Indian Courts Have Jurisdiction To Protect Best Interest Of Child/Incapable Adult Where No Legal Remedy Available In Foreign Court: Kerala HC

The Kerala High Court recently laid down that Indian Courts are vested with the jurisdiction to protect the best interest or welfare of a child or an incapable adult, if so warranted, in circumstances where the Court forms an opinion that the party who approached it has no legal remedy before the Court beyond Indian territory. 

The Division Bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas observed that the Court, on invoking its writ jurisdiction, would have the power to adjudicate and that the parens patriae and nationality rules would also apply to protect the best interest of the child, or the welfare of the incapable adult. 

It however cautioned that the Court ought to be circumspect to exercise its jurisdiction when it finds that the law of the foreign country can be invoked to protect the welfare or best interest of the child or incapable adult. 

"There may be different circumstances related to the cases. If parties are ordinarily residing in a foreign country and can avail legal remedy in that foreign country, the courts in India shall not invoke such jurisdiction to regulate the affairs of its citizens living beyond territorial jurisdiction of the country. The Court steps into the shoes of a parent invoking parens patriae jurisdiction, only in those circumstances where the Court forms an opinion that jurisdiction of the foreign country cannot be availed by the party concerned, due to lack of laws or incapability of having legal remedy, or if one party is deprived of availing legal remedy due to issues of domicile or residentiary rights. When an efficacious alternate remedy is available, the Court shall refrain from invoking its jurisdiction over the affairs of its citizens who are living outside its territorial jurisdiction," the Bench observed. 

The Court, in this case, was seized with the plea seeking the issuance of a writ of habeas corpus by the mother of a young adult suffering from autism spectrum disorder (hereinafter, 'incapable adult'), alleging that the latter was being detained in the illegal custody of his father in Dubai. 

The parents of the incapable adult had become estranged following matrimonial disputes. 

The petitioner-mother had approached the District Collector for being appointed as the legal guardian of the incapable adult under the National Trusts Act, which was however not considered. Subsequently, upon an Order from the High Court directing the District Collector to consider her request for appointment as the legal guardian, the authority rejected the same on the ground that the incapable adult was living in Dubai and that the National Trust Act could not be applied beyond the territorial jurisdiction of India. 

She thus filed the present pleas seeking the issuance of the writ of habeas corpus and challenging the afore order of the District Collector. 

The counsel for the petitioner asserted that the incapable adult has every right to the company of his mother and that his father's denial of the same warranted interference by the Court. 

The counsel for the respondent-father however disputed the same and argued that the petitioer mother displayed cruel and irresponsible behavior, and that her presence in Dubai would alter the comfortable environment enjoyed by the incapable adult. It was added that the Court also had no writ jurisdiction to grant the above remedy. 

Amicus Curiae Advocate Anil Malhotra submitted that Constitutional Courts are vested with the jurisdiction to protect the welfare of its citizens even in a foreign country.

Findings of the Court 

The Court at the outset was faced with the question as to whether Courts in India have jurisdiction to issue any writ to protect the welfare of its citizens beyond the territorial jurisdiction of the country. 

It observed that the aspect of 'jurisdiction' would have to be decided with reference to the role of the State or the Court having responsibility for the citizens of the country wherever they are, including extraterritorial jurisdiction. 

"The children or incapable adults are deemed to be vulnerable because of their incompetency to make decisions and to protect their person or property. The origin of “parens patriae” jurisdiction is traceable to the common law and the State has to act as a substitute parent to protect the interest of the children or incapable adults. On the advent of the Constitution, the State's power to further the legitimate interest of its citizens, who are unable to care for themselves is well recognized in its preamble and fundamental rights," it noted. 

It further discerned that as per the nationality principle, the Stat possesses the 'undisputed right' to extend application of its laws to citizens, wherever they may be. 

The Court thus ascertained that both parens patriae, as well as nationality principles, would apply to protect the best interests of the child. 

"This is based on the principles emanating from the statutory provisions casting an obligation on the State to protect the best interest of a child or the welfare of an incapable adult, as arising from the obligations under the various United Nations Conventions made into law such as, the Rights of Persons with Disabilities Act (UNCPRD), the National Trust Act etc. The UN conventions and these statutory provisions place an obligation on the State to ensure that the persons with disability enjoy the right to equality and community life equally with others," it said. 

It went on to note that if the provisions under the Rights of Persons with Disabilities Act and the National Trust Act are not read to put the onus on the State to protect 'persons' covered under the respective enactments, the very object of the law would be defeated. 

"Law on State responsibility to protect its subjects obliges the State to act not only within territorial limits but also beyond its territory. It is to be emphasized that these laws are premised to honour human rights, social security and welfare principles having universal value," the Bench added. 

On the above reasoning, it concluded that Courts in India are vested with the jurisdiction to protect the best interest or welfare of a child or an incapable adult when it forms an opinion that the parties would have no remedy abroad. 

On the facts of the present case, the Court said that no materials had been placed before it to indicate that the welfare or best interest of the incapable adult could be secured through the laws applicable in UAE. 

Perusing the UNCPRD and the Rights of Persons with Disabilities Act, 2016, the Court found that the incapable adult has the right to the company of both parents. 

"The separation of the petitioner from the incapable adult in the light of law as above is illegal. Denial of access to one parent is also illegal in the light of the statutory provisions under the Rights of Persons with Disabilities Act," it quipped. 

The Court thus issued directions for rotational custody of the incapable adult, while dismissing the plea for habeas corpus finding no scope for issuance of the latter. 

Counsel for the Petitioner: Advocates Johnson Gomez, S. Biju, Sanjay Johnson, John Gomez, Arun Johny, and Ann Maria Sebastian

Counsel for the Respondents: Deputy Solicitor General S. Manu, Central Government Counsel K.S. Prenjith Kumar, Government Pleader P.M. Shameer, and Advocates N.M. Madhu, and C.S. Rajani

Citation: 2023 LiveLaw (Ker) 740 

Case Title: XXX v. Union of India & Ors. and connected matters