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custody of children given to the paternal grandfather a retd.professor providing visitation rights to the mother to see the children once in a month at the costs of the father.


25 foot tall statue of the Sakyamuni Buddha in...

25 foot tall statue of the Sakyamuni Buddha in the Klu-kkhyil (“water spirits”) monastery in Likir, Ladakh. (Photo credit: Wikipedia)



(Arising out of Special Leave Petition (C) No. 13254 of 2011)
Shaleen Kabra Appellant

Shiwani Kabra Respondent

(Arising out of Special Leave Petition (C) No. 15819 of 2011)




1. Leave granted.

2. Being aggrieved by the judgment of the High Court of Delhi dated the
21st of February, 2011 in CM(M) 1018 of 2010, these appeals have been
filed by the parties before the High Court, who are parents of two
children, whose custody is the subject matter of these appeals.

3. As the impugned order is challenged in both these appeals, both the
appeals were heard together and they are being decided by this common
order. For the sake of convenience, parties to the litigation have been
referred to hereinbelow as arrayed in Civil Appeal arising out of Special
Leave petition No. 13254 of 2011.

4. The marriage of the appellant and the respondent was solemnized on
14.02.1994. From the wedlock, two sons were born, who are approximately
15 and 9 years old. The appellant and the respondent have been living
separately since 10.04.2007, and have been involved in various
litigations since then, including a petition for divorce under Section
13(1)(i) & 1A of the Hindu Marriage Act, 1955 filed by the appellant-
father and also proceedings under the Protection of Women from Domestic
Violence Act, 2005, initiated by the respondent-mother. The appellant,
who is an IAS officer, stationed at Jammu at present, had sought certain
modifications in the arrangement of custody of the children, and also
permission to take transfer certificates of the children from Delhi and
complete their admission in a school in Jammu, and in this respect, moved
applications dated 25.05.2010 and 22.06.2010 before the Additional
District Judge. The Learned Additional District Judge, vide order dated
19.07.2010 was pleased to allow the applications moved by the appellant-

5. Being aggrieved by the above-mentioned judgment delivered by the Trial
Court, the respondent preferred CM(M) No. 1018 of 2010 before the High
Court. By virtue of the impugned judgment, the High Court partly allowed
the petition filed by the respondent whereby the respondent was permitted
to have custody of the younger son, whereas the appellant was to have
custody of the elder son.

6. While coming to the above conclusion, the High Court has cited various
decisions in support of the contention that while deciding the issue
about custody of children in a matrimonial dispute, the paramount
consideration is that of welfare of the child. Thereafter, on the basis
of interaction with the children in the Chambers, the learned Single
Judge was of the view that the elder son had a strong desire to stay with
the appellant-father. He also found that there was also an admission by
the respondent-mother that she would not be able to adequately handle the
educational needs of the elder son without tutors. For the aforestated
reasons, the learned Single Judge ordered that custody of the elder son
should remain with the appellant-father.

7. In the case of the younger son, the learned Single Judge observed that
he, being of a very tender age, was incapable of forming a definite
preference as to with whom he wanted to stay. In the circumstances, the
learned Single Judge ordered that the custody of the younger son should
be given to the respondent-mother, as she would be in a better position
to understand the needs of such a young child. On this basis, the custody
of the younger son was directed to remain with the respondent.

8. The learned Single Judge also recorded a finding to the effect that both
the children appeared to be very happy in the company of each other as
there was a strong bonding between them.

