MadanB. Lokur, J.

1. Statistics available from the District Court suggest that there has been a steady increase in matrimonial cases for the last several years. This would naturally result in an increase in custody cases. Battles for the custody of children usually leave a taste of unpleasantness, if not in the child then in the parents. If litigating parents are able to sort out their disputes amicably, it is so much the better for them and for their children; but if that is not possible, there should be available some facility of professional Counselling.

2. For this, we need to seriously consider implementing the Family Courts Act, 1984 in Delhi but if that cannot be done, then we need to adopt at least the principles laid down in the Family Courts Act and incorporate them into our justice delivery system.In addition, there is a need for organizations such as the Delhi Legal Services Authority and the High Court Legal Services Committee to broad-base its volunteers and include professional Counsellors who can render useful assistance in cases involving matrimonial disputes and custody of children so that the unpleasantness is minimised, if not eliminated.The endeavour of the justice delivery system should be to build human relationships, or at least keep them intact, and in any event, to prevent them from being damaged beyond repair.

3. This preface has been necessary because of what seems to me to be an avoidable custody litigation between the parties in this case.

4. The petitioner is aggrieved by an order dated 4th December, 2003 passed in an application under Section 12 of the Guardians and Wards Act, 1890 in Guardianship PetitionNo.94/2002. By the impugned order, it was held, inter alia, that since Master Aadit, the minor child of the parties is studying in a school of repute in Chandigarh, it would not be appropriate to change his school or shift his custody from the Respondent mother to the Petitioner father.

5. Strictly speaking, the impugned order has outlived its utility inasmuch as the petitioner had prayed for custody of the minor child of the parties Master Aadit so that preparations could be made for his admission to Vasant Valley School, New Delhi for the academic year 2004 onwards.Now that the academic session has commenced, it is too late for Aadit to get admission in Vasant Valley School, but this is quite apart from the merits of the impugned order.

6. However, to avoid prolonging the agony of bothparties, the matter was heard on merits so that there could be some finality to the issue about where Master Aadit should study in Chandigarh where the respondent resides or in Kolkata where the petitioner resides or in Delhi where neither of them reside.

7. During the pendency of this case, efforts were made by the parties to arrive at some kind of a settlement but nothing seems to have worked out even though the matter was listed from time-to-time on several dates.Eventually, the matter came to be listed before me on 12th October, 2004 when learned Counsel for the parties stated that there is no possibility of a settlement.Accordingly, I heard arguments on 14th and 15th October, 2004 when judgment was reserved.On conclusion of the hearing on 15th October, 2004, I had suggested to learned Counsel for the parties that it may be in the interest of the child if some sort of a settlement is arrived at between the parties.The matter was, therefore, adjourned to 27th October, 2004 when the parties were also present in Court.After briefly discussing the matter with the parties, it appeared that there was a possibility of a settlement of the matrimonial dispute between the parties but it was not possible for the parties to arrive at any settlement relating to the custody of the minor child.Both the parties wanted to have custody of Aadit.This, therefore, left me with no option but to decide the matter on merits.

8. In view of the fact that this petition was pending, due to talks for a settlement between the parties for a considerable period of time, I think it is only appropriate to take into account events that have transpired until the time when judgement was reserved.I think this is inevitable, otherwise if a narrow view is taken of the controversy between the parties, then the present petition will have to be disposed of as having become infructuous.This is not in the interest of any of the parties nor is it in the interest of Aadit.Moreover, both parties made their submissions even on the subsequent developments that had taken place during the year and I do not think it is possible or even advisable to completely ignore them. To this extent, therefore, the scope of the petition has been slightly enlarged.

9. Aadit was born to the parties on 29th November, 1997.Both the parties lived together in Kolkata along with their child till some time in January, 1999 when, apparently due to matrimonial discord, the respondent left the matrimonial home to be with her parents in Chandigarh.Since Aaditwas a little over a year old at that time, the respondent of course took him along with her to Chandigarh. Between January, 1999 and February, 2001, the parties met each other whenever the petitioner visited Chandigarh.They also went to the US on a holiday in July-August, 1999 and to Shimla the following year.Unfortunately, the parties were unable to reconcile their differences and matters appear to have become worse, because it is the allegation of the petitioner that from some time in February-March, 2001, he was denied access to the minor child.

10. On or about 12th March, 2001 the petitioner filed a petition in Kolkata for a divorce from the respondent and also asked for custody of the minor child. In the divorce petition, the respondent was served much later (apparently in April, 2002).Soon thereafter, in the first week of May, 2002 the respondent filed a Transfer Petition in the Supreme Court praying for a transfer of the divorce proceedings from Kolkata to Delhi.In the Transfer Petition, the respondent stated that Aadit suffers from Attention Deficit Hyperactivity Syndrome and Developmental Delay.It was also stated that due to his special medical and educational needs, the respondent has shifted to Delhi and that Aadit needs special schools, which are only available in Delhi and not in Chandigarh.

