Vikram Vir Vohra vs Shalini Bhalla - Mother retains full custody of child upon leaving for abroad-Vi

[Vikram Vir Vohra vs Shalini Bhalla - SC 2010](https://indiankanoon.org/doc/1064641/‚Äč

Facts of case

  1. Parents in the past were divorced after having agreed to a mutual consent divorce. As per terms of MCD, custody of child was to be with mother with twice a month visitation for father.

  2. Mother decided to pursue job opportunity in Australia, and applied to court to modify visitation terms.

  3. Trial court modified orders and granted visitation twice a year to father during child's vacations presumably.

  4. Father objected and wanted full custody of child instead.

Points of law raised

  1. Whether court can decide on child custody/visitation terms under Section 26 of Hindu Marriage Act(HMA) if the contention is that the divorce decree did not contain terms of child visitation and custody.

Points of law decided

  1. HC and SC held that even if there was absence of the terms and conditions of child custody in the divorce decree that fact does not disentitle a parent (mother in this case) to file an application under Section 26 of the Act seeking revocation of the visitation rights.

Points of law reiterated

  1. Child custody related orders and decisions are always interlocutary and can be modified as circumstances and needs of child evolve.

Facts held important in case

  1. Child when interviewed by both HC and SC categorically said he wanted to be with mother. Child's age was 7 years and above.

  2. Respondent mother cannot be denied opportunity to take up job opportunity and pursue her career in Australia, and develop herself.

Comments

  1. Though probably not the most important part of judgment but an opinion is expressed by judges: "The appellant-father, for all these years, lived without the child and got used to it." This tends to suggest that past actions of the parents in a child custody case can be considered important for any future amendments to the orders. At the time of MCD, had the father asked for and enjoyed more substantial amount of time with child, could the decision have been different? Probably not, but at least such an opinion will also will not be expressed in the judgment. Also, it could have led to higher interim custody during vacation times. However an alternative analysis of this sentence suggests that such an observation is actually not in tune with the principle of "welfare of child". The point here being made is that father has gotten used to living without the child, so it shouldn't really affect him so much if he gets deprived of child access even more. However, time and again the principle has been reiterated in judgments that it is nor rights of parents but welfare of child that is important in child custody decisions. In light of that, this observation is at best superfluous and at worst biased against father.