2022 Supreme(SC) 24

SUPREME COURT OF INDIA
(From the High Court of Punjab & Haryana at Chandigarh)
AJAY RASTOGI, ABHAY S. OKA, JJ.
Vasudha Sethi & Ors. - Appellants
Versus
Kiran V. Bhaskar & Anr. - Respondents
Criminal Appeal No. 82 of 2022 (Arising out of SLP (Crl.) No. 7129 of 2021)
Decided on : 12-01-2022

IMPORTANT POINTS
(1) Rights of parents are irrelevant when a Court decides custody issue. It is not a consideration at all for deciding the issue.
(2) A parent has to be given an option to go abroad with child – It ultimately depends on parent concerned to decide and opt for giving a company to minor child for sake of welfare of child – It will all depend on priorities of concerned parent.
(3) Whenever Court disturbs custody of one parent, unless there are compelling reasons, Court will normally provide for visitation rights to other parent.

Headnote:

(A) Hindu Minority and Guardianship Act,1956 – Sections 6 and 13 – Custody of minor child – Issue regarding custody of a minor child and issue of repatriation of child to native country has to be addressed on sole criteria of welfare of minor and not on consideration of legal rights of parents – Welfare of minor shall be predominant consideration and rights of parties to a custody dispute are irrelevant – When a Court decides that it is in best interest of minor to remain in custody of one of parents, rights of other parent are bound to be affected – If it is found that the welfare of a minor whose age is more than 5 years requires that his custody should be with mother, Court is bound to do so – In the same way, if interest of minor which is paramount consideration requires that custody of a minor child should not be with mother, Court will be justified in disturbing custody of mother even if age of minor is less than five years – Whenever Court disturbs custody of one parent, unless there are compelling reasons, Court will normally provide for visitation rights to other parent – Child needs company of both parents – Orders for visitation rights are essentially passed for welfare of minors and for protection of their right of having company of both parents – Such orders are not passed only for protecting rights of parents. (Para 26)

(B) Constitution of India – Article 226 – Hindu Minority and Guardianship Act,1956 – Sections 6 and 13 – Habeas Corpus Petition – Custody of minor child – Child is a citizen of USA by birth and is holding a USA passport – Consideration of well-being and welfare of child must get precedence over individual or personal rights of parents – Each case has to be decided on its own facts and circumstance – Factual aspects are required to be tested on touchstone of principle of welfare of minor child – By its very nature, in a custody case, facts cannot be similar – What is in welfare of child depends on several factors – A custody dispute involves human issues which are always complex and complicated – There can never be a strait-jacket formula to decide issue of custody of a minor child as what is in paramount interest of a minor is always a question of fact – High Court on examination of documents found that respondent no.1 had financial resources to maintain appellant no.1 and minor child in USA – Merely because respondent no.1 had asked appellant no.1 to arrange funds for purchase of lands in Bangalore, it cannot be said that his intention is to abandon USA and settle down permanently in India – Other factors considered by High Court while holding a summary inquiry were that stay of minor child in India has been for too short a period to facilitate his integration into social, physical, physiological, cultural and academic environment of India – Minor child, if repatriated to USA, will not be subjected to an entirely foreign system of education – High Court has also taken into consideration fact that child is a citizen of USA who will have better future prospects on return to USA – High Court has considered all relevant factors while holding a summary inquiry – High Court has given reasons for coming to conclusion that it will be in interest and welfare of child to return to USA – High Court has not treated order of USA court as conclusive – Exercise of power by High Court cannot be said to be perverse or illegal. (Paras 26, 27, 28, 30 and 31)

(C) Constitution of India – Article 226 – Hindu Minority and Guardianship Act,1956 – Sections 6 and 13 – Habeas Corpus Petition – Custody of minor child – Child is a citizen of USA by birth and is holding a USA passport – Whether High Court was justified in passing an order directing appellant no.1 to return to USA along with minor child on or before a particular date – Issue of custody of a minor, whether in a petition seeking habeas corpus or in a custody petition, has to be decided on touchstone of principle that welfare of a minor is of paramount consideration – Courts, in such proceedings, cannot decide where parents should reside as it will affect right to privacy of parents – Writ Court while dealing with issue of habeas corpus cannot direct a parent to leave India and to go abroad with child – If such orders are passed against wishes of a parent, it will offend her/his right to privacy – A parent has to be given an option to go abroad with child – It ultimately depends on parent concerned to decide and opt for giving a company to minor child for sake of welfare of child – It will all depend on priorities of concerned parent – In this case, such an option has been given to appellant no.1 – Option has to be given to appellant no.1 to return to USA along with minor son though she cannot be forced to stay with respondent no.1 – Respondent no.1 will have to make proper arrangements for a suitable residence for comfortable stay of appellant no.1 in USA – During the period of three months, visitation rights will have to be provided to respondent no.1 to meet minor child – If appellant no.1 opts to go to USA and contest custody proceedings, parties will have to abide by result of said proceedings in so far as issue of custody of minor child is concerned – Respondent no.1 will also be under an obligation to take care of medical treatment of minor son – Directions issued. (Paras 33 to 37)

Facts of the case:

Present appeal arises out of dispute between appellant no.1 - wife and the respondent no.1 - husband over the custody of their minor male child. This appeal takes an exception to Judgment and order dated 31st August 2021 passed by Single Judge of the Punjab and Haryana High Court in a petition for habeas corpus filed by the respondent no.1 herein for seeking custody of the minor.

Findings of Court:

In the event the appellant no.1 fails to communicate her willingness to travel to USA within fifteen days from today, it will be open for respondent no.1 to take the custody of the child. After respondent no.1 arrives in India, the appellant no.1 shall hand over the custody of the minor son to the respondent no.1 to enable the respondent no.1 to take the minor son to USA. To the above extent, the order of the High Court requires modification.

Result : Appeal disposed of with observations.