Rights of parents irrelevant when deciding custody of child: Supreme Court

In a battle for custody of child, the rights of the parents are irrelevant and it is the child's welfare which is paramount, the Supreme Court observed on Wednesday [Vasudha Sethi v Kiran Bhaskar]..A Bench of Justices Ajay Rastogi and Abhay S Oka further said that the issue regarding custody of a minor child and the issue of the repatriation of the child to the native country has to be addressed on the sole criteria of the welfare of the minor and not on consideration of the legal rights of the parents."The rights of the parents are irrelevant when a Court decides the custody issue. It is not a consideration at all for deciding the issue," the judgment said.The Court was hearing an appeal against a decision of the Punjab & Haryana High Court granting custody of the minor child, a United States (US) citizen, to the father. The father, a permanent resident of America, and the appellant-wife were married in 2011 in New York. A child was born to them in 2016. The child holds an American passport. When the child suffered from hydronephrosis (kidney swelling), the parents were in no position to conduct the surgery in the US.The child was then brought to India with the permission to travel with one legal guardian which happened to be the mother. A consent to travel document was executed between the mother and the father for the same.The consent document recorded that the child will be leaving USA on February 5, 2019 and will be returning back to USA on September 26, 2019. It was further recorded that any changes to this plan shall be discussed and consented to by both the parents. The case arose when when mother did not allow the minor child to return on successful completion of the medical procedures..The father approached 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, which was granted by way of an interim order. Despite the same, the mother continued to keep the minor son in India.The father then filed a Habeas Corpus petition before the Punjab & Haryana High Court which allowed the plea and directed the mother to return to USA with the child.The mother moved the Supreme Court in appeal against the High Court order..The mother claimed before the top court that moving to the US is not in the best interest of the child. She contended that she and the child moved to India with the consent of the respondent-father so it is not a case of abduction.She said that the child needs constant medical attention; besides the husband-father had also earlier planned to move to India and he had purchased land in India for the same including at Bangalore. .The father argued that there is no reason presented by the appellant to justify their stay in India to continue for the follow-up treatment. He stated that he has a deep, healthy relationship with his son and that they keep in touch over Whatsapp video-calls..The Bench, even as it termed the dispute unfortunate, observed that there is in fact no evidence to warrant presence of the minor child in India for further medical treatment. "The High Court has given reasons for coming to the conclusion that it will be in the interest and welfare of the child to return to USA. The High Court has not treated the order of USA court as conclusive...The exercise of power by the High Court cannot be said to be perverse or illegal," the Bench noted. This Court underlined that the paramount consideration is the welfare of the minor child and the rights of the parties litigating over the custody issue are irrelevant."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 has been consistently followed by this Court. In fact, 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 judgment said.It observed that the Court cannot direct where parents should reside but it can pass directions to ensure the welfare of the child."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. A parent has to be given an option to go abroad with the child. 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," the Court said.The Court, therefore, provided the appellant-mother an option to travel to the USA and contest proceedings of custody, for which the husband shall be responsible for their expenses. Otherwise, the father will be allowed to take custody of the minor child. "In the event, the mother is not willing to visit USA along with her minor son and fails to communicate her willingness to visit USA within a period of fifteen days from today, it will be open for the father to take custody of the child," the Court made it clear.However, if and when the mother visits USA, the father shall not enforce the Arkansas Court's order giving the father custody and primary care, for three months. .Advocate Shadan Farasat argued for the respondent while Advocate Malvika Rajkoti appeared for the appellant..[Read Judgment]