Mother’s Right To Higher Studies And Personal Development Not To Be Limited Merely Because Custody Disputes Are Pending: Delhi High Court
Safiya Malik
The High Court of Delhi Single Bench of Justice Saurabh Banerjee permitted a mother, the primary caregiver of a minor boy, to travel to the United States with the child to complete her postgraduate studies, subject to safeguards for the father’s contact. The Court directed her to file a detailed affidavit of undertaking and supporting financial disclosures, provide her U.S. address and the child’s school details, facilitate regular video interactions, ensure the child’s presence in Delhi during specified vacation periods for in-person meetings, and return to India with the child after completion of the course. The order treats a mother’s dignity, autonomy and personal development, including higher education abroad, as part of Article 21 and not to be curtailed solely due to pending custody and visitation proceedings.
The petitioner–mother sought permission under Section 151 of the Code of Civil Procedure, 1908 to travel to the United States of America along with her minor son to complete her post-graduate programme at Marymount University, Arlington, Virginia. The dispute arose in the backdrop of matrimonial discord between the parties, who married in 2014 and have a minor child born in 2017. Following separation in 2019, multiple proceedings were initiated, including custody and visitation proceedings before the Family Court.
The Family Court had granted visitation rights to the father, which were later modified by the High Court to permit unsupervised visitation. Subsequent non-implementation led to contempt proceedings. During pendency, the mother travelled to the USA with the minor child without prior court permission after securing admission in a Master’s programme. This prompted a habeas corpus petition by the father. Directions were issued restraining the mother and child from leaving India without permission. The Supreme Court later allowed periodic visitation and granted liberty to seek permission for travel.
The mother contended that continuation of her academic programme was necessary for her professional advancement and long-term welfare of the child, while the father opposed relocation, citing disruption of the child’s settled environment and impairment of visitation rights.
The Court observed that “the present application has to be tested on the dual considerations of ‘welfare of the minor child being paramount’ and ‘mother’s fundamental right to personal development and autonomy in making life choices’.” It recorded that “the right to life and personal liberty as enshrined under Article 21 of the Constitution of India… necessarily incapsulates the right to personal development, self-realisation, and the freedom to make meaningful life choices.”
The Court stated that “a mother cannot be compelled to make an invidious choice between her child and her career.” It further observed that “the welfare of the minor child is undoubtedly the paramount consideration, however, the same has to be taken cumulatively and harmoniously with various relevant factors.” The judgment recorded that “the mother’s decision to pursue higher education abroad is a bona fide and reasoned life choice, which cannot be restricted solely on the basis of existing custody arrangements, particularly, in the absence of any tangible or demonstrated harm to the child’s welfare.”
On the apprehension of permanent relocation, the Court observed that “the apprehension expressed by the father… is without merit, particularly, in view of her earlier conduct wherein she had herself undertaken to return to India and indeed adhered to the same.” It further stated that “separating the minor child from his mother can prove fatal for his welfare.”
The Court recorded that custody orders are “by their very character, interlocutory in nature” and remain subject to modification as circumstances demand. It further stated that “denying the mother to travel to the USA for completion of her post-graduate program would be undermining the principles of right to development and personal liberty as enshrined and guaranteed to her under Article 21 of the Constitution of India.”
The Court directed that “the petitioner/ mother is permitted to travel to the USA along with the minor child for completion of her post-graduate program at Marymount University, Arlington, Virginia, United States.”
“The mother is directed to file a detailed Affidavit of Undertaking within a period of one week as per below:-” and required that “the mother shall furnish the complete details of her residential address in the USA and shall not relocate to another city and/ or country. However, in case of doing so, she shall apprise the Court as also inform the father of the minor child one week prior to such relocation. The mother shall also furnish the communication details of the School to the father of the minor child in USA for keeping him aware of the progress and activities of the minor child;”
“The father would be at liberty to engage with the minor child on a suitable video conferencing platform for a total time period of 30 minutes on every Saturday and Sunday, as also for 10-15 minutes on Wednesday of each week, beyond School hours;” It also directed that “the mother will ensure the presence of the minor child in Delhi for a period of two months during the minor child’s summer vacation and for a period of at least ten days during the minor child’s winter vacation with prior intimation to the father.” The Court further required that she shall “ensure their physical meeting(s) with each other on two working days in a week after mutually deciding the date, time and venue for a period of four hours on each occasion, in addition to giving an overnight visitation of the minor child on weekends from Saturday 10:00 AM to Sunday 05:00 PM to his father.;”
“The mother will return to India along with the minor child upon completion of her said post-graduate degree without taking up any new/ fresh admission to any other new course/ program of any nature and/ or new/ fresh job.” It further ordered that “let her also file a Chartered Accountant Certificate disclosing her father’s Income Tax Returns for last three financial years and any other relevant documents along with her aforesaid Affidavit of Undertaking. The mother shall also file a detailed chart of the projected expenses along with the aforesaid affidavit.”
“Let the present order be communicated to the FRRO and Ministry of External Affairs and Bureau of Immigration in order to ensure that the mother and the minor child are able to travel to the USA without any hindrances from the said Departments.”
Advocates Representing the Parties
For the Petitioners: Dr. Swati Jindal Garg, Advocate
For the Respondents: Mr. Udit Gupta, Ms. Nidhi Malhotra, Advocates
Case Title: XXX v. YYY
Neutral Citation: 2026: DHC:945
Case Number: CM(M) 159/2023
Bench: Justice Saurabh Banerjee
