Hindu Minority and Guardianship Act, 1956 – s.6 – Guardianship – Custody rights – Appellant and respondent no.1 divorced by mutual consent – In terms of the divorce decree, custody of the children (son and daughter) was to be with the appellant and the appellant was to provide for expenses of the son, while respondent no.1 was to provide likewise for the daughter – Appellant and respondent no.1 were doctors with the CRPF posted in Nanded – At the relevant time, however, appellant was transferred to Jammu necessitating 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.1 filed application seeking custody of the children as also a suit for declaration that decree of divorce was obtained by fraud – High Court directed the custody of the children to be with respondent no.1, with visiting rights to the appellant – Propriety of – Held: Decision to give custody of the children to the appellant was a conscious decision taken by the parties and can hardly be categorised as a decision under force, pressure or fraud – Trigger for respondent no.1 claiming custody of the children arose only when the appellant asked her to contribute financially – Present is not a case of financial difficulty, but the unwillingness of respondent no.1 to contribute for her own daughter – Proceedings for the custody and for cancellation of the decree of divorce were to pressurise the appellant to not claim any amounts – High Court gave undue importance to the conversation with the children at a time when naturally they would prefer to stay with a parent rather than a boarding school – It was not as if the appellant was not looking after the children – Children showed affection for the appellant – It was due to the exigencies of his service conditions that the children had to be put in a boarding school for some time, which exigency also does not remain at present – Further, appellant’s second marriage cannot be put against him as the parties had agreed that they were free to re-marry – Interference by the High Court was unjustified – Order of the Family Court granting divorce in terms of the decree was in order – Children be returned to the appellant by respondent No.1 – Rights and obligations as envisaged in 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, of the two children, was a conscious decision taken by the parties at the relevant stage and can hardly be categorised as a decision under force, pressure or fraud. Respondent No.1 is well-educated and is a medical practitioner. There was a six (6) months’ hiatus period for the parties to think over the terms of the settlement before the grant of the decree of divorce, which is the statutory period available for the parties to have a re-think, if they so deem it appropriate. The parties had clearly agreed as per clause 5 that 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 also borne all the expenses for both the children, as respondent No.1 even initially failed to contribute anything towards the expenses for 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 of the children arose only when the appellant asked her to contribute financially. It was not a case of financial difficulty, but the unwillingness of respondent No.1 to contribute for her own daughter, while simultaneously transferring amounts to a colleague of hers (with whom the respondent No.1 allegedly had a liaison). It does appear that the proceedings initiated initially for the custody and thereafter for seeking cancellation of the decree of divorce were clearly an endeavour to pressurise the appellant to not claim any amounts. Order II Rule 2 of the Code of Civil Procedure, 1908 specifies that where a plaintiff intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so relinquished. Respondent No.1 had relinquished her rights to claim custody and the suit filed by her, thus, is also highly doubtful. The second marriage of the appellant cannot be put against him, nor can the factum of the child of his second wife residing with him deprive him of the custody rights of his two children, which was specifically conferred 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 the children. The children showed affection for their father. It was due to the exigencies of the appellant’s service conditions that the children had to be put in a boarding school for some time, which exigency also does not remain at present. It was known to the parties that they were in a transferable job. A conscious decision was taken by the parties to give the sole custody to the appellant, in the interest of the children. Respondent No.1, in order to avoid the financial liability started these proceedings, resulting in the impugned order, as also a separate suit proceeding. The Single Judge gave undue importance to the conversation with the children at a time when naturally they would prefer to stay with a parent rather than a boarding school. Respondent No.1 cannot be permitted to take advantage of the visiting rights granted for the vacation period to now claim that the children should continue to stay with her. [Paras 19, 20] [570B-D, G]
1.4 The interference by the Single Judge, vide impugned order was unjustified, and the order of the Family Court dated 9.12.2016 was in order. Insofar as any further facilitative directions, for the purpose of visiting rights of respondent No.1 are concerned, it would be open for the Family Court or High Court to make necessary arrangements. Respondent Nos.2 & 3 (son and the daughter) should be returned to the appellant by respondent No.1, along with all relevant documents of the children, within thirty (30) days from today, before the Family Court. In case the appellant is unable to make arrangement for a mid-term admission for the children, he may inform respondent No.1 and in that eventuality the children will continue to study in the same school at present and continue to stay with respondent No.1 till the end of the session. This is in order to ensure that the study of the children are not disturbed. It is made clear that the rights and obligations as envisaged in the decree of divorce by mutual consent will bind both the appellant and respondent No.1. [Paras 21, 22] [570-H; 571-A-C]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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