Mother Can't Be Denied Child's Custody Merely Because She Is Relocating Abroad For Better Job: Kerala High Court

The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas noted that merely because there is a parental battle for custody of the child, the same did not mean that the parties would have to remain locally without relocating elsewhere, in order to retain the custody of the child.

“If the relocation of the appellant is for better fortune, that cannot hold against her from claiming custody, provided, that the child's welfare is also protected. The child should recognise his biological parents and have every right to grow under their care and protection. If the biological parents are willing to protect the best interest of the child, denying the child to grow in a natural and familial atmosphere itself is against the best interest of the child,” the Court observed.

The appellant mother had filed a case for divorce, as well as for patrimony and maintenance. The patrimony case was settled on a compromise decree that was passed stating that the appellant would be given custody of the minor chid, with a further stipulation allowing visitorial rights during vacation for the respondent father who is employed in Bahrain. It was further provided therein that the appellant would have custody of the child only till the latter attained 6 years of age.

During this time, it is noted that the appellant moved to New Zealand and obtained residential status. She thus filed the plea seeking declaration of guardianship and for taking the child along with her to New Zealand due to change of circumstances.

The respondent father on his part resisted the application contending that the same was filed to violate the compromise decree between the parties.

The Family Court dismissed the petition and ordered the handover of the minor child to the parents and sister of the respondent if the appellant was leaving for New Zealand. The Court passed the said Order noting that there was no reason to change the condition in the compromise agreement, and that the appellant went to New Zealand without informing the court as she was given the custody of the minor child on the basis of the compromise decree. The Family Court also took note of additiona factors such as the death of the appellant's father by suicide whie she was residing in the house with the minor child, as well as the comfort of the child with the parents and unmarried sister of the respondent, while passing the said Order. 

The High Court in this case was of the considered view that the Family Court had not adverted to the paramount consideration in this case. The Court berated theFamiy Court for deciding the matter as though it were deciding the rights and obligations of the individual parties than focusing objectively on the welfare of the child.

The Court emphasized that welfare of the child is the paramount importance in matters pertaining to chid custody. 

Elaborating on what is of 'paramount consideration' in this case, the Court explained:

"Is it not depriving the child to be with the parent a consideration in such matters. In the absence of any disability that would deprive one of the parents from having custody, the preference of the child to be with one of the parents should be the paramount consideration to protect the welfare of the child". 

Addressing the Family Court's preference for grandparental custody over that of the appellant mother's, the Court said that the former should be preferred over the latter only if none of the parents can have custody, and not merely because the appellant wishes to change her geographical location. 

The Court was of the firm opinion that denying the child from growing in a natural and familial atmosphere would be against the child's best interests, if the biological parents are willing to protect the best interest of the child. 

Relying upon the decision in Vikram Vir Vohra v.Shalini Bhalla (2010), the Court declared:

"...separating the child from the mother itself would be disastrous. The child has every right to be with the mother. If the mother can provide a conducive atmosphere to protect the interest of the child, nothing prevents the court from allowing the child to be with the mother even if the child is being taken beyond the jurisdiction of the court or to other country". 

The Court also took note of the appellant's sworn affidavit that she could bring the child to India when the academic year of the child ends in December to allow him to be in the company of the respondent father, and that the child could also be enrolled in a good school in New Zealand close to her residential house. The appellant aso assured in her affidavit of the contact rights to the respondent regarding the child, when the latter is in New Zealand. 

On taking note of all these factors, the Court was of the firm opinion that if the child is allowed to remain in India the same would adversely affect them. 

The Court thus set aside the impugned judgment of the Family Court and declared the appellant mother as the sole legal guardian of the child for the purpose of taking the latter abroad, and further granted the former permanent custody of the minor child, subject to short-duration custody and visitorial right for the respondent-father. 

Counsel for the Appellant: Advocates T.S. Harikumar and P.B. Sahasranamam

Counsel for the Respondent: Advocates Manu Ramachandran, M. Kiranlal, R. Rajesh, Sameer M. Nair, Dhanalakshmi V.K., Geethu Krishnan, and Sailakshmi Menon

Citation: 2023 LiveLaw (Ker) 502

Case Number: MAT.APPEAL NO.757 OF 2022

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