Supreme Court: In a habeas corpus case the Division Bench Ajay Rastogi and Abhay S. Oka*, JJ., held that in a case for custody of the child the rights of the parties to a custody dispute (parents) are irrelevant. However, adding an exception, the Bench stated,
“We may note here that a writ Court while dealing with the issue of habeas corpus cannot direct a parent to leave India and to go abroad with the child. If such orders are passed against the wishes of a parent, it will offend her/his right to privacy.”
The instant case arose out of unfortunate dispute between the appellant- wife and the respondent – husband over the custody of their minor male child Aaditya Kiran. The parties were married and living in New York, USA and the child held the citizenship of USA. It was for the treatment of the child for hydronephrosis in India, which required surgery that consent for international travel with one legal guardian, was executed by and between the appellant and the respondent on 04-02-2019. The consent was recorded in the said document to enable the child to travel with the mother–the appellant to India for the period between 05-02-2019 to 26-09-2019. It was further recorded that any changes to this plan shall be discussed and consented to by both the parents.
The child underwent a surgery on 14-03-2019 in Max Hospital, Saket, New Delhi. The certificate issued by Dr. Anurag Krishna, Director, Paediatrics and Paediatric Surgery of Max Hospital recorded that he had examined the child on 12-07-2019 when he found that the child was doing well, however a suggestion was made that the child needed to be reviewed 6 to 7 months post-surgery along with a fresh ultrasound and renal scan.
Apple of Discord and Litigation History
It was the case of the respondent that the appellant had violated the international travel consent by not allowing the minor child to come back to USA by 26-09-2019, hence a petition was filed before the Circuit Court of Benton County, Arkansas, USA seeking primary care, control, and custody of the minor on account of his wrongful detention outside USA by the appellant wherein interim order was pronounced in favour of the respondent.
It was when no heed was paid to the said order by the appellant; the respondent approached the High Court of Punjab and Haryana seeking a writ of habeas corpus to secure release of the minor child from the illegal custody of the appellant. The High Court, by the impugned judgment decided the case in favour of the respondent and directed to hand over the custody of the minor the respondent.
Doctrine of Best Interest
The appellant’s stand was that there was a need to make a departure from the rule of “best interest of the child” or the “welfare principle” as welfare would mean balancing the interests of all the members of the child’s family and the mother as the primary caregiver must be kept in mind as a person who has legal rights which must be respected and protected.
Rejecting the contention of the appellant, the Bench held that the principle that the welfare of the minor shall be the predominant consideration and that the rights of the parties to a custody dispute are irrelevant. Opining that when a Court decides that it is in the best interest of the minor to remain in the custody of one of the parents, the rights of the other parent are bound to be affected, the Bench stated that the rights of parents/parent cannot be put on par with welfare of child.
Giving the example of visitation rights, the Bench stated, whenever the Court disturbs the custody of one parent, unless there are compelling reasons, the Court will normally provide for visitation rights to the other parent. The reason is that the child needs the company of both parents. The orders for visitation rights are essentially passed for the welfare of minors and for the protection of their right of having the company of both parents. Such orders are not passed only for protecting the rights of the parents.
Hence, the Bench concluded that the consideration of well-being and welfare of the child must get precedence over the individual or personal rights of the parents.
Whether the Court, while deciding custody matters, can compel one of the parents to move from one country to another?
Another question before the Court was whether a parent can be compelled to go abroad for enforcing the Court order in custody cases. In that regard, the Bench opined that the welfare of a minor being of paramount consideration in such proceedings, the Courts cannot decide where the parents should reside as it will affect the right to privacy of the parents.
Therefore, the Bench held that a parent has to be given an option to go abroad with the child and it ultimately depends on the parent concerned to decide and opt for giving a company to the minor child for the sake of the welfare of the child as it will all depend on the priorities of the concerned parent. However, noticing that in the impugned judgment the High Court did provide such an option to the appellant, the Bench held that there was no compulsion on the appellant to go abroad with the child.
Considering the submissions made by both the parties and evidence available on record the Bench made following observations:
- It was not the case of the appellant that there was even a discussion with the respondent for modification of the said consent till date and admittedly, the period of travel mentioned in the consent was not extended by the respondent.
- Though the doctor recorded that the child needed to be reviewed 6 to 7 months after the surgery along with fresh ultrasound and renal scan, the surgery had taken place 33 months back and the appellant had neither provided any medical opinion on the current health of the child nor any medical certificate recording that the child needs any further treatment or medical care in India.
- The child had spent more than three years in USA and two and a half years in India. Therefore, it could not be said that there was a complete integration of the child with the social, physical, psychological, cultural and academic environment of either USA or India.
- The respondent had financial resources to maintain the appellant and the minor child in USA.
- The welfare report of Visiting Consular of US Embassy recorded that the appellant informed that “her aunt picks up the minor child from school and brings him home each day and stays with him throughout the day while the mother and grand-parents are at work. Moreover, a domestic helper is taking care of the needs of the child.” Therefore, the appellant was not devoting her whole day to take personal care of the minor and to attend to the needs of the minor child.
- On the other hand, the respondent had submitted that he had an option to permanently work from home and his mother had a valid visa to stay in USA till 23-02-2024 who had expressed willingness to take care of the minor child in USA.
In the backdrop of above mentioned observations the Bench upheld the impugned judgment with some minor modifications and passed the following order:
- The appellant was given option to travel to USA along with the minor child and to contest the proceedings pending in USA and in such case, the appellant was directed to communicate her willingness to the respondent within two fifteen days and inform him of possible travel dates which was to be within three months;
- If the appellant opts for travelling to USA, the respondent was directed to sponsor air tickets for round trip, arrange separate accommodation for the appellant and if she wishes to continue in USA, the respondent was to take all possible steps for the extension of visa or for getting a new visa;
- If the appellant agrees to travel, the respondent was directed to pay US$ 6,500 to the appellant for her initial expenditure in USA and after expiry of period of one month the respondent was to pay mutually agreed amount of maintenance along with proper medical insurance to the appellant and the minor child. Additionally, the respondent was directed to undertake obligation to provide proper medical treatment to the minor child;
- If the appellant agrees to travel, for a period of three months from the date of her arrival, the respondent was not take any steps to implement or enforce the order passed by the Circuit Court of Benton County, Arkansas to enable her to contest the said case. Hence, for the said period the custody of the minor was to be with appellant; during that period the respondent was granted temporary custody of the minor child from 10 am to 5 pm on every Sunday and liberty to video call the minor child for half an hour on every day.
- In the event, the appellant deny to visit USA and fails to communicate her willingness to visit USA within a period of fifteen days, the respondent was granted liberty to take custody of the child.
Additionally, the Bench added the parties would be at liberty to adopt agreed joint parenting plan if they wish to.
[Vasudha Sethi v. Kiran V. Bhaskar, 2022 SCC OnLine SC 43, decided on 12-01-2022]
*Judgment by: Justice Abhay S. Oka
Kamini Sharma, Editorial Assistant has put this report together