New Delhi ,March 28: The Supreme Court, saying the interest of a child’s development should be held paramount in any custody matter relating to a divorce suit between estranged couples, has held that no rigid conditions could be laid in a divorce agreement about a child’s custody in view of his or her future development.
The trial court which grants a divorce to the separating husband and wife has the power under Section 26 of the Hindu Marriage Act to change the conditions in a divorce agreement from time to time to protect the interests of the child, the court’s highest court said.
While amending conditions, including the father’s right to visit the child, the trial court could even take into consideration the views of the child if he or she is of an age to be able to understand issues in the right perspective, a Supreme Court bench comprising Justices G.S. Singhvi and A.K. Ganguly held.
"The (child) custody orders are always considered interlocutory, and by nature of such proceedings they cannot be made rigid and final, and are capable of being altered and moulded keeping in mind the needs of the child," the court said.
While describing custody issues as "very sensitive" in view of the kind of care and affection a minor child needs for the natural growth, the court said: "Such considerations are never static, nor can they be squeezed in a straitjacket formula; therefore, each case has to be dealt with on the basis of its peculiar facts."
The court delivered this ruling while dismissing an appeal by New Delhi-based Vikram Vir Arora challenging the trial court’s order allowing his separated wife Shalini Bhalla to take their eight-year-old son to Australia after she got a job there.
Mr Arora and Ms Bhalla, who were married in 2000, got a divorce by mutual agreement in 2006, under which the father was allowed day-long fortnightly visitation rights to his son, and could even take him home on that day.
After Ms Bhalla got a job in Australia, she moved the trial court for modification of Mr Arora’s visitation rights, while the father filed an application for permanent custody of his son.
The trial court allowed the mother to take the child to Australia on the condition that she will bring him to India twice a year — in January and June — to meet his father.
Not satisfied with this arrangement, Mr Arora first approached the Delhi high court and later the Supreme Court, which dismissed his appeal after a long interview of the child, described by the judges as "very intelligent" and capable of understanding things.
The high court had held that once a final order was passed in the original divorce suit for custody of the minor child, the other party cannot file any number of fresh petitions.
S.S. Negi