[2010] 2 S.C.R. 318

MRS. SHILPA AGGARWAL v.

MR. AVIRAL MITTAL & ANR.

Crl.M.P.No.1503 & 1504 of 2010

IN B Crl. Appeal No.2357 of 2009

FEBRUARY 2, 2010

[Al TAMAS KABIR AND CYRIAC JOSEPH, JJ.]

C Child and Family Welfare:

Custody and guardianship of child - Proceedings pending in U.K. - Proposal submitted by husband, at the instance of Supreme Court*, regarding arrangements for the D travel of the wife and the child from India to U.K. and for their stay and other expenses including litigation expenses - Direction issued to the husband to make the arrangements and bear the expenses for two months.

*Shi/pa Aggarwal vs. Aviral Mittal & Anr. (2009) 16 SCR E 287, referred to.

Case Law Reference:

(2009) 16 SCR 287 referred to Para

F CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 2357 of 2009.

From the Judgment & Order dated 07.8.2009 of the High Court of Delhi at New Delhi in W.P. (Crl.) No. 1553 of 2008.

G Devendra Singh, Ghanshyam for the Appellant.

P.P. Malhotra, ASG, J.S. Attri, S.B. Upadhyay, Prabhjit Jauhar, Anumpa Kaul, S.S. Jauhar, Shailendra Sharma, Anil Katiyar, Anil Katiyar for the Respondents.

H 318

SHILPA AGGARWAL v. AVIRAL MITTAL & ANR. 319

The Order of the Court was delivered by A

ORDER

ALTAMAS KABIR, J. 1. By our order dated 9 December, 2009, we had disposed of Criminal Appeal No.2357 of 2009, arising out of Special Leave Petition (Crl.) No.5995 of 2009, B without interfering with the order of the High Court impugned in the appeal. In order to ensure that the directions of the High Court were complied with by the parties, we had directed the Respondent-husband to provide the initial expenses of the Appellant-wife and her minor child for travelling to and staying C in the United Kingdom for at least a month to attend and contest the proceedings initiated by the Respondent No.1 husband before the Court of Justice, Family Division, U.K. We had also directed the matter to be listed for further orders on 15 December, 2009, to enable the Respondent-husband to submit D a proposal for the travel and staying arrangements for the Appellant and her minor daughter in the U.K. for at lest a month.

2. Pursuant to the said order, a proposal was duly filed by E the Respondent-husband on 15 December, 2009, but finding the same to be inadequate, we had directed the Respondenthusband to give a detailed proposal with regard to the said arrangements. The Appellant .was also directed to file a proposal as to how she intended to work out the order which had been passed on 9 December, 2009. The matter was, F accordingly, listed on 29 January, 2010, to consider the fresh proposals to be made by the Respondent-husband and the views of the Appellant-wife in respect thereof.

3. By his application dated 23.12.2009 and filed on 12 G January, 2010, the Respondent-husband, inter alia, indicated as follows :-

(a) That tickets had been booked by the Respondent for the Appellant and the minor child, Elina, to fly HI

from Delhi to London by Virgin Atlantic Airways on 1 February, 2010, Upon arrival in the United Kingdom at London Airport, arrangements had been made for travel via National Express Coach Service to Swindon where the respondent resides.

(b) The Respondent has a three-bed room house in Swindon, U.K., where the Appellant and Elina were welcome to stay with him, but in case the Appellant did not want to stay in the matrimonial home, she could stay in the named hotel for which bookings had been made from 30 January, 2010, till 28 February, 2010.

(c) The Respondent would pay the Appellant a daily allowance of 40 a day towards maintenance, upon her arrival in the United Kingdom.

(d) The Respondent was willing to reimburse any reasonable expense above 50 which the Appellant may incur for herself in the U.K. till 28.2.2010.

4. In response to the aforesaid offers, the Appellant-wife agreed to stay with the Respondent in their matrimonial home in Swindon along with her minor daughter and her father, till such time as they were required to stay in the U.K. for the purpose of contesting the custody case, subject to the Respondent agreeing to undergo psychiatric evaluation and treatment. The Appellant also sought the permission of the Court to allow her to be accompanied by her father to the United Kingdom for which her father was ready and willing to bear his travelling expenses. The Appellant has also wanted the G expenses of .her father's stay in the U.K., for the security and support of her minor daughter and herself, to be borne by the Respondent.

5. Apart from her place of stay, the Appellant also made H detailed suggestions regarding expenses that would have to

be incurred by her on account of travel and commuting in the A U.K., for the minor's admission in a Child Nursery, private medical expenses, day-to-day expenses, including clothing, legal expenses, recreational expenses, expenses for acquiring a Computer/Laptop with accessories and other sundry miscellaneous expenses which would add up to an estimated B 8342 per month. A direction was also sought for that the monthly expenses as indicated above for a period of six months should be deposited in the bank account of the Appellant in the

U.K. before the Appellant left India for the U.K.

6. We have heard learned counsel for the parties on the C proposals and counter-proposals made for the purpose of implementing the order passed by this Court on 9 December,

2009. What has emerged is that the Appellant-wife is willing to stay with the Respondent-husband in their matrimonial home at Swindon, U.K, provided he agreed to undergo psychiatric D evaluation and treatment. Counsel appearing for the Respondent-husband has, in consultation with the Respondent, who was present in Court, accepted the condition indicated by the Appellant-wife and undertook to undergo psychiatric evaluation and treatment on his return to the U. K. The E Respondenthusband also had no objection to the proposal of the Appellant to allow her father to accompany her and Elina to the United Kingdom and to stay with her during the period of her stay in theU.K. for the purpose of contesting the custody case. The Respondent also agreed to bear the ancillary F expenses involved relating to admission of the child into a Nursery, day-to-day expenses for the Appellant, her daughter and her father, clothing, expenses to purchase Computer/ Laptop and accessories, recreational expenses and other sundry miscellaneous expenses.

