14 Sep 2023 6:02 AM GMT
The Telangana High Court has held that while dealing with custody matters of children with foreign nationality, Indian courts should only take the findings of a foreign court as input in matters concerning the welfare of children and must conduct an independent enquiry to arrive at a decision in the best interest of the child.The Division Bench of Justice K. Lakshman and Justice K. Sujana...
The Telangana High Court has held that while dealing with custody matters of children with foreign nationality, Indian courts should only take the findings of a foreign court as input in matters concerning the welfare of children and must conduct an independent enquiry to arrive at a decision in the best interest of the child.
The Division Bench of Justice K. Lakshman and Justice K. Sujana noted that though Indian civil courts have to honour the judgments passed by superior courts of foreign countries, as per Ruchi Majoo vs. Sanjeev Majoo, in cases to determine the welfare of the child, the Court is duty-bound to examine the matter independently.
"`comity of courts' principle ensures that foreign judgments and orders are unconditionally conclusive of the matter in controversy. This is all the more so, where the courts in this country deal with matters concerning the interest and welfare of minors including their custody. Interest and welfare of the minor being paramount, a competent court in this country is entitled and indeed duty bound to examine the matter independently, taking the foreign judgment, if any, only as an input for its final adjudication."
The petition was filed by the father of two minor daughters, who claimed that his wife had fled their country of residence (Singapore) along with the two minors illegally. He approached the Singapore Family Court for the daughters' custody and received an order in his favour.
He filed the present habeas corpus petition after the order from the Singapore Family Court for the return of his two daughters to him.
On the other hand, the respondent (mother/wife) contended that her husband was having multiple extramarital affairs, which the daughters had witnessed. She stated that at such a tender age, the children cannot comprehend the situation and the same was having a negative effect on their mental development. She also submitted evidence to substantiate her claims.
The mother further stated that both children being girls needed their mother and were enrolled in schools in India and were finally able to lead a normal childhood. She stated that she had no financial support from her husband, and her husband had no intention of mending his ways. The Court even ordered mediation between the parties, but the same was not fruitful.
After considering the principles of law and facts of the case, the Court held that the daughters need their natural guardian, i.e., their mother for fundamental development in childhood.
"As held by the Apex Court in several judgments, Welfare of the minor child is paramount consideration while deciding custody petitioners of minor children, born in foreign countries."
The Bench made reference to the principle of comity, the principle of first strike, the doctrine of intimate contact and closest concern and held that the principle of the best interest of the child will prevail over all of the above.
"Welfare of minor is the paramount consideration while deciding matters with regard to child custody and it will prevail over Principle of Comity, Principle of First Strike."
Nonetheless, the Court has clarified that petitions of habeas Corpus will only be maintainable in matters of custody if established laws are ineffective and the custody of the minor is with a person who is not entitled to his/her legal custody.
The Bench also observed that the children were well taken care of and were attending school, and it could not be said that they were illegally detained by their natural guardian, their mother.
"They are 12 years and 7 years old. It is tender age. They are female children. They need mother support. Thus, it cannot be said that respondents 5 and 6 are in illegal custody of 4th respondent."
Lastly, the Court noted, that the respondent/mother had filed a Guardians & Wards Original Petition before the Family Court, and both parties can submit their contentions at length before the trial court. The claim of the father was accordingly dismissed.
"In the light of the aforesaid discussion, we are of the considered view that the custody of the minor children shall be with 4th respondent and there is no abduction much less illegal custody of the minor children by 4th respondent."
Counsel for the respondent: Advocate General TG, Srinivas Velagapudi
Counsel for petitioner: M Pranav
Case Title: Sravan Kumar Lasinker vs. State of Telangana & Ors
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