Case No.: CA 4308 of 2012

Date: 8/05/2012

This appeal has been filed with the Honorable Supreme Court of India by the appellant pursuing to the order passed by the Delhi High Court dismissing the appeal filed by the appellant here respondent setting aside the order of the Trial Court in favour of the respondent here appellant.

Appellant was married to the respondent on 14/02/1994, and their marriage was solemnized in the eye of the law. Through the wedlock, the appellant and respondent gave birth to two kids who till to date of filing of this appeal are of 15- and 9-years old sons respectively. The appellant and respondent were living separately from the 10/04/2007 till date and also were involved in various litigation like divorce cases under section 13 (1) (i) & 1A of the Hindu Marriage Act, 1955. The appellant here is an official of Indian Administrative Services and has been stained in the State of Jammu and Kashmir, and the mother was living in the capital of the country Delhi.

An appeal was filed in the Delhi High Court which was against the order of the Trial Court which observed, heard and concluded that custody of the children should be rested with their father. As later at the Honorable High Court of Delhi it was decided in the appeal that the order passed by the Trial court did not take some view of the learned in counsel in the consideration and by such thorough and hearings passed an order stating the elder son who’s very keen and fond of his father will be allowed to stay with him, and the younger son was at a very tender age will be allowed in the custody of his mother.

Then the respondent filed an appeal before the Honorable Supreme Court it was pleaded that both the brothers are very fond of each other and the bond shared by both of them was very sensitive and alienating from each other will have its grave consequences, so the court must decide the custody of both children with either mother or the father alone. The court was of this opinion, as already the situation both of the brothers will be going through is traumatizing and then making them stay apart from each other is further wrong.

1. Should the custody be given to the mother (respondent) or father (appellant)?

2. Should the Court uphold the Judgment given by the High Court of Delhi?

The Honorable Supreme Court in its observation stated that the judgment provided by the Honorable High Court of Delhi does not give a dire consideration to the fact of separating the brother and its also does take into consideration the grave consequences of such order. After thorough hearing and by the suggestion, pleading made by the learned counsel for their parties to this appeal, an aspect that comes to close scrutiny is the welfare of the child. In each and every divorce petition that effects the life of the children through the wedlock has to be given a paramount consideration beyond every possible solution. In fact, no solution should bind the children in a way that it is in the adverse interest of their future.

As the observation and learned counsel mentioned that the father of the children is well-groomed IAS official will be in a better position to provide funds and good health and education of the children. As mentioned, and heard by the Court that father of the appellant, i.e. the grandfather of the children also stays with the father of the children so the house will be at a better position to take care of the children under the guidance of grandparents. The father of the appellant is said to be a professor which will help in to provide the best possible help in case of education difficulties. The learned counsel of the appellant also stated that staying with grandparents will not only increase the academic standard of the child but will imbibe good cultural values, mannerism and progressive perspective.

The Honorable Court also decides that though the custody should be rested with father, but another parent of the children play due role in their upbringing. Therefore, the precise possible resolution should be followed in the above matter which will be that the mother will have the right to visit the children once in a month on weekends and the children should be sent to the house of their mother on any vacation where the holidays exceed more than two weeks in continuation to the above rights. Moreover, the father will be responsible for the payment of the fare or should book the tickets for the children and as well as the mother of First Class A.C compartment for travel. The father of the kids will be responsible for the accommodation of the mother of kids in his own house only with the consent of the mother, and if she is not comfortable with the same, then she should be accommodated in the hotel of the equivalent facilities as deemed appropriate and expense of the same should be borne by the father.

Setting aside the order of the High Court of Delhi, the court rests the custody with the father with modifications and arrangements and thus allows the appeal with no cost.