9. Being aggrieved by the said judgment, both the parties have come before
this Court vide the present appeals.

10. We heard the learned counsel for the parties, and also spoke to the
children at length.

11. The counsel appearing for the appellant-father, at the outset,
submitted that the High Court ought not to have directed separation of
two children, in view of the close relationship between them and he
further submitted that there could be disastrous effect of such a
separation on them. Thereafter, the learned counsel made further
submissions about the poor academic performance of the younger son while
in the custody of the respondent-mother, and also regarding the alleged
adulterous conduct of the respondent-mother, which was said to have a
severe adverse effect on the children. The learned counsel further added
that the father of the appellant, i.e. grand father of the children, is
staying with the appellant and he, being a very educated person, would be
in a position to take good care of the children. On these grounds inter
alia, the learned counsel argued that both the children ought not to have
been separated, and that custody ought to have been granted to the

12. On the other hand, the learned counsel appearing for the respondent-
mother submitted that looking to the service condition and status of the
appellant-father, occupying a stressful position in the state of Jammu &
Kashmir, he would not have sufficient time to give adequate attention to
the children and if custody of the children is given to him, the children
would be taken care of only by servants and that would not be in the
interest of the children. Further, the learned counsel argued that as the
children were already in a very good school in Delhi, it would not be
just and proper to move them to another school in Jammu & Kashmir which
might be of an inferior standard. For the aforestated reasons, the
learned counsel argued that custody of even the elder son ought to have
been granted to the respondent-mother.

13. On hearing the learned counsel and also upon talking at length with the
children, we find force in the arguments of the counsel for the appellant-

14. Upon speaking to the children personally, we also found that they are
indeed very much attached to each other. This fact was also noted by the
learned Single Judge of the High Court in the impugned judgment, and is
also admitted by both the parties in their respective written
submissions. Looking to the overall peculiar circumstances of the case,
it is our view that the welfare of both the children would be best served
if they remain together. In our view it would not be just and proper to
separate both brothers, who are admittedly very close to each other.

15. If we are of the view that both the brothers should not be separated
and should be kept together, the question would be as to who should be
given custody of the children.

16. We are of the view that the children should be with the appellant-
father. The respondent-mother is not in a position to look after the
educational need of the elder son and as we do not desire to separate
both the brothers, in our opinion, looking to the peculiar facts of the
case, it would be in the interest of the children that they stay with the

17. We are sure that the appellant- father, who is a member of Indian
Administrative Service and is a well groomed person, with the help of his
father, who was also a professor, will be able to take very good care of
the children. Their education would not be adversely affected even in
Jammu and Kashmir as it would be possible for the appellant-father to
get them educated in a good school in Jammu. We do not believe that the
children would remain in company of servants as alleged by the learned
counsel appearing for the respondent-mother. Father of the appellant
i.e. the grandfather of the children would also be in a position to look
after the children and infuse good cultural values into them. Normally,
grandparents can spare more time with their grand children and especially
company of well educated grandparents would not only help the children in
their studies but would also help them to imbibe cultural and moral
values and good manners.

18. So as to see that the respondent-mother is also not kept away from the
children, she shall have a right to visit the children atleast once in a
month. The appellant –father shall make arrangements for A.C. First
Class railway ticket for the respondent-mother or shall pay the railway
fare to her so as to visit the children once in a month at a weekend and
the appellant-father shall also make arrangements for stay of the
respondent-mother either at his own residence, if the respondent-mother
agrees to that, otherwise the appellant-father shall make arrangements
for suitable accommodation for the respondent-mother when she comes to
Jammu to visit the children.

19. During the period of vacation exceeding two weeks, the appellant-father
shall send the children to Delhi so that the children can stay with the
respondent-mother atleast for three days. We are sure that the appellant
and the respondent shall determine the modalities as to during which
portion of the vacation, the children should visit the respondent-mother
as almost both the parents are interested in having the company of the

20. For the aforestated reasons and looking to the peculiar facts of the
case, we quash and set aside the impugned order passed by the High Court
and restore the order of the trial court, subject to modification of
conditions-arrangements, recorded hereinabove. The custody of both the
children shall be given to the appellant-father before 15th May, 2012 and
the arrangements with regard to visit of the children etc. shall take
effect from 1st June, 2012, the respondent-mother shall do the needful to
send the younger son to the residence of the appellant-father before 15th
May, 2012.

21. The appeals are accordingly allowed with no order as to costs.










May 8 , 2012




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