The Bombay High Court has set aside a family court order which allowed a city resident, fighting a divorce case with his wife, to take his two minor children on a vacation to Mauritius for a week.
The ruling was delivered recently by a division bench which said, "The record before the Court indicates that while passing an order on June 19, 2013, the Family Court was not apprised of the fact that the father intended to take his children outside India, as a result of which, the Family Court has not applied its mind on this aspect".
This assumes significance because, on July 4, 2012, the Family Court had issued directions for the deposit of the father's passport which was clearly intended to ensure that vacation access would be confined to a place within India, the bench noted.
Subsequently on November 9, 2012, and February 20, 2013, the father was denied overnight access to kids. "Whether a modification of these conditions is warranted or otherwise, is within the jurisdiction of Family Court", the bench said.
"Undoubtedly, orders for access can be modified from time to time, keeping in mind the paramount interest and welfare of the children. There can be no gainsaying the fact that both the father and mother are legitimately entitled to have adequate recourse to the company of the children", the bench observed.
Justices D Y Chandrachud and S C Gupte ruled that when a modification is sought of the nature and terms of access, a due and complete disclosure must be made before the Family Court to enable it to apply its mind as to whether any modification is warranted. Evidently, that was not done in the present case, they ruled.
"For these reasons, we have come to the conclusion that the order passed by the Family Court on June 19, 2013, as modified on June 29, 2013 is unsustainable and would have to be quashed and set aside".
