Case Number:  Civil Appeal Nos. 3544-45 of 2020 arising out of S.L.P. (C) Nos. 21049-21050 of 2019

Judges Name: Hon’ble Judges Dhananjaya Y Chandrachud, J, Indu Malhotra J, and Indira Banerjee J

Order dated: 28.10.2020

Facts of the Case:

• The appellant and the respondent got married on 4 February 2009. Their child, Sattik, was born on 9 May 2013. There are serious differences between the spouses and they have been living apart since 2016. The appellant submits that she has been compelled to leave the matrimonial home due to domestic violence and abuse. The appellant instituted a petition on 6 October 2016, under Section 13(1)(i-a) of the Hindu Marriage Act 1955 seeking a decree for divorce on the ground of cruelty.

• The divorce proceedings are pending before the Family Court, Bengaluru (MC No. 4484 of 2016). The appellant also instituted an application under Section 12 of the Protection of Women from Domestic Violence Act 2005, which is pending in the Court of the Metropolitan Magistrate at Bengaluru (Crl. Misc. No. 228 of 2016). The appellant is in the employment of Nike Global Trading since 2011 and has been posted in Singapore in September 2017. The appellant filed IA No. 3 in July 2017 in the proceedings before the Family Court in MC No. 4484 of 2016, seeking a direction to the respondent to handover the passport of the child. The appellant claims that she sought the child’s passport on the ground that prior to her relocation in September 2017, she was required to travel for short durations outside India (where she was then based) and found it convenient to take the child with her. The Respondent filed an application seeking injunction against the appellant from taking the child out of Bengaluru and also sought interim custody and visitation rights to enable him to meet the child. The appellant opposed stating that the respondent is abusive, violent and suffers from a psychiatric disorder hence he cannot be granted the custody of the child. Family court dismissed her application restraining the appellant from taking the child out of Bengaluru on the basis that if the child is moved out of Bengaluru it would lose jurisdiction over the child. The respondent also contended that the child is in the custody of the parents of the appellant in Bengaluru and should remain with them. Alternatively, he submitted that he would take charge of the child. The High court dismissed the writ petitions instituted by the appellant for challenging the validity of the order of the Family court restraining her from taking the child out of Bengaluru.

Supreme Court held:

• The Supreme court held that the primary consideration that must weigh with the Court is the welfare of the child. The jurisdiction of this court under Article 142 of the Constitution is a facilitative constitutional instrument to advance substantive justice.
• The court observed that the child has expressed his desire to live with his mother while interacting with the bench deciding the case during the videoconferencing. It further observed that the purpose of relocation of the appellant to Singapore was not to place the child outside the jurisdiction of the Indian courts.
• The court directed the respondent to handover the passport of the child in order to facilitate the travel to Singapore. The demand of the respondent that the child should remain in Bengaluru with his maternal grandparents is not fair as they were only staying there to help the appellant.