Matrimonial Dispute – Custody of minor child – Appellantwife and respondent-husband living apart since 2016 – Divorce proceedings pending before Family Court, Bengaluru – Appellant posted in Singapore in September 2017 – Child staying in Bengaluru with maternal grandparents – Appellant restrained from taking the child out of Bengaluru – Family Court vide order dated 01 March 2018 granted visitation rights to the respondent – Appellant’s writ petition challenging the order restraining her from taking the child out of Bengaluru, dismissed – On appeal, held: While the child is attached to the respondent, he has indicated his desire to reside with his mother in Singapore – His welfare is of paramount concern – Technicality of whether or not the appellant challenged the Family Court’s order dated 1 March 2018 cannot obfuscate the same – The fact that the parents of the appellant have moved to Bengaluru to help her, does not transfer the custody of the child from the appellant to the maternal grand-parents – Respondent’s insistence that the court should direct for continued presence of the child under the care of maternal grandparents, not fair – Nor is there sufficient material to indicate that the respondent is in a position to look after the child on his own – Impugned judgment set aside – Appellant permitted to take the child with her to Singapore – Respondent to handover passport of the child to appellant – Directions issued to facilitate the grant of access and visitation rights to the respondent – Constitution of India – Art.142 – Hindu Marriage Act, 1955 – s.13(1)(i-a) – Domestic Violence Act, 2005 – Guardianship.
Disposing of the appeals, the Court
Held: 1.1 Ever since the appellant and the respondent started living apart in 2016, the child has been in the care and custody of the appellant, his mother. The fact that the parents of the appellant have moved to Bengaluru to help their daughter, does not transfer the custody of the child, either as a matter of law or fact, from the appellant to the maternal grand-parents. The primary consideration that must weigh with the Court is the welfare of the child. For the respondent to insist that the court should direct the continued presence of the child under the care of the maternal grand-parents who have come to Bengaluru and stay in a rented accommodation obtained by the appellant, does not appear to be fair. Nor is there sufficient material before the Court to indicate that the respondent is in a position to look after the child on his own, by disturbing a position which has held the field since 2016. During the course of the interaction on the videoconferencing platform, the child indicated his desire to reside with his mother in Singapore. While he is attached to the respondent, he has indicated, in no uncertain terms, his desire to live with his mother. The appellant is gainfully employed in Singapore and her desire that she should be allowed to take the child with her is not an artifice. The appellant, as the mother of the child, has been continuously with the child since his birth, despite the demands of her employment. [Paras 13, 14 and 16][370-F-G; 371-A-D; G, H; 372-A]
1.2 In matters such as the present, the welfare of the minor child is of paramount concern. The jurisdiction of this Court under Article 142 of the Constitution is a facilitative constitutional instrument to advance substantive justice. In exercise of these powers, the arrangement arrived at during the pendency of the proceedings should be modified so as to best subserve the interests of the child. The technicality of whether or not the appellant has challenged the Family Court’s order dated 1 March 2018 cannot obfuscate the core issue which is the welfare of the child. Allowing this case to be lost in a maze of technicalities involving a formal challenge to the order, will eventually lead to the child staying in Bengaluru with the maternal grandparents, while the mother is employed in Singapore. The child will lose a year of education in Singapore, which is an additional reason for the exercise of the jurisdiction under Article 142. The interests of the child are best subserved by ensuring that both the parents have a presence in his upbringing. [Para 18][372-D-G]
1.3 The impugned judgment and order of the High Court is set aside. The appellant is permitted to take the child with her to Singapore where she is employed and resides. Further directions issued. Directions also issued in order to facilitate the grant of access and visitation rights to the respondent, which arrangement shall hold the field in supersession of all previous orders of the Family Court and the High Court. The arrangement shall continue to govern, subject to the final orders as may be passed in the Guardianship proceedings which have been, or may be instituted, by either of the parties. [Paras 20, 21][373-C, G; 374-F]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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