Delhi High Court: In a long-standing and contentious custody dispute between estranged parents, centring on the mother’s request to travel abroad with the minor child for completion of her post-graduate education, a single-judge bench of Saurabh Banerjee, J., held that constitutional protection does not diminish on account of parental status, and that a mother cannot be compelled to surrender her right to education and self-advancement merely because she is the primary caregiver.
The Court modified the existing visitation arrangement and imposed detailed safeguards, including filing of an affidavit of undertaking, disclosure of residence and school details, structured video-conferencing interaction with the father, mandatory physical visitation during summer and winter vacations in India, and a categorical undertaking to return to India upon completion of studies.
Factual Matrix
In the instant matter, the parties were married on 14-02-2014 and were blessed with a male child, Master K, born on 03-04-2017. Owing to matrimonial discord, the petitioner—mother left the matrimonial home on 05-05-2019 along with the minor child. Since then, the parties have been embroiled in multiple litigations before different forums.
One such proceeding before the Family Court, West District, Tis Hazari Courts, Delhi, wherein by order dated 13-01-2023, the respondent-father was granted visitation rights. The said order was assailed by the mother before the High Court.
Initially, the visitation order was stayed. Subsequently, by order dated 28-03-2023, the father was granted unsupervised visitation on specified Sundays, along with permission to celebrate the child’s birthday. Difficulties in implementation of visitation led to contempt proceedings before the High Court.
While the contempt and the main petition were pending, the mother, having secured admission to a post-graduate programme titled Public Health Education and Promotion (M.S.) at Marymount University, Arlington, Virginia, travelled to the United States with the minor child in July 2024, without prior permission of the Court. This prompted the father to file a habeas corpus petition alleging illegal removal of the child from the jurisdiction of Indian courts.
Pursuant to interim orders, the mother returned to India and was restrained from leaving the country without permission. The Supreme Court, while disposing of the mother’s Special Leave Petition, permitted limited visitation to the father and granted liberty to the mother to seek permission to travel abroad. In this backdrop, the present application seeking permission to travel to the USA along with the minor child came to be considered.
Moot Points
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Whether the mother should be permitted to travel to the United States along with the minor child for completion of her post-graduate studies?
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How the principle of paramount welfare of the child is to be balanced with the mother’s fundamental right to personal development and autonomy?
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Whether permitting relocation would irreversibly prejudice the father’s visitation and custodial rights?
Petitioner’s Contentions
The mother contended that she had secured admission to a recognised foreign university after considerable effort and financial sacrifice, entirely borne by her parents. The course spanned thirty months, and she had already completed one semester with a commendable cumulative GPA of 3.33 out of 4.00. As per university regulations, further absence would result in automatic cancellation of her admission.
It was argued that the objective of pursuing higher education was to enhance academic qualifications, improve employability, and ensure long-term financial stability for herself and the minor child. Denial of permission would cause irreparable academic and financial loss and would undermine the very principle of welfare of the child.
Reliance was placed on Vivek Singh v. Romani Singh, (2017) 3 SCC 231 and Vikram Vir Vohra v. Shalini Bhalla, (2010) 4 SCC 409, recognising the pivotal role of the mother as the primary caregiver and underscoring that a mother cannot be compelled to choose between her child and her career. It was submitted that the mother was willing to abide by any conditions imposed by the Court to ensure continued interaction between the child and the father.
Respondent’s Contentions
The father opposed the application, alleging that it was a calculated attempt to frustrate visitation rights and permanently remove the child from the jurisdiction of Indian courts. Emphasis was laid on the child’s settled life in Delhi, his schooling, social environment, and close association with the father and paternal family. It was argued that relocation would “extinguish the father’s visitation rights” and cause lasting psychological harm. Past conduct of the mother in denying access to the child was highlighted to raise apprehensions that she may not return to India.
It was contended that the welfare of the child could not be subordinated to the mother’s academic aspirations, particularly when adequate educational and professional opportunities were available within India.
Court’s Analysis — Mother’s Right to Education
The Court observed that the present case required consideration of dual but interconnected principles, i.e., the welfare of the minor child being paramount, and the mother’s fundamental right to personal development under Article 21 of the Constitution of India.
The Court referred to Maneka Gandhi v. Union of India, (1978) 1 SCC 248 and reiterated that the right to life and personal liberty includes the right to education, self-realisation, dignity, and autonomy in making meaningful life choices.
“Education, particularly higher education, is one of the most vital means through which an individual aims to broaden intellectual horizons, improve professional skills, and build a secure future.”
The Court further noted that am individual’s conscious decision to pursue a post-graduate degree, especially from a foreign University, is aimed towards individual growth, dignity and the ability to attract better future career prospects. It was emphasised that “denial or unreasonable restriction on exercise of such a choice, in the considered opinion of this Court, would tantamount to an impermissible intrusion into the very spirit of the right to personal liberty and development enshrined and protected under Article 21 of the Constitution.”
The Court stated that the fact that the individual asserting such a right is a mother does not dilute constitutional protection; rather, enabling a mother to pursue higher education strengthens her economic independence and dignity, which in turn benefits the child.
“A mother being a ‘mother’ carries equal, if not greater, force where the individual asserting such a right is a mother. Constitutional protection does not diminish on account of the parental status of a party… On the contrary, enabling a mother to pursue higher education strengthens her dignity, economic independence, and overall well-being, elements that lie at the core of the Right to Life under Article 21 of the Constitution and, in turn, equips her to provide a more secure, stable, and nurturing environment for the child.”
On the aspect of welfare, the Court noted that the child had been residing exclusively with the mother since 2019 and separating him from her at a tender age could prove “fatal for his welfare.” There was no material to suggest that the child’s health, education, or emotional well-being would be adversely affected by accompanying the mother abroad. On the contrary, the mother had demonstrated her ability to balance academic responsibilities with caregiving.
The Court found the apprehension that the mother would not return to India to be speculative, particularly in light of her past conduct in complying with court directions and returning to India when required. The Court also took note of her undertaking to return after completion of the course and not to take up any fresh admission or employment abroad.
Court’s Decision
The Court allowed the application and permitted the mother to travel to the United States along with the minor child for completion of her post-graduate programme at Marymount University subject to strict safeguards, including —
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Filing an affidavit of undertaking detailing residence, schooling, and travel commitments.
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Ensuring structured virtual interaction between the father and the child.
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Facilitating physical custody and visitation during summer and winter vacations in India.
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Undertaking to return to India upon completion of the course without taking up any fresh programme or employment abroad.
The Court further directed the FRRO and immigration authorities to facilitate travel upon compliance.
[Twinkle Vinayak v. Vishal Verma, 2026 SCC OnLine Del 417, Decided on 05-02-2026]
Advocates who appeared in this case:
Dr. Swati Jindal Garg, Counsel for the Petitioner
Mr. Udit Gupta and Ms. Nidhi Malhotra, Counsel for the Respondent
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