Read Judgement: Kiran V. Bhaskar VS. State of Haryana and others

Tulip Kanth

Chandigarh, September 2, 2021: In a case pertaining to the custody of a minor child, the  Punjab and Haryana High Court has held that it would be for the welfare and in best of interest of the minor child that order be passed for return of the minor child to USA, from where he was removed.

Herein, the petitioner father had filed a petition under Articles 226 and 227 of the Constitution of India r/w Section 482 of the Cr.P.C. for issuance of a writ in the nature of habeas corpus directing the respondents to ensure the release of the minor son of the petitioner  from illegal custody of the mother and maternal grandparents of the minor child and hand over his custody to the petitioner.

The factual background laid down by the petitioner was that the petitioner and the respondent wife were married in New York, USA, and the minor child was born in Benton County, Arkansas.

He was diagnosed with hydronephrosis, a kidney condition. He underwent corrective surgery at Max Hospital, Saket, for which the petitioner flew down to India. Subsequently, after the surgery, the petitioner returned to the U.S.A. to rejoin work.

According to the petitioner the respondent had violated the international travel consent by not returning the minor child to the USA by September 26,2019 (the mutually agreed upon date).Later, the Circuit Court of Benton County, Arkansas passed an order awarding primary care, custody and control of the minor child to the petitioner, and directing the respondent to return the child to the petitioner immediately, pending further orders.

So, the petitioner argued that the respondent continued to detain the minor child in her illegal custody in India, in the teeth of the order passed by the jurisdictional foreign court.

While directing the respondent to return to USA along with the minor child on or before September 30,2021, the Bench of Justice Arun Kumar Tyagi opined that there is likelihood of the minor child being psychologically disturbed due to his separation from his mother, who is the primary care giver to him and under whose care he has remained since his birth but his mother has already wrongfully deprived him of the love and affection of his father with whom also the minor child lived since his birth till removal to India.

There was no material to suggest that return of the minor child to USA would result in psychological physical or cultural harm to him. It could not be said to that there was any undue and unreasonable delay in filing of the present petition so as to disentitle the petitioner to the relief claimed, noted the Court.

The Court also discussed the facet that exercise of extra ordinary writ jurisdiction to issue writ of habeas corpus in such cases is not solely dependent on and does not necessarily follow merely determination of illegality of detention and is based on the paramount consideration of welfare of the minor child irrespective of legal rights of the parent.

It was also reiterated that whenever a question arises pertaining to the custody of a minor child whether before Family Court/Guardian Judge on a petition for custody of the minor child under the Guardians and Wards Act, 1890, Hindu Minority and Guardianship Act, 1956 etc. or before High Court or Supreme Court on a habeas corpus petition, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor.

The Bench has also clarified that the fact that there is a pre existing order of the foreign Court in favour of the petitioner is a factor to be reckoned in favour of the petitioner but the same is not determinative of the question of repatriation of the minor child for permitting the same which question has to be decided on the test of best of interest and welfare of the minor child.

The Bench mentioned that in the present case, the question of issuance of writ of habeas corpus in exercise of jurisdiction under Article 226 of the Constitution of India directing or declining return of the minor child to the native country, has to be decided, not on the basis of legal rights of the parties, but on the basis as to whether paramount consideration of the welfare and best interest of the minor child lies in return to USA or continued stay in India.

While allowing the petition, the Court held that the question of appointment of guardian/handing over custody of the minor child to either of the parents would be left for adjudication by the Court of competent jurisdiction in USA on the basis of paramount consideration of welfare and best of the interest of the child.

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