Allowing A Parent To Take Child Abroad Doesn’t Affect Right Of Other Spouse, Rules Kerala HC

KOCHI:
The Kerala High Court has ruled that if a court order allows one of the parents of the child to take his/her kid abroad, that will not affect the right of other spouse to seek custody of the child.

A division bench comprising Justice Anil K.Narendran and Justice P.G.Ajithkumar ruled this while considering a case filed by a woman seeking issuance of sole legal responsibility certificate for the purpose of taking her child abroad.

“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 bench said.

“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,” it added.

The petitioner had filed a divorce petition against her husband and later filed an interim application seeking a sole legal responsibility certificate relating to the child, so that she can take the child to the UK and give good education to the child.

But 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, forcing the mother to approach the High Court challenging the family court order.

Her counsel pointed out that since the father of the child is also abroad, it would mean sending the child in the custody of the grandparents, which would not be conducive for proper upbringing of the now seven year old child.

The father of the child raised objection to the arguments of the petitioner but 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.

The Court then granted the mother the sole legal responsibility certificate but directed that arrangements should be made for interaction of the child with the child’s father and to bring the child to India during the school annual vacation of the child.