The Delhi High Court on Tuesday granted a woman’s plea to relocate to the United States with her minor child, observing that it would be in the child’s best interests to do so with her mother.
Justice Rekha Palli observed, “In the facts of the present case, I am of the considered opinion that it will undoubtedly be in the child’s best interests to relocate to the United States with her mother, and the rights of the respondent can be adequately protected by freely permitting him to interact through video calls as well as granting him exclusive custody of the child during the vacations when the petitioner will ensure that she is brought to India.”
“In this case, the parties had some disagreements, and they not only agreed to divorce by mutual consent, but they also agreed that the petitioner would retain permanent custody of the minor child,” the Court added.
Later, the petitioner-woman filed an application in Family Court seeking a modification of the existing visitation rights arrangement because she wanted to relocate to the United States with her daughter.
The respondent-father of the child objected to the application, claiming that the petitioner’s intention to relocate to the United States was an attempt to deprive the respondent of visitation rights.
After considering the parties’ opposing submissions, the Family Court directed the parties to lead their respective evidence.
In these circumstances, the petitioner, a woman- the child’s mother, approached the High Court. Advocate Malavika Rajkotia represented the petitioner/mother, and Senior Advocate Geeta Luthra represented the respondent/father.
The Court noted that the parties had specifically agreed in 2019 that the petitioner/mother would retain custody of the child and the respondent/father would be entitled to meet the child twice a month.
The Court also noted that the respondent makes no allegation that the child is unhappy or has ever complained to him about the petitioner.
The Court observed, “While there can be no disagreement with the proposition that the right to lead evidence and cross-examination for adjudication of disputed facts/issues is a valuable right of the parties that should not be curtailed, in the present case, I find that there are no disputed facts at all.”
The Court held that because the child has been in the exclusive custody of her mother, to whom she is said to be extremely attached, it is in her best interests for her to remain with her.
The Court also stated that any separation of the child from her mother at this stage is likely to cause her undue anxiety, which must be avoided.
The Court held, “While there can be no doubt that the respondent’s rights as a father to regularly interact with the child physically, would be affected if the child is permitted to relocate with her mother to USA, I am of the considered view that it would still be in the welfare of the child to remain in the custody of the mother. This limitation on the father’s rights can be partially compensated for by allowing him to interact via video calls and granting him exclusive custody during vacations.”
Therefore, the Court set aside the Family Court’s order. The petitioner’s application for relocation was granted by the Court.
