Case: Jitender Arora  Vs. Sukriti Arora

1. Marriage between appellant No. 1 (hereinafter referred to as the appellant) and respondent No. 1 (hereinafter referred to as the respondent) was solemnized sometime in the year 1999, which was got registered with the Registrar of Marriages, Faridabad on 14.12.1999. The parties lived thereafter till March 2000 in Faridabad. However, carrying this notion that great future lies for them out of India, the couple shifted to U.K. on 23.03.2000. Ms. Vaishali Arora was born out of this wedlock on 14.01.2002. Career-wise or financially, whether the couple was better off in U.K., is not known. However, the soil of U.K. certainly did not prove conducive to their matrimonial relationship which, with the passage of time, turned bad to worst and from sweet to savoury to bitter. So much so, legal battles started between them. Eschewing the details in this behalf which are not needed and can be avoided for the sake of brevity, suffice is to mention that respondent has taken decree of divorce from the Court in U.K. Likewise, appellant who had shifted to India along with Vaishali in 2010, filed the petition for divorce and has obtained decree of divorce against the respondent. Both the divorce decrees are ex-parte against each other. Fact remains, which is to be emphasised, that the appellant and respondent have put an end to their matrimonial alliance and the aforesaid move on their part clearly depicts that both of them wanted divorce from each other. That is the reason that the aforesaid ex-parte divorce decrees are not questioned by any of them.  2. As it happens in such cases, an acrimonious and charged up battle between the appellant and the respondent has got concentrated upon the custody of Vaishali Arora. Though the couple had moved to U.K. on 23.03.2000, Vaishali was born on 14.01.2002 in Holy Family Hospital, Delhi. The respondent had come to India when she was pregnant and shortly after her birth, she went back along with the appellant and the new born child. Vaishali came to India in July, 2002 to stay with her paternal grandparents in Faridabad and went back to U.K. in January, 2003. Matrimonial discord started erupting between the parties thereafter. Since both of them were having their permanent jobs, the services of Katie Bradbury, a Child Minder were obtained by them when Vaishali was merely 13 months old. In July, 2004, both husband and wife and their child were granted permanent resident status of U.K. Thereafter, the parties had been coming to India off and on quite regularly. Vaishali was admitted in a school in Camberley, U.K. In July, 2007, Vaishali came to India and joined Manav Rachna International School where she studied upto March, 2008. Thereafter, she again went back to U.K. where she was admitted in a school. On 07.02.2007, Pushti, second daughter, was born to the parties. Thereafter, the matrimonial relationship between the appellant and the respondent became more bitter and abusive. Respondent alleged the acts of domestic violence perpetrated upon her by the appellant. Surrey Social Services Department investigated into the issues of domestic violence. During this period, the impact of adverse relations between the spouses upon their child Vaishali was also studied from psychological point of view by the officer of the said Department and reports given from time to time.  3. In June, 2007, Vaishali was issued Indian Passport by Indian High Commission in London. On 04.08.2007, the appellant came to India. As pointed out above, Vaishali had already come to India and was admitted in a school in July, 2007. The appellant and Vaishali remained in India till April, 2008. Even the respondent decided to move back to India with her parents. However, on 13.04.2008, the appellant went back to U.K. The respondent remained in India and went back to U.K. in May, 2009. On reaching U.K., she lodged a complaint with the police on 13.05.2009 to trace the whereabouts of Vaishali. Thereafter, she filed a case in the U.K. Court in which, on 04.06.2009, an ex-parte order was passed prohibiting the appellant from removing two minor children from England and Wales. Further, restraint order was passed against the appellant from removing Vaishali from attendance at Alwyn Infants School where she was studying at that time. The appellant filed cross application and it led to further legal tussle between the parties wherein the Court passed orders from time to time. It is in November, 2009 that the respondent filed divorce proceedings against the appellant in a Court in U.K. wherein she has been granted decree of divorce. On 24.11.2009, as aforesaid, the appellant shifted to India along with Vaishali. In their absence, the respondent obtained British Citizenship of Vaishali on 13.07.2010.  4. Since the appellant had come to India with Vaishali, the respondent filed Habeas Corpus Petition bearing Criminal Writ Petition No. 712 of 2010 in the High Court of Punjab & Haryana wherein she impleaded, apart from the appellant, his parents as well as Vaishali, as respondents. Other parties who were made respondents were State of Haryana, Senior Superintendent of Police, Haryana and Station House Officer, Police Station City Faridabad, Haryana. This petition has been allowed by the High Court vide judgment dated 25.05.2010 directing the appellant to handover the custody of Vaishali to her mother i.e. the respondent. It is this judgment which is impugned in the present proceedings.  