MRS RITIKA SHARAN versus MR SUJOY GHOSH on 28 October 2020

1. These appeals arise from a judgment dated 11 July 2019 of aSingle Judge of the High Court of Karnataka.

2. The appellant and the respondent got married on 4 February2009. Their child, Sattik, was born on 9 May 2013. There are seriousdifferences between the spouses and they have been living apart since2016. The appellant submits that she has been compelled to leave thematrimonial home due to domestic violence and abuse. The appellantinstituted a petition on 6 October 2016, under Section 13(1)(i-a) of theHindu Marriage Act 1955 seeking a decree for divorce on the ground ofcruelty. The divorce proceedings are pending before the Family Court,Bengaluru (MC No. 4484 of 2016). The appellant also instituted anapplication under Section 12 of the Protection of Women from DomesticViolence Act 2005, which is pending in the Court of the MetropolitanMagistrate at Bengaluru (Crl. Misc. No. 228 of 2016). The appellant isin the employment of Nike Global Trading since 2011 and has been postedin Singapore in September 2017.

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A3. The appellant filed IA No. 3 in July 2017 in the proceedingsbefore the Family Court in MC No. 4484 of 2016, seeking a direction tothe respondent to handover the passport of the child. The appellant claimsthat she sought the child’s passport on the ground that prior to herrelocation in September 2017, she was required to travel for short durationsoutside India (where she was then based) and found it convenient toBtake the child with her. The respondent opposed the grant of relief andfiled an interim application, IA No. 4,[1] seeking an injunction against theappellant from taking the child out of Bengaluru. On the same day, therespondent had also filed IA No. 5[2] and sought interim custody andvisitation rights so as to enable him to meet the child. The appellantCopposed IA No. 4 and IA No. 5 filed by the respondent, alleging that therespondent was abusive, violent and suffers from a psychiatric disorderas a result of which, he cannot be granted the custody of the child.

4. By an order dated 4 January 2018, the Family Court dismissedIA No. 3 filed by the appellant for the child’s passport, and allowed IADNo. 4 of the respondent, restraining the appellant from taking the childout of Bengaluru. The Family Court granted this relief on the basis thatif the child is moved out of Bengaluru, it would lose jurisdiction over thechild. The appellant instituted two writ proceedings – Writ Petition No.9528 of 2018 (GM-FC) and Writ Petition No. 11520 of 2018 before theHigh Court to challenge the order dated 4 January 2018 of the FamilyECourt in IA Nos. 3 and 4.

5. On 1 March 2018, the Family Court passed an order in IA No.5 filed by the respondent seeking interim custody and visitation rightsand directed the appellant or her parents (who had moved from NOIDAto Bengaluru to help the appellant with the child) to produce the childFbefore the Mediation Centre on every third Saturday, at 11:00 am toallow for visitation by the respondent till 5:00 pm.

6. On 9 July 2018, a Single Judge of the High Court in theappellant’s Writ Petition No. 9528 of 2018 (GM-FC) and Writ PetitionNo. 11520 of 2018, in an interim order, noted that the minor child was inGthe custody of the maternal grand-parents (who are permanent residentsof AWHO Colony, Greater Noida- 201310). The High Court noted thatwhile the appellant resides in Singapore, the respondent was temporarily H

1 IA No. 4 of 2017 in MA 4484/2016

2 IA No. 5 of 2017 in MA 4484/2016

residing in Ireland. The order of the Family Court dated 1 March 2018,restraining the appellant from removing the child from Bengaluru wasstayed by the High Court, subject to the child being produced on everySaturday before the Bengaluru Mediation Centre in terms of the orderof the Family Court.

7. While these writ petitions were pending, in November 2018,the appellant filed an application (IA No. 11) in the proceedings in MCNo. 4484 of 2016 before the Family Court under Section 26 of the HinduMarriage Act 1955 to allow the child to travel to Singapore during hisChristmas vacations, commencing on 14 December 2018 and ending on2 January 2019. The appellant also filed IA No. 12[3] to direct therespondent to submit the passport of the child to the Family Court. By anorder dated 20 November 2018, the appellant was permitted to take thechild to Singapore for the Christmas vacation and the respondent wasdirected to submit the passport of the child before the Family Court, tobe kept in the safe custody of the Family Court. The respondent assailedthis order before the High Court in Writ Petition No. 53079 and 53687 of2018 (GM-FC). By the time the proceedings came up before the HighCourt on 18 February 2019, the relief which had been granted by theFamily Court allowing the appellant to take the child to Singapore overChristmas was rendered infructuous since the appellant was not able totake the child due to the pending proceedings. With respect to the directionfor the submission of the passport of the child, the High Court noted thatthe Family Court had not considered the objections of the respondent tothis direction and the appropriate remedy for the respondent would be tofile for a review of the Family Court’s order dated 20 November 2018.

