2 Sep 2021 6:14 AM GMT
Holding that habeas corpus can be issued for restoration of custody of minor to the parent wrongfully deprived of it, the Punjab & Haryana High Court recently granted relief to a father who had filed a petition alleging illegal custody by his wife and her parents.The High Court went on to rely on the Supreme Court's observation in Yashita Sahu Vs. State of Rajasthan and others wherein...
Holding that habeas corpus can be issued for restoration of custody of minor to the parent wrongfully deprived of it, the Punjab & Haryana High Court recently granted relief to a father who had filed a petition alleging illegal custody by his wife and her parents.
The High Court went on to rely on the Supreme Court's observation in Yashita Sahu Vs. State of Rajasthan and others wherein it had rejected the contention that a writ of habeas corpus was not maintainable if the child is in the custody of another parent and held that the court can invoke its extraordinary writ jurisdiction for the best interest of the child.
"Exercise of extra ordinary writ jurisdiction to issue writ of habeas corpus in such cases is not solely dependent on and does not necessarily follow merely determination of illegality of detention and is based on the paramount consideration of welfare of the minor child irrespective of legal rights of the parents."
The Court thus re-iterated that the welfare of the child was of paramount consideration. The fact that there was a pre-existing custody order of a foreign court was a factor that was to be reckoned in favour of the Petitioner, but would not be determinative of the question of repatriation over and above the best interest and welfare of the child.
"It is open to the court to conduct either an elaborate enquiry or a summary enquiry on the question of whether the child's best interests would be served by repatriation. The facts and circumstances in the present case do not require an elaborate enquiry, and can be decided by summary enquiry."
The Court found that there was no material to suggest that return of the minor child to USA would result in psychological physical or cultural harm to him.
"In view of the totality of the facts and circumstances of the present case and on the basis of the summary inquiry, I am of the considered view that it will be for the welfare and in best of interest of the minor child that order be passed for return of the minor child to USA, from where he was removed and it will be appropriate that the question of appointment of guardian/handing over custody of the minor child to either of the parents is left for adjudication by the Court of competent jurisdiction in USA on the basis of paramount consideration of welfare and best of the interest of the child."
A petition was filed under Article 226 of the Constitution of India by the petitioner-father seeking directions for the return of the minor child to the native country.
The minor child, born in 2016, now aged about five and half years, was a citizen of USA by birth. He was diagnosed with a congenital condition called hydronephrosis which affects the kidneys which required correction by surgery. Due to non-availability of dates for surgery in Arkansas, the parents decided for a surgery to be done in India at Max Hospital, Saket, New Delhi.
In view of increasing number of cases of International Parental Child Abduction, the petitioner gave consent form for his child's travel with his mother.
The mother/Respondent No.2 along with minor child came to India on February 5, 2019 and was to return to USA on September 26, 2019 for which date the return tickets were booked. The petitioner had also paid the requisite expenses for meeting the expenses of surgery and stay in India.
Post July, 2019, respondent No.2 ceased regular communication with the petitioner father and also ceased providing updates about the health and progress of minor child and did not allow him to interact with the child.
The petitioner sought assistance of the U.S. Embassy which conducted a welfare visit which revealed that the respondent no 2 had made a lot of misleading statements.
A petition was also filed for separate maintenance before the Circuit Court of Benton County, Arkansas seeking primary care, custody and control of the child on account of wrongful detention of the minor child outside USA.
Justice Arun Kumar Tyagi noted that the child had spent more than three years in USA and two and half years in India out of five and half years.
Neither the period of three years spent by the minor child in USA nor the period of two and half years spent by the minor child in India in his formative initial years can be said to have resulted in his complete integration with the social, physical, psychological, cultural and academic environment of USA or India, said the Court.
It was held that the decision was to be made on the basis as to whether paramount consideration of the welfare and best interest of the minor child lies in return to USA or continued stay in India and not on the basis of legal rights of the parties.
It was thus noted that the continuance of the minor child in India would interfere with and will be harmful to his overall growth and grooming and will be prejudicial to his interest and future prospects.
Justice Tyagi found that the questions involved deserve to be decided by recourse to a summary inquiry and the facts and circumstances of the case did not warrant or mandate resort to an elaborate enquiry.
Furthermore, the stay of the minor child in India was found to be too short a period to facilitate his acclimatization and integration to social, physical, psychological, cultural and academic environment of India.
"The minor child if repatriated to USA will not be subjected to entirely foreign, system of education divorced from the social circles. No doubt, there is likelihood of the minor child being psychologically disturbed due to his separation from respondent No.2-his mother, who is the primary care giver to him and under whose care he has remained since his birth but his mother (respondent No.2) has already wrongfully deprived him of the love and affection of his father with whom also the minor child lived since his birth till removal to India. The forced company of his maternal grandparents (respondents No.3 and 4) and other relatives away from his father cannot be said to be conducive to his physical and psychological well-being. The minor child being citizen of USA will have better future prospects on return to USA. Unless the minor child is immediately repatriated to USA, his inherent potentialities and faculties would suffer an immeasurable setback", held the Court.
"Natural process of grooming in the environment of his native country-USA is indispensable for comprehensive and conducive development of his mental and physical faculties. There are compelling reasons to direct return of the minor child to USA as prayed for by the petitioner and such return is not shown to be harmful to the minor child in any manner", added the Bench.
Moreover, the Court was of the opinion that no case was made out by the Respondents to show that repatriation to USA would be harmful for the child's medical condition.
The fact that the child was looked after by domestic help in India through most of the day while his mother and grandparents were at work, was also taken into consideration.
The Petitioner's submissions that he had requisite childcare skills and that his mother has a valid US visa till 2024 and had expressed willingness to take care of the child, helped the Court in deciding that repatriation of the child could not be denied on the ground of lack of requisite personal care and attention in USA.
Accordingly, the respondent No.2(mother) was directed to return to USA along with minor child on or before September 30, 2021.
The Court added that the question of appointment of guardian/handing over custody of the minor child to either of the parents was left for adjudication by the Court of competent jurisdiction in USA on the basis of paramount consideration of welfare and best of the interest of the child.
Cause Title: Kiran V. Bhaskar v State of Haryana
Counsel for petitioners: Advocates Shadan Farasat, Arjun Sheoran, and Neha SonawaneCounsel for Respondent No 1 (State of Haryana): Assistant AG Munish DadwalCounsel for Respondents No 2 to 4: Senior Advocate Satish Tamta, With Advocate Animesh Sharma and Vikramaditya BhaskarAdvocate Anil Malhotra appeared as Amicus Curiae.
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