The paramount consideration in custody disputes is the welfare of the child, allowing interim relocation based on the custodial parent's employment opportunities while ensuring access for the non-custodial parent.

JUDGMENT :

ANIL KSHETARPAL, J.

1. The present Appeal under Section 19 of the Family Courts Act, 1984 assails the correctness of Order dated 17.08.2023 [hereinafter referred to as “Impugned Order”] passed by the learned Family Court [hereinafter referred to as the “Family Court”] whereby the Family Court allowed an interim application under Section 12 of the Guardians and Wards Act, 1890 [hereinafter referred to as “the Act”], filed by the Respondent-mother, granting her permission to relocate the minor child, Master Emad Ahmad Bilgrami, to Abu Dhabi, United Arab Emirates (UAE) with her, subject to certain undertakings and safeguards.

FACTUAL MATRIX

2. The brief facts leading to the present Appeal, as pleaded, are that the marriage between the parties was solemnized on 30.06.2009 in Hyderabad, Telangana as per Muslim rites and ceremonies. Out of the said wedlock, a male child was born on 25.06.2013. Owing to the marital discord, the parties separated in or around the year 2014-15, and subsequently obtained divorce on 22.02.2017, evidenced by a certificate issued by the Wakf Board.

3. The case of the Appellant-father, before the Family Court, was that, upon dissolution of marriage, it was agreed between the parties that the custody of the minor child would remain jointly with the Appellant and his father (the child’s paternal grandfather). He further asserted that the Respondent had, of her own volition, executed an Affidavit-cum-Undertaking dated 07.02.2017, wherein she relinquished all claims to custody, temporary or permanent, while retaining a limited right of visitation with prior permission.

4. On the other hand, the case of the Respondent-mother, before the Family Court, was that she had been the sole care giver of the minor child providing for all his financial, emotional, and educational needs, without any contribution from the Appellant. It was further stated that the minor child has remained in her uninterrupted custody since 2014, and that any time the child spent with the Appellant in Hyderabad was in the nature of visitation, voluntarily arranged for the welfare of the child.

5. On 10.03.2022, the Appellant instituted Guardianship Petition No. 376/2022 under Sections 7, 10 and 25 of the Act before the Family Court at Hyderabad, seeking permanent custody of the minor child. During the pendency of the said proceedings, the Respondent filed Transfer Petition No. 2487/2022 before the Supreme Court, inter alia on the ground of convenience and better access to justice. The same was allowed vide order dated 20.03.2023, transferring the proceedings to the Family Court, Saket, New Delhi, where it was re- numbered as GP No. 56/2023. In the said proceedings, the Respondent, on 07.06.2023, filed an application under Section 12 of the Act seeking interim permission to relocate the minor child with her to Abu Dhabi, on the ground that she had secured an employment opportunity with a company incorporated in Abu Dhabi.

6. The Appellant opposed the said application, asserting that the Respondent was attempting to unilaterally take the minor child out of India in violation of the mutual settlement and the Affidavit-cum- Undertaking dated 07.02.2017, and that such relocation would permanently deprive him of meaningful contact with the child, especially in view of pending custody proceedings.

7. The Family Court, after considering the submissions and the material on record, including an interaction with the minor child on 11.08.2023, allowed the application of the Respondent vide the Impugn