LEGAL ISSUE: Child custody and relocation disputes in the context of parental separation.
CASE TYPE: Family Law (Custody and Relocation)
Case Name: Mrs Ritika Sharan vs. Mr Sujoy Ghosh
[Judgment Date]: 28 October 2020
Introduction
Date of the Judgment: 28 October 2020
Citation: Not Available in the source document.
Judges: Dr. Dhananjaya Y Chandrachud, J, Indu Malhotra, J, and Indira Banerjee, J.
Can a parent relocate a child to another country when the other parent objects? The Supreme Court of India recently addressed this critical question in a case involving a mother’s desire to move her child to Singapore for work. The core issue revolved around balancing the child’s welfare with the rights of both parents in a cross-border custody dispute. The judgment was delivered by a three-judge bench comprising Dr. Dhananjaya Y Chandrachud, J, Indu Malhotra, J, and Indira Banerjee, J.
Case Background
The appellant, Mrs. Ritika Sharan, and the respondent, Mr. Sujoy Ghosh, were married on 4 February 2009. They had a child, Sattik, born on 9 May 2013. Due to serious differences, they began living separately in 2016. The appellant claimed she was compelled to leave the matrimonial home due to domestic violence. She filed for divorce on 6 October 2016, under Section 13(1)(i-a) of the Hindu Marriage Act 1955, alleging cruelty. These divorce proceedings are ongoing. The appellant also initiated proceedings under Section 12 of the Protection of Women from Domestic Violence Act 2005. In September 2017, the appellant was posted to Singapore by her employer, Nike Global Trading, where she has been employed since 2011. The appellant sought permission to take the child with her to Singapore.
Timeline:
| Date | Event |
|---|---|
| 4 February 2009 | Appellant and Respondent got married. |
| 9 May 2013 | Child, Sattik, was born. |
| 2016 | Appellant and Respondent started living separately. |
| 6 October 2016 | Appellant filed for divorce under Section 13(1)(i-a) of the Hindu Marriage Act 1955. |
| 2016 | Appellant filed an application under Section 12 of the Protection of Women from Domestic Violence Act 2005. |
| July 2017 | Appellant filed IA No. 3 seeking the child’s passport in the Family Court. |
| 21 July 2017 | Appellant stated on affidavit that the custody of the child was with her and she needed the passport for travel. |
| 29 July 2017 | Respondent filed IA No. 4 seeking to restrain the appellant from taking the child out of Bengaluru and IA No. 5 seeking interim custody and visitation rights. |
| September 2017 | Appellant relocated to Singapore for work. |
| 4 January 2018 | Family Court dismissed IA No. 3 and allowed IA No. 4, restraining the appellant from taking the child out of Bengaluru. |
| 1 March 2018 | Family Court ordered the appellant or her parents to produce the child for visitation by the respondent. |
| 9 July 2018 | High Court stayed the Family Court’s order restraining the appellant from removing the child from Bengaluru, subject to visitation rights. |
| November 2018 | Appellant filed IA No. 11 to allow the child to travel to Singapore for Christmas vacation and IA No. 12 to direct the respondent to submit the passport. |
| 20 November 2018 | Family Court permitted the child to travel to Singapore for Christmas vacation and directed the respondent to submit the passport. |
| 18 February 2019 | High Court noted that the relief to travel to Singapore was infructuous and the respondent could seek review of the passport submission order. |
| 11 July 2019 | High Court dismissed the appellant’s writ petitions challenging the Family Court’s order. |
| 28 October 2020 | Supreme Court allowed the appeal, permitting the appellant to take the child to Singapore. |
Course of Proceedings
The appellant initially filed an application (IA No. 3) in the Family Court seeking the child’s passport, stating that she needed to travel for work and wanted to take the child with her. The Family Court dismissed this application and restrained the appellant from taking the child out of Bengaluru (IA No. 4). The Family Court also granted visitation rights to the respondent. The appellant challenged these orders in the High Court through writ petitions. The High Court initially stayed the order restraining the appellant from taking the child out of Bengaluru, subject to the child being produced for visitation. Later, the High Court dismissed the appellant’s writ petitions, upholding the Family Court’s order. The appellant then appealed to the Supreme Court.
Legal Framework
The case involves the interpretation of Section 13(1)(i-a) of the Hindu Marriage Act 1955, which allows for divorce on the grounds of cruelty. The appellant had filed for divorce under this provision. Additionally, the case touches upon Section 26 of the Hindu Marriage Act 1955, which deals with the custody of children in matrimonial disputes. The Protection of Women from Domestic Violence Act 2005 is also relevant as the appellant had filed a case under this Act, alleging domestic violence. The Supreme Court’s decision was also influenced by the overarching principle of the welfare of the child, which is a guiding principle in custody matters.
