Constitution of India – Art.32 – Writ of Habeas Corpus – Object and scope of – Custody of minor children – Parties having two minor children have been residing in the USA – As per the petitioner-mother, the respondent no.2-father picked up the minor children and left for Michigan, USA, from Cleveland, Ohio, without informing her – A shared parenting plan was arrived at between the parties by the order passed by the Court at Ohio – Case of the petitioner is that the respondent no.2 clandestinely and with a view to remove the children from the USA and from the joint custody of the petitioner, left for India with the two minor children – Present petition filed by her seeking a Writ of Habeas Corpus – Held: The employment of the writ of Habeas Corpus in child custody cases is not pursuant to, but independent of any statute – Jurisdiction exercised by the court rests in such cases on its inherent equitable powers and exerts the force of the State, as parens patriae, for the protection of its minor ward, and the very nature and scope of the inquiry and the result sought to be accomplished call for the exercise of the jurisdiction of a court of equity – Primary object of a Habeas Corpus petition, as applied to minor children, is to determine in whose custody the best interests of the child will probably be advanced – In the present case, the petitioner is a resident of the USA and has acquired H1B visa via sponsorship and has a good job in USA – She is earning handsome salary and has the resources to provide for a comfortable life to her children in the USA – She is comfortably settled in the USA and is accustomed to different kind of lifestyle, culture, society, etc. – She is a hard working woman and would be in a position to take good care of her minor children in accordance with the shared parenting plan – Allegations levelled by the respondent no.2 that the petitioner suffers from mental illness appear to be wild and reckless – Even otherwise this is a highly disputed question of fact – Further, both the minor children are residents of the USA – They have been brought up in the social and cultural milieu of the USA and are accustomed to the lifestyle, language, customs etc. of that country – Also, both the minor children have already been enrolled in school in the USA, a special school meant for children with remarkably high IQ – They have better prospects of getting refined education that may ultimately enhance their potential they already possess and are already accustomed to and comfortable with – It will be in the interest and welfare of both the children to go back to the USA for the purpose of their education, etc. – Respondent no.2 directed to go back to the USA with both the minor children and abide by the shared parenting plan as ordered by the Court at Ohio which though, stood terminated at the instance of the petitioner, but can be revived once again by the authorities by going before the concerned court at Ohio – Further directions issued – Guardians and Wards Act, 1890 – Hindu Minority and Guardianship Act, 1956.
Doctrines/Principles – Doctrine of Parental Alienation Syndrome – Discussed.
Child Custody – Welfare of the child – Factors to be considered – Discussed.
Allowing the writ petition, the Court
HELD: 1. A mere reading of the provisions of the Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956 makes it obvious that the welfare of the minor predominates to such an extent that the legal rights of the persons claiming to be the guardians or claiming to be entitled to the custody will play a very insignificant role in the determination by the court. [Para 73][258-C]
2.1 In a petition seeking a writ of Habeas Corpus in a matter relating to a claim for custody of a child, the principal issue which should be taken into consideration is as to whether from the facts of the case, it can be stated that the custody of the child is illegal. The writ of Habeas Corpus is a prerogative writ and an extraordinary remedy. It is a writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown. The exercise of the extraordinary jurisdiction for issuance of a writ of Habeas Corpus would, therefore, be seen to be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful. It is only where the aforementioned jurisdictional fact is established that the applicant becomes entitled to the writ as of right. The principal duty of the court in such matters should be to ascertain whether the custody of the child is unlawful and illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person. Thus, it is well established that in issuing the writ of Habeas Corpus in the case of minors, the jurisdiction which the Court exercises is an inherent jurisdiction as distinct from a statutory jurisdiction conferred by any particular provision in any special statute. In other words, the employment of the writ of Habeas Corpus in child custody cases is not pursuant to, but independent of any statute. The jurisdiction exercised by the court rests in such cases on its inherent equitable powers and exerts the force of the State, as parens patriae, for the protection of its minor ward, and the very nature and scope of the inquiry and the result sought to be accomplished call for the exercise of the jurisdiction of a court of equity. The primary object of a Habeas Corpus petition, as applied to minor children, is to determine in whose custody the best interests of the child will probably be advanced. In a Habeas Corpus proceeding brought by one parent against the other for the custody of their child, the court has before it the question of the rights of the parties as between themselves, and also has before it, if presented by the pleadings and the evidence, the question of the interest which the State, as parens patriae, has in promoting the best interests of the child. [Paras 75, 78-80 and 91][258-F; 260-C-E; 265-C-E]
Mohd. Ikram Hussain v. State of Uttar Pradesh and Others AIR 1964 SC 1625 : [1964] SCR 86; Kanu
Sanyal v. District Magistrate, Darjeeling (1973) 2 SCC
674 : [1974] 1 SCR 621; Nithya Anand Raghavan v. State (NCT of Delhi) and Another (2017) 8 SCC 454 : [2017] 7 SCR 281; Syed Saleemuddin v. Dr. Rukhsana and Others (2001) 5 SCC 247 : 2001 (1) Suppl. JT 1; Tejaswini Gaud and Others v. Shekhar Jagdish Prasad Tewari and Others (2019) 7 SCC 42 : [2019] 7 SCR 335; Anjali Kapoor v. Rajiv Baijal (2009) 7 SCC 322 : [2009] 6 SCR 560; Rosy Jacob v. Jacob A.
Chakramakkal (1973) 1 SCC 840 : [1973] 3 SCR 918 – relied on.
