The welfare of the minor child is of paramount concern, Supreme Court invokes Article 142 to subserve the interests of the child in custody battle.

Mrs. Ritika Sharan v. Mr. Sujoy Ghosh

Civil Appeal Nos. 3544-45 of 2020.

Decided on 28.10.2020

Bench: Dr. Dhananjaya Y Chandrachud, Indu Malhotra, Indira Banerjee, JJ.

Facts: The appellant (wife) and the respondent (husband) got married in 2009. Their child was born in 2013 and the spouses began living apart in 2016. In 2016, appellant filed a petition for divorce under Section 13(1) (i-a) of the Hindu Marriage Act, 1955 seeking divorce on the ground of cruelty. In 2017, the appellant instituted proceedings in the family court seeking a direction to the respondent to handover the passport of the child, on the ground of her relocation to Singapore for work.

 The respondent filed an application seeking injunction against the appellant from taking the child out of Bengaluru and also sought interim custody and visitation rights to enable him to meet the child. The appellant opposed stating that the respondent is abusive, violent and suffers from a psychiatric disorder hence he cannot be granted the custody of the child. Family court dismissed her application restraining the appellant from taking the child out of Bengaluru on the basis that if the child is moved out of Bengaluru it would lose jurisdiction over the child. The respondent also contended that the child is in the custody of the parents of the appellant in Bengaluru and should remain with them. Alternatively, he submitted that he would take charge of the child.

High Court also upheld the verdict of the Family Court, hence the verdict was challenged before the Supreme

Issue: Should the child be allowed to stay with his mother in Singapore or he should stay in his father’s area of residence?

Held: The Court allowed the appeal and permitted the appellant to take the child with her to Singapore subject to certain terms. The court invoked its powers under Article 142 to serve the best interests of the child. The court held that 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 court also directed the father to hand over the passport of the child in order to facilitate his travel to Singapore along with his mother. The court noted that the child has also expressed his desire to live with his mother while interacting with the bench deciding the case during videoconferencing.

The court observed that the purpose of relocation of the appellant to Singapore was not to place the child outside the jurisdiction of the Indian Courts. Also, The facts that the parents of the appellant have moved to Bengaluru to help her does not transfer the custody of the child from the appellant to the maternal grandparents. The demand of the respondent that the child should remain in Bengaluru with his maternal grandparents is not fair as they were only staying there to help the appellant i.e., their daughter.

The Court pointed that “a balance has to be drawn so as to ensure that in a situation where the parents are in a conflict, the child has a sense of security. The interests of the child are the best sub served by ensuring that both the parents have a presence in his upbringing.”