8. Eventually, on 11 July 2019, the Single Judge of the High Courtdismissed the writ petitions instituted by the appellant,[4] challenging thevalidity of the order of the Family Court dated 4 January 2018 restrainingher from taking the child out of Bengaluru.

9. Assailing the judgment of the High Court, Ms Meenakshi Arora,learned Senior Counsel submits that:

(i) There is a manifest error on the part of the Family Court inpresuming that once the minor child accompanies his motherto Singapore it would lose jurisdiction; 3 IA 12 in MC 4484/2016

4 Writ Petition No. 9528/2018 and 11520/2018 (GM-FC)

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A(ii)The issue before the Family Court did not pertain to thepermanent custody of the child;

(iii) The child has been in the custody of the appellant since hisbirth;

(iv) The appellant sought permission to take the child with her toBSingapore, where she has now been relocated by heremployer. The appellant does not seek to do so on a permanentbasis since the move is only for the period during which sheis posted in Singapore;

(v) The paramount objective must be to ensure the welfare ofCthe child. The child has been in the care of the appellantsince his birth and the parents of the appellant shifted fromNOIDA to Bengaluru to help her. The appellant was evenready and willing to bring the child on every third Saturday,for grant of visitation to the respondent as directed by theDFamily Court, should this be so ordered and directed by thisCourt; and

(vi) The appellant and her son hold Indian passports and theappellant is willing to furnish such an undertaking, as thisCourt may direct, to ensure that the child is not placed outsideEthe control and jurisdiction of the Family Court, Bengaluru.Ms Arora has urged that the appellant was constrained tomove out of the jointly owned residential apartment due tothe violent and abusive conduct of the respondent and thereason for her to seek the permission of this Court to takethe child to Singapore is to enable her to look after the child.FIt has been submitted that the employer of the appellant isproviding assistance towards the expenditure for theeducation of the child, who would be admitted to the GlobalIndian International School at Singapore.

10. Opposing the above submissions, Mr Harshad V Hameed,Glearned counsel appearing on behalf of the respondent submitted that:

(i) The appellant has made an attempt to ‘shift the goal-posts’from time to time. The pleading before the High Court wasthat the child has been in the custody of the maternal grand-parents while a contradictory plea was now being taken upH

before this Court that he has been in the care and custody ofthe appellant;

(ii) The only application that was filed by the appellant in theFamily court - IA No. 3 – dated 21 July 2017 was for thereturn of the passport of the child; the basis of which wasoccasional travel overseas;

(iii) The appellant has not instituted a substantive proceedingclaiming guardianship of the child. On the other hand, therespondent has filed for guardianship of the child before theFamily Court, Bengaluru;

(iv) Pursuant to the order dated 1 March 2018 of the FamilyCourt, the child has been living in Bengaluru with the child’smaternal grand-parents. The appellant has not assailed thevalidity of this order; and

(v) If the appellant were to take the child to Singapore, it wouldnot be possible to ensure that she will not relocate elsewhereand take the child with her, effectively placing the child outsidethe jurisdiction of the Indian courts.

11. During the course of these proceedings, parties had on thesuggestion of the Court, agreed to explore the possibility of resolvingtheir disputes through mediation. Mediation proceedings were conductedby Ms Laila T Ollapally under the auspices of the Bengaluru MediationCentre. The mediator held extensive sittings stretching over twenty sevenhours. The mediation has not resulted in a settlement. This Court must,however, acknowledge the efforts which have been made by Ms LailaT Ollapally, and records its appreciation. Though the parties have notbeen able to resolve their disputes, we can only hope that with thefacilitative assistance of the Mediator, each of them has appreciatedbetter the perspective of the other. Since the hearings during the COVID-19 pandemic have been conducted before this Court through video-conferencing, the Court has had the opportunity to interact with theappellant and the respondent as well as their child, Sattik, who is nowabout 7 years old.

12. The narration of facts and the record before this Court indicatethat after lodging a petition for divorce before the Family Court, theappellant sought the passport of the child. It was thereafter, that therespondent filed an application for restraining the appellant from taking A

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Athe child out of Bengaluru. IA No. 4 of the respondent was allowed, andIA No. 3 for the return of the passport to the appellant-mother wasrejected. Close on the heels of the above order, which was passed on 4January 2018, the Family Court by its order dated 1 March 2018 notedthat the child was presently residing with the parents of the appellantand directed the appellant “or her parents” to produce the child beforeBthe Mediation Centre for access on every third Saturday at 11:00 am,and the respondent was directed to return the child to the appellant “orher parents” by 5:00 pm.

