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'Parental Custody Preferred': Kerala High Court Refuses To Interfere With UK Court Order Removing Child From Grandmother's Custody In India
Tellmy Jolly
1 Sept 2023 11:45 AM IST
The Kerala High Court last week refused to interfere with an order passed by a competent Family Court in the UK directing a minor child to be brought back from India to England, where her parents reside.The child was residing with her maternal grandmother in India following a dispute between her parents. She was brought to India by her mother and the UK Court is seized with a plea moved by...
The Kerala High Court last week refused to interfere with an order passed by a competent Family Court in the UK directing a minor child to be brought back from India to England, where her parents reside.
The child was residing with her maternal grandmother in India following a dispute between her parents. She was brought to India by her mother and the UK Court is seized with a plea moved by her father and grandfather, seeking her custody. The mother had given an undertaking that she would produce the child before the UK Court.
A division bench of Justice A. Muhamed Mustaque and Justice Sophy Thomas observed that before honouring a competent foreign court's order in child custody matters, it has to ensure that the welfare of the child will be protected.
In the present case, it observed that the UK court had noted the measures to protect the welfare of the child. Thus it said,
“Parental custody is always preferred as the parents are competent to protect the welfare of the child. We are not persuaded to accept the arguments of the learned counsel for the petitioner, as the UK court had noted the measures to protect the welfare of the children. When the competent court of jurisdiction in UK has already taken measures, the comity of courts demands to respect that order unless such order is passed without any jurisdiction.”
The petitioner-grandmother had moved the Family Court praying not to remove the child from India. Both the parents of the child were arrayed as respondents. The Family Court dismissed the application and the petitioner has moved the original petition before the High Court.
On July 20, the Court enquired whether there was an order passed by a competent Court in the UK protecting the welfare of the child. "It is only after ascertaining the measures in regard to the welfare of the child, the father or the mother can remove the child from the local jurisdiction,” it had said.
Thereafter, the order passed by the UK Court for protecting the welfare of the minor child was produced before the High Court. The Court held that the UK Court has taken measures to ensure that the child will be in the safe custody of the mother and that she will return to the family home, from where she was taken to India.
With the above observations, the Court dismissed the original petition filed by the child's maternal grandmother.
Citation: 2023 LiveLaw (Ker) 442
Counsel for the petitioner: Advocates Akhil Vijay, C. S. Ajayan
Counsel for the respondents: Advocate Sikha G Nair, Government Pleader Princy Xavier
Case Title: Lalamma John V Jijo Varghese
Case number: OP (FC) No. 409 OF 2023
