Summary
The parents, Indian citizens settled in the USA, had two children: a daughter who is a US permanent resident and a US-born son. In divorce proceedings an Ohio court approved a shared parenting plan with joint custody. In August 2021 the father took the children to India on an itinerary different from the one disclosed and did not return them; the Ohio court then terminated the plan and made the mother sole custodian. She sought habeas corpus under Article 32. The Supreme Court allowed the petition. The child's welfare is paramount and foreign orders are only a factor, but the children were raised in the American milieu and enrolled in a special school for gifted children there, and the mother was well settled with a good job. The father must apply for a visa and return with the children within a week of its grant; failing a visa, the mother may collect them from India.
Issues
- Whether a writ of habeas corpus under Article 32 lies for custody of minor children removed from the USA by their father, the natural guardian, in breach of a shared parenting plan approved by a US court.
- Whether the welfare of the children required their return to the USA, having regard to the principles of comity of courts, intimate contact and paramount welfare laid down in Nithya Anand Raghavan.
Provisions considered
- Article 32, Constitution of IndiaA habeas corpus petition for a minor is maintainable where the custody is shown to be illegal; the court exercises parens patriae jurisdiction and decides in whose custody the child's welfare will best be advanced. (¶¶ 75, 79, 80, 81, 82, 91)
- Sections 7, 12 and 17, Guardians and Wards Act, 1890Under these provisions the welfare of the minor predominates, and the minor's intelligent preference may be considered; the legal rights of those claiming guardianship play an insignificant role. (¶¶ 71, 73)
- Sections 6 and 13, Hindu Minority and Guardianship Act, 1956Though the father is the natural guardian, Section 13 makes the minor's welfare the paramount consideration and denies guardianship to one whose guardianship would not serve that welfare. (¶¶ 72, 73, 74)
Held
- In a habeas corpus petition for a child the principal consideration is whether the custody is unlawful and whether the child's welfare requires a change; the jurisdiction is inherent and equitable, exercised as parens patriae, and the legal rights of the parents do not militate against the child's welfare (Nithya Anand Raghavan, Syed Saleemuddin, Tejaswini Gaud). (¶¶ 80, 81, 82, 91, 92, 93, 94)
- For non-Convention countries the court must consider the matter on merits with the child's welfare as paramount, treating a foreign custody order as only one factor; comity, intimate contact, citizenship and the manner of removal cannot override welfare, and the 'first strike' approach in Surya Vadanan was disapproved in Nithya Anand Raghavan. (¶¶ 99, 101, 102, 103, 104, 105)
- Both children are residents of the USA, one a citizen, brought up in its social and cultural milieu and enrolled in a special school for gifted children there; the mother is settled with a good job and has a fundamental right to their company. Their welfare lies in returning to the USA, and the father's allegations of the mother's mental illness are wild and reckless and in any case highly disputed. (¶¶ 108, 109, 110, 111, 112, 113, 114)
- Welfare is not measured by money or physical comfort alone but by all factors including the child's psychological, spiritual and emotional welfare; a parent who keeps custody by flouting court orders cannot benefit from his own wrong, and courts must guard against parental alienation. (¶¶ 87, 88, 89, 108, 115)
Result
Writ petition allowed. The father must apply within one week for a US visa and, once granted, travel to the USA with both children within a week, after which the mother may take charge of them; he may stay or return, and if he returns the mother must arrange weekly online contact. If the visa is declined, the mother may collect the children from India, with any obstruction treated as contempt and police assistance available. The parties may revive the shared parenting plan before the Ohio court. No costs; compliance to be reported after four weeks.