IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No(s). 3409-3410 OF 2019
(Arising out of SLP(C) No(s).28166-28167 OF 2018)
NUTAN GAUTAM Appellant(s)
PRAKASH GAUTAM Respondent(s)
J U D G M E N T
R. Subhash Reddy, J.:
(1) Leave granted.
(2) These appeals are filed by the wife of the respondent
herein aggrieved by orders dated 21.05.2018 and 20.08.2018
passed by the High Court of Judicature at Allahabad in First
Appeal NO.316 of 2018.
(3) The marriage of the appellant-wife and the respondenthusband was solemnized in the year 2006. In the year 2009 a
son was born to them who is named Krish alias Master Krishav
Gautam. In the year 2012, respondent-husband filed a petition
for divorce under Section 13(1)(ia)(iii) of the Hindu Marriage
Act, 1955. The said divorce petition is decreed ex-parte by
the Trial Court in favour of the respondent-husband. The Trial
Court also directed that the son of the appellant, namely,
Krish alias Master Krishav Gautam, should be admitted in Col.
Satsangi’s Kiran Memorial Public School, New Delhi.
(4) Aggrieved by the ex-parte order, the appellant herein
filed First Appeal NO.316 of 2018 before the High Court of
Judicature at Allahabad. Pursuant to order of the Family
Court, the son of the parties has been admitted in Col.
Satsangi’s Kiran Memorial Public School, New Delhi, and he has
been put in a Boarding House of the School. By way of an
interim order dated 21.05.2018, which is impugned in these
appeals, the respondent-husband was permitted to take the boy
with him to Delhi and to leave him in the Boarding House till
the start of the summer vacations of 2018. Further, the
appellant-mother was permitted to take the child in summer
vacations and leave him in the School/Boarding House before the
reopening of the School.
(5) The Family Court has also awarded an amount of Rs.10,000/-
per month towards maintenance for the appellant-wife. In view
of the plea of the respondent-husband that the appellant-wife
is entitled for maintenance only from one forum, appellant-wife
is directed to elect one forum to which she wants to get
(6) After reopening of the School in the summer vacation, it
appears that the boy, Krish @ Master Krishav Gautam, was not
willing to go to study in the Boarding House in Col. Satsangi’s
Kiran Memorial Public School, New Delhi. Further, fifteen
days’ time was granted by the High Court to the appellantmother vide Order dated 20.08.2018 to comply Order dated
(7) We have heard Mr. Harikumar V., learned counsel appearing
for the appellant-wife, and Mr. R. Basant, learned senior
counsel appearing for the respondent-husband.
(8) It is contended by learned counsel for the appellant-wife
that the boy is not willing to study in the Col. Satsangi’s
Kiran Memorial Public School, New Delhi, as he is attached to
his mother very much and intends to study in his old school.
Accordingly, he was admitted in Global International School,
Shahjanpur, where he is comfortable with his studies. It is
submitted at the Bar that as welfare of the child is the
paramount consideration and he is good at studies by pursing
his study in Global International School also at Shahjanpur,
and requested to set aside the impugned order and permit the
boy to continue in the same school at Shahjanpur.
(9) On the other hand, Shri R. Basant, learned senior counsel
appearing for the respondent, has submitted that the respondent
is willing to join his son in the best school of Delhi by
paying more than Rs.2,00,000/- (Rupees Two Lakhs) towards fees
and it is in the interest and welfare of the child to allow him
to study only at Col. Satsangi’s Kiran Memorial Public School,
New Delhi. Further, It is submitted that there was a specific
direction for joining the boy in the Boarding House/School at
New Delhi after reopening, the appellant-wife has violated
Order dated 21.05.2018 and further Order dated 20.08.2018. It
is submitted that wish of the child itself is not a criteria
and the welfare of the child will be best served by admitting
him in Col. Satsangi’s Kiran Memorial Public School, New Delhi.
(10) We have heard learned counsel on both the sides, perused
Orders dated 21.05.2018 and 20.08.2018 and other materials
placed on record.
