Kerala HC Invokes 'Parens Patriae' Jurisdiction To Protect Vulnerable Minors, Allows Mother To Take Children To UAE Without Father's Consent
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The Kerala High Court has permitted a mother to take her minor children to UAE by invoking its parens patriae jurisdiction. The Court stated that constitutional courts can invoke parens patriae jurisdiction to protect the rights of vulnerable adults and minors.
A petitioner mother has approached the Court seeking permission to take her children to the UAE to obtain permanent residency, as the children's father did not provide a no-objection certificate for their relocation.
Justice V G Arun was considering whether it could invoke parens patriae jurisdiction, step into the father's shoes, and permit children to be taken to UAE. The Court stated thus:
“The Constitution of India makes its imperative for the State to secure to all its citizens the rights guaranteed by the Constitution and where the citizens are not in a position to secure and assert their rights, the State must come into picture and protect and fight for those rights. Likewise, when circumstances warrant, the constitutional courts should also invoke the parens patriae jurisdiction for safeguarding the interest of vulnerable adults and minors. As the interest of the minors in this case will be best subserved by the children being permitted to reside with their mother and pursue their studies in the UAE, the permission sought by the petitioner ought to be granted.”
The petitioner, a mother of two children aged 11 and 8, is seeking the Court's permission to obtain custody of the children to take them to the UAE, where she is employed. One of the children has autism, and the other has a learning disability. The petitioner stated that, in order to secure permanent residency for her children in the UAE, she either needs to obtain a no-objection certificate from the third respondent or an order from a competent court granting custody. Since the 3rd respondent did not provide no objection certificate, the petitioner has approached the High Court seeking to invoke its parens patriae jurisdiction to allow her to take her children to the UAE.
The petitioner and 3rd respondent solemnized their marriage in 2011. The 3rd respondent is working in Abudhabi. The petitioner filed a criminal complaint alleging the commission of offences under Section 498A (cruelty) and 323 (punishment for voluntarily causing hurt) of IPC against the 3rd respondent.
The petitioner submitted that only she can provide the children special care and attention. She submitted that she has to obtain permanent residency for children to educate them in UAE. She submitted that she can support the children financially only by continuing her employment in UAE.
The 3rd respondent submitted that the writ petition is not maintainable and her remedy is to approach the Family Court. He submitted that the petitioner took his children to UAE without his consent and that she might not permit him to visit the children.
The Court noted that the petitioner has given an undertaking that she has no objection to the 3rd respondent visiting the children.
Invoking its parens patriae jurisdiction, the Court permitted the petitioner to take her minor children with her to the UAE. The Court ordered that the petitioner will not prevent the 3rd respondent from visiting the children. It also stated that the petitioner would abide by any conditions that will be imposed by the Family Court.
As such, the writ petition was allowed.
Counsel for Petitioner: Advocates Anand Kalyanakrishnan, C.Dheeraj Rajan
Counsel for Respondents: Advocate R Padmakumari, DSGI T C Krishna
Case Number: WP(C) NO. 19137 OF 2024
Case Title: Noora v Union of India
Citation: 2024 LiveLaw (Ker) 573