Issue of custody of minor has to be decided on touchstone of principle that welfare of minor is of paramount consideration, rules Top Court

Read Judgment: Vasudha Sethi & Ors. V. Kiran V. Bhaskar & Anr. 

Pankaj Bajpai

New Delhi,  January 13, 2022: The Supreme Court has opined that the issue of custody of a minor, whether in a petition seeking habeas corpus or in a custody petition, has to be decided on the touchstone of the principle that the welfare of a minor is of paramount consideration.

A Division Bench of Justice Ajay Rastogi and Justice Abhay S. Oka observed that the rights of the parents are irrelevant when a Court decides the custody issue, however, 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. 

The observation came pursuant to a dispute between the wife and the husband over the custody of their minor male child Aaditya Kiran. 

Going by the background of the case, Kiran V. Bhaskar (first respondent – husband) and Vasudha Sethi (first Appellant – wife) were married in New York, USA and a child was born in USA on January 21, 2016. Thus, the child is a citizen of USA by birth and is holding a USA passport. Unfortunately, the child was diagnosed with hydronephrosis which required surgery, and since the parents were not in a position to secure an appointment of a doctor in USA for surgery, they agreed that the child will undergo surgery at Max Hospital, Saket. As the child is a citizen of USA, consent for international travel with one legal guardian was executed by and between the appellant and the respondent. The consent was recorded in the said document to enable the child to travel with the mother. 

The child underwent a surgery and Dr. Anurag Krishna recorded that the child needs to be reviewed 6 to 7 months post-surgery along with a fresh ultrasound and renal scan. It is the case of the husband that at the time of surgery, he flew down to India. After the surgery, he returned to USA for his work, as he has a status of permanent resident in USA which is valid up to Aug 16, 2031. 

According to the case of the husband, his wife violated the international travel consent by not allowing the minor child to come back to USA by September 26, 2019 and detained the minor in her illegal custody in India. Therefore, the husband filed a petition before 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. The Circuit Court thereafter, passed an interim order granting primary care, custody, and control of the minor child to the husband and directed the wife to return the custody. 

Since, the wife continues to detain the minor child in India, the husband approached the High Court of Punjab and Haryana, which directed the second respondent to return to USA along with minor child on or before September 30, 2021. The High Court also directed that till decision of the custody petition, the husband shall not initiate any criminal/contempt proceedings against second respondent for inter country removal of the minor child. 

After considering the submissions, the Top Court found that appellants have not placed on record any medical certificate of the treating doctor recording that the child needs any further treatment or medical care in India, and that the husband had consented for the child travelling to India and remaining in India till September 26, 2019. Thus, the reason for the grant of consent was to enable the minor to undergo surgery in New Delhi.

Speaking for the Bench, Justice Oka highlighted that the decision of this Court in the case of Kanika Goel v. the State of Delhi through Station House Officer and another , reiterates the well-settled law 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 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, added the Bench. 

In fact, Justice Oka found that u/s 13(1) of the Hindu Minority and Guardianship Act, 1956, it is provided that in appointment or declaration of guardian of a minor, the welfare of the minor shall be the paramount consideration, and 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 laid down in the case of Kanika, this Court has laid down the parameters for exercise of the power to issue a writ of habeas corpus under Article 226 of the Constitution of India dealing with cases of minors brought to India from the country of their native, added the Bench. 

The Top Court therefore said that 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, and thus, the exercise of power by the High Court cannot be said to be perverse or illegal. 

The Apex Court accordingly, modified the order of the High Court observing that in the event, the wife 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 husband to take custody of the child. 

And after the husband visits India, his wife shall hand over the custody of the minor child to him and then the husband being the father shall be entitled to take the minor child with him to USA.