MRS RITIKA SHARANversusMR SUJOY GHOSH

                        [2020] 10 S.C.R. 363                              363


                      MRS RITIKA SHARAN                                   A
                                  v.
                        MR SUJOY GHOSH
                 (Civil Appeal No. 3544-45 of 2020)
                        OCTOBER 28, 2020                                  B
         [DR. DHANANJAYA Y CHANDRACHUD,
     INDU MALHOTRA AND INDIRA BANERJEE, JJ.]
       Matrimonial Dispute – Custody of minor child – Appellant-
wife and respondent-husband living apart since 2016 – Divorce
                                                                          C
proceedings pending before Family Court, Bengaluru – Appellant
posted in Singapore in September 2017 – Child staying in Bengaluru
with maternal grandparents – Appellant restrained from taking the
child out of Bengaluru – Family Court vide order dated 01 March
2018 granted visitation rights to the respondent – Appellant’s writ
petition challenging the order restraining her from taking the child      D
out of Bengaluru, dismissed – On appeal, held: While the child is
attached to the respondent, he has indicated his desire to reside
with his mother in Singapore – His welfare is of paramount concern
– Technicality of whether or not the appellant challenged the Family
Court’s order dated 1 March 2018 cannot obfuscate the same –
                                                                          E
The fact that the parents of the appellant have moved to Bengaluru
to help her, does not transfer the custody of the child from the
appellant to the maternal grand-parents – Respondent’s insistence
that the court should direct for continued presence of the child under
the care of maternal grandparents, not fair – Nor is there sufficient
material to indicate that the respondent is in a position to look after   F
the child on his own – Impugned judgment set aside – Appellant
permitted to take the child with her to Singapore – Respondent to
handover passport of the child to appellant – Directions issued to
facilitate the grant of access and visitation rights to the respondent
– Constitution of India – Art.142 – Hindu Marriage Act, 1955 –
                                                                          G
s.13(1)(i-a) – Domestic Violence Act, 2005 – Guardianship.
      Disposing of the appeals, the Court
      Held: 1.1 Ever since the appellant and the respondent
started living apart in 2016, the child has been in the care and
custody of the appellant, his mother. The fact that the parents of        H
                               363
364            SUPREME COURT REPORTS                    [2020] 10 S.C.R.


A     the appellant have moved to Bengaluru to help their daughter,
      does not transfer the custody of the child, either as a matter of
      law or fact, from the appellant to the maternal grand-parents. The
      primary consideration that must weigh with the Court is the
      welfare of the child. For the respondent to insist that the court
      should direct the continued presence of the child under the care
B
      of the maternal grand-parents who have come to Bengaluru and
      stay in a rented accommodation obtained by the appellant, does
      not appear to be fair. Nor is there sufficient material before the
      Court to indicate that the respondent is in a position to look after
      the child on his own, by disturbing a position which has held the
C     field since 2016. During the course of the interaction on the video-
      conferencing platform, the child indicated his desire to reside
      with his mother in Singapore. While he is attached to the
      respondent, he has indicated, in no uncertain terms, his desire
      to live with his mother. The appellant is gainfully employed in
      Singapore and her desire that she should be allowed to take the
D
      child with her is not an artifice. The appellant, as the mother of
      the child, has been continuously with the child since his birth,
      despite the demands of her employment. [Paras 13, 14 and
      16][370-F-G; 371-A-D; G, H; 372-A]
             1.2 In matters such as the present, the welfare of the minor
E     child is of paramount concern. The jurisdiction of this Court under
      Article 142 of the Constitution is a facilitative constitutional
      instrument to advance substantive justice. In exercise of these
      powers, the arrangement arrived at during the pendency of the
      proceedings should be modified so as to best subserve the
F     interests of the child. The technicality of whether or not the
      appellant has challenged the Family Court’s order dated 1 March
      2018 cannot obfuscate the core issue which is the welfare of the
      child. Allowing this case to be lost in a maze of technicalities
      involving a formal challenge to the order, will eventually lead to
      the child staying in Bengaluru with the maternal grandparents,
G     while the mother is employed in Singapore. The child will lose a
      year of education in Singapore, which is an additional reason for
      the exercise of the jurisdiction under Article 142. The interests
      of the child are best subserved by ensuring that both the parents
      have a presence in his upbringing. [Para 18][372-D-G]
H
          MRS RITIKA SHARAN v. MR SUJOY GHOSH                              365


