These are case comments for the judgement passed on 5 October 2012 in Gayatri Bajaj v. Jiten Bhalla by a bench constituted by Hon’ble Mr. Justice P. Sathasivam and Hon’ble Mr. Justice Ranjan Gogoi who authored the judgement.

Facts of the Case

The wife, Gayatri Bhalla filed a special leave petition and was the appellant in the instant case whereas her husband, Mr. Jiten Bhalla was the respondent. The two had tied the knot on 10/12/1992. About three years later on 20/08/1995 they had their first child, Kriti. Nearly half a decade prior to that their second daughter Ridhi was born on 19/04/2000

On 23/05/2003 the couple submitted a joint petition under the ambit of Section 13B(2) of the Hindu Marriage Act,1955 seeking for a divorce by mutual consent. The petition stated that the duo had been living separately since December 2001 owing to irreconcilable differences. The terms of agreement between the parties in the said petition also enumerated that the husband was to have sole custody of the two minor daughters and the wife had agreed to forego her visitation rights in interest of welfare of the children. Pursuant to the above petition the trial court granted a decree of divorce on 3/06/2003

After almost 3 years elapsed, the wife filed a suit in which she seeked the following-

1. The decree of divorce passed by the trial court to be declared null and void on the grounds that her consent was obtained by fraud and deceit.
2. Declaration that the marriage between the parties was subsisting.
3. Decree of perpetual injunction restraining the husband from marrying again.

In response to the same, the husband filed a written statement denying the statements made by the wife and contesting the challenge to the decree of divorce. While the aforementioned suit was still sub judice the wife filed another application under Section 151 of the Code of Civil Procedure seeking similar reliefs. On the basis of this application the trial court recalled the decree of divorce, this decision of the trial court was appealed by the husband in the Delhi High Court. The appeal was allowed, however, a review of the same was dismissed. The Delhi High Court was of the view that the trial court’s order recalling the decree of divorce was incorrect, however, the question of validity of the divorce on grounds of fraud was kept open to adjudication.

In the instant case which lay before the Supreme Court the sole contention of the parties was regarding the custody of the children. The Supreme Court had accorded elaborate consideration to matters of custody in the instant case. In an order recorded on 16/12/2011 the Court had endeavoured to broker a settlement by chalking out the visitation rights for the wife. The Court made interim arrangements with hopes of building a relationship between the daughters and the mother by allowing initial contact.

With a view to achieve the same, the respondent-husband was instructed to bring the daughters to the Supreme Court Mediation Center at 10:00 A.M. on Saturday every fortnight and hand them over to the appellant-wife who was allowed to keep the kids overnight and hand them over to the respondent at his residence by 10:00 A.M. of the following day i.e. Sunday. The arrangement was to commence from 17/12/2011 till the end of January 2012. The respondent was also instructed to inform the personal phone number of the elder daughter to the appellant-wife for allowing free interaction between the mother and the daughter.

The respondent husband filed an interlocutory appeal in the Supreme Court seeking vacation/modification of the interim arrangement . The I.A. enumerated that on 17/12/2011, pursuant to the interim arrangements propounded by the Court the respondent reached the mediation center along with his daughters at the decided time but the daughters refused to go with the appellant wife despite persuasion by the Court appointed mediator. Around 1:30 PM the respondent received a call that he should come and collect the children. On the next visit scheduled on 30/11/2011 the children displayed abnormal behavior and refused to take their food. They refused to go with their mother and the attempts of the mediator to convince them proved futile yet again. At noon the respondent took them home, the daughters refused to visit the mediation center in the future. One day prior to the next scheduled visit on 14/01/2011 the counsel for the appellant informed the counsel for the respondent via a letter dated 13/01/2011 the decision of the children to not visit the mediation center and the failure of their father to convince them otherwise despite the best of his efforts.

The aforementioned facts are not mentioned in the mediator’s report dated 14/01/2011. It sates that the children and the respondent were absent on 14/01/2011 and a letter dated 13/01/2011 was placed before him. It is pertinent to note that none of the statements made in the interlocutory appeal have been controverted by the appellant-wife.

Hon’ble Justice quoted the decision of the SC in Moitra Ganguly v. Jayant Ganguly wherein it had been held that the welfare of the child took ascendancy over the rights of parents as the determining factor for deciding the custody of the child. The question of welfare of the child was to be decided based on the facts of the case without being bound by any precedent. While determining the question of custody of the child under Guardians and Wards Act 1890 or Hindu Minority & Guardianship Act, 1956 all other facts were relevant but the desire, interest and the welfare of the child which is the ultimate consideration that must guide all the determination to be made by the Court.

In the instant case, irrespective of the fact whether her consent regarding giving up of her visitation rights was obtained by fraud and deceit practiced on her as subsequently claimed the Court did attempt to foster a relationship between the mother and daughters which ultimately proved to be a colossal failure. The children, one of whom is at the verge of attaining majority were reluctant to meet their mother for even brief periods of time, in such a scenario granting visitation rights to the appellant would prove adverse to the interest of the children, defeating the entire purpose of the law. Both of the daughters appear to be happy in the company of their father who seems to be in a position to provide them with adequate educational facilities and maintain them in a proper and congenial fashion.

The Court thus, denied any visitation rights to the appellant and held that the respondent-husband would continue to have the custody of the children.

Comments

Hon’ble Justice Gogoi in his archetypal fashion disposed off the current lis with commendable alacrity. However, the current judgement has taken cognizance of the appellant-wife filing a fresh application under Section 151 of the CPC making same prayers that she made in the other litigation which was still sub judice, ostensibly, as a pressure tactic to overwhelm the other party with a fresh litigation. Such iniquitous litigation add to the burden of the judicial system and it is pertinent that steps are taken to avoid the same. It is also interesting to note how the trial courts did not attempt to practice their conciliatory jurisdiction and granted the divorce in merely three weeks. Albeit this can be excused keeping in mind the fact that the parties were not co-habitating for a prolonged period and had submitted a second motion seeking divorce in the short span of time, what is more concerning is the decision of the trial court recalling the decree of divorce hastily, in a manner unbecoming of a judge dealing with a matrimonial dispute. Time and again the apex judiciary has highlighted the importance to bear in mind the human angle in such litigations and it is imperative that the same becomes an inextricable part of the institutional memory of the judiciaries dealing with the same.