VIKRAM VIR VOHRA v. SHALINI BHALLA

A child. The trial court allowed the respondent to take the child with her to Australia but also directed her to bring the child back to India for allowing the father visitation rights twice in a year. High Court upheld the order. Hence the present appeal. B Dismissing the appeal, the Court HELD: 1.1 The welfare of the child is of paramount importance in matters relating to child custody and the welfare of the child may have a primacy even over C statutory provisions. [Para 14) [783-C) Mausami Moitra Ganguli vs. Jayant Ganguli (2008) 7 sec 673, referred to.

1.2. The child was found to be quite intelligent and D discerning. The child is in school and from the behaviour of the child, it could be made out that he is well behaved and that he is receiving proper education. The child categorically stated that he wanted to stay with his mother. It appears that the child is about 8-10 years of age E and is in a very formative and impressionable stage in his life. [Paras 13 and 14] [783-A-C)

1.3. The submission that in view of the provisions of section 26 of the Hindu Marriage Act, the order of F custody of the chilci and the visitation rights of the appellant cannot be changed as they are not reflected in the decree of mutual di~orce, is far too hyper technical an objection to be considered seriously in a custody proceeding. A child is not a chattel nor is he/she an article G of personal property to be shared in equal halves. [Para 15) [783-D-E]

1.4. In a matter relating to custody of a child, the Court must remember that it is dealing with a very sensitive issue in considering the nature of care and H VIKRAM VIR VOHRA v. SHALINI BHALLA 777 affection that a child requires in the growing stages of his A or her life. That is why custody orders are always considered interlocutory orders and by the nature of such proceedings custody orders cannot be made rigid and final. They are capable of being altered and moulded keeping in mind the needs of the child. Even if orders are B based on consent, those orders can also be varied if the welfare of the child so demands. Even though the principles have been laid down in proceedings under the Guardians and Wards Act, 1890, these principles are equally applicable in dealing with the custody of a child c under section 26 of the Act since in both the situations two things are common; the first, being orders relating to custody of a growing child and secondly, the paramount consideration of the welfare of the child. Such considerations are never static nor can they be squeezed 0 in a strait jacket. Therefore, each case has to be dealt with on the basis of its peculiar facts. [Paras 16, 17 and 19] [783-F-H; 784-A, CJ .