Child custody case: Andhra Pradesh HC snubs UK court order; flags colonial mindset

The Andhra Pradesh High Court recently declined to direct the return of a six-year-old girl to her father in the United Kingdom (UK) despite orders passed by a UK court in proceedings concerning the child’s custody.

A Division Bench of Justice Cheekati Manavendranath Roy and Justice Tuhin Kumar Gedela refused to enforce the order of the UK court which had granted custody of a child to her father residing in UK.

The High Court also took strong objection to the language used by the UK court in its order.

"This Court opines that it is necessary to elucidate and not to hesitate to refer the language used by the High Court of Justice, Family Division sitting at the Royal Courts of Justice, which pricks the mind of the Court. At point No.15 of the order, it is observed that “the Courts of India do decline to exercise any jurisdiction in relation to matters of parental responsibility in respect of the child”. This order passed by the High Court of Justice, Family Division, Sitting at Royal Courts of Justice, after noticing that Habeas Corpus petition in India in the High Court of Andhra Pradesh seeking the return of the child to his custody is filed. At point l, the mother also initiated proceedings in India relating to the child in the Family Court at Guntur," the High Court said in its order.

The choice of words by the UK Court reflected "colonial mindset" and such an attitude cannot be permitted to be revived, the High Court made it clear.

"This imprints a fostered culture of subordination and embraces speaks of colonial mindset. As subsidium sine qua non, this colonial legacy cannot be permitted to be revived or superimposed upon the independence of the Indian Judicial," the High Court stated.

The Court was hearing a habeas corpus petition filed by the father seeking custody of the child and her return to the UK.

In child custody matters, a writ of habeas corpus is used by courts as the remedy to examine whether a minor is being illegally held and whether the child’s welfare requires any immediate intervention.

The Court noted that in proceedings involving the custody of a minor, the central consideration is the welfare of the child. It observed that the court’s role in a habeas corpus petition is not to enforce foreign court orders but to determine whether the child’s custody in India can be treated as unlawful and whether intervention is required to protect the child’s welfare.

During its consideration of the case, the High Court referred to a portion of the foreign court’s order which recorded that courts in India may decline to exercise jurisdiction in matters relating to parental responsibility concerning the child.

The High Court declined to adhere to the same.

It also held that directions issued by foreign courts cannot automatically determine the outcome of proceedings before Indian courts in such matters.

“The orders of foreign courts are not binding, particularly, when deciding with the custody of the child in a Habeas Corpus petition,” said the Court.

The Court recorded that the dispute arose after the parents separated and initiated proceedings relating to parental responsibility before a court in the United Kingdom.

During the course of those proceedings, the father travelled to India with the child pursuant to a UK court order permitting the visit. According to him, the child was subsequently kept in India by the mother and her family, following which he approached the Andhra Pradesh High Court seeking the child’s production and her return to the United Kingdom.

The mother disputed this account and argued that the child was in her lawful custody as the biological mother and natural guardian and that such custody could not be treated as illegal detention.

Examining this contention, the Court considered whether the child’s custody in India could be treated as unlawful so as to justify the exercise of its jurisdiction under habeas corpus.

It ultimately concluded that the custody could not be regarded as illegal so as to warrant the child’s return through a writ of habeas corpus, noting that the child was with her mother and that the paramount consideration in such cases is the welfare of the minor rather than the enforcement of a foreign court order.

“The care and inalienable standard is the paramount consideration of the child’s welfare which is affected by an array of factors, is ever evolving and cannot be confined to a straitjacket formula,” observed the Court.

At the same time, the Court stressed the importance of maintaining a relationship between the child and both parents, observing that the central question in custody disputes is what arrangement would best serve the child’s welfare.

Clarifying that the habeas corpus proceedings do not finally determine the parents’ legal rights regarding custody, the Court said,

“The law will take its own course in respect of the rights of the parties in case they want to proceed individually according to the laws prevailing in India, since the legalistic view is already settled that the laws in India should be reckoned as long as the child stays in India.”

The petition was accordingly disposed of.

Advocate VV Lakshmi Narayana represented the father (petitioner).

Senior Counsel KS Murthy represented the the maternal grandparents (respondent 6 & 7).

Senior Counsel Posani Venkateswarlu represented the mother (respondent 8), appearing on behalf of advocate P Vivek.

[Read Order]