Jitender Arora & Ors vs Sukriti Arora & Ors

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.

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.

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.

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.

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.

(b) The respondent was forcibly deprived by the custody of Saesha from August 04, 2010 when she was forced to leave the matrimonial house. As per the respondent, on that date the appellant in a drunken state gave beatings to her and threw her out of the house. The respondent had called the police. The police personnel called the military police and a complaint was lodged. The respondent had also called her parents who had come to her house from NOIDA. Her parents took hold of the child and the appellant and when they were about to leave, the appellant pulled out the child from the hands of her mother and went inside the house and locked himself. He was drunk at that time. The police suggested not to do anything otherwise appellant would harm the child. It was assured that the child would be returned to her in the morning. In any case, the respondent and the appellant were instructed to come to the police along with the child, next morning. The appellant did not bring the child and threatened that he would not give the child to her. Since then, she had been running from pillar to post to get the child back but respondent had been refusing.

(c) Within the few days, i.e. on August 26, 2010, the respondent filed the petition seeking custody of the child and for appointment of her guardian. She did not lose any time making her intentions clear that as a natural mother she wanted to have the custody of the child. It was her mis- fortune that the trial court vide its judgment dated December 07, 2011 dismissed her petition. Though, she filed the appeal against the said judgment immediately, but during the pendency of the appeal, the custody remained with the appellant because of the dismissal of the petition by the Family Court. The High Court has, by impugned judgment dated April 02, 2013 granted the custody to the respondent. However, the respondent has not been able to reap the benefit thereof because of the interim orders passed in the instant appeal. It is in these circumstances that child Saesha from the tender age of 21 months has remained with the appellant and today she is 8 years and 3 months. Obviously, because of this reason, as of today, she is very much attached to the father and she thinks that she should remain in the present environment. A child, who has not seen, experienced or lived the comfort of the company of the mother is, naturally, not in a position to comprehend that the grass on the other side may turn out to be greener. Only when she is exposed to that environment of living with her mother, that she would be in a position to properly evaluate as to whether her welfare lies more in the company of her mother or in the company of her father. As of today, the assessment and perception are one sided. Few years ago, when the High Court passed the impugned judgment, the ground realities were different.

The respondent, therefore, cannot be blamed at all, if the custody of the child remained with the appellant, after the separation of the parties.

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On the facts of the present case, we are convinced that custody of the child needs to be with father. She is already 15 years of age and within 3 years, she would be major and all this custody battle between her parents would come to an end. She would have complete freedom to decide the course of action she would like to adopt in her life. We, thus, allow this appeal and set aside the judgment of the High Court.

No costs.

FEBRUARY 17, 2017.

This appeal was called on for pronouncement of judgment today.

For Appellant(s) Mr. S. S. Jauhar, Adv.

For Respondent(s) Mr. Viresh B. Saharya, Adv.

Mr. Birendra Kumar Choudhry, Adv.

Mr. Sanjay Kumar Visen, Adv.

Hon'ble Mr. Justice A. K. Sikri pronounced the judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice R. K. Agrawal.

The appeal is allowed in terms of the signed reportable judgment.

In view thereof, pending applications, if any, stand disposed of.

[Signed reportable judgment is placed on the file.]