       1.3 The impugned judgment and order of the High Court is            A
set aside. The appellant is permitted to take the child with her to
Singapore where she is employed and resides. Further directions
issued. Directions also issued in order to facilitate the grant of
access and visitation rights to the respondent, which arrangement
shall hold the field in supersession of all previous orders of the
                                                                           B
Family Court and the High Court. The arrangement shall continue
to govern, subject to the final orders as may be passed in the
Guardianship proceedings which have been, or may be instituted,
by either of the parties. [Paras 20, 21][373-C, G; 374-F]
      CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
3544-3545 of 2020.                                                         C

      From the Judgment and Order dated 11.07.2019 of the High Court
of Karnataka at Bengaluru in Writ Petition Nos. 9528 of 2018 and 11520
of 2018 (GM – FC)
       Ms. Meenakshi Arora, Sr. Adv., Shoeb Alam, D.S. Parmar,             D
Ms. Abha R. Sharma, Harshad V. Hameed, Advs. for the appearing
parties.
      The Judgment of the Court was delivered by
      DR DHANANJAYA Y CHANDRACHUD, J
                                                                           E
      1. These appeals arise from a judgment dated 11 July 2019 of a
Single Judge of the High Court of Karnataka.
        2. The appellant and the respondent got married on 4 February
2009. Their child, Sattik, was born on 9 May 2013. There are serious
differences between the spouses and they have been living apart since
                                                                           F
2016. The appellant submits that she has been compelled to leave the
matrimonial home due to domestic violence and abuse. The appellant
instituted a petition on 6 October 2016, under Section 13(1)(i-a) of the
Hindu Marriage Act 1955 seeking a decree for divorce on the ground of
cruelty. The divorce proceedings are pending before the Family Court,
Bengaluru (MC No. 4484 of 2016). The appellant also instituted an          G
application under Section 12 of the Protection of Women from Domestic
Violence Act 2005, which is pending in the Court of the Metropolitan
Magistrate at Bengaluru (Crl. Misc. No. 228 of 2016). The appellant is
in the employment of Nike Global Trading since 2011 and has been posted
in Singapore in September 2017.
                                                                           H
366                SUPREME COURT REPORTS                       [2020] 10 S.C.R.


A            3. The appellant filed IA No. 3 in July 2017 in the proceedings
      before the Family Court in MC No. 4484 of 2016, seeking a direction to
      the respondent to handover the passport of the child. The appellant claims
      that she sought the child’s passport on the ground that prior to her
      relocation in September 2017, she was required to travel for short durations
      outside India (where she was then based) and found it convenient to
B
      take the child with her. The respondent opposed the grant of relief and
      filed an interim application, IA No. 4,1 seeking an injunction against the
      appellant from taking the child out of Bengaluru. On the same day, the
      respondent had also filed IA No. 52 and sought interim custody and
      visitation rights so as to enable him to meet the child. The appellant
C     opposed IA No. 4 and IA No. 5 filed by the respondent, alleging that the
      respondent was abusive, violent and suffers from a psychiatric disorder
      as a result of which, he cannot be granted the custody of the child.
              4. By an order dated 4 January 2018, the Family Court dismissed
      IA No. 3 filed by the appellant for the child’s passport, and allowed IA
D     No. 4 of the respondent, restraining the appellant from taking the child
      out of Bengaluru. The Family Court granted this relief on the basis that
      if the child is moved out of Bengaluru, it would lose jurisdiction over the
      child. The appellant instituted two writ proceedings – Writ Petition No.
      9528 of 2018 (GM-FC) and Writ Petition No. 11520 of 2018 before the
      High Court to challenge the order dated 4 January 2018 of the Family
E     Court in IA Nos. 3 and 4.
             5. On 1 March 2018, the Family Court passed an order in IA No.
      5 filed by the respondent seeking interim custody and visitation rights
      and directed the appellant or her parents (who had moved from NOIDA
      to Bengaluru to help the appellant with the child) to produce the child
F     before the Mediation Centre on every third Saturday, at 11:00 am to
      allow for visitation by the respondent till 5:00 pm.
             6. On 9 July 2018, a Single Judge of the High Court in the
      appellant’s Writ Petition No. 9528 of 2018 (GM-FC) and Writ Petition
      No. 11520 of 2018, in an interim order, noted that the minor child was in
G     the custody of the maternal grand-parents (who are permanent residents
      of AWHO Colony, Greater Noida- 201310). The High Court noted that
      while the appellant resides in Singapore, the respondent was temporarily

