Sharmila Velamur vs V. Sanjay and Ors.

Expert Opinion – Expert’s report to be given due credence unless strong reasons to disbelieve it – Parties are US citizens, divorced in US – Appellant-mother was granted permanent legal guardianship of their elder son ‘A’ (22 years old) with severe cognitive limitations – Appellant filed writ of habeas corpus in High Court alleging his illegal detention by the Respondent No.4-father – High Court very briefly interacted with ‘A’ and held that he was consensually living with his father in India, dismissed the petition – It did not consider the report of the Evaluation Committee constituted by the Idaho Department of Health and Welfare (West Hub Developmental Disabilities Program) consisting of a Psychologist, a Physician and a Social Worker, to decide whether ‘A’ was living consensually in India:

Held: Even though Courts are well within their rights to come to a finding distinct from an expert’s report, the expert’s opinion cannot be discarded, as a whole without any reason – The dispute before the High Court concerned the sensitive and complex issue of alleged illegal detention of a person with severe cognitive limitations, it ought to have considered and given due credence to the Evaluation Committee’s report which had held that ‘A’ does not possess the capacity to make well-informed, independent decisions, for his own benefit, on complex subject matter, such as long-term residence – If the High Court had any doubt as to the reliability of the report and its conclusions, it ought to have ordered an enquiry through a reputable medical institution – Dismissing all aspects of scientific assessment in a highly specialized and niche area of medicine was misconceived and ill-founded – In the event there is any confusion or doubt regarding a person’s capacity and ability to make independent decisions and if there is a definitive opinion on disability endorsed by a specialist, domain expert, or a doctor, the Court should give due credence to that opinion – If the expert’s report concludes that the mental or physical age of the person concerned is well below the age of majority, there can be no inference of any ‘implied’ or ‘express’ consent to any act which might have a substantive impact on the consenting person – Unless there are strong reasons to disbelieve an expert’s report to this effect, the Courts must be overly-cautious in coming to a finding contrary thereto. [Paras 20, 22]

Child and family welfare – Custody matters – Child’s best interest and welfare – Determination – Doctrine of parens patriae – Parties are US citizens – Issue of custody of their elder son ‘A’ suffering from Ataxic Cerebral Palsy – Whether A’s best interests and welfare would be served by permitting him to continue residing with Respondent No.4-father in India: Held: ‘A’, his parents and his younger brother, have resided in the US for two decades and are all US citizens – Having been born and brought up in the US, they are accustomed to the culture, the activities, the language and the schooling there – They know no other way of life and have their roots in the US – Regardless of these commonalities, the brothers share certain unique characteristics which helps them understand, relate to, and lean on each other – Also, A has completed most of his schooling in the US; he has access to long-term specialized welfare services and curriculums; he has a peer group; an established routine; and places to regularly attend for socialization – He is familiar with the language and lifestyle in the US – Also, ‘A’ desires to be in the company of his younger brother, from whom he has been separated for far too long – It cannot be said that ‘A’ has given up his roots in the US and has developed new roots in India, due to which he should not be displaced – In the facts and surrounding circumstances, it is in A’s best interests and welfare to return to the US, where he can complete his schooling and reside with his younger brother, under the appellant’s guardianship. [Paras 35, 38, 39]

Child and family welfare – Custody of child – Best interest of child – Comity of courts – Principle of:

Held: The principle of comity of courts and a pre-existing order of a Foreign Court must yield to the best interests of the child, especially when the Court has decided to conduct an elaborate enquiry in this regard – Court to take into account all the attending circumstances and the totality of the situation to consider the interests of the child. [Paras 31, 32]