Athira Mangalathu Raj vs The District Police Chief & Ors.

Soumen Sen, C.J.

Heard Mr. K. Rakesh, learned counsel for the petitioner, Mr. M. Revikrishnan, learned counsel for the 3^rd respondent, and Mr. Biju Meenattoor, learned Public Prosecutor.

The minor child is presently pursuing his studies in Canada. Indisputably, when the parents of the child parted ways at Dubai, the child was in the custody of the mother and the private respondent, the 3^rd respondent, left Dubai without claiming any custody of the child. Since then, the child has been in the custody of the mother and the mother had taken all steps to have the child admitted to a school in Canada. The mother appears to have taken good care of the child, providing him quality education and looking after his welfare.

While the mother came down to India with the child to attend to the medical needs of her father, she, in a good gesture, allowed the custody of the child to the father. The gesture is well appreciated as the mother wanted that there should be a bond between the child and the father, which is essential for the proper development of the child. However, it appears that when the child was about to leave with the mother for Canada and rejoin his studies, the child was not made available to the mother at the airport, which apparently came to her as a rude shock. The mother is a working lady and in order to save her employment, she had to urgently leave India and thereafter pursued this remedy.

The learned counsel for the 3^rd respondent submits that the child is present in Court and that he may not be willing to go with the mother. It is further submitted that the child is 12 years old and his wishes should be taken into consideration.

The Court, while deciding the welfare of the child, is required to take into consideration the wishes of the child, but the welfare of the child being the paramount consideration, the same should be borne out from the facts and circumstances of each case. The mere wish of the child is not sufficient to give custody of the child to one parent over the other. The object of the legal process is to ensure that the Court takes an informed decision with regard to the welfare of the child and if the facts and circumstances justify custody with one parent over the other, even if it is temporary, the Court should permit such custody, keeping in mind that it would benefit the child. There is no instance to show that while the child was in Canada, he had ever expressed a desire to stay with the father in Kerala and pursue his studies here. In fact, the child is pursuing his studies in Canada diligently and his welfare has been taken care of by the mother. The father, during the stay of the child in Canada with his mother, never moved any court for custody of the child. The father sought to justify that the arrangement was mutual and consensual. However, in the last two years, the child was never in Kerala and hence, such a consensual arrangement, sought to be pleaded orally before the Court, cannot be accepted.

On the contrary, we find that a ‘child support arrangement’ dated 6^th January 2024 had been entered into by the parents wherein the father had agreed that the primary caretaker of the child would be the mother. For the sake of brevity, the said arrangement is reproduced below:-

(emphasis supplied)

In view of the said arrangement to which he had concurred, the father, in fact, ought to have persuaded the child to go back to Canada to be with the mother and to pursue and complete his studies there.

No hard and fixed formula can be found out which can be applied to each and every case. Each case has to be examined in its own facts. In the aforesaid background, we have to consider whether the minor is fit enough to form an intelligent preference which we have taken into consideration for deciding his welfare. The facts overall maintained may project and depict that the welfare of the child rests with the mother as the father had voluntarily relinquished the custody in favour of the mother as borne out from the ‘child support arrangement’ and hence the submission made that the child is willing to stay with the father presently is futile and cannot be accepted. The child is performing well in the custody of his mother at Canada and has received great affection from all.

Matured thinking is indeed necessary in such a situation to decide as to what will ensure the benefit of the child and his welfare. A child torn between his love and affection for both parents may not be in a position to take a conscious decision or express an intelligent preference. It is more likely that, being in Kerala and in the custody of, and interacting with, the father for almost two months, he may have developed an affection towards his father, which is not unnatural. However, prolonged stay with the father in the aforesaid background may not be in the welfare of the child as it would have a serious repercussion on his education and the comfortable stay which he has been enjoying in Canada. What is in the interest of the child depends on the facts and circumstances of each case and has to be decided on its own merits without adhering to any fixed formula or rule. Mere wish of the child, on which the learned counsel for the father of the child has emphasised is not the only consideration.

Having taken into consideration the whole facts, we are of the view that the child should be returned to the custody of the mother in compliance of the ‘child support arrangement’ mutually agreed by and between the parties. There is nothing on record contrary to the arrangement recorded in the order dated 6^th January 2024.

The petitioner mother is present in Court today pursuant to the order passed earlier. We have been informed that she proposes to leave for Canada tomorrow early morning.

The father is directed to hand over the custody of the child forthwith in Court itself. The child will be given access to the father through video conferencing as and when the child decides to interact with his father. The mother has submitted that the child was never refused access to the father from Canada.

Learned counsel for the 3^rd respondent submits that the father intends to make an appropriate application for custody of the child. In the event any such application is made, it is needless to mention that the Family Court or the appropriate authority before whom such proceeding may be filed shall decide the matter in accordance with law uninfluenced by this order.

The petition is accordingly disposed of. There shall be no order as to costs.

Exhibit P1 A TRUE COPY OF THE CERTIFICATE OF MARRIAGE OF THE PETITIONER AND THE 3RD RESPONDENT ISSUED FROM EMBASSY OF INDIA, ABU DHABI DATED, 15-7-2012

Exhibit P2 TRUE COPY OF THE BIRTH CERTIFICATE OF THE MINOR SON OF THE PETITIONER DATED, 21-11-2013 ISSUED FROM THE EMBASSY OF INDIA, ABU DHABI

Exhibit P3 A TRUE COPY OF THE PERMANENT RESIDENT CARD OF THE PETITIONER ISSUED BY THE GOVERNMENT OF CANADA

Exhibit P4 A TRUE COPY OF THE PERMANENT RESIDENT CARD OF THE MINOR SON OF THE PETITIONER ISSUED BY THE GOVERNMENT OF CANADA

Exhibit P5 A TRUE COPY OF THE LETTER JOINTLY ISSUED BY THE PETITIONER AND THE 3RD RESPONDENT TO THE CANADA REVENUE AGENCY DATED, 6-1-2024