. During the proceedings, mediation was also endeavoured, butit failed. The learned Single Judge of the Bombay High Court passed anorder on 12.6.2018, after having interacted with the children. The learnedJudge took note of the subsequent development that the appellant hadmarried recently, prior to the order, and that there was a biological son ofhis second wife, borne out of her first wedlock, who is residing withthem, currently. The appellant had also got the children admitted to aschool in Jammu, by that point in time. The interaction with the childrenis stated to have led the Judge to the conclusion that the son and daugh-ter desire to live with respondent No.1, but that they also love theirfather equally. The learned Judge gave preference to the desire ofrespondent No.1, as a mother, and directed that the children would re-main in the custody of the mother for a period of one year to take edu-cation at a school in which they would acquire admission, at the placewhere their mother lives and that the father would have visiting rights.A number of directions were passed qua the implementation of the vis-iting rights.

12. The appellant, aggrieved by this order, preferred SLP (Civil)No.16667/2018. Leave was granted and this appeal No.6500/2018 wasdisposed of on 11.7.2018, by making a reference to the clauses in theconsent decree, which had not been noticed by the High Court, whilepassing the order. The matter was then remitted to the High Court forfresh consideration.

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A13. Based on the interaction with the children, the learned SingleJudge of the Bombay High Court by the impugned order dated 25.7.2018,once again, directed the custody of the children to be with the mother,with visiting rights given to the father. The High Court after noticing thesubmission made on behalf of the appellant that the condition in thedivorce decree had not been varied till date, posted the matter onB19.3.2019, to be reviewed after a year.

14. We had directed the personal presence of the appellant andthe respondents with whom we interacted. Learned counsel for theappellant drew our attention to certain pleadings which would show thatproceedings had been initiated against the officer with whom the liaisonCof respondent No.1 was alleged. The Memorandum dated 14.3.2017issued by the Directorate General, CRPF referred to the imputations ofmisconduct in support of the article of chargesand it is specificallyalleged that the said officer had used immoral texts during office hourswhile communicating with respondent No.1. The details of the sameDhave also been set out. The inquiry is stated to be still pending. In thecourse of the Court’s interaction, it came to light that as per theappellant and his second wife, the matrimonial arrangement was withthe understanding that Respondent Nos.2 and 3 would stay with theappellant, and the second wife of the appellant would take care of them.The second wife of the appellant is an MBA graduate and wasEpreviously working with a bank, but resigned to take care of domesticresponsibilities. The appellant also stated that while on the one hand nofinancial aid had been given by respondent No.1 to the appellant for thedaughter, as per the obligations in the consent decree on other hand shehad been transferring substantive amounts to the person with whom sheFallegedly had a liaison. On the Court’s query, respondent No.1 initiallytook offence to the fact that the appellant had access to her bank details,but on a pointed query admitted that she did transfer the funds to hercolleague, but stated that the same was her own business. She soughtto plead that it was immaterial whether she was or was not a good wife,but that she was indeed a good mother, as had become apparent in theGinteraction of the children with the learned Single Judge.

15. We have given deep thought to the matter. The issue is not sosimple as it involves the interests of these young children, respondentNos.2 & 3, which is of paramount concern. While saying so, it has been H

kept in mind that these children are still young and are of animpressionable age and the interaction can only be one of the factors tobe taken into account.

16. In our view, it clearly emerges that the decision to givecustody to the appellant, of the two children, was a conscious decisiontaken by the parties at the relevant stage and can hardly be categorisedas a decision under force, pressure or fraud. Respondent No.1 iswell-educated and is a medical practitioner. There was a six (6) months’hiatus period for the parties to think over the terms of the settlementbefore the grant of the decree of divorce, which is the statutory periodavailable for the parties to have a re-think, if they so deem itappropriate. The parties had clearly agreed as per clause 5 that theywere free to re-marry. As per the terms of the custody, the saidmarriage does not have any effect on the custody rights, at least in theterms between the parties. The appellant has also borne all theexpenses for both the children, as respondent No.1 even initially failedto contribute anything towards the expenses for the daughter, contraryto the agreement inter se the parties.

