In matters of child custody, the welfare of the child is paramount, superseding parental rights unless adequately ensured by a competent court.

JUDGMENT

A.Muhamed Mustaque, J.

This original petition was filed challenging an order of the Family Court, Kottayam at Ettumanoor declining a temporary order of injunction restraining the father and paternal grandfather of the minor child, taking the child from the custody of the petitioner (maternal grandmother).

The brief facts involved are as follows:

The child Abigail was born in the wedlock of Jijo Varghese and Elizabeth P. John who are respondents 1 and 2 in this original petition. They initially resided in India after their marriage and moved to UK somewhere in 2021. The child was taken to the UK in the month of March, 2022. Thereafter, some dispute ensued between them. The child was brought back to India by the mother in December, 2022. The father moved the UK court for child custody. The mother undertook to produce the child before the UK court. Thereafter, the maternal grandmother approached the Family Court for custody. In that, an application was filed leading to the impugned order. The Family Court dismissed the application taking note of the fact that the UK court had passed an order in the matter.

2. When we entertained the matter, we noted that there was no order passed by the competent court in the UK protecting the welfare of the child. Accordingly, we passed the following order on 20.07.2023:

“This case involves a larger issue relating to the jurisdictional competency of a foreign Court to deal with a minor, who is now under the custody of her maternal grandmother in India. Admittedly, parents are residing in UK. The issue arose some time back, when the mother brought the child to India and entrusted minor with the grandmother in December, 2022.

2. The father approached the UK Court for custody of the child, where the mother appears to have undertaken to bring the child from India. In the meanwhile, the maternal grandmother approached the Family Court, Ettumanoor, to appoint her as the guardian. The mother has not been made a party in that proceeding. Obviously, the mother is conceding to the fact that the child has to put in the custody of the maternal grandmother for the time being. An application has been moved before the family Court not to remove the child from the jurisdiction of Indian Court. That application has been dismissed. Thus, the maternal grandmother has come up before this Court in this Original Petition.

3. Normally, it would suffice to say that we are bound to honour the order of a competent Court in a foreign jurisdiction. However, in child custody matters, we have to ensure that the welfare of the child is protected even in the foreign jurisdiction, especially when the child is being taken from India to a foreign jurisdiction. The parents have no overriding right over the welfare of the child. Biological parents, no doubt would be entitled to custody provided they ensure the welfare of the child. The Court will have to consider in such situations, whether the welfare of the child is protected in UK and what measures have been taken in that regard, even if the mother is compelled to produce the child before the UK Court. Nothing is discernible from the records as to the measures taken by the UK Court to protect the welfare of the child. The maternal grandmother is having custody of the child. The Family Court proceeded as though parental rights supersede the right of the grandmother to deny custody and dismissed the application. It is to be remembered there is no overriding and superseding rights involved in the matter of child custody. What is of paramount importance is the welfare of the child and that alone. The Court in that process will have to enquire whether the parent and any other person is entitled to custody, keeping in mind the welfare of the child. We, therefore, adjourn this matter to make avail