Child and Family Welfare – Child Custody – Parents in two different continents – In 2016, couple got married in India – Appellant-wife accompanied the husband, working in USA – A daughter was born in 2017 – Relationship of the couple got strained – Appellant inter alia sought sole custody of the minor child from the Norfolk Juvenile and Domestic Relations District Court– Consent order passed inter alia making provision for shared parenting – Before the next date fixed in the Norfolk Court, the appellant along with the child came to India– Husband filed motion for emergency relief before the said Court – Ex-parte order inter alia granted him custody of the child – Husband also filed petition for issuance of writ of habeas corpus before the Rajasthan High Court – High Court inter alia directed the wife to return to USA along with minor daughter – On appeal, held: It is too late in the day to urge that writ of habeas corpus is not maintainable if the child is in the custody of another parent – Court can invoke its extraordinary writ jurisdiction for the best interest of the child – Contention of the appellant that the writ petition was not maintainable, rejected – Further, since the wife brought the minor child to India in violation of the orders of the jurisdictional court in USA, her custody of the child cannot be said to be strictly legal – However, the High Court could not have directed the appellant to go to USA – Custody of a child is a different issue, but even while deciding such issue, no direction can be issued in writ jurisdiction to the adult spouse to go and live with the other strained spouse – In matters of custody of a child, the welfare of the child will always remain the paramount consideration – In cases like the present one where the parents are in two different continents, effort should be made to give maximum visitation rights to the parent who is denied custody – Directions issued in two parts– First part will apply if the appellant is willing to go to USA on terms and conditions offered by the husband in his affidavit which is recorded as an undertaking to the Court and the husband is duty bound to abide by it– Second part to apply if she is not willing to go to USA, how should the husband be granted custody of the child – Further, in case if the visa/work permit of the husband is not extended and he has to leave USA then the appellant is at liberty to move Supreme Court for fresh directions – Constitution of India – Art.226 – Doctrine of comity of courts.
Constitution of India – Art.226 – Writ of habeas corpus – Maintainability of, in matters of child custody – Discussed – Child and Family Welfare.
Doctrines/Principles – Doctrine of comity of courts – Held: Doctrine of comity of courts is a very healthy doctrine – If courts in different jurisdictions do not respect the orders passed by each other, it will lead to contradictory orders being passed in different jurisdictions – No hard and fast guidelines can be laid down in this regard and each case has to be decided on its own facts– Child and Family Welfare– Child Custody.
Child and Family Welfare – Child Custody – Visitation rights; Contact Rights – Duty of Courts – Held: It is to be ensured that the Court weighs each and every circumstance very carefully before deciding how and in what manner the custody of the child should be shared between both the parents – Even if the custody is given to one parent the other parent must have sufficient visitation rights to ensure that the child keeps in touch with the other parent and does not lose social, physical and psychological contact with any one of the two parents – Courts dealing with the custody matters must while deciding issues of custody clearly define the nature, manner and specifics of the visitation rights – In addition to ‘Visitation Rights’, ‘Contact rights’ are also important for development of the child specially in cases where both parents live in different states or countries – Concept of contact rights in the modern age would be contact by telephone, e-mail or in fact, the best system of contact, if available between the parties should be video calling. Disposing of the appeal, the Court
HELD : 1.1 Whether a writ of habeas corpus is maintainable? It is too late in the day to urge that a writ of habeas corpus is not maintainable if the child is in the custody of another parent. The court can invoke its extraordinary writ jurisdiction for the best interest of the child. Therefore, the contention of the appellant-wife that the writ petition before the High Court of Rajasthan was not maintainable is rejected. In the present case since the wife brought the minor to India in violation of the orders of the jurisdictional court in USA, her custody of the child cannot be said to be strictly legal. However, the High Court could not have directed the appellant-wife to go to the USA. The wife is an adult and no court can force her to stay at a place where she does not want to stay. Custody of a child is a different issue, but even while deciding the issue of custody of a child, no direction can be issued to the adult spouse to go and live with the other strained spouse in writ jurisdiction. [Paras 9, 12] [427-C-D; 428-F-G] Elizabeth Dinshaw v. Arvand M. Dinshaw & Ors. (1987)
1 SCC 42 : [1987] 1 SCR 175 ; Nithya Anand Raghavan v. State (NCT of Delhi) & Anr. (2017) 8 SCC 454 : [2017]
7 SCR 281 ; Lahari Sakhamuri v. Sobhan Kodali
(2019) 7 SCC 311 ; Kanika Goel v. State of Delhi (2018)
9 SCC 578 : [2018] 11 SCR 546 – relied on.
1.2 Comity of Courts
In the fast shrinking world where adults marry and shift from one jurisdiction to another there are increasing issues of jurisdiction as to which country’s courts will have jurisdiction. In many cases the jurisdiction may vest in two countries. The issue is important and needs to be dealt with care and sensitivity. Though the interest of the child is extremely important and is, in fact, of paramount importance, the courts of one jurisdiction should respect the orders of a court of competent jurisdiction even if it is beyond its territories. When a child is removed by one parent from one country to another, especially in violation of the orders passed by a court, the country to which the child is removed must consider the question of custody and decide whether the court should conduct an elaborate enquiry on the question of child’s custody or deal with the matter summarily, ordering the parent to return the custody of the child to the jurisdiction from which the child was removed, and all aspects relating to the child’s welfare be investigated in a court in his/her own country. The doctrine of comity of courts is a very healthy doctrine. If courts in different jurisdictions do not respect the orders passed by each other it will lead to contradictory orders being passed in different jurisdictions. No hard and fast guidelines can be laid down in this regard and each case has to be decided on its own facts. The welfare of the child will always remain the paramount consideration. [Paras 13, 16] [429-A-D; 432-D]
