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AAKANSHA ROY RASMUSSEN V. ADWAIT ANIL DIXIT

Aakansha Roy Rasmussen v. Adwait Anil Dixit, 2015 SCC OnLine Bom 558

ISSUE:

  • Whether a shift in the custody of a child is in the interest of the child?

RULE:

  • Children are not mere chattels nor are they toys for their parents. Absolute right of parents over the destinies and the lives of their children, in the modern changed social conditions must yield to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them.

FACTS:

  • The parties to this appeal are the parents of the minor girl child, who is a victim of a bitter custody battle between the parents.
  • The child who is 13 years old is studying in 8th standard at Chinmaya Vidyalaya, Boisar.
  • Being aware of the trauma faced by the child victims in such cases, the court did attempt to persuade the parties to arrive at an amicable settlement.
  • The sole intention was to alleviate the pain of the child in having to show preference to one of the parents thereby having to endure the hurt of having betrayed the other parent, whom she loves equally.
  • Having failed in this task, the court was left with no other alternative but to decide the matter on merits.
  • The marriage between the parties was dissolved by a decree of divorce by mutual consent dated 02.05.2008. The parties had mutually agreed that the custody of the child would remain with the father, while the mother would have visitation rights on every second and fourth Sunday.
  • In the due course, the mother i.e. the appellant herein migrated to Denmark and married a Danish national, while the respondent father remarried a widow having a minor daughter from the first marriage. The child continued to live with her father, stepmother, and stepsister.
  • The appellant has no issue from the second marriage with the Danish national. The marriage between the appellant and the Danish National ended in a divorce in the year 2012.
  • The appellant had come down to India on 28.11.2009. The appellant claimed that the respondent had not allowed her to meet the child. She had filed Misc. Application, for modification of consent decree relating to the access of the child. The appellant had claimed that the respondent was denying to access and was alienating the child from her. The respondent had contested the application. He had denied having violated the consent terms or having tried to alienate the daughter from the mother.
  • Upon considering the allegations made by the appellant as well as the counter-allegations leveled by the respondent, the learned Judge had held that the child was comfortable staying with the father. The learned Judge held that the appellant, being the biological mother is entitled for a reasonable access. The learned judge had, therefore, modified the terms and thereby allowed the appellant to communicate with the child telephonically or by other electronic means, and further provided access during summer and Diwali vacation.
  • The appellant claims that in the year 2012 she had come down to Mumbai to attend the funeral of her brother. During this visit, she had attempted to meet the child. She has claimed that the respondent was reluctant to allow her to meet the child. It was only after her persistent pleading, that he allowed her to meet the child for fifteen minutes in presence of his second wife.
  • The appellant claims that in the year 2013 she received an e-mail from her daughter expressing her desire to reside with her. The appellant therefore came to India and filed Misc. Application seeking custody of the minor child. The appellant also filed an interim application for grant of interim custody.
  • The learned Family Court held the welfare of the child is of paramount importance. The learned Judge therefore held that the custody of the child could be shifted from one parent to another if such shifting is in the welfare of the child.

HELD:

  • The High court of Bombay held that, the child could live with her mother in Denmark as she herself requested to do so. The court says that the child though 13 years of age, was capable of making this decision.
  • The court held that the mother could not be deprived of the custody of the child merely on the ground that she had chosen to pursue her career in a foreign country.
  • The court order that:
  • The appellant shall ensure that the child spends both the vacations with the respondent in India.
  • The appellant shall bear the traveling expenses towards the cost of one trip of the child.,
  • The respondent is also permitted to keep in touch with the child through electronic media or social networks.
  • The respondent is also permitted to visit the child at Denmark as and when he desires, subject to giving advance notice of the visit to the appellant.