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If parents are in conflict, a balance has to be drawn to ensure the child has a sense of security-SC

Mrs Ritika Sharan v Mr Sujoy Ghosh, Civil Appeal Nos. 3544-45 of 2020 (Arising out of SLP (C) Nos. 21049-21050 of 2019, October 28, 2020.

The present case was decided by the Supreme Court bench comprising Justice Dr. Dhananjaya Y Chandrachud, Justice Indu Malhotra, and Justice Indira Banerjee. The appellant and the respondent got married in 2009 and a son was born in 2013. Later on, serious differences arose between the couple and have been living apart since 2016. In 2016, the appellant has instituted a petition seeking a decree for divorce on the ground of cruelty and proceedings pending before the family court.

In 2017, the appellant has filed an IA seeking the passport of the child from the respondent, since she has been posted in Singapore in 2017. The respondent has sought an injunction against the appellant from taking the child out of Bangalore and also sought visitation rights. In 2018, the family court has dismissed the application filed by the appellant for the child’s passport on the ground that if the relief is granted, the court would lose jurisdiction over the child. The appellant has filed Writ Petitions before the High Court of Karnataka against the IA’s and the same were later dismissed.

Further, the appellant approached the Supreme Court and the contented that there has been an error on the family court presuming that if the child accompanies the appellant, the court would lose jurisdiction. The appellant would also furnish an undertaking to not take away the child from the jurisdiction of the court. Also, the child has been in the custody of the appellant since his birth and the welfare of the child is paramount. The employer of the appellant would be assisting with the education of the child and the child will be admitted in Global Indian International School in Singapore.

The learned counsel appearing on behalf of the respondent contended that the appellant has not filed for the guardianship of the child, whereas the respondent has filed for the guardianship of the child. Also, contended that the child should remain in Bengaluru under the care of maternal- grandparents who have moved to Bengaluru from Noida and the court observed the contention to be unfair.

The court further observed that,

The child, Sattik, was born on 9 May 2013, following which the appellant and the respondent resided together with the child until they parted ways in 2016. Since then, in any event, the appellant has been looking after the care and welfare of the child. That she has done so with the assistance of her parents who have moved to Bengaluru, does not detract from her role and responsibility as a mother. In fact, the order of the Family Court dated 1 March 2018, which has been adverted to earlier, indicates that on the days when the respondent is to obtain visitation, it is the appellant or her parents who were to produce the child before the Bengaluru Mediation Centre and it is the appellant or her parents to whom the child would be returned after the conclusion of visitation. The fact that the child has been in the care of the appellant and her parents is also evident from the order of the High Court dated 9 July 2018. (Para 15)

The court while invoking Article 142 of the Constitution observed that it is in the welfare of the child the court is granting the custody of the child to the mother and also the child would lose one year of education in Singapore if the case is allowed to be lost in technicalities.

The court also has taken note of the desire of the child to live with his mother in Singapore. The court observed the same in the following words:

During the course of the interaction on the video-conferencing platform, Sattik 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. (Para 16)

The court held,

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. (Para 18)

The court also issued directions that the respondent can engage in video-conferencing with the child on specified days and the appellant shall bring the child to India at least twice in a year and the respondent shall have visiting rights. The appellant was directed to make an undertaking not to relocate the child without the prior permission of the court.

Lalitha Sarvani. A

View/ Download the Judgment: Mrs Ritika Sharan v Mr Sujoy Ghosh



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