HARSHITA BHASIN Vs. STATE OF W.B & ORS

Supreme Court of India (Full Bench (FB)- Three Judge)

INTERLOCUTORY APPLICATION, 4 of 2016, Judgment Date: Dec 14, 2016

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                             I.A. No. 4 OF 2016

                                     IN

               SPECIAL LEAVE PETITION (CIVIL) No. 4754 OF 2014


HARSHITA BHASIN                                       ..... PETITIONER


                                   Versus


STATE OF WEST BENGAL & ORS                           .....  RESPONDENT


                                  O R D E R


Dr D Y CHANDRACHUD, J

      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
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  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.

In view of the above position, we issue the following directions:-

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 :

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;

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 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.


                               ........................................CJI
                                                     [T S  THAKUR]

                             ...........................................J
                                             [Dr D Y  CHANDRACHUD]

                              ..........................................J
                                                 [L NAGESWARA RAO]

New Delhi
December 14, 2016