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Parent who is denied child custody should still be allowed access to child

Parent who is denied child custody should still be allowed access to child

Vijaya Mahantesh Mulemane Vs State of Karnataka and Ors

Karnataka HC


W.P.H.C. NO. 48 OF 2021

About/from the judgment:

The High Court permitted a woman to retain custody of her child despite orders of a Canadian court that granted custody to the father.

The Court, however, granted the father visitation rights and directed that he be permitted to contact the child and be informed of her development. While doing so, the Court held,

"The parent who is denied the custody of the child should have access to the child especially when both the parents live in different countries. The parents are under an obligation to provide for an environment which is reasonably conducive to the development of the child. It is in the best interest of the child to have parental care of both parents if not joint atleast separate."

In the instant case, a writ of habeas corpus was filed before the High Court seeking the production of the 10-year-old daughter of the petitioner father and to permit him to take the daughter with him to Canada, where she was born.

In 2017, the respondent-mother had filed a petition seeking divorce in Canada. The Canadian court directed that the mother could have temporary access to the child, and with the father's consent, the mother and daughter travelled to India in 2018, and were supposed to go back to Canada in about 2 months.

However, the mother lodged a complaint against the father for offences under Sections 498A (husband or relative of husband of a woman subjecting her to cruelty), 341 (wrongful restraint), 504 (intentional insult), 506 (criminal intimidation), of the Indian Penal Code and under the Dowry Prohibition Act. The petitioner moved back to Canada and informed the Canadian court about the events that had transpired in India.

The court in Canada directed the mother to return with the child, and to return the custody of the child to the father. In 2018, the superior court of Canada granted sole custody of the child to the father, and directed the mother to send the child immediately to the father along with her passport and other documents.

As the mother was not giving up the child to the father, or permitting him to interact with her, the father filed a writ of habeas corpus in 2019. However, the High Court held that since the daughter had not been with the father for the past three years, it was appropriate for her to continue with the mother at present, until further orders are passed by the Family Court, Bengaluru.

The mother then filed a petition under the Guardians and Wards Act. The family court held that it did not have the territorial jurisdiction, nor a cause of action within its jurisdiction to maintain the petition and dismissed it. An appeal was filed against the order, which was dismissed by the High Court with costs. A Special Leave Petition (SLP) filed against this order is still pending before the Supreme Court. Meanwhile, the father filed the present petition.

Before the High Court, it was argued on behalf of the petitioner-father that the mother had been granted only temporary access to the child by the court in Canada. Moreover, the Superior Court of Justice in Canada had directed the father to have sole custody of the child. Further, the father is employed and has taken care of the daughter in Canada, and the respondent-mother is in a live-in relationship with her partner.

Canada would provide a conducive atmosphere and bright future to the daughter, and there is infrastructure available to enable the father to look after the daughter, it was contended.

Counsel for the respondent-mother submitted that the petitioner was not employed and has been in India for the last two years. His mother is about 80 years old, and the father lacks a female support system in Canada to support a minor daughter, it was argued.

He also said that the daughter has been in India for the last three years and has developed roots in the country. The mother is presently a housewife receiving rental income, residing with her parents, and devotes time and attention to the welfare of the child.

Further, as the child stayed with her parents, she would not expose the child to any interaction with her current partner. The father had met the daughter only twice during the pendency of the proceedings, and taking into account the circumstances and the age of the daughter, she should remain with the mother, the counsel stated.

After hearing the parties, the High Court cited the judgment of the apex court in Nithya Anand Raghavan v. State of NCT of Delhi, where it was held that the principle of comity of courts (giving effect to laws and judicial decrees of other nations) cannot be given primacy or more weightage over the best interests and welfare of the child.

Further, in Sarita Sharma v. Sushil Sharma, the Supreme Court had held that custody of the girl child maybe taken away from her mother to any other person, including the father of the child, only in exceptional situations.

In this case, if the father gets custody of the child, she will have to live alone with him. The daughter has been residing with her mother and grandparents for over three-and-a-half years, which is conducive to her overall growth. The mother is a housewife and is in a position to devote time to take care of the daughter, the Court observed.

If the child is given to the father now, it will abruptly disrupt her daily routine and her education, as the academic session in Canada begins in September, the High Court further noted.

Thus, the Bench opined that in the child's best interests, she should be allowed to stay with the mother in India in view of the undertaking that the mother would stay with her parents till the issue pertaining to the custody is decided.

While allowing the daughter to remain with the mother, the High Court also issued directions to allow the father to remain in contact with the child:
- The father may communicate with the child through phone or video calls at any time;
- The mother should inform the father about the child's dates of examination and holidays, and keep him informed on a weekly basis about the day-to-day development of the child;
- While the father is in India, he may meet the child after informing the mother. On every 1st and 3rd Sunday, he would be entitled to take custody of the child during the daytime.

Read the Judgment


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