VIKRAM VIR VOHRA versus SHALINI BHALLA

Citation: [2010] 3 S.C.R. 775 · Decided: 25-03-2010 · Supreme Court of India · Bench: G.S. SINGHVI · Disposal: Dismissed

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

Judgment (excerpt)

[2010] 3 S.C.R. 775 
VIKRAM VIR VOHRA 
V. 
SHALINI BHALLA 
(Civil Appeal No. 2704 of 2010) 
MARCH 25, 2010 
[G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.] 
A 
B 
Hindu Marriage Act, 1955 - s. 26 - Custody of minor 
child - Divorce by mutual consent - Settlement between 
parlies as regards custody of minor child - Visitation rights 
C 
granted to father - Application u/s. 26 seeking modification 
of terms and custody of minor - Courls below allowing wife to 
take child to Australia where she was employed for gain with 
a direction to bring child back to India twice in year for allowing 
visitation rights of father - Interference with - Held: Not called D 
for - Welfare of child is of paramount imporlance in matters 
of custody - Custody orders are interlocutory orders and are 
capable of being altered and moulded keeping in mind the 
qeeds of child - Judicial discretion has been properly 
balanced between the rights of husband and those of wife -
E 
Visitation rights of father have been so structured as to be 
compatible with the educational career of the child. 
F 
The parties filed petition for divorce and decree of 
divorce on mutual consent was passed. The parties 
arrived at a settlement that the custody of the child shall 
remain with the mother and father shall have only visiting 
rights. Thereafter, the respondent-wife as also appellant-
husband filed applications uls. 26 of the Hindu Marriage 
Act seeking modification of the terms and conditions 
about the custody of the child. Respondent wanted to G 
take the child with her to Australia where she was 
employed for gain with a request to revoke the visitation 
rights granted to the appellant for meeting the child 
whereas the appellant sought permanent custody of the 
775 
H 
776 
SUPREME COURT REPORTS 
[2010] 3 S.C.R. 
A child. The trial court allowed the respondent to take the 
child with her to Australia but also directed her to bring 
the child back to India for allowing the father visitation 
rights twice in a year. High Court upheld the order. Hence 
the present appeal. 
B 
Dismissing the appeal, the Court 
HELD: 1.1 The welfare of the child is of paramount 
importance in matters relating to child custody and the 
welfare of the child may have a primacy even over 
C statutory provisions. [Para 14) [783-C) 
Mausami Moitra Ganguli vs. Jayant Ganguli (2008) 7 
sec 673, referred to. 
1.2. The child was found to be quite intelligent and 
D discerning. The child is in school and from the behaviour 
of the child, it could be made out that he is well behaved 
and that he is receiving proper education. The child 
categorically stated that he wanted to stay with his 
mother. It appears that the child is about 8-10 years of age 
E and is in a very formative and impressionable stage in his 
life. [Paras 13 and 14] [783-A-C) 
1.3. The submission that in view of the provisions of 
section 26 of the Hindu Marriage Act, the order of 
F custody of the chilci and the visitation rights of the 
appellant cannot be changed as they are not reflected in 
the decree of mutual di~orce, is far too hyper technical 
an objection to be considered seriously in a custody 
proceeding. A child is not a chattel nor is he/she an article 
G of personal property to be shared in equal halves. [Para 
15) [783-D-E] 
H 
1.4. In a matter relating to custody of a child, the 
Court must remember that it is dealing with a very 
sensitive issue in considering the nature of care and 
VIKRAM VIR VOHRA v. SHALINI BHALLA 
777 
affection that a child requires in the growing stages of his 
A 
or her life. That is why custody orders are always 
considered interlocutory orders and by the nature of 
such proceedings custody orders cannot be made rigid 
and final. They are capable of being altered and moulded 
keeping in mind the needs of the child. Even if orders are 
B 
based on consent, those orders can also be varied if the 
welfare of the child so demands. Even though the 
principles have been laid down in proceedings under the 
Guardians and Wards Act, 1890, these principles are 
equally applicable in dealing with the custody of a child c 
under section 26 of the Act since in both the situations 
two things are common; the first, being orders relating 
to custody of a growing child and secondly, the 
paramount consideration of the welfare of the child. Such 
considerations are never static nor can they be squeezed 
0 
in a strait jacket. Therefore, each case has to be dealt with 
on the basis of its peculi

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