Permitting Indian Citizen To Take Child Abroad Does Not Foreclose Right Of Other Spouse To Get Custody: Kerala High Court
The Kerala High Court recently held that granting permission to an Indian citizen to take his/her child abroad would not foreclose the right of the other spouse to get custody of the child. The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar compared the situation to that of procuring custody of a child who is habituated resident in a foreign Country.It...
The Kerala High Court recently held that granting permission to an Indian citizen to take his/her child abroad would not foreclose the right of the other spouse to get custody of the child.
The Division Bench comprising Justice Anil K. Narendran and Justice P.G. Ajithkumar compared the situation to that of procuring custody of a child who is habituated resident in a foreign Country.
It observed that while enforcing custody orders relating to a habitual resident child in a foreign country may be difficult, that is not the case when an Indian parent is permitted to take his/her child abroad- since Indian courts will be able to enforce their orders on such parent as long as he/she continues to be an Indian citizen.
It observed,
"If the petitioner takes the child abroad as permitted by a court, there would not be any difficulty for enforcing the directions regarding custody of the child. The Family Court and this Court would be able to enforce such orders as long as the petitioner continues to be an Indian citizen. The enforcement of any such order is not similar to enforcement of custody orders relating to a habitual resident child in a foreign country".
The petitioner herein, who is the mother of a seven year old child, had filed a petition for divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955 (hereinafter, 'HMA, 1955'), while she was in India. She subsequently went to the United Kingdom on student visa. It is the case of the petitioner that she would be able to maintain the child better and impart to him standard education in the UK, and had accordingly, filed an Interlocutory Application in that petition, seeking to issue to her a Sole Legal Responsibility Certificate relating to the child.
The respondent had contended that since the petitioner was staying in the UK on student visa, she would not be able to look after the child. It was further contended by him before the Family Court that in an original petition seeking divorce, a petition for the custody of the child or to get a certificate could not be entertained and that if the child were to be taken abroad, the respondent would not have an opportunity to interact with the child.
The Family Court found merit in the contention that the respondent would not be able to interact with the child once the latter was taken abroad, and accordingly, dismissed the petition stating that a detailed enquiry is required in the matter.
Hence, the petitioner approached the High Court under Article 227 of the Constitution.
It was argued by the counsels for the petitioner that since the respondent himself was abroad, not permitting the petitioner to take the child to the UK along with her, would render the child to be entrusted in the custody of the grandparents, which would not be conducive to the upbringing of the child. It was emphasized that the child would be imparted with proper education, and provided with motherly affection, if permitted to be taken by his mother, which would also ensure him a healthy and emotionally sound atmosphere.
On the other hand, the counsels for the respondents pointed out that the petitioner stayed in the UK on a student Visa and that there would hence, not be sufficient physical amenities enabling the child to have proper education and other facilities. The counsels also argued that the request of the petitioner could not be allowed under Section 26 of the HMA, 1955.
The Court at the very outset determined and declared that Section 26 of HMA, 1955, that deals with custody of children could be invoked in order to get an order regarding custody.
"It is true that the provisions in the Guardian and Wards Act, 1890 are the specialised provisions in regard to the custody and guardianship of children. That does not mean that Section 26 of the Hindu Marriage Act does not have application in such matter, especially in case the proceedings under the Act is pending consideration of the Family Court. Hence, we are of the view that the provisions of Section 26 of the Hindu Marriage Act can be invoked in order to get an order regarding custody, maintenance and education, of whom the child of the parties to the litigation are the parents," it was observed.
It further noted that since the petitioner, who is also the mother of the children, was 'confident' that she could provide all the amenities for the proper stay, education and upbringing of the child in the U.K., there would not be any need to doubt the said claim.
The Court proceeded to observe that allowing one of the parents to take the child abroad may have the effect of non-suiting the claim of the other parent for the custody of the child. It noted that as per Article 4 of the 1980 Hague Convention on the Civil aspects of International Child Abduction to which India is not a party, procuring custody and bringing a child to India, who is habituated resident in a foreign Country, by enforcing the provisions of the said Convention may not be possible. However, the Court observed that as per the factual matrix of the present case, the petitioner sought the issuance of of Sole Legal Responsibility Certificate for facilitating her to get the Visa.
It is in this context that the Court observed that permitting an Indian citizen to take their child abroad would not foreclose the right of the other spouse to get custody of the child.
The Court further observed that in this case, both parents of the child are abroad and that the child has hitherto been under the defacto custody of the parents of the petitioner-mother.
"Since the father is also abroad, there is no possibility of looking after the affairs of the child by the father. In such circumstances, the request of the petitioner to issue a Sole Legal Responsibility Certificate facilitating her to get a Visa to take the child along with her to the United Kingdom, where she is pursuing her studies would be in the best interest of the child," it was observed.
The Court also took note of the concern that if the child is taken abroad by the petitioner, the respondent would not be able to have personal interaction with the child as long the child remained abroad. In this regard, the Court said,
"If permission to take the child abroad is to be granted, it shall be subject to the arrangements for interacting by the respondent with the child and to bring the child to India during the school annual vacation of the child," the Court stated.
The petitioner was thus directed to file an affidavit before the Family Court, Thrissur undertaking that she would comply with the said condition, and the Family Court was directed to issue the Sole Legal Responsibility Certificate upon the submission of the affidavit.
The petitioner was represented by Advocates A. Parvthi Menon, P.Sanjay, Biju Meenattoor, Paul Varghese, P.A. Mohammed Aslam, Prasoon Sunny, Rahul Raj P., and Amrutha M. Nair. Advocates Sandeep M.B., K.P. Sreeja, and Amal Stanly appeared on behalf of the respondent.
Case Title: XXX v. YYY
Citation: 2023 LiveLaw (Ker) 179