      1
          IA No. 4 of 2017 in MA 4484/2016
      2
          IA No. 5 of 2017 in MA 4484/2016
H
               MRS RITIKA SHARAN v. MR SUJOY GHOSH                             367
                [DR DHANANJAYA Y CHANDRACHUD, J]

residing in Ireland. The order of the Family Court dated 1 March 2018,         A
restraining the appellant from removing the child from Bengaluru was
stayed by the High Court, subject to the child being produced on every
Saturday before the Bengaluru Mediation Centre in terms of the order
of the Family Court.
       7. While these writ petitions were pending, in November 2018,           B
the appellant filed an application (IA No. 11) in the proceedings in MC
No. 4484 of 2016 before the Family Court under Section 26 of the Hindu
Marriage Act 1955 to allow the child to travel to Singapore during his
Christmas vacations, commencing on 14 December 2018 and ending on
2 January 2019. The appellant also filed IA No. 12 3 to direct the
respondent to submit the passport of the child to the Family Court. By an      C
order dated 20 November 2018, the appellant was permitted to take the
child to Singapore for the Christmas vacation and the respondent was
directed to submit the passport of the child before the Family Court, to
be kept in the safe custody of the Family Court. The respondent assailed
this order before the High Court in Writ Petition No. 53079 and 53687 of       D
2018 (GM-FC). By the time the proceedings came up before the High
Court on 18 February 2019, the relief which had been granted by the
Family Court allowing the appellant to take the child to Singapore over
Christmas was rendered infructuous since the appellant was not able to
take the child due to the pending proceedings. With respect to the direction
for the submission of the passport of the child, the High Court noted that     E
the Family Court had not considered the objections of the respondent to
this direction and the appropriate remedy for the respondent would be to
file for a review of the Family Court’s order dated 20 November 2018.
       8. Eventually, on 11 July 2019, the Single Judge of the High Court
dismissed the writ petitions instituted by the appellant, 4 challenging the    F
validity of the order of the Family Court dated 4 January 2018 restraining
her from taking the child out of Bengaluru.
      9. Assailing the judgment of the High Court, Ms Meenakshi Arora,
learned Senior Counsel submits that:
                                                                               G
         (i)    There is a manifest error on the part of the Family Court in
                presuming that once the minor child accompanies his mother
                to Singapore it would lose jurisdiction;

3
    IA 12 in MC 4484/2016
4
    Writ Petition No. 9528/2018 and 11520/2018 (GM-FC)                         H
368               SUPREME COURT REPORTS                       [2020] 10 S.C.R.


A           (ii) The issue before the Family Court did not pertain to the
                 permanent custody of the child;
            (iii) The child has been in the custody of the appellant since his
                  birth;
            (iv) The appellant sought permission to take the child with her to
B                Singapore, where she has now been relocated by her
                 employer. The appellant does not seek to do so on a permanent
                 basis since the move is only for the period during which she
                 is posted in Singapore;
            (v) The paramount objective must be to ensure the welfare of
C               the child. The child has been in the care of the appellant
                since his birth and the parents of the appellant shifted from
                NOIDA to Bengaluru to help her. The appellant was even
                ready and willing to bring the child on every third Saturday,
                for grant of visitation to the respondent as directed by the
D               Family Court, should this be so ordered and directed by this
                Court; and
            (vi) The appellant and her son hold Indian passports and the
                 appellant is willing to furnish such an undertaking, as this
                 Court may direct, to ensure that the child is not placed outside
E                the control and jurisdiction of the Family Court, Bengaluru.
                 Ms Arora has urged that the appellant was constrained to
                 move out of the jointly owned residential apartment due to
                 the violent and abusive conduct of the respondent and the
                 reason for her to seek the permission of this Court to take
                 the child to Singapore is to enable her to look after the child.
F                It has been submitted that the employer of the appellant is
                 providing assistance towards the expenditure for the
                 education of the child, who would be admitted to the Global
                 Indian International School at Singapore.
            10. Opposing the above submissions, Mr Harshad V Hameed,
G     learned counsel appearing on behalf of the respondent submitted that:
            (i)    The appellant has made an attempt to ‘shift the goal-posts’
                   from time to time. The pleading before the High Court was
                   that the child has been in the custody of the maternal grand-
                   parents while a contradictory plea was now being taken up
H
          MRS RITIKA SHARAN v. MR SUJOY GHOSH                                  369
           [DR DHANANJAYA Y CHANDRACHUD, J]

