NEW DELHI: Taking into consideration the paramount interest of the child in a matrimonial dispute, the Supreme Court in a recent order directed both the husband and wife to share custody of their son by way of an interim arrangement till the father approaches a Canadian court seeking modification of its earlier order.
"Liberty is given to the petitioner (Husband – Shripal Shah) to seek variation of the order passed by the concerned Canadian Court. Till such time, both respondent No.1 (Wife – Tillana Shah) and the petitioner shall have shared custody by way of an interim arrangement, without prejudice to the contention of the parties on merit, pursuant to the application to be filed by the petitioner before the concerned Canadian Court," said the ruling by a two judge bench of the apex court, headed by Justice M M Sundresh and also comprising Justice N Kotiswar Singh.
As per the case details, Shripal and Tillana got married in Canada in 2018, and in 2020 their son was born there. The child was granted an OCI (Overseas Citizen of India) card with the consent of both parties.
Between May 2020 and April 2022, the husband, wife and child resided in Canada during the COVID period. Subsequently, marital discord began, following which the mother moved the Canadian court and then the Gujarat High Court.
For the father, senior advocate Anil Malhotra appeared before the Gujarat High Court and the Supreme Court.
The apex court, however, did not interfere with the Gujarat High Court’s judgment, which had said that it would be open for the father to approach the Canadian court, where proceedings are pending, for resolution of his disputes, including his right to secure visitation or custody of the child.
"We do not find any ground to interfere with the order passed by the High Court on merit," the Supreme Court said.
While disposing of the Special Leave Petition filed by the father, the top court clarified that the mother is at liberty to approach the Gujarat High Court for the release of the passport along with the OCI card belonging to the minor child.
Before passing the order, the Supreme Court took into consideration the paramount interest of the child. It said that the father is permitted to take the child along with the wife to Canada on May 13, 2026, after which the wife should take custody of the child.
"We only request the concerned Canadian Court to consider the variation, if any, sought for by the petitioner by taking into consideration the paramount interest of the child, particularly, his wish to stay with both parents," the apex court said in its order.
Malhotra argued before the High Court and later in the Supreme Court that the minor child's physical health and daily care were consistently neglected while in the custody of the mother.
Malhotra also contended that, in terms of emotional and psychological well being, the child's sense of security and stability is firmly rooted in the household of the father, who resides in a joint family environment along with his mother, brother, sister-in-law, and a nephew of similar age, providing a nurturing, stable and culturally grounded upbringing.
The child benefits from consistent care, supervision and emotional support within this family structure.
"Conversely, while in the care of the mother, the child is exposed to circumstances that are detrimental to his emotional development. Surprising, the mother is currently in a live in relationship with a male partner who, as reported by the child, does not treat him appropriately."
"Furthermore, the child has been subjected to repeated assertions that this individual will become his new father, which is inappropriate for a child of such a young age and has the potential to cause confusion, emotional distress and psychological harm. The overall physical care, emotional stability and psychological well being of the child are best safeguarded in the custody of the father," he argued.