The court emphasized that a parent's dependent visa status does not diminish caregiving capacity, and the child's expressed preference in custody matters is paramount.

JUDGMENT

Devan Ramachandran, J.

The petitioner was earlier married to the respondent; but the matrimony went into rough waters, thus culminating in their divorce.

2. It transpires that the respondent, thereupon, filed OP No.457/2023 before the learned Family Court, Vadakara, seeking permanent custody of his now 5 year old son, in which, the petitioner filed IA No.12/2025 seeking his interim custody and to take him with her to the United Kingdom (in short, the UK), where she is working. This application was allowed through the Ext.P3 order, against which, the respondent filed OP(FC) No.194 of 2025 before this court, which was allowed through the Ext.P4 judgment. In the said judgment, it is recorded that the petitioner - mother was not, at least at that time, in full capacity to take the child with her to the UK; and this is evident from the observations of this court in paragraph 6 thereof. This was because, she had admitted that she was trying to obtain a permanent employment, which would enable her to take care of the child as any mother would; and hence this Court thought it better not to allow her to take the child with her at that time, but clarified that until she becomes capable of doing so, the arrangement made in an earlier interim order dated 11.04.2025 – which has been extracted in Ext.P4 – will continue to bind the parties.

3. Thereafter, Con(C) No. 2680 of 2025 was filed by the wife, alleging violation of Ext. P4 judgment; and we passed a judgment in it, as evident from Ext. P5, where we made certain modifications, finding that there were some errors in our directions earlier. Consequent to this, Ext.P4 judgment was corrected by us suo motu, as evidenced by Ext.P5.

4. The parties are thus bound by the cumulative directions in Exts. P4 and P5; but taking advantage of the liberty to be reserved to the petitioner, she then moved IA No.15 of 2025 before the learned Family Court, Vadakara, invoking the provisions of Section 43 of the Guardians and Wards Act , seeking that she be allowed to take the child, asserting that she has now become capable of his care, she having obtained a full-time job and enjoying a visa.

5. The learned Family Court, however, dismissed the application, holding that, as long as the petitioner is in the UK on a “dependent visa”, she can never be seen to be independent; and therefore that, even though she may have a permanent employment, the child cannot be allowed to be with her, nor can he be construed to be safe in her custody. The petitioner was thus directed to hand over the child to the respondent, presumably being guided by the directions this Court issued earlier in Exts. P4 and P5.

6. The petitioner challenges the order of the learned Family Court – producing it as Ext. P20 – primarily asserting that the findings therein are contrary to true facts and to the applicable law.

7. Sri. O.V. Maniprasad – appearing for the petitioner, argued that, when the learned Family Court had found that his client has permanent employment in the UK, the factum of her residing there on a “dependent visa”, on the strength of her husband's visa, could not have been used against her. He conceded that his client is now residing in the UK with her present husband, but that this will not denude her of the right of being a mother to her child; and resultantly that the findings of the learned Family Court contrary to this are uncharitable and unfortunate. He prayed that Ext. P20 be, therefore, set aside and his client's application, namely IA No. 15 of 2025, be allowed.

8. Sri. B. Krishnamani