            before this Court that he has been in the care and custody of      A
            the appellant;
      (ii) The only application that was filed by the appellant in the
           Family court - IA No. 3 – dated 21 July 2017 was for the
           return of the passport of the child; the basis of which was
           occasional travel overseas;                                         B
      (iii) The appellant has not instituted a substantive proceeding
            claiming guardianship of the child. On the other hand, the
            respondent has filed for guardianship of the child before the
            Family Court, Bengaluru;
      (iv) Pursuant to the order dated 1 March 2018 of the Family              C
           Court, the child has been living in Bengaluru with the child’s
           maternal grand-parents. The appellant has not assailed the
           validity of this order; and
      (v) If the appellant were to take the child to Singapore, it would
          not be possible to ensure that she will not relocate elsewhere       D
          and take the child with her, effectively placing the child outside
          the jurisdiction of the Indian courts.
       11. During the course of these proceedings, parties had on the
suggestion of the Court, agreed to explore the possibility of resolving
their disputes through mediation. Mediation proceedings were conducted         E
by Ms Laila T Ollapally under the auspices of the Bengaluru Mediation
Centre. The mediator held extensive sittings stretching over twenty seven
hours. The mediation has not resulted in a settlement. This Court must,
however, acknowledge the efforts which have been made by Ms Laila
T Ollapally, and records its appreciation. Though the parties have not         F
been able to resolve their disputes, we can only hope that with the
facilitative assistance of the Mediator, each of them has appreciated
better the perspective of the other. Since the hearings during the COVID-
19 pandemic have been conducted before this Court through video-
conferencing, the Court has had the opportunity to interact with the
appellant and the respondent as well as their child, Sattik, who is now        G
about 7 years old.
       12. The narration of facts and the record before this Court indicate
that after lodging a petition for divorce before the Family Court, the
appellant sought the passport of the child. It was thereafter, that the
respondent filed an application for restraining the appellant from taking      H
370             SUPREME COURT REPORTS                          [2020] 10 S.C.R.


A     the child out of Bengaluru. IA No. 4 of the respondent was allowed, and
      IA No. 3 for the return of the passport to the appellant-mother was
      rejected. Close on the heels of the above order, which was passed on 4
      January 2018, the Family Court by its order dated 1 March 2018 noted
      that the child was presently residing with the parents of the appellant
      and directed the appellant “or her parents” to produce the child before
B
      the Mediation Centre for access on every third Saturday at 11:00 am,
      and the respondent was directed to return the child to the appellant “or
      her parents” by 5:00 pm.
             13. On 21 July 2017, through IA No.3, the appellant had stated on
      affidavit before the Family Court that the custody of the child, who was
C     then about 4 years of age, was with her and since she was required to
      travel out of India occasionally for work, the passport may be handed
      over to her. She, in fact, stated that neither had the respondent any
      intention to seek the custody of the child nor had he visited the child
      after the spouses parted ways. The fact that the child is in the care and
D     custody of the appellant was not denied by the respondent in his reply
      dated 29 July 2017. In July 2017, when the appellant sought the return of
      the passport, she was based in India. The Court has been apprised of
      the fact that it was in September 2017 that the appellant had relocated to
      Singapore. Ms Meenakshi Arora, learned Senior Counsel, stated before
      the Court that the appellant was given an option by her employer to
E     relocate to Singapore as a part of a restructuring exercise. Whatever be
      the reason underlying her relocation to Singapore, it is evident from the
      material on record that the purpose of the appellant in doing so was not
      to place the child outside the jurisdiction of Indian courts. Ever since the
      appellant and the respondent started living apart in 2016, the child has
F     been in the care and custody of the appellant, his mother. The fact that
      the parents of the appellant have moved to Bengaluru to help their
      daughter, does not transfer the custody of the child, either as a matter of
      law or fact, from the appellant to the maternal grand-parents. The record
      indicates that it was after the appellant sought the return of the passport
      on 21 July 2017,5 that the respondent moved an application restraining
G     the appellant from removing the child outside Bengaluru6 and for the
      grant of custody and visitation rights on 29 July 20177.

