Lima Mathew, D/o. Mathew Varghese v. Nirmal Mathews Babu
2025-07-03
DEVAN RAMACHANDRAN, M.B.SNEHALATHA
body2025
DigiLaw.ai
JUDGMENT : Devan Ramchandran, J. The innocuous facade initially presented within the facts of this case, in our view, gives way to the not so uncommon evil of patriarchism and gender inequality, particularly since a mother is forced to be torn by the requirements of her motherhood and professional/personal progress. 2. First, a woodcut of the facts. 3. The petitioner impugns the order of the learned Family Court, Ernakulam, denying her permission to take her child with her abroad because, inter alia, this would denude the respondent – father’s right to see the latter on certain specified days, as was ordered earlier. 4. The Original Petition in question – namely G.O.P.No.292/2024 – was filed by the petitioner - mother of a now six year old child, seeking her permanent custody; and the matter is still pending. 5. While so, the petitioner filed I.A.No.4/2025 seeking interim custody of the child and for permission to take the latter with her to Australia, asserting that she has been offered deputation there by her parent company in India for a period of three years. She explains that the opportunity is priceless, to immensely enrich her professionally; and that, in any event, it is only a matter of three years and not of a permanent nature. She thus pleaded that she be allowed to take her child with her during the said duration; but this has been rejected by the learned Family Court through the impugned order. 6. Smt.G.Ranjita Jaison – learned counsel for the petitioner, pointed out that the learned Family Court has dismissed her client’s application apparently because, it viewed her travel abroad with suspicion and under the wrong impression that she is likely not to return. The learned counsel contended that this impression was unnecessary and without any basis because, her client is fully aware that G.O.P No.292/2024 is still pending and that she will act to abide by the final orders to be issued in it. She undertook that her client will answer any summons or order by the learned Family Court to produce the child before it, if it becomes so necessary; and also that she will not shift her residence permanently, but will remain in Australia solely for the period when her deputation is in force. 7.
She undertook that her client will answer any summons or order by the learned Family Court to produce the child before it, if it becomes so necessary; and also that she will not shift her residence permanently, but will remain in Australia solely for the period when her deputation is in force. 7. Smt.Mareena – learned counsel for the respondent, however, submitted that her client is unwilling to allow the child to leave Kerala because, he wants to see her constantly and to exercise his right of visitation over her, as has been ordered by the learned Family Court. She contended that, since her client is paying Rs.15,000/- as expenses to the child, it is not necessary for the petitioner to travel abroad on deputation, or to earn a better salary, since the amount that she is now earning would be sufficient for herself. 8. Before we move on, we must say that the parties were before us, along with the child, on 30.06.2025 and we allowed them to interact. The petitioner and respondent did not talk to each other even in our Chambers; but the child was found to be comfortable with both of them. However, when we asked her whether she wants to remain with the father, her answer was to the negative saying that she wants to go with her mother to Australia and pleaded that she be allowed to do so. Even a suggestion from us that this may not be possible on account of the unwillingness of her father brought tears in her eyes and began to cry inconsolably. To assuage her, we allowed her to spend more time with the father and saw that they were, in fact, playing with each other in the corridors of this Court. 9. We have thus little doubt that the child requires both the parents, as any child should; and that, mercifully the matrimonial strife between them has not affected her yet. However, she is a young child of six years, who obviously wants to be in the care of her mother, though with access to her father as much as she requires. That said, we must keep in mind that the child is growing and is likely to attain menarche and such other milestones in her life, which requires the constant company and support of her mother.
That said, we must keep in mind that the child is growing and is likely to attain menarche and such other milestones in her life, which requires the constant company and support of her mother. Of course, this is not to mean the presence of her father is not important, but have to balance to the rival requisites. 10. As we have said above, the argument of Smt.Mareena –learned counsel for the respondent, is that her client is paying Rs.15,000/- as maintenance to the child and she would not require anything more, particularly when the petitioner is earning sufficiently in her employment at the parent company in India. She reiterated that her client wants to spend time with the child as much as possible physically and that it would not be possible for him to live without her. She even contended that the request of the petitioner, to take the child outside India, is untenable because she is doing it for “pleasure” and in “pursuit of her own excellence”; and therefore, that if she is to do so, she must give up her rights over the child and allow her to be with her client in the interregnum. 11. It is thus perspicuous that, as far as the petitioner is concerned, he takes the stand that the child can be with the mother, as long as she is in Kerala; but that if the latter is to pursue her career, then she will have to surrender her custody in his favour. 12. We are aghast by the stand of the respondent and are not sure whether he is speaking in the present era. These are modern times, when women are expected to and ought to be encouraged to be on their feet and make their lives without depending on anyone. The fact that the petitioner is working and earning well cannot be used against her; nor can her desire to accept the deputation be rejected solely since she is in charge of her child, especially when she says that it is going to add value to herself and her credentials. She is a mother, but this does not mean that she has to sacrifice her life or career, to devote her entire time to the family. 13. Working mothers exhibit resilience and adaptability; are capable of multitasking; bringing diverse perspectives and to forge on with determination.