11. Coincidentally, in May, 2002 the petitioner filed Guardianship Petition No.24/2002 (from which the impugned interim order has arisen) under Section 25 of the Guardians and Wards Act, 1890 seeking custody of Aadit.

12. During the pendency of the proceedings before the learned Guardianship Judge, Aadit was with the respondent till 4th August, 2002. Thereafter, from 4th August, 2002 till some time in November, 2002, Aadit was with the petitioner apparently to enable him to prepare for admission to Vasant Valley School in Delhi.

13. In November, 2002, after the admission process had been initiated in Vasant Valley School, the respondent took Aadit with her to Chandigarh.Aadit lived with the respondent till some time in June, 2003.Quite clearly, therefore, the admission process in Vasant Valley school for the academic year 2003-2004 did not fructify.

14. On 3rd June, 2003, when the matter was taken up before the learned Guardianship Judge it was agreed between the parties that efforts be made to secure admission for Aadit in Vasant Valley School for the academic year 2004-2005.On that date, the respondent handed over custody of Aadit to the petitioner. It was agreed that the child will be produced in the office of learned Counsel for the petitioner on 14th June, 2003 and will be dropped at the respondents house in Chandigarh on 20th June, 2003.It was also agreed that the parties will facilitate admission of Aadit in Vasant Valley School for the academic year 2004-2005.Pursuant to the order dated 3rd June, 2003, it appears that Aadit remained with the petitioner till20th June, 2003 and thereafter he was with the respondent in Chandigarh till December, 2003.

15. In the meanwhile, the petitioner felt a little apprehensive about the educational prospects of Aadit and so he moved an application before the learned Guardianship Judge for a direction to the respondent to bring Aadit to Delhi to prepare him for the entrance examination to Vasant Valley School.

16. On 4th December, 2003, the application filed by the petitioner was heard by the learned Guardianship Judge and among other things, it was observed that Aadit has been living with the respondent for the last about one and a half years and that he is also studying in Ananda International School, which is a school of repute in Chandigarh and, therefore, there was no occasion to disturb Aadit by handing over his custody to the petitioner for the purpose of changing his school.It is this order that is impugned in the present petition.

17. It appears that despite the order dated 4th December, 2003, custody of Aadit was handed over to the petitioner by an order dated 23rd December, 2003.The petitioner was then required to hand over Aadit to the respondent on 30th December, 2003.He did not do this ostensibly because Aadit did not want to go with his mother to Chandigarh.

18. Thereafter, the petitioner moved an application before the learned Guardianship Judge for retaining custody of the child, while the respondent moved an application for initiating contempt of Court proceedings against the petitioner because he did not give her custody of Aadit on 30th December, 2003.

19. On 6th January, 2004, the learned Guardianship Judge decided both the applications.While it was held that it would not be appropriate to initiate contempt proceedings against the petitioner, a direction was given to him to hand over custody of Aadit to the respondent.

20. Feeling aggrieved, the Petitioner filed CR No.7/2004 directed against the order dated 6th January, 2004.An interim arrangement was arrived at between the parties in that case and so the custody of Aadit remained with the petitioner.On or about 24th March, 2004, Aadit expressed a desire to be with the respondent and so he was then sent to Chandigarh.Soon thereafter, the petitioner withdrew CR No.7/2004 since the custody of Aadit was handed over to the respondent and the petition had become infructuous.

21. Aadit remained with the respondent till 5th or 12th May, 2004 when he was brought to Court.He expressed a desire to be with the petitioner and so the petitioner took custody of Aadit and since then both of them are now living in Kolkata.

22. The events of late 2003 and 2004 show that no effective steps were taken to secure admission for Aadit to Vasant Valley School.But it is not necessary to ascertain who is at fault for this.It also transpires that Ananda International School in Chandigarh did not commence its educational activities. Under these circumstances, learned Counsel for the petitioner submitted that the petitioner took Aadit with him to Kolkata and has secured admission for him in Akshar, a school of repute.As of now, Aadit is studying in Akshar and has adjusted there.

23. The question that I have to now consider is whether it would be appropriate to direct the petitioner to hand over custody of Aadit to the respondent in Chandigarh or whether the present arrangement should be allowed to continue, and if so, for how long.

