Child and family welfare: Child custody – Interest and welfare of the child – Divorce between the parties – Direction/order by the High Court that the father to take the son and get him admitted at Boarding House in Public School in New Delhi and the mother to take custody of the boy in the summer vacation and to ensure that he returns to Boarding House after summer vacation – Case of the mother that after summer vacation son not willing to study in the boarding school and intends to study in the old school in Shahjanpur – Held: High Court ascertained the views of the boy and recorded that he is very much attached and has more affiliation towards his mother – Boy has expressed his desire to continue his studies only in the old school – It is natural, that a boy aged 10 years would be willing to continue in his old school as much as he is acclimatised with the environment of such school where he has started his studies – In the interest of the welfare of the child, the child cannot be compelled to join the Boarding House – Child be allowed to continue to study in the old school – Father given visitation rights – Hindu Marriage Act, 1955.
Allowing the appeals, the Court
HELD: 1.1 In the interim order dated 21.05.2018, the respondent was permitted to take the son and get him joined at Boarding House in Public School in New Delhi, and the appellantwife was permitted to take custody of the boy in the summer vacation and to ensure that he returns to the Boarding House after summer vacation. It is also not in dispute that the child was earlier studying in the same school where he is admitted now for further studies. The child has now completed 3rd standard and is aged about 10 years. It is natural, a boy of that age who has studied earlier in the school at Shahjanpur, willing to continue in the same school as much as he is acclimatised with the environment of such school where he has started his studies from Ist standard onwards. This Court also interacted with the boy and the boy expressed his desire to continue his studies only in Shahjanpur school. When the boy is not inclined to study in Public School in New Delhi, and stay in the Boarding House, in the interest of the welfare of the child, he cannot be compelled to admit in Public School in New Delhi, attached with the Boarding House. In such view of the matter, it cannot be said that the appellant-wife has violated the direction issued by the High Court. [Para 12] [465-B-F]
1.2 From the perusal of the impugned order, it appears that the High Court has ascertained the views of the boy and has recorded that he is very much attached and has more affiliation towards his mother-appellant. In the interest and welfare of the child, the child shall be allowed to continue his study in the old School, Shahjanpur. Further, in the impugned order, the appellantwife is directed to elect one forum from which she wants to get the maintenance. As the same is also not in conformity with the law, the said direction is set aside. [Para 13, 14][465-G-H; 466-A-B]
1.3 As the respondent-husband is a natural father of the child, he is also entitled to visitation rights. The respondenthusband is permitted to visit his child and he is entitled to take the child from the House of the appellant on any Sunday’s and public holiday’s whenever he visits Shahjanpur. The orders passed by the High Court are set aside [Para 15, 16][466-C; E]
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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