Case Note & Summary
The appellant, Mrs. Ritika Sharan, and the respondent, Mr. Sujoy Ghosh, were married on 4 February 2009 and have a son, Sattik, born on 9 May 2013. Due to serious differences, they have been living apart since 2016. The appellant filed a divorce petition under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, on the ground of cruelty, and an application under the Protection of Women from Domestic Violence Act, 2005. She is employed by Nike Global Trading and was relocated to Singapore in September 2017. The appellant sought the child's passport to facilitate travel, but the Family Court dismissed her application and restrained her from taking the child out of Bengaluru, fearing loss of jurisdiction. The High Court upheld this order. The Supreme Court considered the welfare of the child as paramount. It noted that the child had been in the mother's care since birth and that the mother's relocation was for employment, not to evade jurisdiction. The Court allowed the mother to take the child to Singapore, subject to her furnishing an undertaking to return the child as directed and to facilitate the father's visitation rights through video conferencing and physical visits. The Court emphasized that the Family Court retains jurisdiction and can modify orders as needed. The appeals were allowed, setting aside the High Court's judgment and the Family Court's order restraining the child's travel.
Headnote
A) Family Law - Interim Custody - Welfare of Child - Section 26, Hindu Marriage Act, 1955 - The paramount consideration in matters relating to custody of a child is the welfare of the child. The mother, who has been the primary caregiver since the child's birth, sought permission to take the child to Singapore where she was relocated for employment. The Supreme Court held that the child's welfare would be best served by allowing the mother to take the child, subject to undertakings ensuring the child's return and continued access to the father. (Paras 12-18) B) Family Law - Jurisdiction - Child's Travel Abroad - Section 26, Hindu Marriage Act, 1955 - The Family Court's jurisdiction is not lost merely because the child travels abroad temporarily. The court can retain control through undertakings and directions. The Supreme Court allowed the mother to take the child to Singapore on condition that she provides an undertaking to return the child as directed and to facilitate visitation rights. (Paras 15-18) C) Family Law - Visitation Rights - Father's Access - Section 26, Hindu Marriage Act, 1955 - The father's visitation rights must be protected even when the child is taken abroad. The Supreme Court directed the mother to ensure that the child is produced for video conferencing with the father and to bring the child to India for physical visitation as per the Family Court's orders. (Paras 17-18)
Issue of Consideration
Whether the mother should be permitted to take the minor child to Singapore during the pendency of divorce and custody proceedings, considering the welfare of the child and the jurisdiction of the Family Court.
Final Decision
The Supreme Court allowed the appeals, set aside the High Court's judgment and the Family Court's order restraining the child from leaving Bengaluru. The mother is permitted to take the child to Singapore, subject to furnishing an undertaking to return the child as directed by the Family Court and to facilitate the father's visitation rights through video conferencing and physical visits as per the Family Court's orders. The Family Court retains jurisdiction and may modify orders as necessary.
Law Points
- Welfare of child is paramount in custody matters
- Interim custody orders must balance parental rights with child's welfare
- Jurisdiction of Family Court not lost if child travels abroad with undertaking to return
- Section 26 of Hindu Marriage Act 1955 empowers court to make interim orders for child's custody and education
