ROXANN SHARMA versus ARUNSHARMA

Citation: [2015] 2 S.C.R. 572 · Decided: 17-02-2015 · Supreme Court of India · Bench: VIKRAMAJIT SEN · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2015] 2 S.C.R. 572 
ROXANN SHARMA 
v. 
ARUNSHARMA 
(Civil Appeal No.1966 of 2015) 
FEBRUARY 17, 2015 
A 
B 
[VIKRAMAJIT SEN AND C. NAGAPPAN, JJ.] 
HinduMinorityandGuardianshipAct, 1956-s. 6-Custody C 
of child - Conflicting claims by parents - Interim custody of 
the minor child granted to mother while visitation rights to 
father by trial court, Goa- However, High Court reversed the 
said order - Mother given frequent visitation rights, 3 days in D 
a week -
Meanwhile, father shifted to Mumbai without 
intimation - Challenged by mother- Disposal of, permitting 
the mother to meetthe child, however, in view of the pendency 
of proceedings in Goa court, previous order not interfered 
with -
Thereafter, application for visitation rights filed by E 
mother at Goa - Trial court granted weekend visitation rights 
for three days, child to be taken from the court - However, 
Second Single Judge held that 'frequent' could not be 
continuous and the child would not remain exclusively with 
his mother for three days - On appeal, held: Father's F 
suitability to custody is not relevant where the child is below 
five years since the mother is per se best suited to care for 
the infant during his tender age - Father has to plead and 
prove the mother's unsuitability - On facts, Second Single G 
Judge erred in nullifying the directions previously passed by 
a co-ordinate Bench resulting in miscarriage of justice - s. 
14 of 1890 Act acknowledges the salutary necessity of only 
one court in dealing with the guardianship or custody disputes 
pertaining to the minor - In such case, there are no rights of H 
572 
573 
SUPREME COURT REPORTS 
[2015) 2 S.C.R. 
A the parents which have to be enforced; child's welfare is the 
main - Co-ordinate Benches must respect prior orders -
Forum shopping or court shopping to be firmly dealt with -
Furthermore, father ought not to have left the jurisdiction of 
Goa court which was discharging its duties as parens patirae 
B - Thus, temporary custody of the child given to the mother 
and visitation rights to the father- Guardianship and Wards 
Act, 1890-ss. 4(2), 26, 14. 
c 
Allowing the appeals, the Court 
HELD: 1.1 The father's suitability to custody is not 
relevant where the child whose custody is in dispute is 
below five years since the mother is per se best suited to 
care for the infant during his tender age. It is for the father 
D to plead and prove the mother's unsuitability since the 
child is below five years of age. In these considerations 
the father's character and background would also 
become relevant but only once the court strongly and 
firmly doubts the mother's suitability; only then and even 
E then would the comparative characteristic of the parents 
come into play. This approach was not adopted by the 
Single Judge, whereas it has been properly pursued by 
the civil judge. [Para 13] [586-H; 587-A-C] 
F 1.2 Inexplicably, the second Single Judge found fault with 
the order granting weekend visitation to the mother, 
ignoring the reality thattrial court was only implementing 
the directions given by the previous Single Judge. It was 
G not open to the trial court to venture afresh on the question 
of the welfare of the child when the matter stood 
concluded against the father who had not filed any appeal 
against the order of the previous Single Judge. All that 
the trial court was expected to do was to allocate three 
H days custody for the mother. In effect the second 
ROXANN SHARMA v. ARUN SHARMA 
574 
Single Judge gave his own understanding and meaning A 
to the previous order of a co-ordinate Bench of the High 
Court, which is diametrically opposite to what stood 
articulated by the High Court in the previous writ 
proceedings. In paraphrasing the Order, the Single Judge 
in the impugned order added the word "preferably" within B 
the jurisdiction of the court, but the word "preferably" has 
not been used in the previous order. The impugned order 
also appears to lose sight of the factthat all three persons 
were residing in the United States and have only recently C 
shifted to Goa which was, therefore, at that time, the only 
abode of the parties. It has also not given due weightage 
to the asseverations of the mother that she had invested 
her savings in purchasing property in Goa, as well as in 
Mumbai in the joint names. Keeping in view the fact that D 
father has not been able to satisfactorily show that he had 
any income, prima facie, the mother's statement has 
cre

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