Case Title: Ashu Dutt v. Aneesha Dutt

A division bench comprisingJustices RD Dhanuka and Gauri Godse while deciding an interim application with regards to the visitation rights of the father to meet his minor son who resides with the mother in Thailand observed that the parents don’t have an absolute right over their child’s destiny and the most important consideration would be a child’s welfare and not the parent’s legal rights.

The court was presented with two interim applications wherein in first application the applicant-father claimed to have visitation rights for the first half of the summer vacation of his minor son in Thailand and the second application was filed by the mother enumerating the lengths the father had gone to in the past to restrain the boy – a USA & Thailand citizen – and her, from moving to Thailand, including look out circulars etc.

Vide the order dated September 30, 2020, the Family court has granted physical custody of the daughter (now a major) to the father and the mother was granted custody of their youngest son.

The counsel appearing for the father sought stringent conditions previously imposed on the mother to be operational again. It included forfeiture of her shareholding in a company and right in the house.

Learned senior counsel appearing on behalf of the mother submitted that the real interest of the father is with respect to securing the assets and safeguarding his interest for the dispute, which is pending in NCLT. In 2012, the mother-son were detained under the National Security Act at the father’s behest as the grandfather was a retired IPS officer and look out circulars were issued, it was alleged.

The court also reproduced its interaction with the boy wherein he has suffered a setback in view of the litigation bitterly fought by his parents where he even told that he would not like to meet his father due to vivid, strong and very unpleasant memories of certain incidents etched in his mind which had occurred 5-7 years ago when he was living in Mumbai along with his mother in the flat situated a few floors below the flat in which his father was staying along with his two elder siblings and his family.

The court observed that “This is an unfortunate case where due to a bitterly fought matrimonial dispute between the parents, the children have suffered. In our country, matrimonial disputes constitute the most bitterly fought adversarial litigation. A stage comes when warring couples stop seeing reasons. The children are treated as chattel. In such cases, the role of the Court becomes crucial. The Court is required to exercise parent patriae jurisdiction and compel the parties to do something which is in the best interest of the child.

In the present case, XXXX, who is 15 years old, appears to be very clear in his thoughts and his future prospects. Thus, XXXX is required to be treated as an individual, and it is also necessary to respect his thoughts. If his thoughts and views are not given due weightage, the same can be detrimental to his future. Hence, it is necessary to strike a just and proper balance between the requirements of the parents and the welfare of XXXX. Thereafter the court directed the mother file an affidavit stating intimating the dates of her visit to India along with son for a period of ten days to meet his father, elder siblings, and paternal grandmother and directed the father to file an affidavit stating that he shall not initiate any complaint or trigger any action for the arrest/detention of his estranged wife and son and will not create any obstacle in the way of wife and son during their visit to India and their travel back to Thailand