HC grants estranged wife access to son

MUMBAI: When access to her two-year-old toddler even by webcam as ordered by the Royal Courts of Justice, Family Court Division of the high court in London was denied for two years, a young estranged mother launched a legal battle in India in March 2009. Two years later, the Bombay high court has given her and others like her who are caught in inter-country child custody battles, a reason to smile.

The high court upheld an August 2009 consent term order of the family court in Mumbai granting the mother access to her now six-year-old son. "There is no failure of justice by virtue of exercise of territorial jurisdiction of the family court or by submission to such jurisdiction by the (NRI) husband," said Justice Roshan Dalvi.

The case that made Justice Dalvi dismiss a father's challenge to a 2009 access order, for being "misconceived as well as mischievous" involved a young Gujarati couple. Dipti and Sandip Shah (names changed) married in September 2004, lived in Sandip's UK home since and had a child a year later.

"Continuous disputes" led to a short-lived marriage that ended with an order by consent passed by the UK court in 2007. The court gave the child's custody to the father, but access to Dipti in Sandip's house in the jurisdiction of England and Wales. The court also ordered Sandip to "to fund the mother's to and fro Mumbai-London travelling and accommodation for one 16-day period of child contact once a year", give her "access through webcam facilities" at mutually fixed times, and once-a-year access in India where she resided.

"There was no access in England, none on webcam, not even a telephone chat," said Dipti when she moved the Mumbai court. The family court made them meet a marriage counsellor. It led to consent terms regarding access as agreed before the UK court. But within minutes of signing the consent terms in Mumbai, Sandip filed a part typewritten-part handwritten copy seeking dismissal of his wife's custody plea.

That and a letter written by Sandip later to say that "by pretending to agree for access" he obtained a passage to England and had signed the consent since he was leaving for London the same day, showed "his scant regard not only for his wife, the counsellor's effort but the court itself," said Justice Dalvi.

Sandip continued to breach even the Mumbai court order, but justified it by saying the Indian court lacked jurisdiction. However, the high court noted that Sandip had submitted to the Mumbai court's jurisdiction, signed consent terms—a breach of which is contempt of court—and only much later, in July 2010, questioned the jurisdiction when faced with contempt plea.

Anusuya Dutt represented Dipti in her court battle.

The Bombay high court found substance in Dipti's contention that Sandip "just does not desire to give any access to her and has continuously procrastinated by filing frivolous applications and excuses".

"This was a fit case to pass an order of unmistakable contempt, wilfully made by the husband," the high court said.

The Bombay HC, while calling the father's plea 'misconceived and mischievous', found substance in the woman's contention that he 'does not desire to give access to her son and has procrastinated the case by filing frivolous applications'.