2019 Supreme(SC) 293

SUPREME COURT OF INDIA
A.M. Khanwilkar, Ajay Rastogi, JJ.
LAHARI SAKHAMURI – Appellant
Versus
SOBHAN KODALI – Respondent
Civil Appeal No(s). 3135-316 of 2019 (Arising Out of SLP(Civil) No(s). 15892-15893 of 2018) with Criminal Appeal No(s). 500 of 2019 (Arising Out of SLP(Crl.) No. 2316 of 2018)
Decided on : 15-03-2019

IMPORTANT POINTS
(a) Custody of minor children – Doctrines of comity of courts, intimate connect, orders passed by foreign courts cannot override consideration of best interest and welfare of child.
(b) A child’s future relationship with each of his parents may be better maintained and his existing relationship is less damaged by a negotiated settlement than by one imposed by a court after adversarial proceedings.
(c) Children are very sensitive and due to conflict of their parents if could not be resolved at the earliest, minor children became victim of time for which they are not at fault but indeed sufferers.

Headnote:(A) Family Law – Marital Discord – Custody dispute between estranged spouses – Implications – Persons who are affected are minor children who have been directly impacted because of fact that their parents have not been able to resolve their differences – Children are very sensitive and due to conflict of their parents if could not be resolved at the earliest, minor children became victim of time for which they are not at fault but indeed sufferers – It has to be examined in different perspective also that rights of child as a progressive approach to best interest of child and what is needed in best interest of child. (Para 3)

       (B) Guardians and Wards Act, 1890 – Sections 7 and 9 – Custody of minor children – Dispute between estranged NRI spouses – Failure of mediation – Doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in matter regarding custody of minor child, citizenship of parents and the child etc. cannot override consideration of best interest and welfare of child and that direction to return child to the foreign jurisdiction must not result in any physical, mental, psychological, or other harm to child – Expression “best interest of child” which is always kept to be of paramount consideration is indeed wide in its connotation and it cannot remain the love and care of primary care giver, i.e., mother in case of infant or child who is only a few years old – In divorce petition, appellant made a specific averment about permanent residence in US for both parties and securing children’s custody and also admitted that both minor children were residing in US – No mode of domestic violence or abuse was ever subjected upon her or upon minor children by respondent – Both minor children, from very inception of their birth, were admittedly living with their parents in US – Court has to keep in mind best interest of the child as paramount consideration – Observations of US Court clearly show that principle of welfare of children has been taken into consideration by US Court in passing of order as it reiterates that both parties are necessary for proper upbringing of children and ultimate decision of custody and guardianship of two minor children will be taken by US which has exclusive jurisdiction to take decision as children happened to bet US citizens. [Section 2(9) of Juvenile Justice (Care & Protection) Act, 2015] (Paras 41, 43, 45, 46, 47 and 48)

       (C) Guardians and Wards Act, 1890 – Sections 7 and 9 – Constitution of India – Article 136 – Custody of minor children – Dispute between estranged NRI spouses – Doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding custody of minor child, citizenship of the parents and child etc., cannot override consideration of best interest and welfare of child and that direction to return child to foreign jurisdiction must not result in any physical, mental, psychological, or other harm to child – Taking holistic consideration of entire case, all criteria such as comity of courts, orders of foreign court having jurisdiction over the matter regarding custody of children, citizenship of spouse and children, intimate connect, and above all, welfare and best interest of minor children weigh in favour of respondent and that has been looked into by High Court in impugned judgment in detail – That needs no interference under Article 136 of Constitution of India – There is every possibility that parties may reconcile and start over their relationship afresh – Best interest of children being of paramount importance will be served if they return to US and enjoy their natural environment with love, care and attention of their parents including grandparents and to resume their school and be with their teachers and peers – Directions issued. (Paras 51, 55 and 56)

       (D) Family Law – Marital Discord – Custody dispute between estranged spouses – Implications – Judicial resolution of a custody dispute may permanently affect or even end parties’ legal relationship but social and psychological relationship will usually continue – It seems appropriate that a negotiated resolution between parents is preferable from child’s perspective for several reasons – A child’s future relationship with each of his parents may be better maintained and his existing relationship is less damaged by a negotiated settlement than by one imposed by a court after adversarial proceedings – Child’s psychological balance is deeply affected through marital disruption and adjustment for changes is affected by the way parents continue positive relationships with their children – To focus on child rights in case of parental conflict is a proactive step towards looking into this special situation demanding a specific articulation of child rights. (Paras 53 and 54)

       Facts of Case:

       Custody dispute between estranged spouses. Both appeals although arise from two separate orders passed by High Court of Hyderabad for State of Telangana and State of Andhra Pradesh dated 8th February 2018 in a Habeas Corpus Petition filed at instance of respondent and by appellant under Guardians & Wards Act, 1890 primarily for custody of two minor children who were born in United States and are US citizens and holding US passports. For custody of children, tussle was going on between the parents who are residing in US since 2004-2005. Their marriage was solemnized on 14th March 2008 in Hyderabad and both are green card holders and not only highly educated but well placed.

       Findings of Court:

       Judicial resolution of a custody dispute may permanently affect or even end the parties’ legal relationship but social and psychological relationship will usually continue and it seems appropriate that a negotiated resolution between the parents is preferable from child’s perspective for several reasons. A child’s future relationship with each of his parents may be better maintained and his existing relationship is less damaged by a negotiated settlement than by one imposed by a court after adversarial proceedings.

       Result : Civil Appeals dismissed and Criminal Appeal disposed of.