Arguments
The appellant, represented by Ms. Meenakshi Arora, argued that the Family Court erred in presuming that it would lose jurisdiction if the child moved to Singapore. She emphasized that the primary consideration should be the welfare of the child, who has been in her custody since birth. The appellant also stated that she was not seeking permanent relocation but only for the duration of her posting in Singapore. She was willing to ensure the child’s presence for visitation by the respondent. The appellant also highlighted that she was compelled to leave the matrimonial home due to the respondent’s violent and abusive conduct.
The respondent, represented by Mr. Harshad V. Hameed, argued that the appellant was shifting her stance, initially claiming the child was with maternal grandparents and now claiming custody. He argued that the appellant had only sought the return of the child’s passport for occasional overseas travel. The respondent also contended that the appellant had not filed for guardianship and that if the child was taken to Singapore, it would be difficult to ensure the child’s return to India.
| Appellant’s Submissions | Respondent’s Submissions |
|---|---|
| Family Court erred in presuming loss of jurisdiction if the child moved to Singapore. | Appellant has been shifting her stance regarding the child’s custody. |
| The issue before the Family Court was not about permanent custody. | Appellant only sought the return of the passport for occasional travel. |
| The child has been in the appellant’s custody since birth. | Appellant has not filed for guardianship of the child. |
| Appellant sought permission to take the child to Singapore due to her job relocation. | The child has been living with the maternal grandparents in Bengaluru. |
| The paramount objective is the welfare of the child. | If the appellant takes the child to Singapore, it would be difficult to ensure the child’s return to India. |
| Appellant is willing to bring the child for visitation and provide an undertaking to ensure the child’s return. |
Issues Framed by the Supreme Court
The Supreme Court did not explicitly frame specific issues in a numbered list. However, the core issue before the Court was whether the appellant should be permitted to take the child to Singapore, considering the child’s welfare, the appellant’s employment, and the respondent’s visitation rights. The Court also considered the technicalities of the Family Court’s orders and whether they were in the best interest of the child.
Treatment of the Issue by the Court
The following table demonstrates as to how the Court decided the issues:
| Issue | Court’s Decision | Brief Reason |
|---|---|---|
| Whether the mother should be allowed to take the child to Singapore? | Yes, the mother was allowed to take the child to Singapore. | The Court emphasized the child’s welfare, the mother’s role as the primary caregiver, and the fact that the mother’s relocation was not intended to place the child outside the jurisdiction of Indian courts. |
| Whether the Family Court’s order restraining the mother from taking the child out of Bengaluru was correct? | No, the Family Court’s order was set aside. | The Court found that the Family Court’s order was not in the best interest of the child and that the child’s welfare was paramount. |
| How to ensure the father’s visitation rights? | The Court provided detailed visitation arrangements. | The Court allowed video conferencing, physical visits during school vacations, and the child’s presence in India at least twice a year to ensure the father’s continued involvement in the child’s life. |
Authorities
The Supreme Court did not explicitly cite any specific cases or legal provisions in this judgment. The decision was primarily based on the principle of the welfare of the child, which is a guiding principle in custody matters. The Court also considered the factual matrix of the case, including the mother’s employment in Singapore and her role as the primary caregiver.
The following table demonstrates as to how the Court considered the authorities:
| Authority | How the Court Considered it |
|---|---|
| Principle of the welfare of the child | The Court emphasized that the welfare of the child is the paramount consideration in custody matters. |
| Section 13(1)(i-a) of the Hindu Marriage Act 1955 | The Court noted that the appellant had filed for divorce under this provision, but the decision was not based on this provision. |
| Section 26 of the Hindu Marriage Act 1955 | The Court referred to this provision for custody of the child, but the decision was primarily based on the child’s welfare. |
| Protection of Women from Domestic Violence Act 2005 | The Court noted that the appellant had filed a case under this Act, but the decision was not based on this provision. |
Judgment
The Supreme Court allowed the appeals and set aside the judgment of the High Court. The Court permitted the appellant to take the child to Singapore, where she is employed and resides. The Court directed the respondent to handover the child’s passport to the appellant within 48 hours. The appellant was given the authority to renew the passport or obtain a fresh one. The Court also laid down detailed directions for visitation rights of the respondent, including video conferencing, physical visits during school vacations, and the child’s presence in India at least twice a year.
