It Will Be Child’s Welfare To Remain In Mother’s Custody: Delhi HC Allows Woman To Relocate To USA With Her Minor Child

The Delhi High Court has allowed a woman’s plea to relocate to USA with her minor child while observing that it will be in the interest of the child to relocate to USA with her mother.

“In the facts of the present case, I am of the considered opinion that it will certainly be in the interest of the child to relocate to USA with her mother and the rights of the respondent can be adequately protected by freely permitting him to interact through video calls as also granting him exclusive custody of the child during the vacations when the petitioner will ensure that she is brought to India.”, Justice Rekha Palli observed.

In this case, some disputes arose between the parties following which they not only agreed to seek divorce by mutual consent but also agreed that the permanent custody of the minor child would remain with the petitioner.

The petitioner-woman, later, filed an application before Family Court seeking modification of the existing arrangement of visitation rights as she desired to relocate to USA along with her daughter.

The application was opposed by the respondent-father of the child, on the ground that petitioner’s intent to relocate to USA was an attempt to deprive the respondent of the visitation rights.

The Family Court, after considering the rival submissions of the parties, directed the parties to lead their respective evidence.

In these circumstances, the petitioner-woman-mother of the child approached the High Court.

Advocate Malavika Rajkotia appeared for the petitioner/mother whereas Senior Advocate Geeta Luthra appeared for Respondent/father.

The Court noted that the parties had specifically agreed in 2019 that the custody of the child would remain with the petitioner/mother and the respondent/father would be entitled to meet the child twice a month.

The Court also noted that there is no allegation by the respondent that the child is unhappy or that the child has ever complained to him about the petitioner.

“While there can be no quarrel with the proposition that for adjudication of disputed facts/issues, the right to lead evidence and cross-examination is a valuable right of the parties which ought not to be curtailed, in the present case, I find that there are no disputed facts at all.”, the Court observed.

The Court held that considering that the child has been in the exclusive custody of the mother, to whom she is stated to be extremely attached, it will be in her welfare to continue to stay with her.

The Court added that any separation of the child from her mother at this stage is likely to cause undue anxiety to her which certainly needs to be avoided.

“While there can be no doubt that the respondent’s rights as a father to regularly interact with the child physically, would be effected 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 curtailment of the father’s rights can, to a large extent be compensated by permitting him to interact through video calls and granting him exclusive custody during the vacations.”, the Court held.

Thus the Court set aside the Order of the Family Court.

The Court allowed the application filed by the petitioner seeking relocation.

Cause Title- Aakriti Kapoor v. Abhinav Agarwal

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