Wednesday, the bench of Justices DY Chandrachud, Indu Malhotra and Indira Banerjee while allowed mother to take her 7-year-old son to Singapore, invoked Article 142 of the Constitution to ensure the best interest of the child.
The Matter
In the matter, marriage between the respondent-husband and the appellant-wife solemn in year 2009, they blessed with a son in year 2013. The Wife left the matrimonial home in year 2016 alleging domestic violence and abuse. She then filed a divorce on the ground of cruelty which is pending before the family court Bangalore. The wife is working in a private firm and has been posted in Singapore since September 2017.
The child was living with his mother (appellant) and maternal grandparents came from Noida to Bengaluru to help the appellant with the child. In July 2017, the mother filed an application seeking the possession of child’s passport which the family court granted relief to father where he has submitted that, “if the child is moved out of Bengaluru, it would lose jurisdiction over the child”. In year 2018, the Family Court passed an order allowing visitation to the father on every third Saturday.
On 9 July 2018, the High Court noted that the child was in the custody of the maternal grand-parents while the appellant-mother was residing in Singapore.
The learned Senior counsel Ms Meenakshi Arora for the mother submitted that, child has been in custody of mother since birth and she has been temporarily relocated to Singapore. She further submitted that, “The paramount objective must be to ensure the welfare of the child”.
The learned counsel Mr Harshad V Hameed for the father submitted that, the appellant attempting to ‘shift the goal-posts‘ from time to time as the child was in the custody of the maternal grand-parents while in the present plea she is claiming the custody. He further submitted, “it would not be possible to ensure that she will not relocate elsewhere and take the child with her, effectively placing the child outside the jurisdiction of the Indian courts.”
The Bench
The bench observed that she was given an option to reallocate to Singapore as part of restructuring exercise and not to place the child outside the Jurisdiction of Indian court.
The bench stated that “welfare of the child” is the primary concern. Further noted father’s submission that either the child custody to be remain with the maternal grandparents or with him. On this bench said that, it is not fair as the they have came from Noida and living in rented accommodation.
“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.”
The bench also observed that the child wants to live with his mother in Singapore.
“indicated his desire to reside with his mother in Singapore. While the child 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.”
The bench given reason for invoking Article 142 of the Constitution in the case that, the child is living in Bengaluru with his maternal grand-parents while the mother employed in Singapore and additional reason that the child will lose a year of education in Singapore.
“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, we are of the view that the arrangement which has been arrived at during the pendency of the proceedings should be modified so as to best subserve the interests of the child.”
The bench said about the presence of both parents in raising the child.
“Undoubtedly, the respondent, as the father, is entitled to have adequate rights of access and visitation. A balance has to be drawn so as to ensure that in a situation where the parents are in a conflict, the child has a sense of security. The interests of the child are best subserved by ensuring that both the parents have a presence in his upbringing.”, in the order.
The learned Senior counsel for the mother submitted that, the father has made no contribution for the maintenance of the child.
The bench permitted the mother to take the child to Singapore and directed the father to handover the passport of the child in 48 hours. The bench allowed the father’s engagement with the child through video-conferencing for “one hour each on every Saturday and Sunday and for five to ten minutes on other days”.
