The Supreme Court ruled on January 13, 2022, that the issue of a minor's custody, whether in a habeas corpus or custody petition, must be considered based on the concept that the minor's welfare comes first.
While allowing a plea for habeas corpus filed by the spouse seeking custody of a little kid, the Punjab and Haryana High Court gave various directions in this case. The mother was ordered to return to the United States with her minor kid on or before September 30, 2021. The mother took her case to the Apex Court, challenging the order.
When a Court rules on custody, the rights of the parents are irrelevant, but a writ court dealing with the matter of habeas corpus cannot order a parent to leave India and go overseas with the child, according to a Division Bench of Justice Ajay Rastogi and Justice Abhay S. Oka.
The observation was made as a result of a custody battle between the wife and the husband over their minor boy child, Aaditya Kiran.
According to the facts of the case, Kiran V. Bhaskar (first respondent – husband) and Vasudha Sethi (first Appellant – wife) married in New York, USA, on January 21, 2016, and had a child in the United States. As a result, the child is a naturalized US citizen with a US passport. Unfortunately, the infant was diagnosed with hydronephrosis, which necessitated surgery, and because the parents were unable to get a doctor's appointment in the United States, they agreed that the child would be operated on at Max Hospital in Saket. Because the child is a US citizen, the appellant and the respondent signed an agreement allowing the child to travel internationally with one legal guardian. The consent was documented in the said paper to allow the child to go with the mother.
The youngster had surgery, and Dr. Anurag Krishna said that the child should be examined 6 to 7 months after the procedure, with a new ultrasound and renal scan. The husband's case is unique in that he traveled down to India for surgery. He returned to the United States for employment after the surgery because he has a permanent residence status in the United States that is good until August 16, 2031.
According to the husband's argument, his wife breached the foreign travel consent by refusing to allow the minor child to return to the United States by September 26, 2019, and held the minor in India illegally. As a result, the spouse petitioned the Circuit Court of Benton County, Arkansas, USA, for primary care, control, and custody of the youngster due to his unjust detention outside the United States. Following that, the Circuit Court issued an
interim order providing the husband primary care, custody, and control of the minor child and ordering the woman to return custody.
Because the wife continued to keep the minor kid in India, the husband filed a petition with the Punjab and Haryana High Court, which ordered the second respondent to return to the United States with the minor child by September 30, 2021. The High Court further ordered that the spouse not bring any criminal or contempt actions against the second respondent for intercountry removal of the young child until the custody petition is decided.
The Top Court noted that the appellants had not filed any medical certificates from the treating doctor stating that the child requires further treatment or medical care in India, and that the husband had consented to the child travelling to India and residing there until September 26, 2019. As a result, the consent was granted to allow the kid to have surgery in New Delhi.
Justice Oka, speaking for the Bench, stated that this Court's decision in Kanika Goel v. the State of Delhi through Station House Officer and another reaffirms the well-established law that the issue of custody of a minor child and the issue of repatriation of the child to the native country must be addressed solely on the basis of the minor's welfare and not on the basis of the parents' legal rights.
The idea that the welfare of the minor must take precedence over the rights of the parties in a custody dispute has been consistently applied by this Court, according to the Bench.
In fact, Justice Oka found that under section 13(1) of the Hindu Minority and Guardianship Act, 1956, the welfare of the minor shall be the paramount consideration in the appointment or declaration of a guardian of a minor, and that when a Court decides that it is in the best interest of the minor to remain in the custody of one of the parents, the rights of the other parent are bound to be affected.
Though no hard and fast rule can be established in the case of Kanika, the Bench stated that the Court has established the parameters for exercising the power to issue a writ of habeas corpus under Article 226 of the Indian Constitution in cases involving minors brought to India from their native country.
As a result, the Supreme Court stated that the High Court has offered reasons for concluding that the child's repatriation to the United States is in the child's best interests and welfare, and thus the High Court's exercise of power cannot be argued to be perverse or unconstitutional.
Accordingly, the Apex Court modified the High Court's order, stating that if the wife is unwilling to travel the United States with her young son and fails to convey her willingness to visit within fifteen days of today, the husband will be free to take custody of the child.
Following the husband's visit to India, his wife will hand over custody of the minor child to him, and the husband, as the father, will be entitled to transfer the minor child to the United States.
This article is written by Pooja Bisht of Fairfield Institute of Management & Technology. The article presents an analysis of the decision of the Vasudha Sethi & Ors. Vs. Kiran V. Bhaskar & Anr.