SC: The welfare of the minor child is of paramount concern; Custody allowed to mother in Singapore [Read Judgment]

On 28^th Oct 2020, the Supreme Court of India, In the case of Mrs. Ritika Sharan v. Mr. Sujoy Ghosh comprising of Justice Dr. Dhananjaya Y Chandrachud, Justice Indu Malhotra and Justice Indira Banerjee deciding the Jurisdiction of the Hindu Marriage Dispute and for the Guardianship held that the Jurisdiction of the Supreme Court under Article 142 of the Constitution is a facilitative Constitutional Instrument to advance Substantive Justice and further held that the welfare of the child is of paramount importance.

Factual Background

The appellant filed an Interim Application in July 2017 in the proceedings before the Family Court 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, she was required to travel for short durations outside India and found it convenient to take the child with her.

The respondent opposed the grant of relief and filed an interim application, seeking an injunction against the appellant from taking the child out of Bengaluru. On the same day, the respondent had also filed another interim application and sought interim custody and visitation rights so as to enable him to meet the child. The appellant opposed interim application 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.

By an order, the Family Court dismissed interim Application 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.

The Single Judge of the High Court dismissed the writ petitions instituted by the appellant, challenging the validity of the order of the Family Court dated 4 January 2018 restraining her from taking the child out of Bengaluru.

Appellant Submissions

Assailing the judgment of the High Court, learned Senior Counsel submits before the Court that:

There is a manifest error on the part of the Family Court in presuming that once the minor child accompanies his mother to Singapore it would lose jurisdiction;

(ii) The issue before the Family Court did not pertain to the permanent custody of the child;

(iii) The child has been in the custody of the appellant since his birth;

(iv) The appellant sought permission to take the child with her to Singapore, where she has now been relocated by her employer. The appellant does not seek to do so on a permanent basis since the move is only for the period during which she is posted in Singapore;

Respondents Submissions

Opposing the submissions of the Appellant, learned counsel appearing on behalf of the respondent submitted that:

1. The appellant has made an attempt to ‘shift the goal-posts’ from time to time. The pleading before the High Court was that the child has been in the custody of the maternal grand-parents while a contradictory plea was now being taken up before this Court that he has been in the care and custody of the appellant;
2. The appellant has not instituted a substantive proceeding claiming guardianship of the child. On the other hand, the respondent has filed for guardianship of the child before the Family Court, Bengaluru;
3. Pursuant to the order dated 1 March 2018 of the Family Court, the child has been living in Bengaluru with the child’s maternal grandparents. The appellant has not assailed the validity of this order; and (v) If the appellant were to take the child to Singapore, 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.

Court Analysis

The Court in it’s analysis stated that the

“The Court has been apprised of the fact that the employers of the appellant have informed her that they would facilitate the documentation for travel and relocation of the child with the appellant in Singapore.”

“In matters such as the present, the welfare of the minor child is of paramount concern. 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.”

Court Judgment & Directions

The Court set aside The impugned judgment and order of the High Court and further issued guidelines, important guidelines to be read as follows:-

1. The appellant is permitted to take the child, Sattik, with her to Singapore where she is employed and resides;
2. The appellant is permitted to make suitable arrangements to facilitate the travel to and admission of the child in a school in Singapore; (The respondent shall, within a period of 48 hours from the receipt of this judgment, handover the passport of the child to the appellant;
3. The appellant shall be exclusively entitled to take necessary steps for renewing the passport of the child or, if required, for obtaining a fresh passport in his name;
4. the appellant be required to relocate for employment outside Singapore, to any other country (except India) necessitating the relocation of Sattik, she shall file a miscellaneous application before this Court seeking prior permission to do so;
5. The respondent would be at liberty to engage with the child on a suitable video-conferencing platform for one hour each on every Saturday and Sunday and for five to ten minutes on other days;
6. The appellant will ensure the 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 above arrangement shall continue to govern, subject to the final orders as may be passed in the Guardianship proceedings which have been or maybe instituted, by either of the parties.

Further, the appeals are accordingly disposed off by the Supreme Court.

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