5. It would be noticed that in May, 2010, when the petition was allowed, Vaishali was almost 8½ years of age. Today, she is 15 years old.  6. The Special Leave Petition (which is converted into the instant appeal after the grant of special leave) was filed immediately after the passing of the impugned judgment by the High Court, which came up for hearing on 02.06.2010 before the Vacation Bench of this Court. While issuing notice in the petition, this Court stayed the operation of the aforesaid judgment of the High Court. That stay order has remained in operation, as a consequence whereof custody of the child continues to be with the father. The respondent, of course, has been granted visitation rights from time to time as and when she came to India and moved an application in this behalf. Such visitation rights have normally been for the entire period of her stay in India on these visits, which range from seven days to even two months. This fact is highlighted to show that the respondent is given access to child for long periods as well, the details whereof are mentioned hereafter.  7. When the case came up before this Court on 31.01.2013 (at that time, Vaishali was 11 years of age), the Bench (comprising of Aftab Alam and Ranjana Prakash Desai, JJ.) decided to meet Vaishali in order to interact with her to ascertain her view point. Thereafter, the matter came up for hearing on 02.04.2013 when the following order was passed:"In the proceedings held on January 31, 2013, it was agreed between the parties and was also noted in the order passed on that date that the child Vaishali should stay with respondent No.1 (Sukriti Arora), the mother of the child at her residence in Delhi for one month under monitoring by this Court.  In continuation of that order, therefore, we direct that Vaishali should stay with her mother, tentatively for one month from today, subject to any further direction that may be passed by this Court in the meanwhile. The address of respondent No.1 where she will stay with her daughter Vaishali is 6578, Sector-C, Pocket-6&7, Vasant Kunj, Delhi and her contact number (mobile)is:9968661822.  Ms. Madhavi Divan, one of the counsel representing the petitioner shall hand over the child to her mother-respondent No.1 outside the court room after we complete the passing of this order.  Respondent No.1 shall deposit her passport with the Registrar (J-III) of this Court which shall be returned back to her after Vaishali goes back to her father on completion of the term of her stay with respondent No.1.  We are informed that Vaishalis school is reopening from April 4, 2013. On behalf of Respondent No.1, it is stated that she will ensure that the child reaches the school in time and is brought back to her residence after school hours. The childs stay with her mother will, in no way, affect her attendance at the school or her studies.  During her stay with the mother, the child will be free to speak to her father on telephone (Mobile No. 9968661822). On behalf of respondent No.1, it was stated that she would not create any obstruction in the way of the child speaking to her father.  During the childs stay with her mother, we would like some responsible and competent person to monitor the arrangement. We, accordingly, request Mrs. Sadhana Ramachandran, who works for the Delhi High Court Mediation and Conciliation Centre, to monitor the arrangement on behalf of this Court. Mrs. Ramachandran shall visit the mother and the child at the address noted above on a date and time of her convenience. She would inform respondent No.1 on her mobile phone about the proposed date and time of her visit to the respondents place. She would see how the relationship between the child and the mother is developing and if need be, she would counsel both the child and the mother.  If the father wants to visit the child while she is staying with her mother, he may do so at a time when Mrs. Sadhana Ramachandran is also present there. For the purpose of the visit he will have to take the necessary permission from Mrs. Ramachandran.  It is submitted on behalf of Respondent No.1 that she would like to take the child to some resort or some hill station for a brief holiday. We would like the mother and the child to stay in Delhi itself but, in case, both the child and the mother together wish to go outside, they may do so subject to the permission in writing taken from Mrs. Ramachandran.  Mrs. Ramachandran would submit a report to this Court within ten days from today.  Let this matter be listed for further direction along with the report from Mrs. Ramachandran on April 12, 2013."`8. Mrs. Sadhana Ramachandran, who monitored the arrangement as per the directions contained in the aforesaid order submitted her report. On going through that report, further order dated 15.04.2013 was passed in the matter and we reproduce that order as well in its entirety:"Seen the report submitted by Mrs. Sadhana Ramachandran.  This Court is thankful to Mrs. Ramachandran for giving her valuable time and attention and for acting as the counselor and the Courts agent in this arrangement.  We note that under the exigencies of the situation, the mother and the child have shifted from the address noted in the previous order and are now living at the following address:  Ms. Sukriti Arora,  C/o. K.D. Prasher  C-2633, Sushant Lok Phase - I,  Gurgaon (Haryana).  The shift has been made with the permission of Mrs. Ramachandran and with the consent of the father of the child.  The arrangement made by order dated April 02, 2013 may continue for a period of one month from that date as indicated in that order.  It is, however, made clear that while staying with her mother, the child Vaishali can speak to her father and to Mrs. Ramachandran as and when she wishes.  Both the petitioner and the respondent are directed to pay heed to the advice of Mrs. Ramachandran and take part in mediation, as suggested by her, with an open mind.  List on May 01, 2013.  Before that date, Mrs. Sadhana Ramachandran is requested to submit a final report."9. On 01.05.2013, this Court took note of the fact that the respondent was leaving for U.K. In these circumstances, direction was given to her to return the custody of Vaishali to her father i.e. the appellant. The aforesaid background needs to be kept in mind while deciding this custody dispute.

