Critical To Maintain Boundaries Between Adult Problems And Children - Supreme Court In Child Custody Case [Read Judgment]

The Supreme Court while adjudicating upon a child custody case has held that the dominant consideration to which all other considerations must remain subordinate is the welfare of the child.

The two-judge Bench of Justice AM Khanwilkar and Justice J.B. Pardiwala observed, "The parties should try to do their best to remain relaxed and focused. It is critical to maintain boundaries between the adult problems and children. It is of utmost interest to protect the innocence of children and allow them to remain children. They must not be burdened by any adult problem. Minor children do not have the coping skills or the intellectual ability to understand any issues like the financial constraints, adult relationship issues or their parents unhappiness."

Further, the Court has observed that doctrines of comity of courts, orders passed by foreign courts regarding the custody of the minor child, citizenship of the parents and the child, etc. cannot override the consideration of the welfare of the child.

"…doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding the custody of the minor child, the citizenship of the parents and the child, etc. cannot override the consideration of the best interest and the welfare of the child, and that the direction to return the child to the foreign jurisdiction must not result in any physical, mental, psychological, or other harm to the child.", the Bench opined.

The Court also observed that the primary object of a Habeas Corpus petition, as applied to minor children, is to determine in whose custody the best interests of the child will probably be advanced.

In this case, a Habeas Corpus petition was filed by the petitioner-mother seeking custody of her two minor children.

It was the petitioner's case that her marriage was solemnized in 2008 and within a month of their marriage they had migrated to the USA. Two children were born to born them. It was the case of the petitioner that once her husband was able to procure a full-time job in Michigan, USA, he started conceiving ideas of taking away the minor children. It was submitted by the petitioner that her husband picked up the minor children and left for Michigan, USA, from Cleveland, Ohio, without informing the petitioner-mother. It was alleged that with a view to ensure that the petitioner had no recourse/redressal, her husband had lodged a false complaint with the local police that the petitioner was mentally ill and that she had run away from a mental ward.

In such circumstances referred to above, the petitioner was constrained to immediately file an Emergency Motion for Temporary Custody of the minor children along with a complaint for divorce before the Court in Ohio. The court concerned, granted temporary custody of the minor children to the petitioner.

It was alleged that despite such order her husband paid no heed to such order and continued to keep the children away without allowing them to talk with their mother.

Later a shared parenting plan was arrived at between the parties as passed by the Court in Ohio. The mother and the father together, under a shared parenting agreement, are granted custody, care, and control of the minor children until further order that may be passed by the Court subject to certain terms and conditions. By virtue of the shared parenting plan, both the parties got joint custody of their children.

However, it was the case of the petitioner that her husband had clandestinely and with a view to solely removing the children from the USA and from the joint custody of the petitioner-mother, left for India with the two minor children.

The petitioner desperately tried to get in touch with her minor daughter on phone but her phone was found to be switched off. Sometime later, the petitioner received a call from her minor daughter pleading with the petitioner-mother to take her back to the USA.

Meanwhile, the shared parenting plan referred to above ultimately came to be terminated by the Court at Ohio at the instance of the petitioner-mother.

On the other hand, according to the husband-father of the minor children, the petition filed by the petitioner seeking custody of her minor children so as to repatriate them to the USA was nothing but an abuse of the process of law and not maintainable.

He submitted that the custody of the minor children with the father can never be termed unlawful or illegal. He claimed that the holiday was planned with the express consent of the petitioner-mother and both the children had a talk with their mother, i.e. the petitioner before leaving for India.

He leveled serious allegations against the petitioner that she was diagnosed with several mental health issues. According to him, because of the erratic behavior of the petitioner, he lost his job in the USA.

Advocate Prabhjit Jauhar appeared for the petitioner-mother while Senior Advocate Meenakshi Arora appeared for the father - Respondent No. 2 before the Apex Court.

The Court at the outset considered the Guardians and Wards Act, 1890 as well as the Hindu Minority and Guardianship Act, 1956.

"A mere reading of the provisions of the two Acts referred to above makes it obvious that the welfare of the minor predominates to such an extent that the legal rights of the persons claiming to be the guardians or claiming to be entitled to the custody will play a very insignificant role in the determination by the court.", the Court observed.

As far as the writ of habeas corpus was concerned the Court observed that the exercise of the extraordinary jurisdiction for issuance of a writ of Habeas Corpus would be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful.

The Court observed that the employment of the writ of Habeas Corpus in child custody cases is not pursuant to, but independent of any statute.

The Court while placing reliance on the judgment of Nithya Anand Raghavan v. State (NCT of Delhi) and another, (2017) 8 SCC 454 and observed that the doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding the custody of the minor child, the citizenship of the parents and the child, etc. cannot override the consideration of the best interest and the welfare of the child.

The Court observed that in the present case both minor children were residents of the USA and both children were brought up in the social and cultural milieu of the USA. The Court further noted that the minor daughter has a remarkably high IQ and in such circumstances, both children were admitted to a special school meant for children with such remarkably high IQ in the USA.

The Court also observed that both the children had better prospects of getting refined education that may ultimately enhance their potential.

The Court remarked that it is the fundamental right of the petitioner-mother to have the company of her children and not to be deprived of the same without a reasonable cause.

In respect of the petitioner, the Court noted that she is a resident of the USA and has a good job in the USA. Further that the petitioner was earning a handsome salary and has the resources to provide for a comfortable life for her children in the USA.

In view of the matter, the Court directed the father of the minor children/husband of the petitioner to go back to the USA with both the minor children and abide by the shared parenting plan as ordered by the Court in Ohio.

The Court held that in the case at bar the dominant consideration to which all other considerations must remain subordinate must be the welfare of the child.

"The welfare of the child must be decided on a consideration of these and all other relevant factors, including the general psychological, spiritual and emotional welfare of the child. It must be the aim of the Court, when resolving disputes between the rival claimants for the custody of a child, to choose the course which will best provide for the healthy growth, development and education of the child so that he or she will be equipped to face the problems of life as a mature adult.", the Court held.

Further, before parting with the Judgment, the Court placed reliance on a Delhi High Court judgment (K.G. v. State of Delhi and another, dated 16.11.2017 in Writ Petition (Criminal) No. 374/2017 and Criminal Miscellaneous Application No. 2007/2017) citing it as commendable. In this case, the High Court had observed that the best welfare of the child, normally, would lie in living with both his/her parents in a happy, loving, and caring environment, where the parents contribute to the upbringing of the child in all spheres of life, and the child receives emotional, social, physical and material support – to name a few. In a disturbed marriage, unfortunately, there is bound to be impairment of some of the inputs which are, ideally, essential for the best interest of the child.

In the light of these observations, the Court allowed the Writ Petition.

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