Case Note & Summary
The petitioner husband and respondent wife had their marriage dissolved by mutual consent in 2017, with consent terms providing for joint custody of their son Krishang. Clause 8(g) of the consent terms prohibited either parent from taking the child abroad without the other's written consent. The father filed a writ petition seeking permission to take the son to the USA for educational purposes, as the mother had remarried and was not cooperating. The mother remained absent despite service. The court noted that the child was now 12 years old and had expressed a desire to study abroad. The court held that the welfare of the child is paramount and that the consent terms could not be interpreted to prevent the child's educational advancement. The court allowed the father to take the son to the USA, subject to conditions including providing the mother with contact details, ensuring the child's return during vacations, and maintaining the mother's visitation rights. The court also directed the father to file an undertaking to abide by these conditions.
Headnote
A) Family Law - Child Custody - Welfare of Child - Consent Terms - The court considered whether a clause in consent terms prohibiting foreign travel without mutual consent could be overridden in the child's best interest. The father sought permission to take the son to the USA for education, which the mother opposed by remaining absent. The court held that the welfare of the child is paramount and allowed the father to take the son abroad, subject to conditions ensuring the child's well-being and the mother's visitation rights (Paras 1-7).
Issue of Consideration
Whether the father can be permitted to take the minor son abroad for education despite a clause in the consent terms prohibiting foreign travel without mutual consent, and whether the welfare of the child requires modification of the custody arrangement.
Final Decision
The court allowed the writ petition and permitted the father to take the minor son Krishang to the USA for educational purposes, subject to conditions including providing the mother with contact details, ensuring the child's return during vacations, and maintaining the mother's visitation rights. The father was directed to file an undertaking to abide by these conditions.
Law Points
- Child custody
- welfare of child
- consent terms
- modification of custody arrangements
- paramountcy of child's welfare
- interpretation of consent terms
Case Details
2023 LawText (BOM) (05) 27
WRIT PETITION NO. 6649 OF 2021
Ms Aarti Sathe, with Aasawari Kadam & Madhusmita Saud
Koushik Jagathalaprathaban
Karishma Ashokkumar Upadhyay
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Nature of Litigation
Writ petition seeking permission to take minor son abroad for education, challenging a clause in consent terms that prohibited foreign travel without mutual consent.
Remedy Sought
The petitioner father sought permission from the court to take his minor son Krishang to the USA for educational purposes.
Filing Reason
The mother had remarried and was not cooperating, and the consent terms required mutual consent for foreign travel, which was not forthcoming.
Previous Decisions
The marriage was dissolved by a decree of divorce by mutual consent by the Family Court at Bandra, Mumbai, based on consent terms dated 3rd July 2017 and 11th December 2017.
Issues
Whether the father can be permitted to take the minor son abroad for education despite a clause in the consent terms prohibiting foreign travel without mutual consent.
Whether the welfare of the child requires modification of the custody arrangement.
Submissions/Arguments
The petitioner father argued that the mother had remarried and was not cooperating, and that the child's educational advancement required him to study abroad.
The respondent mother remained absent and did not file any reply.
Ratio Decidendi
The welfare of the child is paramount and overrides any contractual restrictions in consent terms. The court has the power to modify custody arrangements in the best interest of the child, even if it deviates from the agreed terms.
Judgment Excerpts
Admittedly, the marriage between the parties was dissolved by a decree of divorce by mutual consent, by the learned Family Court at Bandra, Mumbai, on the basis of consent terms dated 3rd July 2017 and 11th December 2017.
It is mutually agreed between the Petitioners that none of the Petitioners shall take son Krishang abroad during vacation and or otherwise without the written consent of each other.
The welfare of the child is paramount and the court cannot be a silent spectator when the child's future is at stake.
Procedural History
The marriage was dissolved by mutual consent in 2017. The father filed a writ petition in 2021 seeking permission to take the son abroad. The mother was served but remained absent. The court heard the petition and delivered judgment on 4th May 2023.
