Shaleen Kabra vs Shiwani Kabra

4. The marriage of the appellant and the respondent was solemnized on 14.02.1994. From the wedlock, two sons were born, who are approximately 15 and 9 years old. The appellant and the respondent have been living separately since 10.04.2007, and have been involved in various litigations since then, including a petition for divorce under Section 13(1)(i) & 1A of the Hindu Marriage Act, 1955 filed by the appellant- father and also proceedings under the Protection of Women from Domestic Violence Act, 2005, initiated by the respondent-mother. The appellant, who is an IAS officer, stationed at Jammu at present, had sought certain modifications in the arrangement of custody of the children, and also permission to take transfer certificates of the children from Delhi and complete their admission in a school in Jammu, and in this respect, moved applications dated 25.05.2010 and 22.06.2010 before the Additional District Judge. The Learned Additional District Judge, vide order dated 19.07.2010 was pleased to allow the applications moved by the appellant- father.

5. Being aggrieved by the above-mentioned judgment delivered by the Trial Court, the respondent preferred CM(M) No. 1018 of 2010 before the High Court. By virtue of the impugned judgment, the High Court partly allowed the petition filed by the respondent whereby the respondent was permitted to have custody of the younger son, whereas the appellant was to have custody of the elder son.

15. 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.

16. 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.

19. During the period of vacation exceeding two weeks, the appellant-father shall send the children to Delhi so that the children can stay with the respondent-mother atleast for three days. We are sure that the appellant and the respondent shall determine the modalities as to during which portion of the vacation, the children should visit the respondent-mother as almost both the parents are interested in having the company of the children.

20. For the aforestated reasons and looking to the peculiar facts of the case, we quash and set aside the impugned order passed by the High Court and restore the order of the trial court, subject to modification of conditions-arrangements, recorded hereinabove. The custody of both the children shall be given to the appellant-father before 15th May, 2012 and the arrangements with regard to visit of the children etc. shall take effect from 1st June, 2012, the respondent-mother shall do the needful to send the younger son to the residence of the appellant-father before 15th May, 2012.

21. The appeals are accordingly allowed with no order as to costs.

…………………………J (D.K. JAIN) …………………………J (ANIL R. DAVE) NEW DELHI May 8 , 2012