Delhi High Court: The mother of a five and a half years old girl child, filed a petition challenging the order passed by the Family Court, wherein the Court while deferring disposal of the applications filed by both sides seeking modification of visitation rights, has adjourned the matter with a direction to the parties to lead evidence, Rekha Palli, J., held the impugned order to be unsustainable as the facts of the case stated that the parties entered a mutual settlement whereby they agreed to the custody of the minor daughter will be with the mother and the father will have overnight visitation for one day in every month along with five days in summer vacations and three days in winter vacations, making it evident that there were no disputed questions of facts for which evidence was required to be led.
The parties entered wedlock and due to differences separated and mutually agreed to vide settlement that the custody of the child will be with the mother (petitioner) and the father (respondent) shall have overnight visitation for one day in every month along with five days in summer vacations and three days in winter vacations. The respondent later got remarried in January 2020, and now the petitioner got remarried in April 2021, to Dr. Ritesh Kanotra who is a resident of Phoenix, Arizona, USA.
The petitioner, desirous of relocating to the USA along with her daughter, filed an application before the Family Court seeking modification of the existing arrangement of visitation rights. Simultaneously, the respondent also moved an application seeking custody of the child on the grounds that her relocation to the USA with the petitioner would not be for her welfare. The Family Court opined that since the case involved an important question of modification/grant of custody of the minor daughter of the parties, who had leveled allegations against each other, the disputed facts could be determined only after leading evidence. Assailing this, the petitioner filed the present petition.
The Court noted that the petitioner has based her application on the factum of her marriage with a doctor residing in USA and of the necessity of the minor daughter, continuing to reside with her as has been the position, since birth, none of which facts have been denied by the respondent. Thus, for the adjudication of the applications, there was absolutely no requirement for any evidence to be led. 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, there are no disputed facts at all.
The Court further noted that the child has grown up receiving love, affection and guidance in every walk of life not only from her mother but has, except, during the peak of the Covid Pandemic, never been denied the opportunity to spend time with her father. Even during the pandemic, she had been regularly interacting with the father through video calls.
The Court observed that the child, who will turn six in a few weeks, has admittedly been brought up single-handedly by the petitioner and is apparently in a happy state of mind. It is not even the respondent’s case that she has ever complained of being neglected by the mother. To the credit of the mother, the child has also never expressed any dislike for the father.
The Court remarked that the child, unlike as is often found in custody disputes, has not developed any feelings of dislike towards the father. This, in my view, goes a long way to show that the petitioner, who, with the consent of the respondent, was made the custodial parent in May 2019 when the child was barely two, has brought up the child with love and care.
The Court opined 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. On the other hand, even while in the USA, the child will also be able to regularly interact with her father through video calls, even daily, if she so desires. However, 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 concluded that the question as to whether the custodial parent should be permitted to relocate with the child to a place outside the jurisdiction of the Court would depend on the facts of every case. No straight jacket formula can be laid down or followed while deciding such requests for relocation of the custodial parent.
Thus, the Court permitted the petitioner to relocate to the USA with the minor child Ms. Anaisha as it will certainly be in the interest of the child and the rights of the respondent-father 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 mother will ensure that she is brought to India.
[Aakriti Kapoor v. Abhinav Agarwal, 2023 SCC OnLine Del 585, decided on 03-02-2023]
Advocates who appeared in this case :
Ms. Malavika Rajkotia with Ms.Akriti Tyagi, Adv. with petitioner in person;
Ms. Geeta Luthra, Sr.Adv. with Mr. Manas Agarwal, Ms. Kamakshi Gupta, Advs. and Ms. Kavya Agrawal, Advocate for respondent.
*Arunima Bose, Editorial Assistant has reported this brief.
