The Bombay High Court recently observed that matrimonial disputes are the most bitterly fought adversarial litigation in India and, in such cases, the role of the court becomes crucial.
A division bench of the Bombay High Court, comprising Justice RD Dhanuka and Justice Gauri Godse, observed: “In our country, matrimonial disputes constitute the most bitterly fought adversarial litigation. A stage comes when warring couples stop seeing reason. Children are treated as chattel and, in such cases, the role of the court becomes crucial. The court is required to exercise parens patriae jurisdiction and compel the parties to do something in the best interest of the child.”
The court made the observation while directing a woman to bring her 15-year-old son to India from Thailand so that he can spend time with his father and elder siblings. There were multiple orders passed by the family court, high court and even the Supreme Court in multiple cases filed by the husband and wife against each other. The two elder siblings, who are now adults, were in the custody of the father and the 15-year-old was in the mother’s custody.
The husband contended that despite orders of the family court, the mother did not allow the child to meet him. The mother’s lawyer submitted that she should be allowed to safely return to Thailand after the child has met his father and siblings.
The court, while allowing the father to meet his child, said it is necessary to strike a balance in deciding the right of the father to meet his son.
“Due to the bitterly fought litigation between the parents, the child was deprived of having the company of his father and elder siblings. For the healthy growth of a child, it is necessary that a child has the company of both parents as well as siblings. Child is at a formative age as well as in a crucial stage of his education. It is, thus, necessary to strike a balance in deciding on the right of a father to meet his son, the right of child to meet his elder siblings and the right of child to have the company of his father, by keeping in mind the views and wishes of the child,” the bench observed.
The bench further said it was in the interest of the child, and the parents should give preference to his welfare. “However, it is brought on record that the child had made attempts to organise Zoom meetings to meet his father and siblings. It is in the interest of the child that he has the company of both his parents. It is also in the interest of the child that the scars in his mind due to the unfortunate incidents in the past are washed out. Both parents, who are bitterly fighting the litigation and are trying to impose their rights and wishes on the child, are expected to give preference to the welfare of the child over their own rights,” the bench noted.
While justifying the duty of the court, the bench observed, “Hence, in such a peculiar situation, it is the responsibility of the court to enter into the role of a guardian for the child and, by considering the paramount interest of the child, decide in what best manner the child will be able to meet his father as well as his elder siblings and paternal grandmother. At the same time, the checkered history of the litigation between both applicants cannot be ignored.”
The court then directed the husband not to file any complaint, which could lead to the wife’s detention or arrest in India and stop her from returning to Thailand. Further, the court also directed the state and central agencies not to obstruct, in any manner, during their visit to India for the purpose of granting access to the father to meet the child and no hurdle is created to enable them to safely return to Thailand.
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