In Child Custody Cases Welfare of Child is Paramount Consideration

INTRODUCTION

In this recent case, titled Prateek Gupta v. Shilpi Gupta & ors the Supreme Court has passed an important judgment wherein custody of child initially residing in the US and later on brought to India by father was disputed.

ANANLYSES MADE BY APEX COURT

The Supreme Court in the case has rendered a detailed analysis of legal principles involving 'intimate contact' of the child with the place of repatriation and principle of comity of courts over the welfare of child. The Court has referred to plethora of judgments in the case to whittle down to the inference that welfare of child is of paramount consideration and principle of forum convenience has no place in cases where custody of child is disputed.

In this case, the Appellant (father) approached the Supreme Court against High Court's order, whereby the High Court had directed the appellant to handover the custody of child (Master Aadvik, aged about 5 years) to the Mother (respondent).

Brief Facts OF THE CASE:

In the case, the parties after solemnization of their marriage were residing in the USA and out of their wedlock two sons were born. Due to irreconcilable marital issues between the parties, they separated and both the children resided with the respondent (mother). The appellant however, made short time visits in between and on one such occasion he allegedly took along with him Aadvik (child-son, whose custody is disputed in the instant case) by foul play and thereafter the appellant left U.S. with the child to India without any prior information or permission or consent of hers.

Aggrieved by this, the respondent approached Juvenile and Domestic Relations Court Fairfax County in the US and filed an urgent application

Emergency Motion For Return of Minor Child and Established Temporary Custody", whereby the appellant was directed to return the child to the Commonwealth of Virginia and to the custody and control of the respondent (mother).

The respondent in the case also invoked the writ jurisdiction of the High Court of Delhi seeking a writ of habeas corpus against the appellant for the custody of the child alleging its illegal and unlawful charge by him. The High Court directed the Appellant to handover the custody of the child to respondent-mother in case.

Bench's Verdict

Two-Judge Bench of the Supreme Court headed by the Chief Justice allowed the appeal in the case and made following essential observations:

1. That the Doctrines of • intimate contact' and • closest concern' are of persuasive relevance only when the child is uprooted from its native country and taken to a place to encounter alien environment, language, custom etc., with the portent of mutilative bearing on the process of its overall growth and grooming.

2. Whether immediate restoration of the custody of the child to the respondent-mother in the native country is obligatorily called for - In view of order dated 03.05.2016, the child has remained in the custody of the appellant-father. No material has been brought on record, persuasive and convincing enough, to take a view that immediate restoration of the custody of the child to the respondent-mother in the native country is obligatorily called for in its interest and welfare.

That the appellant being the biological father of Aadvik, his custody of the child can by no means in law be construed as illegal or unlawful. In view of the facts and circumstances, the Court opined that the dislodgment of the child as directed by High Court would be harmful to it. The Court was of the opinion that the child till he attains majority should continue to be in the custody, charge and care of the appellant, subject to any order to the contrary, if passed by a court of competent jurisdiction.

That immediate restoration of the child is called for only on an unmistakable discernment of the possibility of immediate and irremediable harm to it and not otherwise. It is thus imperative that unless, the continuance of the child in the country to which it has been removed, is unquestionably harmful, when judged on the touchstone of overall perspectives, perceptions and practicabilities, it ought not to be dislodged and extricated from the environment and setting to which it had got adjusted for its well-being.

In view of judicial pronouncements on similar issues, the Supreme Court held that if the child has been brought within India, the courts in India may conduct:

(a) summary inquiry; or
(b) an elaborate inquiry on the question of custody.

In the case of asummary inquiry, the court may deem it fit to order return of the child to the country from where he/she was removed unless such return is shown to be harmful to the child.

In anelaborate inquiry, the court is obliged to examine the merits as to where the paramount interests and welfare of the child lay and reckon the fact of a pre-existing order of the foreign court for return of the child as only one of the circumstances.

In either case, the crucial question to be considered by the court (in the country to which the child is removed) is to answer the issue according to the child's welfare. That has to be done bearing in mind the totality of facts and circumstances of each case independently.

Child Welfare is of paramount consideration and Principle of Comity of Courts

The Supreme Court in the case made reference to catena of cases to hold that the interests and welfare of the child are of paramount consideration. The principle of comity of courts is that the court in the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the foreign court as only a factor to be taken into consideration. While considering that aspect, the court may reckon the fact that the child was abducted from his or her country of habitual residence but the court's overriding consideration must be the child's welfare

Duty of a court exercising parens patriaejurisdiction in custody cases-

In this context the Supreme Court held that welfare of the minor in such cases being the paramount consideration, the court has to approach the issue regarding the validity and enforcement of a foreign decree or order carefully. Simply because a foreign court has taken a particular view on any aspect concerning the welfare of the minor is not enough for the courts in this country to shut out an independent consideration of the matter.

  • That the gravamen of the judicial enunciation on the issue of repatriation of a child removed from its native country is clearly founded on the predominant imperative of its overall well-being, the principle of comity of courts, and the doctrines of • intimate contact and closest concern.
  • That there is no forum convenience in ward ship jurisdiction and the peremptory mandate that underlines the adjudicative mission is the obligation to secure the unreserved welfare of the child as the paramount consideration.

In view of the aforesaid, the Supreme Court allowed the Appeal and underlined the essence in child custody cases i.e. under no circumstances can the principle of welfare of the child be eroded.

Take Away

The obiter dicta of Supreme Court in the instant case is an essential one when it comes to cases involving child custody and repatriation of a child from his native country. Thus, the essence underlined is the paramountcy of the consideration of welfare and happiness of the infant to be of decisive bearing in the matter of deciding its custody.

The author is a practicing advocate in Supreme Court of India, Delhi & Punjab & Haryana High Courts and District Courts in Delhi and NCR dealing with variety of Civil, Criminal, Service (Civil & Military), Family Laws, Labour, Consumer, Cooperative Soceities etc. cases after retirement from a successful career of38 years in Indian Army in the rank of Major.

 

Dr J C Vashista 
on 27 December 2017
Published in Family Law
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