Welfare of The Child Is Paramount Consideration For Deciding Guardianship: SC

An appeal was recently filed in the Supreme Court where the judgement dated 11.07.2020 passed by the High Court of Karnataka was challenged. 

The Supreme Court allowed the appeal and the child was allowed to shift to Singapore with his mother.

Brief facts of the case:-

The appellant and respondent got married in February 2009, and their child was born in May 2013.

Due to some differences, the couple began to live separately in 2016.

As per the appellant, she had to leave her matrimonial home due to abuse and domestic violence.

The appellant filed a divorce petition in 2016, which is pending before the Family Court, Bengaluru.

Various applications were filed by the applicant and the respondent over the years.

 However, the application that was filed before the Family Court by the appellant to take the child out of Bengaluru became a Bone of Contention.

The application was allowed by the Family Court, and the respondent was directed to submit the passport of the child to the family Court. 

This relief became infructuous as the appellant was not able to take the child out of Bangalore.

Respondent filed an appeal before the High Court.

Hon’ble High Court dismissed the writ petitions filed by the appellant, and she was restrained from taking the child out of Bengaluru.

Aggrieved, the appellant moved the Supreme Court.

Family Court made an error: Counsel for the appellant.

Learned Senior Counsel who appeared for the appellant stated that the Family Court made an error by presuming that
if the child moves to Singapore, the Court will lose jurisdiction.

It was further stated that the child has been in the custody of the mother since birth, and the appellant is not moving permanently to Singapore.

Appellant was also ready to submit an undertaking stating that the child will not be placed outside the jurisdiction of Family Court, Bangalore.

“Appellant has made an attempt to shift the goal posts.”

Counsel for the respondent stated that the appellant had attempted to shift the goalposts.

It was also mentioned that in the High Court, that the child was in the custody of maternal parents
while before the Supreme Court, it is said that the child is with the mother.

It was further stated that the appellant had not claimed guardianship of the child while the respondent has made a claim.

The Counsel argued that if the child was allowed to go to Singapore with the mother, then the mother might relocate to another country,
and this will place the child out of the jurisdiction of Indian Courts.

Welfare of the Child is Paramount Consideration

In its order, the Supreme Court remarked that the ‘welfare of the child was of paramount concern.’

The Court also observed that during their interaction with the child, the child was stated that he wants to live with his mother in Singapore.

Supreme Court while exercising its power under Article 142 of constitution allowed the appeal filed by the appellant.

As the Order of the Family court was challenged before the Supreme Court.

So to give substantial justice to parties this power is used.

Court has given the guardianship of child to the Mother.

However, some conditions were imposed by the Hon’ble Supreme Court:-

  • If the appellant wanted to relocate to a different country with the child, then she would need the permission of the Supreme Court.
  • The respondent was directed to hand over the passport of the child within two days.
  • The respondent should be allowed visitation rights when the child comes to India or if the respondent visits Singapore.
  • The child should be allowed to interact with the respondent through video conferencing platforms.
  • It was also directed that the parties will abide by the final order which may be passed in Guardianship proceedings.

Case Details:-

Title: Mrs Ritika Sharan Versus Mr Sujoy Ghosh 

Case No.Civil Appeal Nos. 3544-45 of 2020

Date of Order:28.10.2020

Coram: Hon’ble Justice DY Chandrachud, Hon’ble Justice Indu Malhotra and Hon’ble Justice Indira Banerjee

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