DR. AMIT KUMAR versus DR. SONILA & ORS.

Citation: [2018] 13 S.C.R. 561 · Decided: 26-10-2018 · Supreme Court of India · Bench: KURIAN JOSEPH · Disposal: Leave Granted & Allowed

Judgment (excerpt)

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DR. AMIT KUMAR
v.
DR. SONILA & ORS.
(Civil Appeal No. 10771 of 2018)
OCTOBER 26, 2018
[KURIAN JOSEPH AND SANJAY KISHAN KAUL, JJ.]
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,
[2018] 13 S.C.R. 561
561
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SUPREME COURT REPORTS
[2018] 13 S.C.R.
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
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afterwards sue 

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