The Supreme Court on Wednesday said that the rights of parents were irrelevant when it comes to custody proceedings of a child, Bar and Bench reported. The child’s welfare is of utmost importance in such circumstances, the court said.
A bench of Justices Ajay Rastogi and Abhay S Oka also said that custody of a minor and the matter of his repatriation to his native country can only be addressed on the criteria of the child’s welfare and not based on the legal rights of the parents.
The court was hearing a mother’s plea against the decision of the Punjab and Haryana High Court, which had granted custody of the minor to the father, a United States citizen. The High Court had directed the mother to return to the US with the child. However, she had challenged the High Court’s order before the Supreme Court.
The mother and her child had arrived in India to treat the minor’s kidney swelling. She had signed a consent document stating that she would return to the US with her child on September 26, 2019, after the treatment, Bar and Bench reported. According to the document, any changes in the plan would be on the consent of the parents.
The mother, however, did not allow the child to return to the US on completing the treatment.
She told the Supreme Court that taking her child to the US was not feasible because of the medical treatment.
The father of the child then moved a court in Arkansas, US, seeking primary care, control and custody of the minor, saying that his child was wrongfully detained outside the country. He added that the petitioner gave no reason to justify her stay in India for follow-up treatment.
During the hearing in India, the Supreme Court said that there was no evidence to keep the minor in India for further medical treatment.
“The High Court has given reasons for coming to the conclusion that it will be in the interest and welfare of the child to return to the USA,” the court said. “The High Court has not treated the order of USA court as conclusive...The exercise of power by the High Court cannot be said to be perverse or illegal.”
The court said that while it cannot ask the parents where they would live as it would infringe their right to privacy, it can order them to ensure the child’s welfare.
“A parent has to be given an option to go abroad with the child,” it said. “It ultimately depends on the parent concerned to decide and opt for giving a company to the minor child for the sake of the welfare of the child.”
The court said that the mother could travel to the US with her child and challenge the custody there. However, if she refuses to do so, the father can take custody of the minor.
The court said that if the mother wishes to travel with the child, she would need to inform the minor’s father within 15 days, reported Live Law. The court asked the man to arrange the plane tickets and the mother’s stay at a separate place. He would also bear expenses for the mother’s appeal in the US court.
The court added that if the mother visited the US, the minor’s father would not enforce the Arkansas court order that gave the child’s custody to him.