Child welfare is supreme in custody cases, says Supreme Court

The court said that usually when one parent is given the custody of a minor child, it is with the visitation right to the other parent

New Delhi: The Supreme Court has ruled that in matters involving the custody of a minor child having foreign citizenship, the predominant right of child welfare can’t be weighed against the rights of parents who involved in a dispute over the repatriation of the child.

“The issue regarding custody of a minor child and the issue of the repatriation of the child to the native country has to be addressed on the sole criteria of the welfare of the minor and not on consideration of the legal rights of the parents,” said a bench comprising Justice Ajay Rastogi and Justice Abhay S. Oka in a judgment on Wednesday.

Speaking for the bench, Justice Oka said, “The principle that the welfare of the minor shall be the predominant consideration and that the rights of the parties to a custody dispute are irrelevant has been consistently followed by this court.” The court said that whenever it gives the custody of a minor child to one of the parents, it is normally accompanied with the visitation right to the other parent.
“The orders for visitation rights are essentially passed for the welfare of minors and for the protection of their right of having the company of both parents. Such orders are not passed only for protecting the rights of the parents”, the court said adding that all orders passed in minor child custody disputes are centred around protecting their (child) welfare and rights.

The court said this while not accepting the suggestion made on behalf of the minor child’s mother that while applying the welfare principle, the rights of the mother or father need to be protected. “The consideration of the well-being and welfare of the child must get precedence over the individual or personal rights of the parents,” the court said. The court uphelding a judgment of the Punjab and Haryana High Court that directed a Haryana based mother to send back her minor child to the USA where his biological father is residing.

The top court, however, found an error in its direction asking the mother of a minor child to accompany the child to the USA. The court said that this infringed on the privacy of the mother as travelling to the US was entirely her choice.

In a slew of directions, the court said that it will be open for the mother – Vasudha Sethi — who had approached the top court against High Court order, to travel to the USA along with the minor child and to contest the proceedings pending in the USA. The child was brought to India in 2019 for the treatment of an ailment and surgery.

The court said that if the mother is willing to travel to USA along with the minor child, she will communicate her willingness and the dates to do so to the minor child’s father Kiran V. Bhaskar by email within 15 days. The possible dates dates of travel should be within three months.

In the event, the court said, the mother is not willing to visit the USA along with her minor son and fails to communicate her willingness to visit the USA within 15 days, it will be open to the father to take custody of the child.

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