She is a mother, but this does not mean that she has to sacrifice her life or career, to devote her entire time to the family. 13. Working mothers exhibit resilience and adaptability; are capable of multitasking; bringing diverse perspectives and to forge on with determination. Most working mothers excel in time management, prioritizing tasks and leveraging support. Being a mother is no less than a full time job; but most do it effortlessly, while fulfilling other duties and commitments. 14. To, therefore, even suggest that a woman be constrained, and her professional dreams be enervated solely because she fulfills her obligations as a mother, is unacceptable in today's times and out of place with modern thought. We cannot hence countenance any argument, submission or contention of such tenor. 15. That said, interestingly, the respondent told us that he is an agriculturist without much income; and that he further earns from civil construction projects which he undertakes and completes turnkey. Smt.Mereena – his learned counsel, had on 30.06.2025 offered that an affidavit disclosing the details of the assets and income of her client will be placed on record; and we find the same to be now available. 16. It is rather curious that the respondent now avers in his affidavit that he is in a better financial position than the petitioner; thus fully capable and willing to take care of his daughter from his personal resources. However, Smt.Mereena even today asserted before us that his client cannot pay more than Rs.15,000/- as maintenance to his child. 17. We do not propose to speak on the willingness or otherwise of the respondent to offer higher maintenance to the child; but it is our forensic responsibility, under the parents patriae jurisdiction, to assess and confirm what is the best for the child, among the alternatives available. 18. As said above, a child requires both parents; but in some scenario, as we see now, this may not be possible, particularly when the parents are involved in severe marital strife. 19. The petitioner-mother has been, admittedly, in charge of the child and the Original Petition is pending before the learned Family Court to decide who should be given her permanent custody. We do not propose to interfere with such processes; but are only enjoined to decide the particular controversy impelled. 20.
19. The petitioner-mother has been, admittedly, in charge of the child and the Original Petition is pending before the learned Family Court to decide who should be given her permanent custody. We do not propose to interfere with such processes; but are only enjoined to decide the particular controversy impelled. 20. As recorded earlier, Smt.Ranjitha Jaison undertakes, on behalf of the petitioner that she will make available the child before the learned Family Court, whenever it so orders. That said, there can be no contest that the father is also entitled to be in the company of the child as far as it is practically possible; and because the petitioner has to travel abroad for her employment, we cannot divest him of this. 21. We are firm in our opinion that the employment opportunity of the petitioner cannot be jeopardized solely because she is a mother; and that it must be left to her to decide what course her life should be allowed to take. She is an adult with full capacity and knowledge of the manner her life needs to progress and we have no reason to doubt that, as a mother, she will keep the best interests of her child in mind. 22. In such factual scenario, we are of the certain opinion that the impugned order of the learned Family Court cannot be sustained; though requiring sufficient provisions for the father to continue his bonding with the child – even when she is abroad temporarily – to the extent legally and statutorily permissible. In such perspective, we allow this Original Petition with the following directions: a) The impugned order of the learned Family Court restraining the petitioner from taking her child to Australia for the period during which her deputation continues, namely for a maximum of three years, is set aside. b) Consequently, the petitioner will be at liberty to take the child with her to Australia to subserve the deputation offered to her by her company in India, but up to a maximum of three years as shown in Ext.P9. c) During the afore period, the petitioner is directed not to change the nationality of the child, or to cause any change in her name or such other; and should there be any violation of the same, we warn her that she will be subjected to necessary consequences.
c) During the afore period, the petitioner is directed not to change the nationality of the child, or to cause any change in her name or such other; and should there be any violation of the same, we warn her that she will be subjected to necessary consequences. d) The petitioner will ensure that the child is brought to India every 6 months for a minimum period of 10 days each, out of which 8 days will be entitled to her father; and the place of exchange for this shall be the front gate of the residence of the mother in India. e) We permit the respondent to talk to the child, after she is taken abroad, on voice/video calls every day between 7 P.M. and 8 P.M. (Australian time); for which purpose, once the petitioner reaches Australia, she will inform him through Email the contact number. This shall be done within a period of one week after she reaches Australia. f) Needless to say, the afore arrangement shall be without prejudice to any orders to be issued by the learned Family Court in the pending Original Petition; and that if the child is required to be produced before it for any reason, it shall be abided by the petitioner without fail. This Original Petition is thus ordered.