Child’s welfare key in custody battle: SC

A child’s welfare, and not the legal rights of the parents, is the paramount concern in a custody battle, the Supreme Court has held.

In fact, the parents’ rights are “irrelevant” in such cases, a recent judgment by a Bench of Justices Ajay Rastogi and Abhay S. Oka said.

The apex court laid down that no court can force a parent to travel abroad with the child in question in a custody battle or compel him or her to reside in a foreign country against their wishes. That would be a violation of the parent’s privacy, it said.

The judgment came in a case concerning a child, a U.S. citizen, who was brought to India by his mother for medical treatment in 2019. The mother did not abide by a consent document signed with the boy’s father to return to the U.S. with the child after about eight months following the completion of treatment and a surgery.

The mother, however, contended that the couple was without familial support in the U.S. and her rights as a primary caregiver to the child cannot be ignored. She said the welfare of the child was interlinked with her own welfare.

The mother argued that welfare would mean balancing the interests of all the members of the child’s family. “The law regarding custody does not and cannot completely eliminate a woman in the name of child welfare,” she had argued.

The apex court differed with her point of view. Justice Oka, who authored the judgment, explained that the issue with regard to repatriation of a child has to be addressed not on a consideration of legal rights of the parties but on the sole criterion of the welfare of the child.

“The paramount consideration is the welfare of the minor child and the rights of the parties litigating over the custody issue are irrelevant,” the court said.

However, the court said what would be in the best interest of a child was a question of fact in each case. “A custody dispute involves human issues which are always complex and complicated. There can never be a straightjacket formula to decide the issue of custody of a minor child as what is in the paramount interest of a minor is always a question of fact,” Justice Oka said.

‘Choice with mother’

He, however, did not agree with the Punjab and Haryana High Court’s direction to the mother to travel back with the child to the U.S. “The courts cannot decide where the parents should reside as it will affect the right to privacy of the parents. 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,” Justice Oka said.

The court said the choice would be left to the mother. The court then issued a series of directions to the father to make monetary and residential arrangements for the mother if she chooses to accompany their son abroad.

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Printable version | Feb 13, 2022 7:10:43 am |