MUMBAI: Observing that a mother cannot be asked to choose between her child and her career and that a family court failed to consider that an estranged mother was vested with right to development, Bombay high court allowed a mother to take her minor daughter to Poland where she has been offered a senior position.
The mother, an engineer, has been residing separately with minor child since 2015. The HC directed the estranged father to give his no objection as he also has child access and visitation rights.
The HC said, "custody of the minor girl is with the mother, who is the natural guardian and considering her age, the girl must accompany her mother, particularly when it is the case of the petitioner (wife) that she has single handedly brought up the child, on being separated from the husband."
The father too is "naturally concerned about the child’s welfare" and in the "conundrum" they face, "I do not think that the court can refuse the job prospects to a mother, who is inclined to take up the job and she cannot be deprived of this opportunity," said Justice Bharati Dangre in her order of July 8.
The mother had moved the HC and through her counsel Abhijit Sarwate sought permission to relocate to Krakow, Poland with her nine-year-old child, where she would stay for 2 years as she has better career prospects. Sarawate said the "right to development is a basic human right, which is recognised" by the Supreme Court and cannot be denied to the mother.
She challenged Pune family court order denying her plea and restraining her from changing the child’s school and directing her to deposit her passport with court during the pendency of a divorce and custody petition. She undertook to give access to the father and take her mother—child’s maternal grandmother—with her to Poland.
The warring couple had married in 2010. Marital disputes arose, the wife, started residing separately with the child in her maternal home and filed for divorce citing mental cruelty. The husband contested the plea saying her allegations were false.
Before the HC, the husband through counsel Mayur Khandeparkar and advocate Ajinkya Udane "vehemently" opposed her plea, saying mother had earlier too made attempts to alienate the child from the father and his family in guise of job prospects and her intention was to severe ties between father and daughter. He also said “present warlike situation in the Eastern and Central Europe is not suitable for the daughter" and expressed apprehension that the child will be "uprooted" and not be brought back.
The HC Judge, Justice Dangre said the father is "pained" by daughter’s relocation, while the wife is desperate to take the job in Poland given her excellent career graph. She added the issue "is very sensitive considering the deep love both parents have" towards the child.
The HC said, "a balance has to be drawn between interest of both parties" by ensuring paramount consideration to welfare of child in having a "sense of security."
"It is it is always in the interest of the child to have presence of both the parents while he or she grows up, but here is a situation when the parents are at loggerheads and the child is with the mother with a limited access being granted to the father, which he must avail qualitatively. The petitioner is the mother of the child and has been continuously with the child, since her birth and though a working woman, has struck a balance between her work and care and affection of the child and ensured that she enjoy a healthy upbringing," said Justice Dangre.
The HC said the husband’s suggestion that he and his family would take care of child in India is "not viable" as the little girl has always stayed with her mother, barring few hours when she was exclusively in father’s company. It added “at the same time the child has a strong bond with the father and it is required to be nurtured and continued, even if the child accompanies the mother to Poland."
Not convinced with the father’s "uprooting" argument the HC said, "t is not uncommon for children to shift along with their parents, who decide to go abroad and, therefore, the apprehension that she will be uprooted is totally unfounded."
"Though I am not inclined to accept the pleading in the application that, Poland would serve a better environment than India, as the applicant has glorified the said country in comparison to India, in any case, when the petitioner, by way of affidavit, has specifically stated that she is also restricting her stay there for two years, to have the job experience. For both, the mother and her daughter, the period of two years cannot be said to be too long to presume that the child will be completely disassociated either from the father or his family or her country itself," said the HC Judge, directing the father should have five day overnight access during the winter and spring breaks and 30 days overnight during the summer break in India and can also travel to Poland for additional unsupervised access.
The HC directed, "Over and above, the respondent (father) shall continue to avail daily access for limited hours, similar to the one which has been granted for the year 2022".
It also clarified that the mother "shall bring the child to India on her own expenses, during all the three breaks so that the respondent-father can avail the access."
