AYESHA BHATIA Vs. VIJAY R BHATIA

JUDGEMENT

(1.) Whether the mother or the father should have the interim custody of their minor son Sanjeev now aged about 9 years is the short but difficult question which falls for determination in this petition under Article 227 of the Constitution of India.

(2.) Embittered and strained relationship between the petitioner mother and the respondent father resulted in filing of a divorce petition by the petitioner under Section 13 of the Hindu Marriage Act. The petitioner and the respondent were married at New Delhi on 13th April, 1973. Two male children were born out of this wedlock. Ashish who is now aged about 11 years, was born on 7th May, 1976; and Sanjeev now aged about 9 years, was born on 3rd October, 1978. After the birth of the two children, for some time the petitioner and the respondent lived together but after 1981 though there were not many serious differences between them, petitioner and the respondent lived separately; father at Ahmedabad and mother at Delhi. The petitioner visited the father and children at Ahmedabad and the respondent alongwith the children also visited the mother at New Delhi. The children continued with their schooling at Ahmedabad. It was only in the year 1985 that the relations between the petitioner and the respondent got further strained and a divorce petition was filed by the petitioner in January 1986 in the Court of District Judge, Delhi. The petitioner filed an application for custody of the children during vacations. The father took a very reasonable approach and agreed to send the children to the mother during vacations. Accordingly the mother enjoyed the custody and company of her children in the summer vacation which fell due in April, i987. Another application was made by the petitioner for custody of the children during Diwali holidays in September 1987. The Court accepted this plea and the petitioner was permitted to bring the children to Delhi for Diwali. Accordingly the mother reached Ahmedabad to bring her two children on 16th October, 1987. The elder son Ashish for some reason did not accompany the mother but the younger son Sanjeev came with her to Delhi on 18th October, 1987. Under the orders of the Court the father was to come to Delhi to collect the two children to be taken back to Ahmedabad. The children were to be handed over to the father in Court on 28th October, 1987 but when the case came up before the Court on 28th October, 1987 the mother failed to produce the child in court on the plea that the child was not ready to go with the father. The court insisted on the- production of the child in court and the case was again listed before the court on 29th October, 1987. When the case came up before the court on 29th October, 1987 the mother produced the child in court. She reiterated the plea that since the child does not wish io go back to the father she be given the interim custody of the minor son Sanjeev till the question of permanent custody of the child was decided by the Court. No formal application was however made for interim custody and the court, therefore, felt that no orders could be passed for interim custody of the child on that day. The father was thus allowed to take away the child with him but directed to produce him in court the next day. Before the trial court could however hear the matter on 30th October, 1987, the petitioner moved this present petition under Article 227 of the Constitution of India. Notice to show cause was issued by the court to the father and though the child was allowed to stay with him, the respondent-father was restrained from taking away the child Sanjeev to Ahmedabad. When in the afternoon of 30th October, 1987 the parties again appeared before the trial court, since this court was already apprised of the matter, the trial court did not think it proper to interfere in the matter. The trial judge however noticed in that order that the child Sanjeev told the court in open that he wanted to stay with his mother.

(3.) A very fervent appeal was made on behalf of the petitioner, for custody of the child firstly on the ground that the child was offender age and thus welfare of the child required that he be in the custody of the mother and secondly on the ground that the child had expressed his wish to stay with the mother and not with the father. This plea was most vehmently opposed by the respondent on the ground that :