Case Note & Summary
The appellant-wife and respondent-husband married in 2006 and had a son in 2009. In 2012, the husband filed for divorce under Section 13(1)(ia)(iii) of the Hindu Marriage Act, 1955, which was decreed ex-parte by the Trial Court. The Trial Court also directed that the son be admitted to Col. Satsangi's Kiran Memorial Public School, New Delhi. The wife appealed to the Allahabad High Court. The High Court passed interim orders on 21.05.2018 and 20.08.2018 permitting the husband to take the child to Delhi and leave him in the boarding house, and directing the wife to comply. After summer vacation, the child refused to return to the boarding school, expressing a desire to continue at his old school, Global International School, Shahjanpur. The wife admitted him there. The Supreme Court heard both sides. The wife argued that the child's welfare was paramount and he was unwilling to study in Delhi. The husband argued that the wife violated court orders and that the child's wish alone was not determinative. The Supreme Court interacted with the child, who expressed a clear desire to stay in Shahjanpur. The Court held that the child could not be compelled to attend the boarding school, as his welfare was paramount. It set aside the High Court orders, allowed the child to continue at Global International School, and set aside the direction for the wife to elect a maintenance forum. The Court granted the husband visitation rights on Sundays and public holidays with specified timings, and allowed him to seek modification from the High Court. The appeals were allowed with no costs.
Headnote
A) Family Law - Child Custody - Welfare of Child - Paramount Consideration - The Supreme Court held that the welfare of the child is the paramount consideration and a child of 10 years cannot be compelled to study in a boarding school against his wishes, especially when he is attached to his mother and comfortable in his old school. (Paras 12-13)
B) Family Law - Maintenance - Election of Forum - The direction to the wife to elect one forum for maintenance was set aside as not in conformity with law. (Para 14)
C) Family Law - Visitation Rights - Natural Father - The respondent-husband, as natural father, is entitled to visitation rights on Sundays and public holidays, with specified timings. (Para 15)
Issue of Consideration
Whether the child can be compelled to study in a boarding school against his wishes, and whether the mother violated court orders by not sending the child back to boarding school after summer vacation.
Final Decision
The Supreme Court allowed the appeals, set aside the High Court orders dated 21.05.2018 and 20.08.2018, permitted the child to continue at Global International School, Shahjanpur, set aside the direction for the wife to elect a maintenance forum, and granted visitation rights to the husband on Sundays and public holidays with specified timings. No costs.
Law Points
- Welfare of child is paramount consideration
- Child's wish to be considered
- Maintenance election direction not in conformity with law
- Visitation rights of natural father
Case Details
2019 LawText (SC) (4) 119
Civil Appeal No(s). 3409-3410 of 2019 (Arising out of SLP(C) No(s).28166-28167 of 2018)
R. Banumathi, R. Subhash Reddy
Harikumar V. for appellant, R. Basant for respondent
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Civil appeal against interim orders in a first appeal from an ex-parte divorce decree, concerning child custody and maintenance.
Remedy Sought
Appellant-wife sought setting aside of High Court orders directing her to send the child to boarding school and to elect a forum for maintenance.
Filing Reason
The appellant-wife was aggrieved by the High Court orders that compelled the child to study in a boarding school in Delhi against his wishes and directed her to elect a maintenance forum.
Previous Decisions
The Trial Court granted ex-parte divorce and directed admission of the child in Col. Satsangi's Kiran Memorial Public School, New Delhi. The High Court passed interim orders on 21.05.2018 and 20.08.2018 permitting the husband to take the child to Delhi and directing the wife to comply.
Issues
Whether the child can be compelled to study in a boarding school against his wishes?
Whether the mother violated court orders by not sending the child back to boarding school after summer vacation?
Whether the direction to the wife to elect a forum for maintenance is valid?
Submissions/Arguments
Appellant-wife: The child is not willing to study in Delhi, is attached to his mother, and is comfortable in his old school; welfare of the child is paramount.
Respondent-husband: The wife violated court orders; the child's wish alone is not determinative; the child's welfare is best served by studying in a top school in Delhi.
Ratio Decidendi
The welfare of the child is the paramount consideration in custody matters. A child of 10 years cannot be compelled to study in a boarding school against his wishes, especially when he is attached to his mother and comfortable in his existing school. The mother's action in admitting the child to a local school, in compliance with the child's wishes, does not amount to violation of court orders. The direction to elect a forum for maintenance is not in conformity with law.
Judgment Excerpts
When the boy is not inclined to study in Col. Satsangi’s Kiran Memorial Public School, New Delhi, and stay in the Boarding House, we are of the view that in the interest of the welfare of the child, he cannot be compelled to admit in Col. Satsangi’s Kiran Memorial Public School, New Delhi, attached with the Boarding House.
Further, in the impugned order, the appellant-wife 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 liable to be set aside.
Procedural History
Marriage in 2006; son born in 2009; husband filed for divorce in 2012 under Hindu Marriage Act; Trial Court granted ex-parte divorce and directed child's admission in Delhi school; wife filed First Appeal No.316 of 2018 before Allahabad High Court; High Court passed interim orders on 21.05.2018 and 20.08.2018; wife filed SLP before Supreme Court; Supreme Court granted leave and heard appeals.
Acts & Sections
- Hindu Marriage Act, 1955: Section 13(1)(ia), Section 13(1)(iii)