17. The trigger for respondent No.1 claiming custody of thechildren only arose when the appellant asked her to contributefinancially. It was not a case of financial difficulty, but the unwillingnessof respondent No.1 to contribute for her own daughter, whilesimultaneously transferring amounts to a colleague of hers. It doesappear that the proceedings initiated initially for the custody andthereafter for seeking cancellation of the decree of divorce were clearlyan endeavour to pressurise the appellant to not claim any amounts. Wemay also invite attention to Order II Rule 2 of the Code of CivilProcedure, 1908 specifying that where a plaintiff intentionallyrelinquishes, any portion of his claim, he shall not afterwards sue inrespect of the portion so relinquished. Respondent No.1 had relinquishedher rights to claim custody and the suit filed by her, thus, is also highlydoubtful.

18. We may hasten to add that it is not as if there can be noeventuality where such terms may require modification, but that wouldarise if the interests of the children so desire, and more specifically if theappellant had failed to honour his commitments, or look after thechildren. The second marriage of the appellant cannot be put against AB

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Ahim, nor can the factum of the child of his second wife residing with himdeprive him of the custody rights of his two children, which has beenspecifically conferred on him with the consent of respondent No.1.19. A perusal of the impugned order shows that it is not as if theappellant was not looking after the children. The children showedBaffection for their father. It was due to the exigencies of the appellant’sservice condition that the children had to be put in a boarding school forsome time, which exigency also does not remain at present. It wasknown to the parties that they were in a transferable job. A consciousdecision was taken by the parties to give the sole custody to theappellant, in the interest of the children. The second wife of theCappellant is an educated lady. Merely because the appellant hasdecided to go ahead in life, and has had a second marriage, it providesno ground whatsoever to deprive him of the custody of the children asagreed upon between the appellant and respondent No.1, especially whenhe has been looking after the children and has not gone back on any ofDhis commitments. Respondent No.1, in order to avoid the financialliability started these proceedings, resulting in the impugned order, asalso a separate suit proceeding. One fails to appreciate what is it thatrespondent No.1 wants by filing the suit now, by claiming that thedecree of divorce is null and void, when there is admission of a mutualconsent for divorce and the appellant has already re-married. We areEnot going into the details of the allegations against respondent No.1’sliaison with another man in the same service, as the inquiry is stillpending and, it may not be appropriate also, to do so in the presentproceedings. We, however, see no reason why the appellant has beencompelled to go through this unnecessary litigation when the parties, atFthe threshold, after deep deliberation, and for the interest of the children,have given the custody to the appellant.

20. We are of the view that the learned Single Judge has givenundue importance to the conversation with the children at a time whennaturally they would prefer to stay with a parent rather than a boardingschool. Respondent No.1 cannot be permitted to take advantage of theGvisiting rights granted for the vacation period to now claim that thechildren should continue to stay with her.

21. We are, thus, of the unequivocal view that the interference bythe learned Single Judge, vide impugned order dated 25.7.2018, wasunjustified, and the order of the Family Court dated 9.12.2016 was inHorder.

DR. AMIT KUMAR v. DR. SONILA & ORS.[SANJAY KISHAN KAUL, J.]

22. Insofar as any further facilitative directions, for the purposeof visiting rights of respondent No.1 are concerned, it would be open forthe Family Court or High Court to make necessary arrangements.Respondent Nos.2 & 3 should be returned to the appellant byrespondent No.1, along with all relevant documents of the children, withinthirty (30) days from today, before the Family Court. In case theappellant is unable to make arrangement for a mid-term admission forthe children, he may inform respondent No.1 and in that eventuality thechildren will continue to study in the same school at present andcontinue to stay with respondent No.1 till the end of the session. This isin order to ensure that the study of the children are not disturbed. Wealso make it clear that the rights and obligations as envisaged in thedecree of divorce by mutual consent will bind both the appellant andrespondent No.1. Needless to say that after the children attain the ageof majority, they would have their own choice.

23. The appeal is accordingly allowed, leaving the parties to beartheir own costs.

Divya Pandey

Appeal allowed.

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