September 18th 2023.
The Bombay High Court recently heard an application from a woman seeking permission to take her minor daughter to the US. The couple had mutually consented to divorce in 2020, but a dispute over the access to their minor daughter had arisen. A Family Court in Pune had granted the child’s custody to the mother but allowed regular access to the father.
The high court asked them to go for mediation and settle their disputes when the woman filed the application seeking to relocate to the US. The couple then filed their consent terms before the high court. In its order, the court noted that the estranged husband has given his consent to allow his daughter to relocate with the mother to the US but on condition that he would be given virtual as well as physical access and that the woman would withdraw certain criminal cases lodged against the man.
The man had raised an apprehension that if the court order was not adhered to, then there would be no real way to enforce the same. The bench noted that the apprehension was “well-founded” and hence, it would be fair and equitable that if the consent terms were violated, then the man would be free to file contempt proceedings.
The court ruled that in case of wilful disobedience of the consent terms in relation to access, the court would have the power and jurisdiction to call upon the mother to release her 50 per cent share in the flat at Pune in favour of the father. In case the woman does not release her share, then the court was free to appoint a court commissioner to act on behalf of her for transfer of her 50 per cent share to the man.
Thus, the Bombay High Court has imposed a rider on the woman that if she fails to grant her estranged husband access to their minor daughter, she would lose her 50 per cent share in the co-owned flat in Pune. This decision has been taken so as to ensure that the woman adheres to the consent terms that were agreed upon and to provide the father with legal protection if the court order is not adhered to.
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