Court allowing an Indian parent to take child abroad does not foreclose right of other spouse to get custody: Kerala High Court

The Kerala High Court recently held that if a court order allows one of the parents of the child to take his/her child abroad, that will not affect the right of the other spouse to seek custody of the child [Anjana Chandran v Haneesh]..A division bench consisting of Justices Anil K Narendran and PG Ajithkumar was considering a case filed by a woman seeking issuance of sole legal responsibility certificate for the purpose of taking her child abroad. “Here is a case where an Indian citizen, the petitioner seeks permission of the court for taking her child abroad. Issuance of Sole Legal Responsibility Certificate is what is sought. It is for facilitating her to get the Visa. If the petitioner takes the child abroad as permitted by a court, there would not be any difficulty for enforcing the directions regarding custody of the child. The Family Court and this Court would be able to enforce such orders as long as the petitioner continues to be an Indian citizen. The enforcement of any such order is not similar to enforcement of custody orders relating to a habitual resident child in a foreign country. Therefore, we are of the view that the order granting permission to an Indian citizen to take his/her child abroad will not foreclose the right of the other spouse to get custody.”.The petitioner had filed a divorce petition against her husband under Section 13(1)(ia) of the Hindu Marriage Act, 1955.Subsequently, she filed an interim application seeking a sole legal responsibility certificate relating to the child, so that she can take the child to the United Kingdom (UK). She claimed that she would be able to maintain the child and impart better education to the child in UK. However, the family court refused to allow the same on the ground that if she takes the child to UK, the father of the child will be unable to interact with the child.This prompted the petitioner-mother to approach the High Court challenging the family court order.The counsel appearing for the petitioner submitted that since the respondent-father is also residing abroad, disallowing the petitioner to take the child along with her to UK, would render the child in the custody of the grandparents, which would not be conducive for his proper upbringing.The child is now aged 7 years and if the petitioner is allowed take him abroad, he can be imparted proper education besides also ensuring that he receives motherly affection, the counsel for the petitioner submitted.The counsel appearing for the respondent-father pointed out that the petitioner stays in the United Kingdom on a student Visa and therefore, there would not be sufficient amenities enabling the child to have proper education and other facilities.The counsel also raised a legal contention that under Section 26 of the Hindu Marriage Act , the request of the petitioner cannot be allowed.The Court said that despite the Guardian and Wards Act, 1890 relating to child custody, the provisions of Section 26 of the Hindu Marriage Act can be invoked in order to get an order regarding custody, maintenance and education of the child whose parents are parties to matrimonial litigation.“It is true that the provisions in the Guardian and Wards Act, 1890 are the specialised provisions in regard to the custody and guardianship of children. That does not mean that Section 26 of the Hindu Marriage Act does not have application in such matter, especially in case the proceedings under the Act is pending consideration of the Family Court. Hence, we are of the view that the provisions of Section 26 of the Hindu Marriage Act can be invoked in order to get an order regarding custody, maintenance and education, of whom the child of the parties to the litigation are the parents,” the court explained.The Court said it is in the best interest of the child that he be with the petitioner-mother since both the father and mother of the child are abroad and there is no possibility of either of them taking care of the child in India.It further said that the child will get better education it his custody is given to the petitioner-mother in UK.“The petitioner filed the petition expressing her confidence that she is able to look after the entire affairs of the child. In that matter, there need not be more concern since none other than the mother is taking the child with her," the court further noted.Therefore, the Court granted the petitioner-mother the sole legal responsibility certificate.It also directed that arrangements be made for interaction of the child with the respondent-father and to bring the child to India during the school annual vacation of the child..The petitioner was represented by advocates A Parvathi Menon, P Sanjay, Biju Meenattoor, Paul Varghese (Pallath), Pa Mohammed Aslam, Kiran Narayanan, Prasoon Sunny, Rahul Raj P and Amrutha M Nair.The respondent was represented by advocate Sandeep MB, KP Sreeja and Amal Stanlu..[Read Judgment]