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Synopsis

A division bench of the Bombay High Court comprising Justice RD Dhanuka and Justice Gauri Godse has recently observed that in India, matrimonial disputes constitute the most bitterly fought adversarial litigation and in such cases the role of the court becomes crucial.

“In our country, matrimonial disputes constitute the most bitterly fought adversarial litigation. A stage comes when warring couples stop seeing reasons. The children are treated as chattel. In such cases, the role of the Court becomes crucial. The Court is required to exercise parent patriae jurisdiction and compel the parties to do something which is in the best interest of the child,” the court observed.

The observation was made by the court while directing a woman to being her 15-year-old son to India from Thailand so that he can spend time with her father and elder siblings.

There were multiple orders passed by the Family Court, High Court, and even the Supreme Court in multiple cases filed by the husband and wife against each other. The two elder siblings who had attained majority were in the custody of the father who went to the USA to study and the 15-year-old was in the custody of the mother.

The husband contended that despite the orders of the family court, the child was not allowed to meet him by her mother. The advocate for the mother submitted that she should be allowed to safely return back to Thailand after the child has met his father and siblings.

Therefore, while allowing the father to meet his child the court said that it is necessary to strike balance in deciding the right of the father to meet his son, the right of the child to meet his elder siblings, and the right of the child to have the company of his father.

“Due to the bitterly fought litigation between the parents, Child was deprived of having the company of his father and elder siblings. For the healthy growth of a child, it is necessary that a child has the company of both his parents as well as his siblings. Child is at a formative age as well as in a crucial stage of his education. It is thus necessary to strike a balance in deciding on the right of a father to meet his son, the right of Child to meet his elder siblings and the right of child to have the company of his father, by keeping in mind the views and wishes of Child,”  the bench observed.

The bench further said that it was in the interest of the child and the parents should give preference to the welfare of the child.

“However, it is brought on record that Child had made attempts to organise zoom meetings to meet his father and siblings. It is in the interest of Child that he has the company of both his parents. It is also in the interest of Child that the scars in his mind due to the unfortunate incidents in the past are washed out. Both parents, who are bitterly fighting the litigation and are trying to impose their respective rights and wishes on Child, are expected to give preference to the welfare of the child over their own rights,” the bench noted.

While justifying the duty of the court the bench observed, “Hence, in such a peculiar situation, it is the responsibility of the Court to enter into the role of a guardian for the child and, by considering the paramount interest of Child, decide in what best manner, Child will be able to meet his father as well as his elder siblings and paternal grandmother. At the same time, the checkered history of the litigation between both Applicants cannot be ignored.”

Court then directed the husband to not file any complaint which would lead to the detention or arrest of her mother in India and restrain her from going back to Thailand. Further, the court also directed the state and central agencies not to obstruct in any manner during the mother and child's visit to India for the purpose of granting access to the father to meet the child, and no hurdle is created to enable them to safely go back to Thailand.

Case Title: ABC vs XYZ