SUDERSHAN KUMAR ARORA Vs. SATISH ARORA

JUDGEMENT

(1.) Prakash Narain, J., against whose judgment this appeal has been preferred, had, while dismissing the appeal preferred by the father (Dr. Sudarshan Kumar Arora) against the order of the learned Additional District Judge, Delhi permitting Namarata Arora a girl aged about 10, to proceed to the United States where her mother (Dr. Satish Arora) is at the moment, imposed certain conditions in addition to those already imposed by the learned Additional District Judge.

(2.) The facts relating to this unfortunate domestic controversy have been noticed at length by the learned Additional District Judge and it does not appear necessary to set them out once again. The Aroras were married according to Hindu rites at Delhi on 21-7-1962. Namarata Arora was born on 6-5-1963. Without noticing the details (some of which are disputed) that led to the couple falling out with each other, it is sufficient to notice for the purpose of this appeal that the wife filed a petition for judicial separation in July, 1972 alleging cruelty by the husband. Having come to know that the wife had resigned the permanent post which she was holding as Assistant Professor of Pharmacology in the Maulana Azad Medical College and that she was leaving India for the United States along with the child, the husband (who is himself an M.D. employed at the Willingdon Hospital and whose subject of research for his M.D. was the growth and development of children) applied, on 4-8-1973, under Section 26 of the Hindu Marriage Act, 1955 (hereinafter called the Act) for the custody of the child and for restraining his wife from removing the child from the jurisdiction of the Court. The learned Additional District Judge had ordered, on 6-8-1973, when the application came up before him, notice for 7-8-1973. The case was transferred, in the course of administrative routine, to another learned Judge. Even in the absence of the husband and his counsel an adjournment was obtained by the counsel for the wife. When representations concerning the urgency of the matter (which had not been disclosed to the learned Additional District Judge) were made he issued an injunction restraining the child from being removed to a foreign country by the mother. It is, however, stated that the wife left for the United States on 8-8-1973 in order to take up an assignment for a temporary period. It is also stated that even during the pendency of the application for judicial separation the wife had visited the United States on a lecture tour for a short period.

(3.) Thereafter the learned Additional District Judge ascertained the wishes of the child (which he placed on record) and ordered that the child shall stay with the mother in America till she reaches the age of 12 subject to the earlier decision of the petition for judicial separation. The child, who appeared to the learned District Judge to be intelligent and capable of making a choice, had positively refused to go to the father and expressed her preference to stay with the mother.