Court Direction To A Parent To Go Abroad With Child While Granting Custody Offends Right To Privacy : Supreme Court

The Supreme Court observed that a court while deciding an issue of child custody cannot direct a parent to leave India and to go abroad with the child."A writ Court while dealing with the issue of habeas corpus cannot direct a parent to leave India and to go abroad with the child. If such orders are passed against the wishes of a parent, it will offend her/his right to privacy", the bench of Justices Ajay Rastogi and Abhay S. Oka observed.In this case, the Punjab and Haryana High Court issued several directions while allowing a petition for habeas corpus filed by the husband seeking custody of the minor child. The mother was directed to return to USA along with minor child on or before 30.09.2021. The following were the directions issued by the High Court:"(i) respondent No.2 is directed to return to USA along with minor child on or before 30.09.2021; (ii) in case respondent No.2 opts to return to USA, the petitioner shall bear the travel and incidental expenses of respondent No.2 and the minor child for return to and also the expenses for their stay in USA till decision of the custody petition and the petitioner shall not initiate any criminal/contempt proceedings against respondent No.2 for inter country removal of the minor child; (iii) if respondent No.2 fails to comply with aforesaid direction, respondent No.2 shall hand over custody of the minor child and his passport to the petitioner on 01.10.2021 or on such other date as may be agreed to by the petitioner; (iv) in case respondent No.2 fails to hand over custody of the minor child and her passport to the petitioner on 01.10.2021 or on such other date as may be agreed to by the petitioner, respondent No.1 shall take over the custody and passport of the minor child from respondent No.2 and hand over custody and passport of the minor child to the petitioner on such date as may be agreed to by the petitioner; (v) on custody of the minor child and his passport being handed over to the petitioner, the petitioner shall be entitled to take the minor child to USA; (vi) in case passport of the minor child is not handed over to the petitioner or respondent No.1 by respondent No.2 on the ground of loss/damage etc., the petitioner shall be entitled to get the duplicate passport issued from the concerned authority; and (vii) on such return of the minor child to USA, either of the parties shall be at liberty to revive the proceedings before US Court for appropriate orders regarding appointment of guardian and grant of custody of the minor child."Challenging this order, the mother approached the Apex Court.On behalf of mother, it was contended that the welfare principle would mean balancing the interests of all the members of the child's family. It was contended that the mother as the primary caregiver must be kept in mind as a person who has legal rights which must be respected and protected. An article by Mr.John Ekelaar which some criticism of "the welfare principle" was relied upon. Addressing this contention, the bench referred to Kanika Goel v. the State of Delhi (2018) 9 SCC 578 and Prateek Gupta v. Shilpi Gupta (2018) 2 SCC 309 and observed that the rights of the parents are irrelevant when a Court decides the issue of custody of their minor child.The bench thus considered the issue as to whether the Court can compel one of the parents to move from one country to another? In this regard, the bench observed thus:The Courts, in such proceedings, cannot decide where the parents should reside as it will affect the right to privacy of the parents. We may note here that a writ Court while dealing with the issue of habeas corpus cannot direct a parent to leave India and to go abroad with the child. If such orders are passed against the wishes of a parent, it will offend her/his right to privacy. A parent has to be given an option to go abroad with the child. It ultimately depends on the parent concerned to decide and opt for giving a company to the minor child for the sake of the welfare of the child. It will all depend on the priorities of the concerned parent.The court therefore modified the directions issued by the High Court:(i) It will be open for the appellant no.1 to travel to USA along with the minor child and to contest the proceedings pending in USA. If the appellant no.1 is willing to travel to USA along with the minor child, she will communicate her willingness to do so to the respondent no.1 by email within a period of fifteen days from today. The appellant no.1 shall communicate to the respondent no.1 the possible dates on which she proposes to travel along with the minor child. The possible dates shall be within three months from today; (ii) On receiving an intimation as aforesaid, the respondent no.1 shall book air tickets after consulting the appellant no.1. The respondent no.1 shall make proper arrangements for separate stay of the appellant no.1 in USA after consulting her. The arrangements for residence shall be made at the cost of 36 the...

Court Direction To A Parent To Go Abroad With Child While Granting Custody Offends Right To Privacy : Supreme Court

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