Supreme Court invokes Article 142 to subserve interests of a child in a custody battle, allows mother to take son to Singapore

Pondering over a question of whether a child should be allowed to leave his father's area of residence and instead stay with his mother in Singapore, the Supreme Court has invoked its powers under Article 142 of the Constitution to serve the best interests of the child. .The judgment was passed by a Bench of Justices DY Chandrachud, Indu Malhotra and Indira Banerjee. .The appellant-wife and the respondent-husband married in 2009 and had a son in 2013. Thereafter, due to serious differences, they began living apart in 2016. The wife had instituted divorce proceedings which continue to remain pending before a family court. .The appellant-wife works with Nike Global Trading and is settled in Singapore for work since 2017. The primary case before the Supreme Court was whether the child can be allowed to travel and stay with his mother permanently in Singapore or if the child should continue to live in Bengaluru with his maternal grandparents, as his father too hails from Bengaluru. .In July 2017, the appellant instituted proceedings in a family court seeking the possession of her child's passport. The husband opposed this and stated that the child cannot be taken out of the city as the Bengaluru court would then lose jurisdiction over the issue. .The father had sought visitation rights and custody of the child. The wife had opposed this, stating that her husband was abusive and suffered from a psychiatric disorder. .After the the trial court dismissed her application to take the child out of Bengaluru, the High Court in July 2019 upheld the trial court verdict. This was challenged before the Supreme Court. .The top Court noted that all that it has to see while invoking Article 142 of the Constitution in this case was the interests of the child. .On March 1, 2018, the Family Court had passed an order in an IA filed by the husband seeking interim custody and visitation rights and directed the appellant or her parents to produce the child before the Mediation Centre on every third Saturday, at 11 am to allow for visitation by the respondent till 5 pm..However, the Supreme Court held that the technicality of whether this March 2018 order has been challenged or not should not lead to the child losing out on a year of school education in Singapore..As explained in the judgment,."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, we are of the view that the arrangement which has been 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 dated 1 March 2018 cannot obfuscate the core issue which is the welfare of the child."Supreme Court."Allowing this case to be lost in a maze of technicalities involving a formal challenge to the order, will eventually lead to the child staying in Bengaluru with the maternal grandparents, while the mother is employed in Singapore. The child will lose a year of education in Singapore, which is an additional reason for the exercise of the jurisdiction under Article 142", reads the judgment further..The Supreme Court went on to note that the child had also expressed a desire to live with his mother while interacting with the Bench through videoconferencing. .The Court further observed that the demand of the father that the child should continue to remain in Bengaluru with his maternal grandparents was not fair as they were actually residents of Noida, Uttar Pradesh, and were only staying in Bengaluru to help their daughter. ."While the parents of the appellant may have volunteered at least temporarily to relocate from NOIDA to Bengaluru to help the appellant in looking after the child, we are clearly of the view that the respondent cannot be heard to assert that the child must continue to remain in Bengaluru with the maternal grand-parents," the Court said..The three-judge bench has, however, allowed the father to travel to Singapore to meet his child. The Court also directed the mother to bring the child to India twice a year and ensure the father has visitation rights. ."A balance has to be drawn so as to ensure that in a situation where the parents are in a conflict, the child has a sense of security. The interests of the child are best subserved by ensuring that both the parents have a presence in his upbringing."Supreme Court.Read judgment: