Hindu Marriage Act, 1955 — Section 13(1)(i) & (1A) — Custody of children

May 13th, 2013

Hindu Marriage Act, 1955 — Section 13(1)(i) & (1A) — Custody of children — For education purpose — To whom, father or mother? — Paramount importance — Modifications in arrangement of custody of children — Custody of two minor sons aged about 15 and 9 years — Father of children, an IAS officer presently stationed at Jammu sought for permission to admit and continue the education of children in Jammu School — High Court partly allowed the application by permitting father to have custody of elder son and mother to have custody of younger son — Aggrieved by the separation, father filed present appeal — Both the children are admittedly very close to each other — Welfare of both the children would be best served if they remain together — Father of appellant who is a professor also lives with him — Appellant’s father, i.e. grand father of children, would be in a position to take care and infuse good culture in the children — Educational needs of elder son would be better taken care of by his father i.e. appellant — Custody of children is given to father and visitation rights are given to mother — Arrangement accordingly modified — Appeal allowed.

HELD: Upon speaking to the children personally, we also found that they are indeed very much attached to each other. This fact was also noted by the learned Single Judge of the High Court in the impugned judgment, and is also admitted by both the parties in their respective written submissions. Looking to the overall peculiar circumstances of the case, it is our view that the welfare of both the children would be best served if they remain together. In our view it would not be just and proper to separate both brothers, who are admittedly very close to each other.

If we are of the view that both the brothers should not be separated and should be kept together, the question would be as to who should be given custody of the children.

We are of the view that the children should be with the appellant-father. The respondent-mother is not in a position to look after the educational need of the elder son and as we do not desire to separate both the brothers, in our opinion, looking to the peculiar facts of the case, it would be in the interest of the children that they stay with the appellant-father.

We are sure that the appellant-father, who is a member of Indian Administrative Service and is a well groomed person, with the help of his father, who was also a professor, will be able to take very good care of the children. Their education would not be adversely affected even in Jammu and Kashmir as it would be possible for the appellant-father to get them educated in a good school in Jammu. We do not believe that the children would remain in company of servants as alleged by the learned counsel appearing for the respondent-mother. Father of the appellant i.e. the grandfather of the children would also be in a position to look after the children and infuse good cultural values into them. Normally, grandparents can spare more time with their grand children and especially company of well educated grandparents would not only help the children in their studies but would also help them to imbibe cultural and moral values and good manners.

So as to see that the respondent-mother is also not kept away from the children, she shall have a right to visit the children atleast once in a month. The appellant -father shall make arrangements for A.C. First Class railway ticket for the respondent-mother or shall pay the railway fare to her so as to visit the children once in a month at a weekend and the appellant-father shall also make arrangements for stay of the respondent-mother either at his own residence, if the respondent- mother agrees to that, otherwise the appellant-father shall make arrangements for suitable accommodation for the respondent-mother when she comes to Jammu to visit the children.

Shaleen Kabra v. Shiwani Kabra[Bench Strength 2], Civil Appeal No. 4308/2012 (Arising out of Special Leave Petition (C) No. 13254/2011)(08/05/2012), 2012(3) SCV(Civil) 143: 2012 AIR(SC) 2467: 2012(5) SCC 355: 2012(4) JT 618: 2012(5) SCALE 193: 2012(3) SLT 663 [D.K. Jain, J.: Anil R. Dave, J.]

Entry Filed under: Judgements,Matrimonial Laws