While setting aside a high court judgment, which had directed a father to handover the custody of the child to its mother, the Supreme Court observed that issue of welfare of the child has paramount significance over the legal principles like ‘comity of courts’ and the doctrines of “intimate contact” and “closest concern”.
The court also held that the issue with regard to the repatriation of a child has to be addressed not on a consideration of legal rights of the parties, but on the sole and preponderant criterion of the welfare of the minor.
The high court, on plea of the mother, had noted her disinclination to join the company of her husband in India because of his alleged past conduct and the trauma and torture suffered by her, directed the husband to handover the custody of the child to her. The high court had also observed that the child remained in the US since birth up to March 2015, it could be safely construed that he was accustomed to and had adapted himself to the social and cultural milieu different from that of India.
The bench headed by the Chief Justice of India Dipak Misra observed: “The appellant being the biological father of Aadvik, his custody of the child can by no means in law be construed as illegal or unlawful drawing the invocation of a superior Court’s jurisdiction to issue a writ in the nature of habeas corpus. We are, in the textual facts and on an in-depth analysis of the attendant circumstances, thus of the view that the dislodgment of the child as directed by the impugned decision would be harmful to it.”
The bench observed that though the principle of comity of courts and the aforementioned doctrines qua a foreign court from the territory of which a child is removed are factors which deserve notice in deciding the issue of custody and repatriation of the child, that the ever overriding determinant would be the welfare and interest of the child. “The invocation of these principles/doctrines has to be judged on the touchstone of myriad attendant facts and circumstances of each case, the ultimate live concern being the welfare of the child, other factors being acknowledgeably subservient thereto,” the bench said.
It further observed: “As has been claimed by the appellant, the child is growing in a congenial environment in the loving company of his grand-parents and other relatives. He has been admitted to a reputed school and contrary to the nuclear family environment in US, he is exposed to a natural process of grooming in the association of his elders, friends, peers and playmates, which is irrefutably indispensable for comprehensive and conducive development of his mental and physical faculties.”
Setting aside the high court judgment, the court opined that the child, till he attains majority, ought to continue in the custody, charge and care of the appellant, subject to any order to the contrary, if passed by a court of competent jurisdiction in an appropriate proceeding deciding the issue of its custody in accordance with law.