Case: Mrs Ritika Sharan V Mr Sujoy Ghosh
Coram: Justice Dhananjaya Y Chandrachud
On October 28th, a three-judge SC bench held that assistance by grandparents in the upbringing of a child does not detract from the role of the mother and her right to have custody.
The present case pertained to a custodial battle for a seven-year-old child. There were serious differences between the spouses and they have been living apart since 2016.
The parents of the appellant mother moved to Bengaluru from Noida to help their daughter raise the child as she was gainfully employed.
The appellant sought permission to take the child with her to Singapore, where she has now been relocated by her employer.
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 that he has been in the care and custody of the appellant.
A three-judge bench comprising Justices Dr. Dhananjaya Y Chandrachud, Indu Malhotra, and Indira Banerjee heard the matter. They observed that the fact that the parents of the appellant had 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 grandparents.
Since the separation, 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, does not detract from her role and responsibility as a mother.
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, SC was of the view that the arrangement which was 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 cannot obfuscate the core issue which is the welfare of the child.
Further, SC observed that allowing this case to be lost in a maze of technicalities involving a formal challenge to the order, would eventually lead to the child staying in Bengaluru with the maternal grandparents, while the mother is employed in Singapore. The child would lose a year of education in Singapore, which is an additional reason for the exercise of the jurisdiction under Article 142.
The Court allowed the appellant mother to take the child with her to Singapore where the appellant resides. However, to address the Respondent’s apprehensions, the child was directed not to be placed outside the control and jurisdiction of the Family Court, Bengaluru. Adequate arrangements for access and visitation to the respondent were ensured.
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