GAYTRI BAJAJ versus JITEN BHALLA

Citation: [2012] 8 S.C.R. 1142 · Decided: 05-10-2012 · Supreme Court of India · Bench: P. SATHASIVAM · Disposal: Dismissed

Judgment (excerpt)

A 
B 
[2012] 8 S.C.R. 1142 
GAYTRI BAJAJ 
v. 
JITEN BHALLA 
(Civil Appeal Nos. 7232-7233 of 2012) 
OCTOBER 5, 2012 
[P. SATHASIVAM AND RANJAN GOGOi, JJ.] 
CHILD AND FAMILY WELFARE: 
c 
Custody of children - Held: An order of custody of minor 
children is required to be made by the court treating the 
interest and welfare of the minor to be of paramount 
importance - It is not the bettef right of either of the parent to 
custody, but the desire, interest and welfare of the minor which 
0 is the crucial and ultimate consideration that must guide the 
determination required to be made by the court- In the instant 
case, the children, two minor girls, one of whom is on the verge 
of attaining majority, do not want to go with their mother and 
appear to be happy in the company of their father, who is in 
a position to look after them, provide them with adequate 
E educational facilities and also to maintain them in a proper 
and congenial manner - The children having expressed their 
reluctance to go with the mother, even for a short duration of 
time or to meet her, any visitation right to the mother would 
be adverse to the interest of the children -
In the 
F circumstances, visitation cannot be made possible by an 
order of the court - The children would continue to remain in 
the custody of their father until they attain the age of majority 
-
Hindu Marriage Act, 1955 -
s. 13-8 -
Code of Civil 
Procedure, 1908 - s.151 - Guardian and Wards Act, 1890 -
G Hindu Minority and Guardianship Act, 1956. 
H 
The instant appeals arose out of an application filed 
by the appellant-wife u/s 151 CPC seeking to recall/set 
aside the decree of divorce by mutual consent passed u/ 
1142 
.-
GAYTRI BAJAJ v. JITEN BHALLA 
1143 
s 13-B of the Hindu Marriage Act, 1955. The application 
A 
was filed despite the institution of a separate suit, seeking 
the same/similar relief, on the ground of fraud and deceit 
committed by the respondent-husband. In the joint 
petition u/s 13 B it was specifically stated under the terms 
of agreement between the parties that the respondent-
B 
husband would have the custody of the two minor 
daughters and, keeping in view their best interest and 
welfare, the appellant-wife had agreed to forgo her rights 
of visitation. 
In the instant appeals, the parties agitated the C 
question with regard to the custody of the children and 
if such custody was to remain with the husband, whether 
visitation rights should be granted to the appellant-wife. 
On 16.12.2011, the Court recorded that the two children 
who were aged about 17 and 11 years, were very clear D 
and categorical that they wanted to "continue to live with 
their father and they do not want to go with their mother," and 
made arrangements through Supreme Court Mediation 
Centre for the mother to interact with the children and 
also to take them for overnight stay with her as specified 
E 
in the order. Subsequently, the husband filed an 
application seeking vacation/ modification of the order 
dated 16.12.2011, mentioning details about the reluctance 
of the children to go with their mother or even to meet 
her; and efforts of mediator failed in persuading the 
children. The children even declined to visit the Mediation 
Centre any further. This was not controverted by the 
appellant-wife. 
Dismissing the appeals, the Court 
HELD: 1.1. In Mousmi Moitra Ganguli's case* it has 
been held that it is the welfare and interest of the child 
and not the rights of the parents which is the determining 
factor for deciding the question of custody. Further, the 
F 
G 
H 
1144 
SUPREME COURT REPORTS 
(2012] 8 S.C.R. 
A question of welfare of the child has to be considered in 
the context of the facts of each case and decided cases, 
on the issue may not be appropriate to be considered as 
binding precedents. [para 13] [1152-C-E] 
B 
*Mousmi Moitra Ganguli v. Jayant Ganguli 2008 (8) 
SCR 260 = (2008) 7 SCC 673; Sheila B. Oas v. P. R. 
Sugasree 2006 (2) SCR 342 = (2006) 3 SCC 62; Gaurav 
Nagpal v. Sumedha Nagpal 2009(1) SCC 142; Rosy Jacob 
v. Jacob A. Chakramakkat 1973 ( 3) SCR 918 = (1973) 1 
C SCC 840; Thirty Hoshie dolikuka v. Hoshiam Shavdaksha 
Dolikuka 1983 (1) SCR 49 = (1982) 2 SCC 544 - relied on 
Sarasvati Bai Shripad Ved v. Shripad Vasanji Ved AIR 
1941 (Born.) 103 - referred to. 
0 
1.2. An order of custody of minor children either 
under the provisions of the Guardians and Wards Act, 
1890 or Hindu Minority and Guardianship Act, 1956 is 
required to be 

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