SC: Rights of the parties litigating over child’s custody are irrelevant

 

Recently the apex court dealt with a custody battle wherein it dismissed the appeal filed by the mother against the respondent-father of the child.

FACTS:

The couple got married and gave birth to a child in the USA. The kid who is a US citizen needed special medical attention and surgery which the couple decided to get done in India. The mother accompanied the child and a consent was filled by both the parents that the child would stay in India with his mother for a fixed period of time and any further changes would be notified to both the parents accordingly. However, there were certain disputes and difference of opinion towards the child’s stay in either country.

APPELLANT’S CASE:

The advocate appearing for the mother argued that the child needed constant and special medical care even after surgery including regular check up and scans. The fact that the respondent wanted to settle in India was anyways brought up. The temperamental issues of the respondent were also pointed out in front of the court. It was also highlighted that the court shouldn’t take away her parenting rights, she being the primary care taker of the child.

RESPONDENT’S CASE:

It was submitted that in the light of the increase in cases of international parental child abduction from the USA, the Immigration Authorities in USA do not allow a minor US citizen to leave the country only with one parent without the express consent of the non-travelling parent. The fact that changes in the dates of the stay were also not informed to the father. He submitted that in violation of the international travel consent, the appellant no.1 has not sent back the minor son to USA, which amounts to the detention of the minor in her illegal custody in India. There was no document that proved that the child needs further medical care. He also submitted a report that proves he is free from by mental issues as claimed by the appellant.

SUPREME COURT’S OBSERVATIONS:

The SC observed that the appellant had not attached any recent certificate by the doctor mentioning that the minor needs further medical care given the surgery took place 33 months back. “We will have to proceed on the footing that there is no documentary evidence available on record to show that the presence of the child in India for further medical treatment is necessary.”

The Supreme Court referring to the similar old cases brought up, mentioned, “it was held that the issue with regard to repatriation of a child has to be addressed not on a consideration of legal rights of the parties but on the sole criteria of the welfare of the child.”

The apex court also briefly highlighted, “in sub-section (1) of Section 13 of the Hindu Minority and Guardianship Act, 1956 (for short “the 1956 Act”), it is provided that in appointment or declaration of guardian of a minor, the welfare of the minor shall be the paramount consideration.”

The court said that while deciding the best for a minor, the parents’ rights are secondary and bound to be affected.

“On a conjoint reading of sub-section (1) of Section 13 read with clause (a) of Section 6 of the 1959 Act, if it is found that the welfare of a minor whose age is more than 5 years requires that his custody should be with the mother, the Court is bound to do so. In the same way, if interest of the minor which is the paramount consideration requires that the custody of a minor child should not be with the mother, the Court will be justified in disturbing the custody of the mother even if the age of the minor is less than five years. In such cases, the rights of the father or the mother, as the case may be, conferred by clause (a) of Section 6 are bound to be affected.”

Holding the High Court’s views valid, the Supreme Court’s noted 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.”

Thus, the court gave the appellant an option to accompany her child to USA, if she refuses to do so the sole custody would be given to the father. In case she decided to accompany, the father would ensure her and the child’s maintenance since she has a B2 visa she can’t work. However, the court encouraged the parents to opt for agreed joint parenting plan. 

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(With input from news agency language)

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