MRS RITIKA SHARAN versus MR SUJOY GHOSH

Citation: [2020] 10 S.C.R. 363 · Decided: 28-10-2020 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Disposed off

Judgment (excerpt)

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MRS RITIKA SHARAN
v.
MR SUJOY GHOSH
(Civil Appeal No. 3544-45 of 2020)
OCTOBER 28, 2020
[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
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
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 –
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
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 –
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
[2020] 10 S.C.R. 363
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SUPREME COURT REPORTS
[2020] 10 S.C.R.
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
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
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
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
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
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,
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

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