Whether the Court while dealing with custody of minor child can compel one of the parents to move from one country to another ?
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. It ultimately depends on the parent concerned to decide and opt for giving a company to the minor child for the sake of the welfare of the child. It will all depend on the priorities of the concerned parent.
The Court noted that the child has spent more than three years in USA and two and a half years in India. Therefore, it cannot be said that there is a complete integration of the child with the social, physical, psychological, cultural and academic environment of either USA or India.
By its very nature, in a custody case, the facts cannot be similar. What is in the welfare of the child depends on several factors. A custody dispute involves human issues which are always complex and complicated. There can never be a straight jacket 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.
Hindu Minority and Guardianship Act, 1956
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. As provided in clause (a) of Section 6 of the 1956 Act, in the case of a minor boy or girl, the natural guardian is the father, but ordinarily, the custody of a minor who has not completed the age of 5 years shall be with the mother. On a conjoint reading of sub-section (1) of Section 13 read with clause (a) of Section 6 of the 1956 Act, if it is found that the welfare of a minor whose age is more than 5 years requires that his custody should be with the mother, the Court is bound to do so. In the same way, if interest of the minor which is the paramount consideration requires that the custody of a minor child should not be with the mother, the Court will be justified in disturbing the custody of the mother even if the age of the minor is less than five years. In such cases, the rights of the father or the mother, as the case may be, conferred by clause (a) of Section 6 are bound to be affected. Whenever the Court disturbs the custody of one parent, unless there are compelling reasons, the Court will normally provide for visitation rights to the other parent. The reason is that the child needs the company of both parents. The orders for visitation rights are essentially passed for the welfare of minors and for the protection of their right of having the company of both parents. Such orders are not passed only for protecting the rights of the parents. In view of the settled legal position, the welfare of the minor being the paramount consideration, we cannot act upon the suggestions of Mr.John Ekelaar in his Article. We cannot accept the submission that while applying the welfare principle, the rights of the mother or father need to be protected. The consideration of the well-being and welfare of the child must get precedence over the individual or personal rights of the parents.
Case Law Reference
- Chandima Janaka Wijesinghe v. Union of India, W.P. (Crl.) No. 547 of 2021
- Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67
- Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311
- Kanika Goel v. the State of Delhi, (2018) 9 SCC 578
- Prateek Gupta v. Shilpi Gupta, (2018) 2 SCC 309
- K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1
- Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454
- Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42
- Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698
Case Number : Criminal Appeal No. 82 of 2022 (Arising out of SLP (Crl.) No. 7129 of 2021); January 12, 2022
Hon’ble Mr. Justice Abhay S. Oka pronounced the judgment of the Bench comprising Hon’ble Mr. Justice Ajay Rastogi and His Lordship.
For Petitioner(s) Ms. Binu Tamta, Adv Mr. Dhruv Tamta, AOR Mr. Vikramaditya Bhaskar, Adv For Respondent(s) Mr. Shadan Farasat, AOR Mr. Shourya Dasgupta, Adv. Mr. Bharat Gupta, Adv. Ms. Suhavi Arya, Adv. Ms. Hafsa Khan, Adv. Ms. Tanvi Tuhina, Adv. Mr. Aman Naqvi, Adv.
Case Link : https://pdf.caselaw.in/sc/2022/01/1177/