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Court permits divorced woman to take minor son to Australia, directs father to talk to child on video calls

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Photograph used for representational purposes only

A Division Bench of the Madras High Court has set aside a single judge’s order refusing to permit a divorced woman, who had secured a job in Australia, to take her minor child along with her just because this migration would affect the visitation rights enjoyed by the child’s father.

Justices Paresh Upadhyay and D. Bharatha Chakravarthy held that the woman would be entitled to take the child to any foreign country as and when such necessity arises and that it would be open to the father to work out his visitation rights through video calls or any other electronic mode.

Allowing an appeal preferred by the woman challenging the single judge’s order against her, the Division Bench wrote: “Not allowing the mother to take the child with her would not only be prejudicial to the appellant but would also be against the interest of her six-year-old son as well.”

The Bench observed that the woman could not be expected to leave the child in the custody of some other person just for the sake of ensuring the father’s visitation rights. It did not find any satisfactory reason having been adduced by the single judge for having rejected the woman’s plea.

Authoring the verdict for the Bench, Justice Upadhyay said, the court must take a call on such issues by considering various factors including the woman’s career, the divorce decree that she had obtained on the ground of cruelty, the tender age of her son and the fact that the child had been with the mother all along.

The appellant’s counsel, P.R. Uma Maheswari brought it to the notice of the Bench that the couple had got married in 2013 and had the child in December 2015. Their relationship was strained thereafter and they had not been residing together since December 2016 when the appellant moved to her parental home.

Subsequently, she had obtained a divorce decree and a petition filed by her former husband for restitution of conjugal rights was dismissed. However, he continued to enjoy visitation rights with respect to the child and the period of visitation was modified by the courts from weekly to bi-monthly to monthly over the years.

Now that the appellant had secured a job in Australia, she had no choice but to take the child along with her. Therefore, she had filed an application before the single judge seeking permission to take him along but the judge dismissed her plea on the ground that “the right and interest of the father on the minor child would be defeated.”

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