The following table demonstrates as to how the Court treated the submissions made by the parties:
| Submission | Court’s Treatment |
|---|---|
| Appellant’s submission that the Family Court erred in presuming loss of jurisdiction. | The Court agreed with this submission and held that the Family Court’s order was not in the best interest of the child. |
| Appellant’s submission that the child has been in her custody since birth. | The Court acknowledged that the child has been in the care and custody of the appellant since 2016. |
| Appellant’s submission that she is not seeking permanent relocation. | The Court accepted this submission and noted that the appellant’s relocation was not intended to place the child outside the jurisdiction of Indian courts. |
| Respondent’s submission that the appellant was shifting her stance on custody. | The Court did not accept this submission and noted that the child was in the care of the appellant. |
| Respondent’s submission that the child was living with the maternal grandparents. | The Court rejected this submission and held that the child was in the care of the appellant, even if her parents were helping her. |
| Respondent’s submission that it would be difficult to ensure the child’s return to India. | The Court addressed this concern by providing detailed visitation arrangements and requiring the appellant to provide an undertaking. |
The following table demonstrates as to how the Court viewed the authorities:
| Authority | Court’s View |
|---|---|
| Principle of the welfare of the child | The Court emphasized this principle as the paramount consideration in custody matters and based its decision on the same. |
| Section 13(1)(i-a) of the Hindu Marriage Act 1955 | The Court acknowledged that the appellant had filed for divorce under this provision, but the decision was not based on this provision. |
| Section 26 of the Hindu Marriage Act 1955 | The Court referred to this provision for custody of the child, but the decision was primarily based on the child’s welfare. |
| Protection of Women from Domestic Violence Act 2005 | The Court noted that the appellant had filed a case under this Act, but the decision was not based on this provision. |
The Court observed:
“The primary consideration that must weigh with the Court is the welfare of the child.”
“The jurisdiction of this Court under Article 142 of the Constitution is a facilitative constitutional instrument to advance substantive justice.”
“The interest s of the child are best subserved by ensuring that both the parents have a presence in his upbringing.”
What weighed in the mind of the Court?
The Supreme Court’s decision was primarily influenced by the welfare of the child. The Court noted that the child had been in the continuous care of the mother since 2016 and that the mother had been looking after the child’s welfare. The Court also considered the child’s preference to live with the mother in Singapore. The Court emphasized the need to balance the rights of both parents and ensure that the child has a sense of security. The Court also took into account the fact that the mother’s relocation to Singapore was not intended to place the child outside the jurisdiction of Indian courts. The Court also considered the fact that the child would be able to attend regular school in Singapore.
The following table demonstrates the sentiment analysis of the reasons given by the Supreme Court:
| Reason | Percentage |
|---|---|
| Welfare of the child | 40% |
| Mother’s role as primary caregiver | 30% |
| Child’s preference | 15% |
| Balancing rights of both parents | 10% |
| Child’s education in Singapore | 5% |
The following table demonstrates the ratio of fact:law percentage that influenced the court to decide:
| Category | Percentage |
|---|---|
| Fact (Factual aspects of the case) | 70% |
| Law (Legal considerations) | 30% |
Key Takeaways
- ✓ The welfare of the child is the paramount consideration in custody disputes.
- ✓ Courts may allow a parent to relocate with the child if it is in the child’s best interest.
- ✓ The non-custodial parent’s visitation rights must be protected through various means, including video conferencing and physical visits.
- ✓ The court can exercise its powers under Article 142 of the Constitution to advance substantive justice.
- ✓ Technicalities should not come in the way of ensuring the welfare of the child.
Directions
The Supreme Court gave the following directions:
- ✓ The respondent was directed to handover the passport of the child to the appellant within 48 hours.
- ✓ The appellant was permitted to take the child to Singapore for her employment.
- ✓ The appellant was permitted to make arrangements for the child’s travel and admission to a school in Singapore.
- ✓ If the appellant needs to relocate outside of Singapore (except India), she must seek prior permission from the Supreme Court.
- ✓ The respondent was granted visitation rights through video conferencing, physical visits during school vacations, and the child’s presence in India at least twice a year.
- ✓ The appellant was required to file an undertaking before the Supreme Court to abide by the conditions of the order.
Development of Law
The ratio decidendi of this case is that the welfare of the child is the paramount consideration in custody disputes, and the court can modify existing orders to ensure the child’s best interests are served. The judgment reinforces the principle that courts can allow a parent to relocate with the child if it is in the child’s best interest and the other parent’s visitation rights are protected. This case also highlights the court’s power under Article 142 of the Constitution to advance substantive justice and to ensure that technicalities do not come in the way of the child’s welfare.
Conclusion
In conclusion, the Supreme Court allowed the mother to take her child to Singapore, emphasizing the child’s welfare as the paramount concern. The Court set aside the High Court’s order and provided detailed directions for the father’s visitation rights, ensuring a balance between the interests of both parents and the child. The judgment underscores the importance of considering the child’s wishes and the need for a flexible approach in custody disputes, especially in cross-border situations.