13. On 21 July 2017, through IA No.3, the appellant had stated onaffidavit before the Family Court that the custody of the child, who wasCthen about 4 years of age, was with her and since she was required totravel out of India occasionally for work, the passport may be handedover to her. She, in fact, stated that neither had the respondent anyintention to seek the custody of the child nor had he visited the childafter the spouses parted ways. The fact that the child is in the care andDcustody of the appellant was not denied by the respondent in his replydated 29 July 2017. In July 2017, when the appellant sought the return ofthe passport, she was based in India. The Court has been apprised ofthe fact that it was in September 2017 that the appellant had relocated toSingapore. Ms Meenakshi Arora, learned Senior Counsel, stated beforethe Court that the appellant was given an option by her employer toErelocate to Singapore as a part of a restructuring exercise. Whatever bethe reason underlying her relocation to Singapore, it is evident from thematerial on record that the purpose of the appellant in doing so was notto place the child outside the jurisdiction of Indian courts. Ever since theappellant and the respondent started living apart in 2016, the child hasFbeen in the care and custody of the appellant, his mother. The fact thatthe parents of the appellant have moved to Bengaluru to help theirdaughter, does not transfer the custody of the child, either as a matter oflaw or fact, from the appellant to the maternal grand-parents. The recordindicates that it was after the appellant sought the return of the passport on 21 July 2017,[5] that the respondent moved an application restrainingGthe appellant from removing the child outside Bengaluru[6] and for thegrant of custody and visitation rights on 29 July 2017[7].

5 IA No 3 of 20176 IA No 4 of 20177 IA No 5 of 2017H

14. The primary consideration that must weigh with the Court isthe welfare of the child. The respondent has asserted in the course ofthe submissions, that the child is in the custody of the parents of theappellant in Bengaluru and should remain with them. Alternatively, hesubmitted that he would take charge of the child. While the parents ofthe appellant may have volunteered at least temporarily to relocate fromNOIDA to Bengaluru to help the appellant in looking after the child, weare clearly of the view that the respondent cannot be heard to assertthat the child must continue to remain in Bengaluru with the maternalgrand-parents. For the respondent to insist that the court should directthe continued presence of the child under the care of the maternal grand-parents who have come to Bengaluru and stay in a rented accommodationobtained by the appellant, does not appear to be fair. Nor is there sufficientmaterial before the Court to indicate that the respondent is in a positionto look after the child on his own, by disturbing a position which has heldthe field since 2016. Before 2016, when the spouses were together, thechild lived and grew up in the care of both the parents. Since 2016, theappellant has taken the responsibility for the welfare of the child.

15. The child, Sattik, was born on 9 May 2013, following whichthe appellant and the respondent resided together with the child untilthey parted ways in 2016. Since then, in any event, the appellant hasbeen looking after the care and welfare of the child. That she has doneso with the assistance of her parents who have moved to Bengaluru,does not detract from her role and responsibility as a mother. In fact, theorder of the Family Court dated 1 March 2018, which has been advertedto earlier, indicates that on the days when the respondent is to obtainvisitation, it is the appellant or her parents who were to produce the childbefore the Bengaluru Mediation Centre and it is the appellant or herparents to whom the child would be returned after the conclusion ofvisitation. The fact that the child has been in the care of the appellantand her parents is also evident from the order of the High Court dated 9July 2018.

16. During the course of the interaction on the video-conferencingplatform, Sattik indicated his desire to reside with his mother in Singapore.While the child is attached to the respondent, he has indicated, in nouncertain terms, his desire to live with his mother. The appellant isgainfully employed in Singapore and her desire that she should be allowedto take the child with her is not an artifice. The appellant, as the mother AB

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Aof the child, has been continuously with the child since his birth, despitethe demands of her employment.

17. The child is likely to be admitted to the Global IndianInternational School in Singapore. Ms Meenakshi Arora, learned SeniorCounsel, has stated that the appellant would abide by the requirementsBentailed in travelling between India and Singapore during the pandemic.Learned Senior Counsel stated that on arrival in Singapore, at the presenttime, the appellant and the child would be required to spend 14 daystogether in an isolation facility. The Court has been apprised of the factthat the employers of the appellant have informed her that they wouldfacilitate the documentation for travel and relocation of the child withCthe appellant in Singapore.