7. A note of discord was, however, sounded on behalf of the Respondent-husband regarding expenses for private medical treatment, legal expenses and payments made by the Government into the Child Trust Fund and Child Benefit. As far H

A as expenses for private medical treatment is concerned, on behalf of the Respondent it was submitted that the Appellant and the minor child would be entitled to medical coverage as soon as they landed in the U.K. and that, as a result, the question of incurring expenses for private medical treatment did B not arise. As to legal expenses, it was submitted on behalf of the Respondent that the amount indicated by the Appellant-wife was extremely high and that he himself was paying his lawyers at the rate of 200 per hour. As far as transfer of Child Trust Fund and Child Benefit is concerned, it was submitted on behalf of c the Respondent that whatever amounts had been received by him on the minor daughter's account, which had remained unutilized, would be returned to the State, to which the Appellant's response was that since expenses had been incurred by her in India for Elina, the same should be made over

0 to her instead of being returned to the Government.

8. Since the points of disagreement had been narrowed down to the aforesaid proposals, we direct that as far as expenses for private medical treatment is concerned, the Respondent-husband shall initially provide a sum of 200 for E such expenses and will also arrange for medical coverage in terms of the Health Insurance and Life Insurance Cover for the Appellant, her minor daughter and her father. As far as legal expenses are concerned, the Respondent shall initially pay to the Appellant a sum of 2000 per month to enable the Appellant F to apply for free legal assistance under the Access to Justice Act, 1999, and other connected enactments and regulations, subject always to the condition that the same are applicable to her. In the event such legal aid is available to the Appellant, further payment by the Respondent towards legal expenses G shall be discontinued. Regarding transfer of the Child Trust Fund and Child Benefit to the Appellant, since the Appellant has been looking after the expenses of the child, the same should be reimbursed to her from the amount being held by the Respondent, unless legally prohibited from doing so.

9. Apart from the above, since all the other proposals, as A indicated above, have been duly agreed upon, there will be an order to the following effect :-

(i) The Respondent-husband shall bear the travel expenses of the Appellant and her minor child from B India to the United Kingdom and, if necessary, back to India. The Appellant's father shall bear his own expenses towards travelling to the U.K.

(ii) During their stay in the U.K. for the purpose of contesting the custody case, the Appellant, her c minor daughter and her father will reside with the Respondent in the matrimonial home in Swindon in London, as long as it is necessary for the purpose of contesting the case.

D (iii) Within 15 days of the Appellant's arrival in the U.K., both the Appellant and the Respondent shall undergo psychiatric evaluation and treatment and shall also participate in marriage counselling programmes with a mutually agreed upon Marriage E Counsellor and the expenses for the same shall be borne by the Respondent.

(iv) The Respondent shall provide 300 per month towards the travelling expenses for the Appellant, her child and her father during their stay in the U.K.

F for the aforesaid purpose. The Child Benefit which the Respondent had been receiving on account o.f the expenses for the minor child (Elina) should be made over to the Appellant on account of the expenses already incurred by her for the said G purpose, if not legally prohibited from doing so.

(v) The Respondent shall provide a sum .of 300 per month, for the child's admission in a Child Nursery, during her stay in the U.K.

(vi)· The Respondent shall provide an initial amount of

200 for expenses that may be incurred by the Appellant and her minor daughter and father towards private medical treatment.

(vii) The Respondent shall pay an amount of 1200 per month towards food and daily incidental expenses, such as toiletries, soap, detergent, etc, telephone and broadband.

(viii) The Respondent shall provide for Health Insurance C and Life Insurance cover to the Appellant and her minor daughter on their arrival in the U.K.

. (ix) The Respondent shall pay a sum of 1600 per month towards the Appellant's legpl expenses for 0 contesting the custody and guardianship case.

(x) The Respondent shall provide for a Laptop and printer for the use of the Appellant.

10. The above amounts are to be paid into either of the E two accounts of the Appellant maintained by her in Barclays

Bank, Hem el He.mpstead 20-39-07, Nos.10865826 and 10620122, in the U.K. covering a period of two months, in two instalments, in modification of the earlier order directing arrangements to be made for the Appellant's stay in the U.K.

F for at least a month to contest the custody and guardianship case.

11. As far as airline tickets are concerned, the same may be purchased by the Respondent and made over to the G Appellant, or, in the alternative, the price of the tickets may be deposited in the .account of the Appellant in the U.K. to enable the Appellant to acces; the same for travelling toJhe U.K. in pursuance of the ord,:; r passed by this Court on 9 December, 2009,, ..

H . 12, Immediately on deposit of the first instalme.nt into the

Appellant's account in the U.K., and on being provided with the A airline tickets, the Appellant shall proceed to the U.K. along with her minor daughter, Elina, and, if she chooses, her father, within a month from the date of being informed of the said deposit, with prior intimation to the Respondent. The second instalment is to be deposited within two weeks of the Appellant's arrival B in the U.K.

13. In order to meet any other eventuality, the Appellantwife may make appropriate applications before the High Court of Justice (Family Division), at London, in the pending custody C and guardianship case.

14. A copy of this order be made available to the parties forthwith.

15. Crl. M.P. Nos.1503 and 1504 of 2010 in Criminal o Appeal No.2357 of 2009 are disposed of, accordingly.

R.P.

Petitions disposed of.