Children Not Property, Parents Don’t Have Absolute Rights Over Their Destiny: Bombay High Court

“In India, matrimonial disputes constitute the most bitterly fought adversarial litigations and a stage comes when warring couples stop seeing reasons…In such cases, court’s must exercise the parent patriae jurisdiction,” the Bombay High Court observed while making visitation arrangements in a bitterly fought, long drawn matrimonial dispute.

A division bench comprising Justices RD Dhanuka and Gauri Godse added that parents don’t have an absolute right over their child’s destiny and the most important consideration would be a child’s welfare and not the parent’s legal rights.

“It is important to note that children cannot be treated as chattel or property where the parents would have absolute rights over the destiny and life of their children. The paramount consideration is the welfare of the child and not the legal rights of the parents.”

The Case

The court was seized with two interim applications. The first filed by the father – a journalist – to meet the youngest of his three children, a 15-year-old residing with the mother in Thailand and pursuing his education there. He claimed to have visitation rights for the first half of the summer vacation.

The second application was filed by the mother enumerating the lengths the father had gone to in the past to restrain the boy – a USA & Thailand citizen – and her, from moving to Thailand, including look out circulars etc.

The applications were filled in the father’s appeal against the Family Court order dated September 30, 2020, partly allowing his custody petition. While the father was granted physical custody of the daughter (now a major) the mother was granted custody of their youngest son.

Advocate Rohaan Cama appeared for the father and sought stringent conditions previously imposed on the mother to be operational again. It included forfeiture of her shareholding in a company and right in the house.

Senior Advocate Santosh Paul on behalf of the mother submitted that the father really wanted to just secure his interests. In 2012, the mother-son were detained under the National Security Act at the father’s behest as the grandfather was a retired IPS officer and look out circulars were issued, it was alleged.

The court said it was “important to understand the feelings” of the son and what would be the best manner to meet his father. The court reproduced its previous interaction with the boy wherein he had enumerated the set-back he had suffered in view of the bitterly fought litigation between his parents.

The child remembered violent instances from when he was 5-7-years-old, of the police making enquiries with him and his mother, father banging on the door threatening them. He informed the court that he intended to pursue Aerospace Engineering in the United States in one of the Ivy League colleges. He expressed an apprehension that his father may “lay a trap” to keep him back in India.

The court observed, “XXXX is required to be treated as an individual, and it is also necessary to respect his thoughts. If his thoughts and views are not given due weightage, the same can be detrimental to his future. Hence, it is necessary to strike a just and proper balance between the requirements of the parents and the welfare of XXXX.”

The court observed that the parents wouldn’t ever be able to “rewind the clock” and give the child a family he deserved. “However, both the parents should express some regret and take this as an opportunity and adopt corrective measures and help XXXX wash out the scars in his mind.”

Order

The court therefore directed the mother to file an affidavit stating when would she be able to get the son to India for ten days to meet his father, two elder siblings and grandmother. During this time, he would reside with the mother.

Significantly, the court directed the father to file an affidavit-cum-undertaking stating that he shall not initiate any complaint or trigger any action for the arrest/detention of his estranged wife and son.

The State and central agencies were also directed to ensure safe passage for the duo’s entry and exit from the country.

Case Title: Ashu Dutt v. Aneesha Dutt

Citation: 2023 LiveLaw (Bom) 189

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