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2023 Supreme(Ker) 299
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ANIL K. NARENDRAN, P.G. AJITHKUMAR, JJ.
Anjana Chandran D/o Chandran – Petitioner
Versus
Haneesh S/o Haridas – Respondent
O.P. (FC) No. 119 of 2023
Decided On : 31-03-2023
Advocate Appeared:
For the Petitioners: A. Parvathi Menon, P. Sanjay, Biju Meenattoor, Paul Varghese, P.A. Mohammed Aslam, Kiran Narayanan, Prasoon Sunny, Amrutha M. Nair, Rahul Raj P.
For the Respondents: K.P. Sreeja, Amal Stanly, Sandeep M.B.
In cases involving child custody and international relocation, courts must consider both parental rights and the best interest of the child.
Headnote:CUSTODY - CHILD CUSTODY - HINDU MARRIAGE ACT, 1955, SECTION 13(1)(ia), SECTION 26 - The court discussed the provisions of Section 26 of the Hindu Marriage Act, which allows for interim orders regarding custody, maintenance, and education of minor children during pending proceedings. The court also considered the implications of allowing one parent to take a child abroad and the enforcement of custody orders in foreign countries. The judgment emphasized the best interest of the child and balanced the rights of both parents in granting permission for the child to be taken abroad.
Fact of the Case:
The petitioner sought a decree of divorce under Section 13(1)(ia) of the Hindu Marriage Act and filed a petition seeking a Sole Legal Responsibility Certificate to take her child abroad. The Family Court dismissed the application, leading to this challenge.Finding of the Court:
The court allowed the petition, setting aside the previous order and granting permission for the child to be taken abroad subject to conditions ensuring regular interaction with the respondent.Issues:
Whether permission should be granted for taking the child abroad considering custody and welfare concerns.Ratio Decidendi:
The court applied Section 26 of the Hindu Marriage Act and considered the best interest of the child while balancing parental rights.Final Decision:
The Original Petition was allowed, permitting the child to be taken abroad subject to specified conditions.JUDGMENT :
P.G. AJITHKUMAR, J.
1. The petitioner is the mother of Dev Haneesh Nanbeerakath, born on 03.07.2015. The petitioner filed O.P. No. 485 of 2023 seeking a decree of divorce, under Section 13(1)(ia) of the Hindu Marriage Act, 1955. She filed I.A. No. 5 of 2023 in that original petition seeking to issue to her a Sole Legal Responsibility Certificate relating to the child. The Family Court dismissed that application as per order dated 17.02.2023, Ext.P9. The petitioner challenges the said order in this Original Petition filed under Article 227 of the Constitution of India.
2. On 13.03.2023, notice was directed to be served on the respondent. On receipt notice, the respondent entered appearance.
3. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.
4. O.P. No. 485 of 2023 was filed by the petitioner while she was in India. She subsequently went to the United Kingdom on a student Visa. It is stated that she is studying in the United Kingdom. She claims that she would be able to maintain to child and impart to him standard education in the United Kingdom. She accordingly through her power of attorney filed I.A. No. 5 of 2022 seeking to issue a Sole Legal Responsibility Certificate to her for the purpose of taking the child abroad. It is stated that as per the communication issued by the UK Decision Making Centre, either both parents together should apply or a Sole Legal Responsibility Certificate should be submitted to process the Visa of the child. Alleging that the respondent did not consent to submit application for Visa, the petitioner has filed I.A. No. 5 of 2022.
5. The respondent filed a written objection. He contended that the petitioner is staying in the United Kingdom on a student Visa and therefore she would not be able to look after the affairs of the child. It was his further contention that in an original petition filed seeking divorce, a petition for the custody of the child or to get a certificate, especially of this kind, cannot be entertained and further that if the child is taken abroad, he would not get any opportunity to interact with the child. Practically that would amount to non-suiting the respondent in the matter of custody of the child. The other allegations in I.A. No. 5 of 2023 were denied by the respondent as well.
6. The Family Court took the view that once the petitioner is allowed to take the child abroad, there would be little chance for the respondent to see and interact with the child, and therefore, permission to take the child abroad cannot be granted. So the Family Court, by placing reliance on the decision in Smitha Antony vs. Koshy Kurian, ILR 2022 (2) Ker. 1153, held that in case the petitioner takes the child abroad, the right of the respondent to interact with the child will be foreclosed forever. The Family Court eventually concluded that without having a detailed enquiry in the matter, no permission can be granted to the petitioner to take the child abroad and further observed that it would not be in the welfare of the child to take him abroad. Hence, the petition was dismissed.
7. The learned counsel appearing for the petitioner would submit that since the respondent also is abroad, disallowing the petitioner to take the child along with her to the United Kingdom, would render the child in the custody of the grandparents, which is not conducive for his proper upbringing. The child is now aged 7 years and if it is able to take him abroad, he can be imparted with proper education and also ensure motherly affection, which is always helpful for a healthy and emotionally sound atmosphere for the child. The learned counsel appearing for the respondent while refuting the said contentions of the petitioner pointed out that she stays in the United Kingdom on a student Visa and therefore there would not be sufficient physical amenities enabling the child to have proper education and other facilities. The learned counsel also raised a lega
