Family Law

Aakansha Roy Rasmussen v. Adwait Anil Dixit

2015 SCC OnLine Bom 558

Facts

The parties were parents of a thirteen-year-old girl.
Their marriage was dissolved by mutual consent in 2008.
Under the consent terms:
custody remained with the father;
the mother received visitation rights.
The mother later moved to Denmark, remarried and subsequently divorced.
The father also remarried, and the child lived with him, her stepmother and stepsister.
The mother alleged that:
the father restricted access;
he attempted to alienate the child from her;
the child had expressed a desire to live with her.
The child told the counsellor and the Court that she wished to reside with her mother, though she did not allege mistreatment by her father or stepfamily.
A psychiatrist found that the child showed anxiety.
The Family Court refused to modify custody, principally relying on the child’s settled residence with the father.

Whether custody fixed through an earlier consent decree could later be modified.
Whether the child’s wishes and emotional welfare justified transferring custody to the mother in Denmark.

Custody orders are never absolutely final because the child’s welfare is a continuing consideration.
Technical rules, parental agreements and prior consent terms are subordinate to the child’s best interests.
The court must consider:
emotional and psychological welfare;
age and maturity;
expressed preference;
education;
stability;
parental capacity;
continuing contact with both parents.
The child’s wishes are important but not automatically decisive.
Remarriage or relocation abroad does not by itself disqualify a parent.

The Court accepted that the child was not being physically ill-treated by her father or stepmother.
However, custody is not decided merely by asking whether the present guardian is unfit.
The court must positively determine which arrangement currently best promotes the child’s welfare.
The Family Court had undervalued:
the child’s consistent preference;
her anxiety;
her need for a meaningful relationship with her biological mother.
At thirteen, the child possessed sufficient maturity for her wishes to receive serious consideration.
Her preference could not be dismissed merely as an emotional reaction.
The mother was:
a medical professional conducting cancer research;
financially stable;
able to provide education at an international school;
able to arrange family support through the maternal grandmother.
Moving to Denmark did not demonstrate abandonment.
A mother cannot be forced to choose permanently between professional development and parenthood.
Similarly, the father’s remarriage did not make him unfit.
The question was not to punish either parent but to secure the child’s present and future welfare.
The Court also ensured that transfer of custody would not erase the father’s relationship.
Vacations, electronic communication and visits were structured to preserve continuing contact.

The appeal was allowed.
The prior consent decree was modified, and custody was transferred to the mother.
The child was permitted to reside in Denmark.
She was to spend both major vacations with her father in India.
The father was granted electronic contact and the right to visit her in Denmark.
Use this case for: a custody arrangement can be modified when the child’s evolving welfare and mature preference require it.