18. In matters such as the present, the welfare of the minor childis of paramount concern. The jurisdiction of this Court under Article 142of the Constitution is a facilitative constitutional instrument to advancesubstantive justice. In exercise of these powers, we are of the view thatDthe arrangement which has been arrived at during the pendency of theproceedings should be modified so as to best subserve the interests ofthe child. The technicality of whether or not the appellant has challengedthe Family Court’s order dated 1 March 2018 cannot obfuscate the coreissue which is the welfare of the child. Allowing this case to be lost in aEmaze of technicalities involving a formal challenge to the order, willeventually lead to the child staying in Bengaluru with the maternalgrandparents, while the mother is employed in Singapore. The child willlose a year of education in Singapore, which is an additional reason forthe exercise of the jurisdiction under Article 142. We have informedthat Singapore is Covid free and the child would be able to attend regularFschool and some on-line classes. Undoubtedly, the respondent, as thefather, is entitled to have adequate rights of access and visitation. Abalance has to be drawn so as to ensure that in a situation where theparents are in a conflict, the child has a sense of security. The interestsof the child are best subserved by ensuring that both the parents have aGpresence in his upbringing.

19. Ms Meenakshi Arora has submitted that the respondent hasmade no contribution for the maintenance of the child. On the otherhand, the respondent in the course of his submissions, stated that he isbearing the expenses of servicing the loan which was undertaken by theHparties for obtaining a residential flat in joint names. Be that as it may,

we are of the view that the interests of the child require that the appellantbe allowed to take the child with her to Singapore, where the appellantresides. At the same time, the ultimate directions that the Court issuesmust also address the apprehension of the respondent that the child shouldnot be placed outside the control and jurisdiction of the Family Court,Bengaluru. Adequate arrangements for access and visitation to therespondent should be ensured.

20. For the above reasons, we allow the appeals, in terms of thefollowing directions:

(i) The impugned judgment and order of the High Court dated11 July 2019 is set aside;

(ii) The appellant is permitted to take the child, Sattik, with herto Singapore where she is employed and resides;

(iii) The appellant is permitted to make suitable arrangements tofacilitate the travel to and admission of the child in a schoolin Singapore;

(iv) The respondent shall, within a period of 48 hours from thereceipt of this judgment, handover the passport of the childto the appellant;

(v) The appellant shall be exclusively entitled to take necessarysteps for renewing the passport of the child or, if required,for obtaining a fresh passport in his name;

(vi) Should the appellant be required to relocate for employmentoutside Singapore, to any other country (except India)necessitating the relocation of Sattik, she shall file amiscellaneous application before this Court seeking priorpermission to do so;

(vii) In order to facilitate the grant of access and visitation rightsto the respondent, the following arrangement shall hold thefield in supersession of all previous orders of the Family Courtand the High Court:

(a) The respondent would be at liberty to engage with the childon a suitable video-conferencing platform for one hour eachon every Saturday and Sunday and for five to ten minutes onother days; A

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A(b)Should the respondent desire to travel to Singapore duringthe school vacations of Sattik, he would be entitled to havevisitation rights over half of the vacation between 10 am and6 pm. He may meet the child on any other day subject to themutual convenience of the parties and the child; B(c)The appellant will ensure the presence of the child inBengaluru during the course of the child’s summer vacationsin 2021 for a period of at least two weeks with prior intimationto the respondent and during the course of the visit, therespondent shall be entitled to meet the child and/or take himout between 11:00 am and 7:00 pm;C

(d) The appellant shall bring the child to India at least twice ayear during which the respondent shall have access to andvisitation with the child on the terms set out in (c) above; (e)The appellant shall file an undertaking before this Court toDabide by the conditions imposed by this order. The undertakingshall specifically provide that the appellant shall (i) not relocatethe child to any other country, unless permitted by this Court;(ii) ensure the presence of the child during the summervacations of 2021 unless prevented by the travel restrictionsimposed by the government of either country; and (iii) furnishEthe contact details of the child in Singapore to the respondent.Clarified that (e)(i) above shall not prevent the appellant fromtaking the child out for holidays outside Singapore. A copy ofthe undertaking shall be placed on the record of the FamilyCourt.F21. The above arrangement shall continue to govern, subject tothe final orders as may be passed in the Guardianship proceedings whichhave been, or may be instituted, by either of the parties.

22. The appeals are accordingly disposed of.

23. Pending application(s), if any, shall stand disposed of.G

Divya Pandey

Appeals disposed of.

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