Rights Of Parents Irrelevant When Court Decides Custody Of Their Child: Supreme Court

The Supreme Court has observed that the rights of the parents are irrelevant when a Court decides the issue of custody of their minor child.The issue of custody of a minor, whether in a petition seeking habeas corpus or in a custody petition, has to be decided on the touchstone of the principle that the welfare of a minor is of paramount consideration, 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. Challenging this order, the mother approached the Apex Court.On behalf of the 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"The decision of this Court in the case of Kanika (supra) reiterates the well-settled law that the issue regarding custody of a minor child and the issue of the repatriation of the child to the native country has to be addressed on the sole criteria of the welfare of the minor and not on consideration of the legal rights of the parents. The principle that the welfare of the minor shall be the predominant consideration and that the rights of the parties to a custody dispute are irrelevant has been consistently followed by this Court. "The court noted that, in sub-section (1) of Section 13 of the Hindu Minority and Guardianship Act, 1956 (for short "the 1956 Act"), it is provided that in appointment or declaration of a guardian of a minor, the welfare of the minor shall be the paramount consideration. The court made the following observations:The consideration of the well-being and welfare of the child must get precedence over the individual or personal rights of the parents.26...When a Court decides that it is in the best interest of the minor to remain in the custody of one of the parents, the rights of the other parent are bound to be affected. As provided in clause (a) of Section 6 of the 1956 Act, in the case of a minor boy or girl, the natural guardian is the father, but ordinarily, the custody of a minor who has not completed the age of 5 years shall be with the mother. On a conjoint reading of sub-section (1) of Section 13 read with clause (a) of Section 6 of the 1959 Act, if it is found that the welfare of a minor whose age is more than 5 years requires that his custody should be with the mother, the Court is bound to do so. In the same way, if interest of the minor which is the paramount consideration requires that the custody of a minor child should not be with the mother, the Court will be justified in disturbing the custody of 24 the mother even if the age of the minor is less than five years. In such cases, the rights of the father or the mother, as the case may be, conferred by clause (a) of Section 6 are bound to be affected. Whenever the Court disturbs the custody of one parent, unless there are compelling reasons, the Court will normally provide for visitation rights to the other parent. The reason is that the child needs the company of both parents. The orders for visitation rights are essentially passed for the welfare of minors and for the protection of their right of having the company of both parents. Such orders are not passed only for protecting the rights of the parents. In view of the settled legal position, the welfare of the minor being the paramount consideration, we cannot act upon the suggestions of Mr.John Ekelaar in his Article. We cannot accept the submission that while applying the welfare principle, the rights of the mother or father need to be protected. The consideration of the well-being and welfare of the child must get precedence over the individual or personal rights of the parents.Rights of the parties litigating over the custody issue are irrelevant27. Each case has to be decided on its own facts and circumstances. Though no hard and fast rule can be laid down, in the cases of Kanika (supra) and Nithya (supra), this Court has laid down the parameters for exercise of the power to issue a writ of habeas corpus under Article 226 of the Constitution of India dealing with cases of minors brought to India from the country of their native. This Court has reiterated that the paramount consideration is the welfare of the minor child and the rights of the parties litigating over the custody issue are irrelevant. After laying down the principles, in the case of Nithya (supra), this Court has clarified that the...

Rights Of Parents Irrelevant When Court Decides Custody Of Their Child: Supreme Court

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