      5
        IA No 3 of 2017
      6
        IA No 4 of 2017
      7
H       IA No 5 of 2017
          MRS RITIKA SHARAN v. MR SUJOY GHOSH                                    371
           [DR DHANANJAYA Y CHANDRACHUD, J]

       14. The primary consideration that must weigh with the Court is           A
the welfare of the child. The respondent has asserted in the course of
the submissions, that the child is in the custody of the parents of the
appellant in Bengaluru and should remain with them. Alternatively, he
submitted that he would take charge of the child. While the parents of
the appellant may have volunteered at least temporarily to relocate from
                                                                                 B
NOIDA to Bengaluru to help the appellant in looking after the child, we
are clearly of the view that the respondent cannot be heard to assert
that the child must continue to remain in Bengaluru with the maternal
grand-parents. For the respondent to insist that the court should direct
the continued presence of the child under the care of the maternal grand-
parents who have come to Bengaluru and stay in a rented accommodation            C
obtained by the appellant, does not appear to be fair. Nor is there sufficient
material before the Court to indicate that the respondent is in a position
to look after the child on his own, by disturbing a position which has held
the field since 2016. Before 2016, when the spouses were together, the
child lived and grew up in the care of both the parents. Since 2016, the
                                                                                 D
appellant has taken the responsibility for the welfare of the child.
        15. The child, Sattik, was born on 9 May 2013, following which
the appellant and the respondent resided together with the child until
they parted ways in 2016. Since then, in any event, the appellant has
been looking after the care and welfare of the child. That she has done
so with the assistance of her parents who have moved to Bengaluru,               E
does not detract from her role and responsibility as a mother. In fact, the
order of the Family Court dated 1 March 2018, which has been adverted
to earlier, indicates that on the days when the respondent is to obtain
visitation, it is the appellant or her parents who were to produce the child
before the Bengaluru Mediation Centre and it is the appellant or her             F
parents to whom the child would be returned after the conclusion of
visitation. The fact that the child has been in the care of the appellant
and her parents is also evident from the order of the High Court dated 9
July 2018.
       16. During the course of the interaction on the video-conferencing        G
platform, Sattik indicated his desire to reside with his mother in Singapore.
While the child is attached to the respondent, he has indicated, in no
uncertain terms, his desire to live with his mother. The appellant is
gainfully employed in Singapore and her desire that she should be allowed
to take the child with her is not an artifice. The appellant, as the mother
                                                                                 H
372            SUPREME COURT REPORTS                          [2020] 10 S.C.R.


A     of the child, has been continuously with the child since his birth, despite
      the demands of her employment.
             17. The child is likely to be admitted to the Global Indian
      International School in Singapore. Ms Meenakshi Arora, learned Senior
      Counsel, has stated that the appellant would abide by the requirements
B     entailed in travelling between India and Singapore during the pandemic.
      Learned Senior Counsel stated that on arrival in Singapore, at the present
      time, the appellant and the child would be required to spend 14 days
      together in an isolation facility. The Court has been apprised of the fact
      that the employers of the appellant have informed her that they would
      facilitate the documentation for travel and relocation of the child with
C     the appellant in Singapore.
             18. In matters such as the present, the welfare of the minor child
      is of paramount concern. The jurisdiction of this Court under Article 142
      of the Constitution is a facilitative constitutional instrument to advance
      substantive justice. In exercise of these powers, we are of the view that
D     the arrangement which has been arrived at during the pendency of the
      proceedings should be modified so as to best subserve the interests of
      the child. The technicality of whether or not the appellant has challenged
      the Family Court’s order dated 1 March 2018 cannot obfuscate the core
      issue which is the welfare of the child. Allowing this case to be lost in a
E     maze of technicalities involving a formal challenge to the order, will
      eventually lead to the child staying in Bengaluru with the maternal
      grandparents, while the mother is employed in Singapore. The child will
      lose a year of education in Singapore, which is an additional reason for
      the exercise of the jurisdiction under Article 142. We have informed
      that Singapore is Covid free and the child would be able to attend regular
F     school and some on-line classes. Undoubtedly, the respondent, as the
      father, is entitled to have adequate rights of access and visitation. A
      balance has to be drawn so as to ensure that in a situation where the
      parents are in a conflict, the child has a sense of security. The interests
      of the child are best subserved by ensuring that both the parents have a
G     presence in his upbringing.
             19. Ms Meenakshi Arora has submitted that the respondent has
      made no contribution for the maintenance of the child. On the other
      hand, the respondent in the course of his submissions, stated that he is
      bearing the expenses of servicing the loan which was undertaken by the
H     parties for obtaining a residential flat in joint names. Be that as it may,
            MRS RITIKA SHARAN v. MR SUJOY GHOSH                                 373
             [DR DHANANJAYA Y CHANDRACHUD, J]

