The Rajasthan High Court has allowed a couple, facing criminal charges, to travel abroad to be with their son, who is scheduled to undergo surgery in the United States, holding that hospitalisation could not be regarded as a prerequisite for a parent to attend to an ailing child.

Justice Farjand Ali further held that the concern and anxiety of parents for their child's well-being could not be measured by the nature of medical advice or made dependent upon the child's admission in a hospital.

The Court also observed that pendency of an investigation, by itself, could not be treated as an absolute impediment to an accused person's temporary foreign travel where the investigation could proceed independently.

For context, the petitioners are accused in a criminal case, in which they had already secured protection from arrest. An application was made by them to travel to the US to attend to a surgical procedure that their son was scheduled to undergo. This application was rejected by the trial court on the ground of pending investigation and apprehension of them fleeing India.

It was also submitted by the counsel for the respondent that the medical advice based on which the son's surgery was scheduled, was merely on OPD basis, and did not contemplate any hospitalization.

After hearing the contentions, the Court firstly rejected the argument submitted by the counsel for the respondent, and observed,

“In the Indian social and cultural milieu, the bond of love and affection between parents and their child carries its own significance. If a son is unwell, the natural instinct of the parents is to rush to his side. When the child is stated to be suffering from a medical condition and is scheduled to undergo a surgical procedure, the desire of the parents to remain with him is not only understandable but a natural human response. Such a genuine familial circumstance cannot be brushed aside merely on the ground that the medical advice was rendered on an OPD basis.”

Furthermore, the Court observed, protection again arrest did not confer any immunity from investigation, hence, the investigation could proceed. Further, presently, there was no material on record that reflected that specific necessity of petitioners' physical presence during the investigation.

It was held that no material was brought on record to show that the petitioners' temporary travel would obstruct or prejudice the investigation. In this background, pendency of investigation could not solely be considered as a hurdle against petitioners' travel, especially when they were already protected against arrest.

Accordingly, the petition was allowed, and the petitioners were permitted to travel abroad for 4 months.

The Ministry of External Affairs, the immigration authorities and the police were instructed to not obstruct or impede their travel in any manner.