The Bombay High Court has permitted a woman to relocate to the US with her minor daughter but with a rider that she would lose her 50 per cent share in the co-owned flat in Pune if she fails to grant the child’s access to her estranged husband.
The high court heard an application filed by the woman seeking permission to take her minor daughter, who is presently in her custody, to the US. The order was passed by a division bench of Justices B P Colabwalla and M M Sathaye on September 4.
The couple had mutually consented to divorce in 2020 but disputed over the access to their minor daughter. A family court in Pune had granted custody of the child to the mother but said regular access should be given to the father.
Over the last three years, both parties filed several applications including a contempt plea by the man alleging that he was not given access to his daughter.
When the woman filed the application in HC seeking to relocate to the US, the bench directed the couple to go for mediation and settle their disputes.
The couple then filed their consent terms before the high court.
The bench noted that the estranged husband has given his consent to allow his daughter to relocate with the mother to the US but on condition that he would be given virtual as well as physical access and that the woman would withdraw certain criminal cases lodged against the man.
The man, however, raised an apprehension that while provisions have been made in the consent terms for access to his daughter, there was no guarantee that it would be adhered to. He contended there would be no real way to enforce the same as the woman would be outside the jurisdiction of Indian courts.
The bench noted that this apprehension was “well-founded”.
Considering that the woman was going to take the child abroad, it would be fair and equitable that if the consent terms were violated, then the man would be free to file contempt proceedings, the bench said.
“In these contempt proceedings, if the court comes to the conclusion that there has been wilful disobedience of the consent terms in relation to access then the court would have the power and jurisdiction to call upon the mother to release her 50 per cent share in the flat at Pune in favour of the father,” the HC said.
If the woman does not release her share then the court was free to appoint a court commissioner to act on behalf of her for transfer of her 50 per cent share to the man, the bench said.