Back
SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, INDU MALHOTRA, INDIRA BANERJEE, JJ.
Mrs. Ritika Sharan - Appellant
Versus
Mr. Sujoy Ghosh - Respondent
Civil Appeal Nos. 3544-45 of 2020 (Arising out of SLP (C) Nos. 21049-21050 of 2019)
Decided On : 28-10-2020
Hindu Marriage Act 1955 – Section 26 – Custody of child – Decisive factors – Primary consideration that must weigh with Court is welfare of child – Balance has to be drawn so as to ensure that in a situation where parents are in a conflict, child has a sense of security – Interests of child are best subserved by ensuring that both parents have a presence in his upbringing – While parents of appellant may have volunteered at least temporarily to relocate from NOIDA to Bengaluru to help appellant in looking after child, respondent cannot be heard to assert that child must continue to remain in Bengaluru with maternal grand-parents – For respondent to insist that court should direct continued presence of child under care of maternal grand-parents who have come to Bengaluru and stay in a rented accommodation obtained by appellant, does not appear to be fair – Nor is there sufficient material before Court to indicate that respondent is in a position to look after child on his own, by disturbing a position which has held the field since 2016 – Employers of appellant have informed her that they would facilitate documentation for travel and relocation of child with appellant in Singapore – Employers of appellant have informed her that they would facilitate documentation for travel and relocation of child with appellant in Singapore – In matters such as present, welfare of minor child is of paramount concern – Jurisdiction of this Court under Article 142 of Constitution is a facilitative constitutional instrument to advance substantive justice – In exercise of these powers, arrangement which has been arrived at during pendency of proceedings should be modified so as to best subserve interests of child – Allowing this case to be lost in a maze of technicalities involving a formal challenge to the order, will eventually lead to child staying in Bengaluru with maternal grandparents, while mother is employed in Singapore – Child will lose a year of education in Singapore which is an additional reason for exercise of jurisdiction under Article 142 – Singapore is Covid free and child would be able to attend regular school and some on-line classes – Respondent, as father, is entitled to have adequate rights of access and visitation – Appeals allowed with directions. (Paras 14, 16, 17, 18, 19 and 20)
Facts of the case:
Divorce proceedings pending before Family Court. Appellant submits that she has been compelled to leave the matrimonial home due to domestic violence and abuse. Single Judge of the High Court dismissed the writ petitions instituted by appellant,4 challenging the validity of the order of the Family Court dated 4 January 2018 restraining her from taking the child out of Bengaluru.
Findings of Court:
Appellant will ensure presence of the child in Bengaluru during the course of the child’s summer vacations in 2021 for a period of at least two weeks with prior intimation to the respondent and during the course of the visit, the respondent shall be entitled to meet the child and/or take him out between 11:00 am and 7:00 pm. The appellant shall bring the child to India at least twice a year during which the respondent shall have access to and visitation with the child. Appellant shall file an undertaking before this Court to abide by the conditions imposed by this order.
Result : Appeals allowed with directions.
JUDGMENT :
Dr. Dhananjaya Y. Chandrachud, J.
1. These appeals arise from a judgment dated 11 July 2019 of a Single Judge of the High Court of Karnataka.
2. The appellant and the respondent got married on 4 February 2009. Their child, Sattik, was born on 9 May 2013. There are serious differences between the spouses and they have been living apart since 2016. The appellant submits that she has been compelled to leave the matrimonial home due to domestic violence and abuse. The appellant instituted a petition on 6 October 2016, under Section 13(1)(i-a) of the Hindu Marriage Act 1955 seeking a decree for divorce on the ground of cruelty. The divorce proceedings are pending before the Family Court, Bengaluru (MC No. 4484 of 2016). The appellant also instituted an application under Section 12 of the Protection of Women from Domestic Violence Act 2005, which is pending in the Court of the Metropolitan Magistrate at Bengaluru (Crl. Misc. No. 228 of 2016). The appellant is in the employment of Nike Global Trading since 2011 and has been posted in Singapore in September 2017.
3. The appellant filed IA No. 3 in July 2017 in the proceedings before the Family Court in MC No. 4484 of 2016, seeking a direction to the respondent to handover the passport of the child. The appellant claims that she sought the child’s passport on the ground that prior to her relocation in September 2017, she was required to travel for short durations outside India (where she was then based) and found it convenient to take the child with her. The respondent opposed the grant of relief and filed an interim application, IA No. 4, 1[IA No. 4 of 2017 in MA 4484/2016] seeking an injunction against the appellant from taking the child out of Bengaluru. On the same day, the respondent had also filed IA No. 52[IA No. 5 of 2017 in MA 4484/2016] and sought interim custody and visitation rights so as to enable him to meet the child. The appellant opposed IA No. 4 and IA No. 5 filed by the respondent, alleging that the respondent was abusive, violent and suffers from a psychiatric disorder as a result of which, he cannot be granted the custody of the child.
4. By an order dated 4 January 2018, the Family Court dismissed IA No. 3 filed by the appellant for the child’s passport, and allowed IA No. 4 of the respondent, restraining the appellant from taking the child out of Bengaluru. The Family Court granted this relief on the basis that if the child is moved out of Bengaluru, it would lose jurisdiction over the child. The appellant instituted two writ proceedings – Writ Petition No. 9528 of 2018 (GM-FC) and Writ Petition No. 11520 of 2018 before the High Court to challenge the order dated 4 January 2018 of the Family Court in IA Nos. 3 and 4.
5. On 1 March 2018, the Family Court passed an order in IA No. 5 filed by the respondent seeking interim custody and visitation rights and directed the appellant or her parents (who had moved from NOIDA to Bengaluru to help the appellant with the child) to produce the child before the Mediation Centre on every third Saturday, at 11:00 am to allow for visitation by the respondent till 5:00 pm.
6. On 9 July 2018, a Single Judge of the High Court in the appellant’s Writ Petition No. 9528 of 2018 (GM-FC) and Writ Petition No. 11520 of 2018, in an interim order, noted that the minor child was in the custody of the maternal grand-parents (who are permanent residents of AWHO Colony, Greater Noida- 201310). The High Court noted that while the appellant resides in Singapore, the respondent was temporarily residing in Ireland. The order of the Family Court dated 1 March 2018, restraining the appellant from removing the child from Bengaluru was stayed by the High Court, subject to the child being produced on every Saturday before the Bengaluru Mediation Centre in terms of the order of the Family Court.
7. While these writ petitions were pending, in November 2018, the appellant filed an application (IA No. 11) in the proceedings in MC No. 4484 of 2016 before
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