we are of the view that the interests of the child require that the appellant   A
be allowed to take the child with her to Singapore, where the appellant
resides. At the same time, the ultimate directions that the Court issues
must also address the apprehension of the respondent that the child should
not be placed outside the control and jurisdiction of the Family Court,
Bengaluru. Adequate arrangements for access and visitation to the
                                                                                B
respondent should be ensured.
      20. For the above reasons, we allow the appeals, in terms of the
following directions:
      (i)    The impugned judgment and order of the High Court dated
             11 July 2019 is set aside;                                         C
      (ii) The appellant is permitted to take the child, Sattik, with her
           to Singapore where she is employed and resides;
      (iii) The appellant is permitted to make suitable arrangements to
            facilitate the travel to and admission of the child in a school
            in Singapore;                                                       D
      (iv) The respondent shall, within a period of 48 hours from the
           receipt of this judgment, handover the passport of the child
           to the appellant;
      (v) The appellant shall be exclusively entitled to take necessary
                                                                                E
          steps for renewing the passport of the child or, if required,
          for obtaining a fresh passport in his name;
      (vi) Should the appellant be required to relocate for employment
           outside Singapore, to any other country (except India)
           necessitating the relocation of Sattik, she shall file a
                                                                                F
           miscellaneous application before this Court seeking prior
           permission to do so;
      (vii) In order to facilitate the grant of access and visitation rights
            to the respondent, the following arrangement shall hold the
            field in supersession of all previous orders of the Family Court
            and the High Court:                                                 G

      (a) The respondent would be at liberty to engage with the child
          on a suitable video-conferencing platform for one hour each
          on every Saturday and Sunday and for five to ten minutes on
          other days;
                                                                                H
374            SUPREME COURT REPORTS                            [2020] 10 S.C.R.


A           (b) Should the respondent desire to travel to Singapore during
                the school vacations of Sattik, he would be entitled to have
                visitation rights over half of the vacation between 10 am and
                6 pm. He may meet the child on any other day subject to the
                mutual convenience of the parties and the child;
B           (c) The appellant will ensure the presence of the child in
                Bengaluru during the course of the child’s summer vacations
                in 2021 for a period of at least two weeks with prior intimation
                to the respondent and during the course of the visit, the
                respondent shall be entitled to meet the child and/or take him
                out between 11:00 am and 7:00 pm;
C
            (d) The appellant shall bring the child to India at least twice a
                year during which the respondent shall have access to and
                visitation with the child on the terms set out in (c) above;
            (e) The appellant shall file an undertaking before this Court to
D               abide by the conditions imposed by this order. The undertaking
                shall specifically provide that the appellant shall (i) not relocate
                the child to any other country, unless permitted by this Court;
                (ii) ensure the presence of the child during the summer
                vacations of 2021 unless prevented by the travel restrictions
                imposed by the government of either country; and (iii) furnish
E               the contact details of the child in Singapore to the respondent.
                Clarified that (e)(i) above shall not prevent the appellant from
                taking the child out for holidays outside Singapore. A copy of
                the undertaking shall be placed on the record of the Family
                Court.
F            21. The above arrangement shall continue to govern, subject to
      the final orders as may be passed in the Guardianship proceedings which
      have been, or may be instituted, by either of the parties.
            22. The appeals are accordingly disposed of.
            23. Pending application(s), if any, shall stand disposed of.
G

      Divya Pandey                                               Appeals disposed of.




H