Courts Should Not Penalise Custodial Parents After Permitting Child To Be Taken Abroad, Holds High Court
Ernakulam, June 19: The Kerala High Court has set aside the condition imposed by the Family Court requiring a mother to furnish security of ₹75 lakh for taking her minor child to the United Kingdom, holding that such an onerous financial burden would ultimately operate against the welfare of the child.
A Division Bench comprising Justice J. Nisha Banu and Justice Shoba Annamma Eapen held that while courts may impose conditions to secure the welfare and return of a child, such conditions must not be illusory, impracticable or incapable of compliance.
The Court observed that the right of a child to good education cannot be defeated by imposing an excessive financial condition on the custodial parent.
Background
The original petition was filed by the wife and her family members challenging certain conditions imposed by the Family Court, Thrissur, in proceedings relating to custody of a minor child.
The husband had filed O.P. (Guardian) No. 1745 of 2023 before the Family Court seeking permanent custody of the child. During the pendency of those proceedings, the wife filed an application seeking permission to take the child with her to the United Kingdom.
The wife submitted that she was working as a Senior Support Worker in the United Kingdom and wished to take the child abroad in order to provide proper care and better education.
Family Court Allowed Mother To Take Child Abroad
The Family Court permitted the mother to take the child to the United Kingdom after finding that she was in a better financial position and had secured employment there.
The Family Court also found that, in the interest of the child, the mother would be able to provide proper care and attention to the child’s welfare.
However, while granting permission, the Family Court imposed certain conditions. The mother was directed to furnish security of ₹75 lakh and she, along with two sureties, was also directed to execute a bond of ₹7.5 lakh each.
Aggrieved by these conditions, the petitioners approached the High Court.
Mother Challenged Onerous Conditions
Before the High Court, the petitioners challenged condition Nos. 1 and 3 imposed by the Family Court.
It was argued that although the Family Court had accepted that the mother could provide better care and education to the child, the requirement of furnishing ₹75 lakh security was excessive and difficult to comply with.
The petitioners relied on the Supreme Court’s decision in Ritika Sharan v. Sujoy Ghosh, where the Apex Court had emphasised that the welfare of the minor child is of paramount consideration and had waived a financial condition imposed by the Family Court, while requiring an undertaking from the parent.
Despite service of notice, there was no appearance on behalf of the respondent before the High Court.
Welfare Of Child Is Paramount Consideration
The High Court reiterated that in custody and guardianship matters, the primary consideration must always be the welfare of the child.
The Court noted that the Family Court had itself found that the mother was better placed to take care of the child and that taking the child to the United Kingdom would serve the child’s welfare.
The Bench observed that conditions may be imposed to ensure the return of the child, to regulate interim custody and to prevent any adverse consequences to the child’s welfare. However, such conditions must be reasonable and capable of compliance.
Conditions Should Not Be Illusory Or Incapable Of Compliance
The Court held that conditions imposed by courts in child custody matters should not be illusory or impossible to comply with.
The Bench observed that once the mother was permitted to take the child to the United Kingdom for better education and welfare, the Court should not impose a condition that effectively prevents the benefit of that permission.
The High Court held that the condition requiring ₹75 lakh security only served to deny the child a better educational opportunity.
Custodial Parents Should Not Be Penalised
The Court made an important observation that after permitting a custodial parent to take the child abroad, courts should not penalise such parent by imposing excessive and impracticable financial burdens.
The Bench noted that there was no allegation that the mother had violated any previous court order. Therefore, there was no justification for imposing such an exorbitant amount as security.
The Court held that the condition did not subserve the best interests of the child and would instead make compliance impracticable, which would ultimately be detrimental to the child’s welfare.
High Court Sets Aside Security Condition
Allowing the original petition, the High Court set aside condition Nos. 1 and 3 imposed by the Family Court in its order dated 07.04.2026 in I.A. No. 7 of 2024 in O.P. (Guardian) No. 1745 of 2023.
The Court directed the mother to file an undertaking before the Family Court stating that she would abide by the remaining conditions imposed in the order and strictly comply with the same.
Key Takeaway
The judgment reinforces that the welfare of the child is the controlling principle in custody matters. Courts may impose safeguards while permitting a child to be taken abroad, but such safeguards must be reasonable, practical and aligned with the child’s best interests.
The ruling makes it clear that a child’s opportunity for better education and welfare cannot be defeated by imposing an excessive financial condition on the custodial parent.