(11) It is clear from the materials placed on record, in view
of the differences cropped up between the parties, respondenthusband has filed petition for divorce under Section 13(1)(ia)
(iii) of the Hindu Marriage Act, 1955, in the year 2012 which
is decreed ex-parte and appeal against that order is pending
before the High Court. The appellant-wife is presently
residing at her parental house at Shahjanpur, Uttar Pradesh.
The boy is studying in Global International School, Shahjanpur,
Uttar Pradesh, while granting ex-parte decree it appears that
the Trial Court directed that their son should be admitted in
Col. Satsangi’s Kiran Memorial Public School, New Delhi. In
view of such direction, it appears, the boy was admitted in the
said School at New Delhi and was allowed to be taken by the
appellant-wife in the summer vacation of 2018.
(12) It is true that in Order dated 21.05.2018, the respondent
was permitted to take the son and get him joined at Boarding
House in Col. Satsangi’s Kiran Memorial Public School, New
Delhi, and the appellant-wife was permitted to take custody of
the boy in the summer vacation and to ensure that he returns to
the Boarding House after summer vacation. It is the case of
the appellant that after summer vacation the boy was not
inclined to go to the Boarding House/School and wanted to study
only in his old school, namely, Global International School,
Shahjanpur. It is also not in dispute that the child was
earlier studying in the same school where he is admitted now
for further studies. We are informed now that he has now
completed 3rd standard and is aged about 10 years. It is
natural, a boy of that age who has studied earlier in the
school at Shahjanpur, willing to continue in the same school as
much as he is acclimatised with the environment of such school
where he has started his studies from Ist standard onwards.
This Court also interacted with the boy and the boy expressed
his desire to continue his studies only in Shahjanpur school.
When the boy is not inclined to study in Col. Satsangi’s Kiran
Memorial Public School, New Delhi, and stay in the Boarding
House, we are of the view that in the interest of the welfare
of the child, he cannot be compelled to admit in Col.
Satsangi’s Kiran Memorial Public School, New Delhi, attached
with the Boarding House. In such view of the matter, it cannot
be said that the appellant-wife has violated the direction
issued by the High Court vide Orders dated 21.05.2018 and
(13) From the very perusal of the order impugned, it appears
that the High Court has ascertained the views of the boy and
has recorded that he is very much attached and has more
affiliation towards his mother (appellant herein). In that view
of the matter we are of the opinion that the child, namely,
Krish @ Master Krishav Gautam cannot be compelled to join in
Col. Satsangi’s Kiran Memorial Public School at New Delhi.
We are further of the view that in the interest and welfare of
of the child, Krish @ Master Krishav Gautam shall be allowed to
continue his study at Global International School, Shahjanpur.
(14) Further, in the impugned order, the appellant-wife is
directed to elect one forum from which she wants to get the
maintenance. As the same is also not in conformity with the
law, the said direction is liable to be set aside. Ordered
(15) As the respondent-husband is a natural father of the
child, namely, Krish @ Master Krishav Gautam, he is also
entitled to visitation rights. We permit the respondenthusband to visit his child and he is entitled to take the child
from the House of the appellant on any Sunday’s and public
holiday’s whenever he visits Shahjanpur. The appellant-wife
shall allow the child to leave along with the respondent-father
at 09:00 a.m., and the respondent-husband to return the child
at the house of the appellant-wife before 06:00 p.m. on the
same day. For any further modification of visitation rights
respondent-father is at liberty to move the High Court with
appropriate application and the same shall be considered in
accordance with law, keeping in view the welfare of the child.
(16) For the aforesaid reasons, Orders dated 21.05.2018 and
20.08.2018 passed by the High Court of Judicature at Allahabad
in First Appeal No.316 of 2018 are set aside. We request the
High Court to dispose of the appeal itself as expeditiously as
possible in accordance with law.
(17) In the result, the appeals are allowed with the
direction’s as indicated above. No costs.
(R. SUBHASH REDDY)
APRIL 5, 2019.