Mother in custody battle asked to deposit Rs 75 lakh for taking son to UK, court cancels it

The case arose from a custody dispute between a couple living separately. The husband had filed a plea before the family court seeking permanent custody of the child. During the proceedings, the mother, who works in the UK, sought permission to take the child with her to provide better care and education.

After considering the objection filed by the husband, the court allowed the wife to take the child abroad with her. The family court, while allowing the petition, found that the woman is in a better financial position and that she has secured a job in the United Kingdom.

Justices J Nisha Banu and Shoba Annamma Eapen said the welfare of the child must remain the primary consideration in custody matters.

However, certain conditions were imposed while passing the order, which included a direction to the mother to furnish a security of Rs 75 lakh for taking the child from India to the UK and also directing her and her two sureties to execute a bond of Rs 7,50,000 each. Feeling aggrieved by the condition, the woman moved high court.

Though notice was served on the husband, there was no appearance on his behalf. The petitioner, meanwhile, relied upon a judgment wherein the Supreme Court held in another case that the welfare of the minor child is of paramount concern and had waived the condition imposed by the family court.

‘Child welfare primary’

• The high court stated that the welfare of the child must remain the primary consideration in custody matters. The child was only eight years old and the family court itself had concluded that the mother was better placed to care for him, it observed.
• It further noted that the mother is willing to provide better education to the son by taking him to the UK.
• However, the conditions imposed for the same should not be illusory or incapable of compliance and the right of the child to good education cannot be scuttled by an onerous financial burden.
• After permitting the mother to take the child to the United Kingdom, the courts “should not penalise custodial parents”, it remarked and held that the condition only serves to deny the child a better educational opportunity.

Family court’s condition set aside

The high court found there was no allegation that the mother had violated any previous court order. It, therefore, observed that the imposition of an exorbitant amount as security by the family court is liable to be set aside, as it does not subserve the best interests of the child.

“Such onerous conditions would place the mother in a position where compliance is impracticable, which would ultimately be detrimental to the child’s welfare,” the court held and set aside the condition imposed by the family court.