Published on: 24 September 2023 at 02:02 IST
The Kerala High Court, in a case presided over by bench of Justices A. Muhamed Mustaque and Sophy Thomas, has ruled that the mere fact of a mother relocating abroad for employment should not serve as the sole basis for denying her custody of her child.
The bench emphasized that every child has the right to be with their mother, provided that she can offer a suitable environment to safeguard the child’s interests. This right holds even if it means the child is taken beyond the court’s jurisdiction or to another country.
The case at hand involved a mother who returned to her hometown in Kerala during the eighth month of her pregnancy. She subsequently filed for divorce and sought patrimony and maintenance.
The patrimony-related case was resolved through a compromise, resulting in a decree granting custody of the minor child to the mother. The compromise included provisions allowing the father to have visitation rights during vacations. However, it was stipulated that the mother’s custody of the child was only valid until the child reached the age of 6.
The mother later moved to New Zealand, where she obtained residential status, and her brother and family were also settled. This relocation prompted her to petition for guardianship and the right to take the child with her to New Zealand due to changed circumstances.
The father resisted the petition, arguing that it violated the compromise decree and that the child should not be taken to New Zealand. The Family Court dismissed the petition and ordered the child to be handed over to the parents and sister of the father if the mother left for New Zealand.
The Kerala High Court observed that if the mother’s relocation was for the betterment of her and the child’s future, it should not be used against her in claiming custody, as long as the child’s welfare is ensured. The court stressed the importance of a child growing up under the care and protection of their biological parents and recognized that both parents should be willing to protect the child’s best interests.
The court referenced the case of Vikram Vir Vohra v. Shalini Bhalla, highlighting the right of every individual to develop their potential and pursue their career without having to choose between their child and career.
The bench reiterated that the child has the right to be with the mother and that if the mother can provide a suitable environment for the child’s well-being, the court should not prevent the child from being with the mother, even if this means moving to another country.
The mother assured the court through an affidavit that she would bring the child back to India during school holidays to allow the child to spend time with the father and provide contact rights whenever the child was in New Zealand.
The court also conducted research on New Zealand’s education system and found it to be internationally accredited and highly valued, with excellent childcare and education facilities. Consequently, the court granted permanent custody of the minor child to the mother, while also providing for short-duration custody and visitation rights for the father.
Case titled: Jisha Mohan v. Vishal V.M.