Medical Intervention Alone Insufficient To Protect Autistic Child's Best Interest: Mother Moves Habeas Corpus Plea In Kerala HC Against Husband

During the hearing on Wednesday, the division bench comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas sought the help of Advocate Anil Malhotra to aid the Court in the matter. It observed thus:

“The writ petitions proceed on two contentions that the medical intervention alone would not be sufficient to protect the welfare of the child and the mother's role is also essential to protect the interest of the autistic child. As of now, the report indicates that, medically the child is being taken care of by the father. The mother came to India consequent upon the dispute with the father of the child. The jurisdiction and the scope of interference are intertwined with the welfare of the autistic child. All these matters has to be considered by this Court. This question is very peculiar based on the facts. We are of the view that the assistance of Adv.Anil Malhotra can be sought who can appear before this Court through online.”

The respondent-husband is stated to have filed a divorce case in the UAE Court alleging adultery. The petitioner-wife who is residing in India has approached the High Court for producing the child who is allegedly under illegal custody of the respondent-husband. The Child is stated to be suffering from Autism Spectrum Disorder (ASD).

The petitioner claims she was the primary care giver to their son and now she has no access to him due to the respondent. It is submitted that the child requires constant care and special attention from the petitioner or else his health condition might worsen.

After the petitioner returned to India, she filed for the custody of their child before a Magistrate Court which passed an interim order on December 10, 2020 for production of the child. However, it is averred the respondent did not comply with the above order.

When the child attained the age of majority, the petitioner says she filed an application under the National Trust Act to appoint her as the guardian. She also claims to have filed representations before various government authorities to reunite with her child.

The petitioner then approached the High Court in another writ petition wherein the Court ordered the Indian Embassy in UAE to constitute a medical board for making medical and psychological assessment of the child and directed the official to pass orders regarding the issuance of guardianship certificate of the petitioner. However, since the child is in UAE, the official is unable to issue guardianship and custody to the petitioner, it is averred.

The petitioner has now approached the High Court to invoke its parens patriae jurisdiction to seek the production of the child, claiming that she started receiving distress calls from the child in the recent past. She claims that he is undergoing depression and exhibiting self-destructive behaviour.

The Court has posted the matter for further hearing to September 09.

The petitioner was represented by Advocates Johnson Gomez, S. Biju (Kizhakkanela), Sanjay Johnson, John Gomez and Arun John

Case number: WP (Crl.) No. 1206 Of 2022 & WPC No. 42320 Of 2022

Case name: RG v. Union of India

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