The applicant, Mukul Bhasin, was impleaded as the fifth respondent to a
petition under Article 136 of the Constitution which was disposed of by this Court
on 9 April 2014. The first respondent to the application was the petitioner in the
Special Leave Petition. The applicant and the first respondent were married on
11 July 2007. They have two children – Ranvir, who was born on 24 July 2008
and Hridaan, born on 16 November 2011. The children are now eight and five
years old. There is a matrimonial dispute and parties have been living separately
since July 2013.
2 The applicant instituted a petition under the Guardian and Wards Act, 1890
(Petition 754 of 2013) before the Civil Judge (Senior Division), Gautam Budh
Nagar, UP, for dissolution of marriage and for custody of the children. The
respondent instituted a habeas corpus petition before the Calcutta High Court to
which the applicant filed an affidavit-in-opposition. An order was passed by the
Calcutta High Court refusing interim custody to the respondent. The High Court,
however, directed the applicant to bring the children on a fortnightly basis to
Kolkata on a Sunday and to allow the respondent to meet them between 11 am
and 4 pm at the residence of the respondent’s advocate. This led to the Special
Leave Petition by the respondent challenging the order refusing interim custody
to her. 3 During the course of the hearing of the Special Leave Petition this Court
recorded by its order dated 13 March 2014 that it had interviewed both the
parties and the minor children to explore the possibility of an amicable
settlement. By way of a temporary arrangement, interim custody of the children
was granted to the respondent for the duration of the ensuing school vacation
until the reopening of the school of the elder child, after which the children were
to be restored to the father. Eventually, on 9 April 2014 the Special Leave
Petition was disposed of since the order of the High Court impugned was purely
an interim arrangement which did not finally determine the rights and obligations
of the parties. However, the Court which is seized of the Guardianship Petition
was requested to expedite its proceedings and to pass final orders, as far as
possible, within three months. The interim arrangement regarding visitation
rights made by the High Court was directed to continue.
4 The applicant moved the court before which the guardianship proceedings
are pending in January 2016 for modification of the visitation orders on the
allegation that the respondent was misusing her visitation rights. The trial court
dismissed the application on the ground that this would amount to interference
with the interim order of custody and visitation passed by the High Court and
confirmed by this Court.
5 The basis of the present application is set out in paragraphs 9, 10 and 11
which reads as follows:
“That the minor children to comply with the
present visitation arrangement leave their
home at Noida at 3:30 am to reach the airport
in time to catch a flight to reach Kolkata on
time for the visitation. The minor children
further return to Delhi after the visitation
between 10:30 pm and 1:00 am on Monday
morning and have to wake up for school by
6:15 am on the same day. On one occasion
the flight of the minor children had to be
diverted to Lucknow and the children only
reached Delhi by 3:14 am. The present
arrangement is not conducive for the minor
children keeping in mind their tender age and
their mental and physical well-being.
That the present Applicant/Respondent No.5
fears that the strenuous and constant travelling
from Delhi to Kolkata and back on a regular
basis shall have a negative impact on their
physical health along with the mental psyche of
the children and may even in the future begin
to affect the academics, extra-curricular
activities, sports and attendance of the
children. That the present
Applicant/Respondent No.5 humbly submits
that the present visitation arrangement is no
longer in the best interest and welfare of the
children.
That it is due to these reasons that the present
Applicant/Respondent No.5 is seeking
modification of the order dated 09.04.2014
passed by this Hon’ble Court only to the limited
extent of changing the venue of the visits from
Kolkata to Delhi. After due consideration the
present Applicant/Respondent No.5 humbly
states that he is even willing to bear the
Petitioner’s cost of travel to Delhi to meet the
minor children every fortnightly Sunday so as
to let the petitioner interact with them. It is JUDGMENT further submitted that the Petitioner has
relatives and family members who live in Delhi
and shall not be adversely affected in anyway
by travelling to Delhi to meet with the minor
children and comply with the fortnightly
visitation arrangement”.
6 The learned counsel appearing on behalf of the applicant submits that it is
extremely stressful for the children to travel to Kolkata every fortnight on a
Sunday since they have to leave their home at NOIDA at 3.30 am in order to take
a flight to meet their mother at 10 am. Moreover, it has been submitted that the
children return back to New Delhi late at night and have to attend school on
Monday morning. The applicant has expressed his readiness and willingness to
bear the cost of travel of the respondent to Delhi where, it has been submitted,
the children can meet her during the hours fixed by the High Court. Having
regard to the fact that prima facie it appears tiring and stressful for the two young
children who are eight and five years of age to travel to Kolkata in the manner
agreed, we had requested learned counsel for the parties to discuss the matter
and indicate to the Court whether an agreement can be broadly arrived at to
facilitate the convenience of the young children while at the same time protecting
the legitimate concerns of their mother.
7 Ms. Meenakshi Arora, learned senior counsel appearing on behalf of the
respondent has fairly stated before the Court that while the respondent would be
willing to abide by any reasonable arrangement which would obviate JUDGMENT
inconvenience to her children, this Court may require the petitioner to provide for
the airfare both for the respondent and her mother to travel to New Delhi and the
petitioner may be directed to make arrangements to facilitate their stay in a room
in a hotel in New Delhi for two nights. During the course of the hearing we had
indicated a viable arrangement by which instead of being required to travel to
Kolkata every fortnight, the children shall travel once in a month to Kolkata while
the respondent will meet the children in New Delhi once in a month. Both the
learned counsel have fairly agreed to the suggestion.
8 In view of the above position, we issue the following directions:-
i) Pending the hearing and final disposal of the guardianship
proceedings, the respondent shall be entitled to visitation rights and
to meet her two minor children, Ranvir and Hridaan in the following
manner :
(i) The applicant father shall travel with the children to Kolkata,
on a Sunday, in the first fortnight of every month so as to
enable the respondent mother to meet the children in the
manner indicated in the order of the High Court dated 8
October 2013;
(ii) The respondent shall in the second fortnight of every month
be entitled to visitation rights at New Delhi in the manner
indicated in the order of the High Court dated 8 October 2013.
To facilitate disbursement of the travel and hotel expenses of
JUDGMENT the respondent and her mother, the applicant shall by means
of an electronic transfer of funds deposit a sum of rupees forty
thousand per month into a nominated bank account of the
respondent by the seventh day of every month. The
respondent shall make her own arrangements for travel to and
fro from New Delhi and for stay. The respondent shall fetch
the children from the chambers of Ms Udita Seth, Advocate
(Chamber No.20A, R.K. Garg Block, Supreme Court,
Bhagwan Das Road, New Delhi) and return the children to the
father at the same place. The period of visitation shall be as
prescribed in the order of the High Court dated 8 October
2013.
9 The order of the High Court dated 8 October 2013 shall in the
circumstances stand modified by consent to the above extent.
10 The Interlocutory Application is accordingly disposed of.
New Delhi December 14, 2016