NUTAN GAUTAM versus PRAKASH GAUTAM

Citation: [2019] 6 S.C.R. 461 · Decided: 05-04-2019 · Supreme Court of India · Bench: R. BANUMATHI · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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NUTAN GAUTAM
v.
PRAKASH GAUTAM
(Civil Appeal Nos. 3409-3410 of 2019)
APRIL 05, 2019
[R. BANUMATHI AND R. SUBHASH REDDY, JJ.]
Child and family welfare: Child custody – Interest and welfare
of the child – Divorce between the parties – Direction/order by the
High Court that the father to take the son and get him admitted at
Boarding House in Public School in New Delhi and the mother to
take custody of the boy in the summer vacation and to ensure that
he returns to Boarding House after summer vacation – Case of the
mother that after summer vacation son not willing to study in the
boarding school and intends to study in the old school in Shahjanpur
– Held: High Court ascertained the views of the boy and recorded
that he is very much attached and has more affiliation towards his
mother – Boy has expressed his desire to continue his studies only
in the old school – It is natural, that a boy aged 10 years would be
willing to continue in his old school as much as he is acclimatised
with the environment of such school where he has started his studies
– In the interest of the welfare of the child, the child cannot be
compelled to join the Boarding House – Child be allowed to continue
to study in the old school – Father given visitation rights – Hindu
Marriage Act, 1955.
Allowing the appeals, the Court
HELD: 1.1 In the interim order dated 21.05.2018, the
respondent was permitted to take the son and get him joined at
Boarding House in Public School in New Delhi, and the appellant-
wife was permitted to take custody of the boy in the summer
vacation and to ensure that he returns to the Boarding House
after summer vacation. It is also not in dispute that the child was
earlier studying in the same school where he is admitted now for
further studies. The child has now completed 3rd standard and is
aged about 10 years. It is natural, a boy of that age who has studied
earlier in the school at Shahjanpur, willing to continue in the same
[2019] 6 S.C.R. 461
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SUPREME COURT REPORTS
[2019] 6 S.C.R.
school as much as he is acclimatised with the environment of
such school where he has started his studies from Ist standard
onwards. This Court also interacted with the boy and the boy
expressed his desire to continue his studies only in Shahjanpur
school. When the boy is not inclined to study in Public School in
New Delhi, and stay in the Boarding House, in the interest of the
welfare of the child, he cannot be compelled to admit in Public
School in New Delhi, attached with the Boarding House. In such
view of the matter, it cannot be said that the appellant-wife has
violated the direction issued by the High Court. [Para 12]
[465-B-F]
1.2 From the perusal of the impugned order, it appears that
the High Court has ascertained the views of the boy and has
recorded that he is very much attached and has more affiliation
towards his mother-appellant. In the interest and welfare of the
child, the child shall be allowed to continue his study in the old
School, Shahjanpur. 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 set aside. [Para 13, 14][465-G-H;
466-A-B]
1.3 As the respondent-husband is a natural father of the
child, he is also entitled to visitation rights. The respondent-
husband is permitted to visit his child and he is entitled to take
the child from the House of the appellant on any Sunday’s and
public holiday’s whenever he visits Shahjanpur. The orders passed
by the High Court are set aside [Para 15, 16][466-C; E]
CIVIL APPELLATE JURISDICTION:  Civil Appeal Nos. 3409-
3410 OF 2019
From the Judgment and Orders dated 21.05.2018 and 20.08.2018
of the  High Court of Judicature at Allahabad in First Appeal No. 316 of
2018.
Harikumar V., Anupam Mishra , Advs. for the Appellant.
R. Basant, Sr. Adv., Prakash Gautam, Vivek Ojha, Gazab Singh
Chauhan, Ms. Harsh Lata,  Advs. for the Respondent.
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The Judgment of the Court was delivered by
R. SUBHASH REDDY, J.
1.  Leave granted.
2. These appeals are filed by the wife of the respondent herein
aggrieved by orders dated 21.05.2018 and 20.08.2018 passed by the
High Court of Judicature at Allahabad in First Appeal NO.316 of 2018.
3. The marriage of the appellant-wife and the respondent-husband
was solemnized in the year 2006.  In the year 2009 a son was born to
them who is named Krish alias Maste
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