Case: 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 appellantfather and also proceedings under the Protection of Women from Domestic Violence Act, 2005, initiated by thefather.5. Being aggrieved by thejudgment 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.6. While coming to the above conclusion, the High Court has cited various decisions in support of the contention that while deciding the issue about custody of children in a matrimonial dispute, the paramount consideration is that of welfare of the child. Thereafter, on the basis of interaction with the children in the Chambers, the learned Single Judge was of the view that the elder son had a strong desire to stay with theHe also found that there was also an admission by theIn the case of the younger son, the learned Single Judge observed that he, being of a very tender age, was incapable of forming a definite preference as to with whom he wanted to stay. In the circumstances, the learned Single Judge ordered that the custody of the younger son should be given to theas she would be in a better position to understand the needs of such a young child. On this basis, the custody of the younger son was directed to remain with the respondent.8. The learned Single Judge also recorded a finding to the effect that both the children appeared to be very happy in the company of each other as there was a strong bonding between them.9. Being aggrieved by the said judgment, both the parties have come before this Court vide the present appeals.

Court's reasoning:
14. Upon speaking to the children personally, we also found that they are indeed very much attached to each other. This fact was also noted by the learned Single Judge of the High Court in the impugned judgment, and is also admitted by both the parties in their respective written submissions. Looking to the overall peculiar circumstances of the case, it is our view that the welfare of both the children would be best served if they remain together. In our view it would not be just and proper to separate both brothers, who are admittedly very close to each other.We are of the view that the children should be with the appellantWe are sure that the appellantfather, who is a member of Indian Administrative Service and is a well groomed person, with the help of his father, who was also a professor, will be able to take very good care of the children. Their education would not be adversely affected even in Jammu and Kashmir as it would be possible for theto get them educated in a good school in Jammu. We do not believe that the children would remain in company of servants as alleged by the learned counsel appearing for theFather of the appellant i.e. the grandfather of the children would also be in a position to look after the children and infuse good cultural values into them. Normally, grandparents can spare more time with their grand children and especially company of well educated grandparents would not only help the children in their studies but would also help them to imbibe cultural and moral values and good manners.18. So as to see that theis also not kept away from the children, she shall have a right to visit the children atleast once in a month. The appellant –father shall make arrangements for A.C. First Class railway ticket for theor shall pay the railway fare to her so as to visit the children once in a month at a weekend and theshall also make arrangements for stay of theeither at his own residence, if theagrees to that, otherwise theshall make arrangements for suitable accommodation for thewhen she comes to Jammu to visit the children.19. During the period of vacation exceeding two weeks, theshall send the children to Delhi so that the children can stay with theatleast for three days.We are sure that the appellantand the respondent shall determine the modalities as to during which portion of the vacation, the children should visit theas almost both the parents are interested in having the company of the children.