IMPORTANT POINTS
(1) Custody of child – Principle of comity of courts and a pre-existing order of a Foreign Court must yield to best interests of child, especially when Court has decided to conduct an elaborate enquiry in this regard – Such cases must be decided on sole and predominant criterion of ‘what would serve interests and welfare’ of minor.
(2) If expert’s report concludes that mental or physical age of person concerned is well below age of majority, there can be no inference of any ‘implied’ or ‘express’ consent to any act which might have a substantive impact on consenting person – Unless there are strong reasons to disbelieve an expert’s report to this effect, Courts must be overly-cautious in coming to a finding contrary thereto.

Headnote:
Constitution of India – Article 226 – Habeas Corpus petition seeking custody of special child – Comprehensive Assessment Report concludes that child demonstrates independent decision-making abilities for basic activities – His psychological limitations were underlined to be further compounded by his physical impairments and as such, he lacks ability to make complex, informed decisions independently – Even though Courts are well within their rights to come to a finding distinct from an expert’s report, they cannot discard expert’s opinion as a whole – If High Court had any doubt as to reliability of report and its conclusions, it ought to have ordered 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, Court should give due credence to that opinion – If expert’s report concludes that mental or physical age of person concerned is well below age of majority, there can be no inference of any ‘implied’ or ‘express’ consent to any act which might have a substantive impact on consenting person – Unless there are strong reasons to disbelieve an expert’s report to this effect, Courts must be overly-cautious in coming to a finding contrary thereto – Principle of comity of courts and a pre-existing order of a Foreign Court must yield to best interests of child, especially when Court has decided to conduct an elaborate enquiry in this regard – Such cases must be decided on sole and predominant criterion of ‘what would serve interests and welfare’ of minor – Regardless of parents being divorced, entire family appears to have set up a comfortable life for themselves in US – It is in child’s best interests and welfare to return to US, where he can complete his schooling and reside with his younger brother, under Appellant’s guardianship – Impugned Judgment of High Court set aside – Appellant directed to return to US with both sons within 15 days and ensure that they continue their schooling there – Directions issued. (Paras 15, 20, 22, 36, 39 and 41
Facts of the case:
Controversy in this case revolves around the custody of Aadith Ramadorai, a twenty-two-year-old citizen of United States of America (US) who has been diagnosed with Ataxic Cerebral Palsy. This tussle for custody has been elicited by Aadith Ramadorai’s parents – Appellant and Respondent No. 4, both of whom are also US citizens.
Findings of Court:
It is in Aadith’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. We clarify that this does not mean that Respondent No. 4 should not be a part of his son’s life; rather, it is his duty to become part of the life his son has already established in the US.
Result : Appeal allowed.

JUDGMENT :

(Surya Kant, J.)

Leave granted.

2. The controversy in this case revolves around the custody of Aadith Ramadorai, a twenty-two-year-old citizen of the United States of America (US) who has been diagnosed with Ataxic Cerebral Palsy. This tussle for custody has been elicited by Aadith Ramadorai’s parents—the Appellant and Respondent No. 4—both of whom are also US citizens.

A. FACTS

3. It is necessary to understand the factual milieu surrounding the dispute before delving into the consequential legal issues.

3.1 To clarify the relationship between the parties, as previously elucidated, the Appellant and Respondent No. 4 are Aadith Ramadorai’s mother and father, respectively. Respondent No. 1 is the Appellant’s brother, whereas Respondent Nos. 5 and 6 are Respondent No. 4’s parents.

3.2 The Appellant and Respondent No. 4 got married in Chennai, India on 09.07.2001, as per Hindu rites and customs. Subsequently, they began residing together in Idaho, US and acquired US citizenship in due course of time. They had two sons—Aadith Ramadorai (Aadith), who was born on 06.06.2003, and Arjun Ramadorai (Arjun), who was born on 13.03.2005—from the wedlock. Both the children are US citizens by virtue of their birth and their parents’ citizenship. These children were born with intellectual and developmental disabilities. Aadith has Ataxic Cerebral Palsy, while Arjun has Autism Spectrum Disorder.

3.3 During their marriage, certain irreconcilable differences arose between the Appellant and Respondent No. 4, prompting them to dissolve their marriage by mutual consent through an order dated 12.09.2007, passed by the District Court of the Fourth Judicial District, State of Idaho, US (Idaho Court). While dissolving the marriage, the Idaho Court awarded joint legal and physical custody of the sons, as they were minors at the time. The Idaho Court established the terms of joint custody as follows: (i) Respondent No. 4 would have physical custody of the sons every week from 8:00 am on Friday to 8:00 am on Monday; and (ii) the Appellant would have physical custody of the sons every week from 8:00 am on Monday to 8:00 am on Friday. The Idaho Court divided all holidays equally amongst the parents and further directed them to not disparage each other in the midst of their sons, teachers, care providers, and medical providers. Additionally, neither party was directed to pay child support to the other. Lastly, in furtherance of these directions, the Idaho Court vide Clause 13 of the Supplemental Custody Order expounded that, “Neither parent shall move the children’s residence to a place which will make the ordered custody and visitation schedule impractical or significantly more difficult or expensive without prior written consent of the other parent or an order of the court.”

3.4 Thereafter, in June 2022, following a visit in terms of the Idaho Court’s custody arrangement, Respondent No. 4 brought Arjun back to the Appellant’s home, whereas Aadith continued to reside with Respondent No. 4. It is pertinent to note that by this time, Aadith had already attained majority. This led the Appellant to file a Guardianship Application before the Idaho Court on 30.06.2022, seeking full and permanent legal guardianship over Aadith. In response thereto, Respondent No. 4 filed a Counter-Petition before the Idaho Court on 17.01.2023, contending that Aadith was sufficiently capable and did not require a permanent guardian.

3.5 In due course, during a preliminary hearing on 04.01.2023 before the Idaho Court, the parties' attorneys laid down mutual terms for them to adhere to until the conclusion of the proceedings. These terms included: (i) meeting with the Health and Welfare Committee within 45 days; (ii) sharing Aadith’s address, phone number, and email address with the Appellant; (iii) allowing regular in-person contact between the Appellant and Aadith, subject to his comfort level; and (iv) providing advance notice and written itineraries for any foreign travel arrang