Mumbai: “In our country, matrimonial disputes constitute the most bitterly fought adversarial litigation as parents stop seeing reasons and children are treated as chattel. The court is required to exercise parent patriae (parent of the nation) jurisdiction and compel the parties to do something which is in the best interest of the child,” observed the Bombay High Court.
A division bench of Justices RD Dhanuka and Gauri Godse made the observations while dealing with a petition filed by a husband seeking direction to his estranged wife to bring their 15-year-old son from Thailand to India so that the teen can meet his father and siblings.
HC: Children cannot be treated as chattel or property
The couple have been embroiled in litigation since 2012 and various orders have been passed by the family court, High Court and the Supreme Court.
While directing the mother to bring the son to India for 10 days, the judges observed that the boy has “suffered a setback” because of the “bitterly fought” litigation between his estranged parents. Also, the boy had stated that he is not keen to meet his father but wanted to meet his two siblings, now adults and residing in the US.
The court remarked that children cannot be treated as chattel or property, giving parents absolute rights over their destiny and life. “The paramount consideration is the welfare of the child and not the legal rights of the parents,” summed up the judges in a 28-page order.
According to the man, in September 2020, the family court had directed the estranged wife to grant him, the boy’s elder siblings and paternal grandparents free access to the boy. However, he alleged that the wife did not comply. He sought that she should bring the son to India for summer vacation when the other two children would be visiting from the US.
False complaints were filed against the woman, alleged her lawyer
The woman's lawyer told the judges that she was willing to come to India with her son, but sought that necessary orders should be passed to ensure that they can safely return to Thailand at the end of vacation. The lawyer informed about the past instances where “false complaints” were filed against the woman, based on which a look out circular was issued, thereby preventing them from returning to Thailand, which hampered their son's education.
Noting that there was a necessity to strike a balance between the parents’ requirements and welfare of the child, the HC said, “For the (better) growth of a child, it is necessary that a child has the company of both his parents as well as his siblings.” It added that both the parents should express some regret and adopt corrective measures.
The man has been directed not to initiate any complaint or trigger any action for the arrest or detention of the woman and their son while they are in India. In addition, the HC has also asked that the state and central agencies concerned shall ensure that no hurdle is created in their return to Thailand.
Court observed:
-Matrimonial disputes constitute most bitterly fought adversarial litigation
-Parents stop seeing reason and treat children as chattel
-They don't have absolute rights over destiny, life of a child
-Paramount consideration is child's welfare and not legal rights of parents
-For (better) child's growth, company of parents, siblings necessary