Reasoning:
12. The circumstances, in the present case, however, are materially different. Vaishali is a mature girl of 15 years of age. At this age, she can fully understand what is in her best interest. She is competent to take a decision for herself. There has been interaction with her by different Benches of this Court from time to time, outcome whereof is reflected in the orders passed after such meetings. She has unequivocally and without any reservations expressed her desire to be with her father. More importantly, she has very categorically said that she does not want to go to U.K13. On 31.01.2013, this Court had noted that when her mother came to India, she was not even willing to meet her. However, with the intervention of the Court, a meeting was arranged between Vaishali and her mother. Even after the said meeting, she was not willing to live with the respondent, her mother. Fully realising that it may be due to the reason that all this period, she had lived with her father, the Court deemed it proper to give opportunity to the respondent to win love, confidence and trust of Vaishali. The mother was allowed to stay for one month with Vaishali. This order was continued on 02.04.2013 by extending the period by another month. This time the arrangement that was made was to be monitored by Mrs. Sadhana Ramachandran who was appointed for this purpose. Specific job given to Mrs. Sadhana Ramachandran was to see how the relationship between the child and the mother is developing. In case of need she was to counsel both the child as well as the mother. Thus, an opportunity was given to the respondent by allowing her the access of Vaishali for significant period i.e. till 01.05.2013, whereafter the child was restored back to her father, since the respondent had decided to go back to U.K. It is unfortunate that even during this period, she was not able to influence the thought process of Vaishali who is determined to remain with her father14. In fact, during the course of arguments before us, when the respondent was also present, we asked the respondent as to whether she could shift to India, even temporarily for a year or so, as in that eventuality, the Court can consider giving custody of Vaishali to her for that period. However, she expressed her inability to do so. She wants custody of Vaishali on her own terms. She wants Vaishali to come to U.K. and live with her. Vaishali does not want to go to U.K. at all. This Court cannot take the risk of sending Vaishali to a foreign country, against the wishes of a mature girl like Vaishali, as it may prove to be a turbulent and tormenting experience for her. That would not be in her interest15. We also had interaction with Vaishali in the Chambers earlier. On the date of hearing also, Vaishali was present in the Court and in front of her parents, she unequivocally expressed that she was happy with her father and wanted to continue in his company and did not want to go with her mother, much less to U.K. From the interaction, it is clearly discernible that she is a mature girl who is in a position to weigh the pros and cons of two alternatives and to decide as to which course of action is more suited to her. She has developed her personality and formed her opinion after considering all the attendant circumstances. Her intellectual characteristics are adequately developed. She is able to solve problems, think about her future and understands the long term effects of the decision which she has taken. We also find that she has been brought up in a conducive atmosphere. It, thus, becomes apparent that in the instant case, we are dealing with the custody of a child who is 15 years of age and has achieved sufficient level of maturity. Further, in spite of giving ample chances to the respondent by giving temporary custody of Vaishali to her, respondent has not been able to win over the confidence of Vaishali. We, therefore, feel that her welfare lies in the continued company of her father which appears to be in her best interest16. The High Court in the impugned judgment had stated that since Vaishali was a minor girl, she needed company of her mother more to understand girly things. The High Court mentioned about the bond between girl child and mother in abstract and from there only the High Court came to the conclusion that it would be better to give the custody to the mother. The High Court did not go into the specific situation and circumstances of this case and did not make any objective assessment about the welfare of Vaishali. Many circumstances which we have narrated above were not taken note of