24. One thing clearly stands out from the above narration of facts and that is this: regardless of what order is passed by the Court, both the parties have been sharing the custody of Aadit as per his wishes and perhaps also as per their own wishes. At first blush, this may seem wrong after all (one may ask) why is the Court being called upon to interfere if the parties can themselves decide what to do, as regards the custody of Aadit. However, if one takes a broader view of what has transpired, the events show that the parties have the interest of Aadit at heart and are able to subsume their personal interests for the sake of Aadit.If nothing else, it seems to me that the arties have reached a certain degree of maturity, which enables them to think more of the child than of themselves. When this happens, orders passed by the Court really become redundant, as has happened in this case.Consequently, I think both the parties need to be commended for their selflessness.

25. It is internationally accepted that a child should live with both the parents but if that is not possible then he or she should live with at least one of the parents. In this regard, reference may be made to the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November, 1989, which is believed to be the most widely ratified human rights treaty in history.Paragraph 1 of Article 3 of the Convention relates to the best interests of the child and it reads as follows:

Inall actions concerning children, whether undertaken by public or private social welfare institutions, Courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

26. Reference may also be made to Article 9 of the Convention which provides that a child shall not be separated from his or her parents against their will except when a competent authority, subject to judicial review, determines that such separation is necessary for the best interests of the child.A determination may be necessary in cases such as the present where the parents are living separately.It is also provided in the Convention that a child will be entitled to maintain personal relation and direct contact with both parents on a regular basis except if it is contrary to his best interests.Paragraphs 1 and 3 of Article 9 of the Convention, which are of relevance, read as follows:

1. States parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the childs place of residence.

2. xxx xxx xxx

3. States parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the childs best interests.

27. Taking all these factors into consideration, it is quite clear that it would be in the best interests of Aadit if he resides in the home of the Petitioner in Kolkata or in the home of the respondent in Chandigarh, rather than with either (or neither) of them in Delhi, which is not anybodys home.

28. The documents as well as the submissions of learned Counsel for the parties clearly show that what is uppermost in their minds is the education of Aadit.The respondent believes that Aadit requires to be admitted in a special school because of his Attention Deficit Hyperactivity Syndrome and Developmental Delay.According to the respondent, such a school is not available in Chandigarh but such schools are available in Delhi. It appears that Ananda International School could, perhaps, have been one of the viable options as suggested by the respondent but it appears that this school has not yet begun to function as an educational institution.Consequently, as far as the education of Aadit is concerned, Chandigarh is ruled out.As far as Delhi is concerned, I had put it to the respondent who was present during the hearings whether she would like to shift to Delhi with Aadit but she declined, and understandably so.In any case, the academic session in Delhi has now begun and is almost half way through and it is unlikely that any school in Delhi will give admission to Aadit in the middle of the academic session.

29. Insofar as Kolkata is concerned, there is nothing to suggest one way or the other that there is no special school available for Aadit.However, looking to the fact that Kolkata is a large cosmopolitan city with a long history and culture, it is very unlikely that it may not have a special school in which Aadit can be accommodated.In any event, Aadit has in fact been accommodated in Akshar and has been studying there since the start of the academic year 2004.No complaint was voiced by the respondent or her learned Counsel about the quality of education imparted by Akshar and its suitability for Aadit.This being the position, there is no compelling reason why Aadit should be withdrawn from Akshar in Kolkata and shifted to Chandigarh where the respondent is residing but where no special school seems to be available for his education, or to shift him to Delhi where a special school seems to be available but where neither of his parents are residing. Moreover, Aadit appears to have settled down in Kolkata in Akshar.

30. Keeping in view all these facts mentioned above, I think it would be in the paramount interests of Aadit if he is not disturbed from where he is at the moment, that is, with the petitioner in Kolkata studying in Akshar school.

31. I have already expressed the view that both parties have (so far) acted with a great deal of maturity and understanding.Consequently, on issues like vacations such as winter vacation or any other vacations, it is quite possible for the parties to arrive at some mutual understanding about the custody of Aadit.Even if they cannot temporarily do so, the issue about hiscustody is pending before the learned Guardianship Judge and both the parties can get a decision in this regard from the learned Guardianship Judge.

32. Under the circumstances, the petition is allowed and the impugned order dated 4th December, 2003 is set aside.It is directed that for the academic year 2004-2005, Aadit will continue to remain with the petitioner in Kolkata while studying in Akshar.

33. As far as vacations for this academic year are concerned, the parties will try and arrive at some mutual agreement but if they cannot do so, they will approach the learned Guardianship Judge for appropriate orders.In the meanwhile, the learned Guardianship Judge should endeavour to finally dispose of the petition pending before her, if possible before the end of the academic year 2004-2005 so that the future education of Aadit can be settled.The learned Guardianship Judge will also keep in mind the fact that both parties are residing outside Delhi and it is not always convenient for them to attend the Court.Adjournments, therefore, should be declined unless they are absolutely necessary.

35. The petition is disposed of on the above terms.No costs.

Petition allowed.