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Child’s welfare is priority in custody matters :Supreme Court of India

The issue before consideration in this case was whether a minor child should be send back to his native country or allowed to remain with the appellant mother in India itself.The Supreme Court in a bench consisting of  Justice Ajay Rastogi and Justice Abhay S Oka highlighted the importance of giving welfare of child primacy over rights of individual parents fighting a custody battle  in the matters between Vasudha Sethi v Kiran V Bhaskar  Criminal Appeal no.- 82 of 2022 decided on 12.1.2022.

The facts of this case are the appellant mother visited India with the child for some medical treatment since, they could not afford the treatment in USA.Later, the mother refused to return with the child to the father after completion of the treatment.The father is a permanent resident of America and the child also holds American passport. The father moved before the Benton County Circuit Court in Arkansas, USA, seeking primary care, control and custody, which had been provisionally ordered for the minor’s wrongful detention outside the USA. Despite the same, the mother continued to hold the younger son in India.The father then filed a Habeas Corpus petition with the Punjab & Haryana High Court, which accepted the plea and directed the mother to return the child with the child to the United States.The mother appealed before this court against the high court order.

The arguments forwarded by counsel of the appellant were that it was not in the child’s best interest to move to the United States and she and the child had moved to India with the father’s consent, so it cannot be termed as abduction.Morover, the child needed constant medical attention she and the husband-father had previously planned to move to India and had bought land in India, including Bangalore.

The Respondent father contended that no reason was presented by the appellant to justify their stay in India to continue their follow-up treatment. He stated that he has a deep and healthy relationship with his son and that they are in contact via Whatsapp video calls.

The apex court held that parents’ rights are unimportant when the court decides on custody. This is not at all a consideration for the resolution of the matter. The principle that the well-being of the minor should be paramount and that the rights of the parties are unimportant in a custody dispute has been consistently followed by this Court. In fact, subsection (1) of Section 13 of the Hindu Minority and Guardianship Act 1956 provided that in the appointment or proclamation of a guardian of a minor, the welfare of the minor shall be paramount. The court cannot direct where parents should reside, but can give instructions to ensure the well-being of the child. A court cannot direct a parent to leave India and go abroad with the child while dealing with the issue of habeas corpus. If such orders are given against a parent’s wishes, it will violate their right to privacy. The parent should be given the option to travel abroad with the child. It is ultimately up to the parent concerned to decide and choose to provide a company to the minor for the sake of the child’s welfare. Therefore, the Court gave the appellant mother the option to travel to the United States and contest the case where the expenses will be the responsibility of the husband.The father is allowed to take custody of the minor child if the mother does not want to visit the USA with her young son and does not inform him. If the father is willing to visit the United States within fifteen days from today, it will be open to the father to obtain custody of the child.But if the mother visits the United States, the father will not enforce the order by the Arkansas Court for a period of three months.

Judgement Reviewed by Bhaswati Goldar

Vasudha_Sethi_v_Kiran_Bhaskar

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