2.2 The following circumstances emerge from the materials on record so far as the two minor children are concerned : (1) Both the minor children are residents of the USA. (2) The son is a natural citizen and the daughter is a permanent resident of the USA. (3) Both the children have been brought up in the social and cultural milieu of the USA. They are accustomed to the lifestyle, language, customs, rules and regulations, etc. of that country. (4) The children are residents of the USA. One of whom is a natural citizen and will have better future prospects if goes back to the USA.
The minor daughter has a remarkable high IQ. She has been identified to be a gifted child. In such circumstances, both the minor children were admitted in a special school meant for children with such remarkably high IQ in the USA. Such schools in the USA are specialized in providing education to the gifted children which, ultimately, helps in the overall development of such children. The special education ultimately enhances the potential of such children. Both the children in the present case have better prospects of getting refined education that may ultimately enhance their potential they already possess and are already accustomed to and comfortable with. Both the minor children, in the case on hand, have already been enrolled in the school in the USA. Therefore, if the minor children are repatriated to the USA, they will not be subjected entirely to any foreign system of education. It is the fundamental right of the petitionermother to have the company of her children and not to be deprived of the same without a reasonable cause. [Paras 108, 109, 110][278G-H; 286-F-H; 287-A]
2.3 Facts Supporting The Stay Of The Petitioner In The USA: The petitioner is a resident of the USA and has acquired H1B visa via sponsorship and has a good job at Ranstad, USA. The petitioner is earning handsome salary and has the resources to provide for a comfortable life to her children in the USA. The petitioner is comfortably settled in the USA and is accustomed to different kind of lifestyle, culture, society, etc. Petitioner worked very hard to secure admission in the Cleveland State University and completed her studies with the GPA of more than 3, while taking care of her children. This is indicative of the fact that she is a hard working woman and would be in a position to take good care of her minor children in accordance with the shared parenting plan. It would be too much for this Court to tell the petitioner that she may periodically visit India to meet her children but the children should not be asked to go back to the USA with their father, i.e. the respondent no.2. [Paras 111-113][287-B-E]
2.4 In the overall view of the matter, the respondent no.2, at the earliest, should be directed to go back to the USA with both the minor children and abide by the shared parenting plan as ordered by the Court at Ohio. Although, the shared parenting plan as ordered by the Court at Ohio stood terminated at the instance of the petitionermother, yet the same can be revived once again by the authorities by going before the concerned court at Ohio. It is for the parties to take the necessary steps in this regard. The respondent no.2 shall immediately apply for the visa on the strength of this order. If the respondent no.2 is in a position to obtain a job in the USA on the strength of a work permit or any other document, then it is well and good. However, this Court is sure of one thing that it will be in the interest and welfare of both the children to go back to the USA for the purpose of their education, etc. The allegations levelled by the respondent no.2 that the petitioner suffers from some mental illness appears to be absolutely wild and reckless. Even otherwise this issue is a highly disputed question of fact. In the case at bar the dominant consideration to which all other considerations must remain subordinate must be the welfare of the child. This is not to say that the question of custody will be determined by weighing the economic circumstances of the contending parties. The matter will not be determined solely on the basis of the physical comfort and material advantages that may be available in the home of one contender or the other. The welfare of the child must be decided on a consideration of these and all other relevant factors, including the general psychological, spiritual and emotional welfare of the child. It must be the aim of the Court, when resolving disputes between the rival claimants for the custody of a child, to choose the course which will best provide for the healthy growth, development and education of the child so that he or she will be equipped to face the problems of life as a mature adult. Further directions issued. [Paras 114, 115][287-E-H; 288-A-C]
Elizabeth Dinshaw v. Arvand M. Dinshaw (1987) 1 SCC
42 : [1987] 1 SCR 175; V. Ravi Chandran v. Union of India and Others (2010) 1 SCC 174 : [2009] 15 SCR 960; Surya Vadanan v. State of Tamil Nadu (2015) 5 SCC 450 : [2015] 4 SCR 903; Vivek Singh v. Romani Singh (2017) 3 SCC 231 : [2017] 2 SCR 312; Vasudha Sethi and Others v. Kiran V. Bhaskar and Another (2022) SCC OnLine SC 43 107 – relied on.
Sumedha Nagpal v. State of Delhi (2000) 9 SCC 745 : 2000 (7) JT 450; Muthuswami Chettiar v. K.M. Chinna Muthuswami Moopanar AIR 1935 Mad 195; Shilpa
Aggarwal v. Aviral Mittal (2010) 1 SCC 591 : [2009]
16 SCR 287; Lahari Sakhamuri v. Sobhan Kodali
(2019) 7 SCC 311 : [2019] 5 SCR 240; Surinder Kaur Sandhu v. Harbax Singh Sandhu (1984) 3 SCC 698 : [1984] 3 SCR 422; Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC 112 : [1997] 5 Suppl. SCR 30 – referred to.
K. G. v. State of Delhi and Another dated 16.11.2017 in Writ Petition (Criminal) No. 374/2017 – approved. Secretary of State for Home Affairs v. O’Brien (1923) AC 603 (609); Mckee v. McKee 1951 AC 352 101;
InRe: McGrath (Infants) [1893] 1 Ch. 143; Inre “O” (An Infant) [1965] 1 Ch. 23; Walker v. Walker & Harrison 1981 New Ze Recent Law 257 – referred to.
Halsbury’s Laws of England, Fourth Edition, Vol. 24, Article 511; American Jurisprudence, Vol. 39, Second Edition, Para 148 at pages 280-281 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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