V. Ravi Chandran (Dr.) (2) v. Union of India (UOI) and Ors. (2010) 1 SCC 174 : [2009] 15 SCR 960 – relied on.
1.3 Welfare of the child – the paramount consideration While deciding matters of custody of a child, primary and paramount consideration is welfare of the child. If welfare of the child so demands then technical objections cannot come in the way. The courts should decide the issue of custody only on the basis of what is in the best interest of the child. A child, especially a child of tender years requires the love, affection, company, protection of both parents. This is not only the requirement of the child but is his/her basic human right. Just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents. A child is not an inanimate object which can be tossed from one parent to the other. Every separation, every re-union may have a traumatic and psychosomatic impact on the child. Therefore, it is to be ensured that the court weighs each and every circumstance very carefully before deciding how and in what manner the custody of the child should be shared between both the parents. Even if the custody is given to one parent the other parent must have sufficient visitation rights to ensure that the child keeps in touch with the other parent and does not lose social, physical and psychological contact with any one of the two parents. It is only in extreme circumstances that one parent should be denied contact with the child. Reasons must be assigned if one parent is to be denied any visitation rights or contact with the child. Courts dealing with the custody matters must while deciding issues of custody clearly define the nature, manner and specifics of the visitation rights. The concept of visitation rights is not fully developed in India. Most courts while granting custody to one spouse do not pass any orders granting visitation rights to the other spouse. [Paras 17, 19 and 20] [432-E, F-H; 433-A-D]
1.4 Normally, if the parents are living in the same town or area, the spouse who has not been granted custody is given visitation rights over weekends only. In case the spouses are living at a distance from each other, it may not be feasible or in the interest of the child to create impediments in the education of the child by frequent breaks and, in such cases the visitation rights must be given over long weekends, breaks, and holidays. In cases like the present one where the parents are in two different continents effort should be made to give maximum visitation rights to the parent who is denied custody. In addition to ‘Visitation Rights’, ‘Contact rights’ are also important for development of the child specially in cases where both parents live in different states or countries. The concept of contact rights in the modern age would be contact by telephone, e-mail or in fact, the best system of contact, if available between the parties should be video calling. With the increasing availability of internet, video calling is now very common and courts dealing with the issue of custody of children must ensure that the parent who is denied custody of the child should be able to talk to her/his child as often as possible. Unless there are special circumstances to take a different view, the parent who is denied custody of the child should have the right to talk to his/her child for 5-10 minutes everyday. This will help in maintaining and improving the bond between the child and the parent who is denied custody. If that bond is maintained the child will have no difficulty in moving from one home to another during vacations or holidays. The purpose of this is, if one happy home with two parents cannot be provided to the child then let the child have the benefit of two happy homes with one parent each. [Paras 21-23] [433-E-H; 434-A-C]
1.5 Age of the child – The child is less than 3 years old. She is a girl and, therefore, there can be no manner of doubt that she probably requires her mother more than her father. This is a factor in favour of the wife. [Para 24] [434-E]
1.6 Nationality of the child - The child is a citizen of USA by birth. [Para 25] [434-F]
1.7 Proceedings in the Norfolk Court - The contention raised on behalf of the wife that she could not understand the order of the Norfolk Court is not agreed with. This is not the first time that the wife had approached the court. The wife is educated. She was working in Walmart in the USA. The wife is aware of her rights. Unable to agree with the contention now raised that her counsel coerced her to enter into the agreement. In any event if she has any grievance with regard to the manner in which the settlement was arrived at, the proper course was to raise the issue before the Norfolk Court. No Indian Court can sit in appeal over the orders of the Norfolk Court. Obviously, the child who is less than three years old cannot be heard in the matter but keeping in view the facilities of education, social security etc., which would be available in USA, the child should not be deprived of the same only on the ground that the mother does not want to go back to USA. [Paras 26, 27-29] [435-C, G-H; 436-A-B]
1.8 Visa issue
The counsel for the appellant-wife laid great emphasis on the fact that the visa/work permit of the husband is expiring in 2020. That by itself is no ground to deny custody of the child to the husband. [Para 30] [436-C]
2.1 It is in the best interest of the child to have parental care of both the parents, if not joint then at least separate. If the wife is willing to go back to USA then all orders with regard to custody, maintenance etc., must be looked into by the jurisdictional court in USA. A writ court in India cannot, in proceedings like this direct that an adult spouse should go to America. Therefore, directions are being issued in two parts. The first part will apply if the appellant-wife is willing to go to USA on terms and conditions offered by the husband in his affidavit. The second part would apply if she is not willing to go to USA, how should the husband be granted custody of the child. [Para 32] [437-B-C]
2.2 The counsel for the appellant-wife urged that the position would totally change in case the work permit/visa of the husband is not extended. This is in the realm of speculation, it cannot be presumed whether the visa will be extended or not. Therefore, the aforesaid directions are issued but it is made clear that if the visa/work permit of the husband is not extended and he has to leave the USA then the wife will be at liberty to move this Court for fresh directions. [Para 36] [440-E, F]
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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