Court Direction To A Parent To Go Abroad With Child While Granting Custody Offends Right To Privacy : Supreme Court

The Supreme Court observed that a court while deciding an issue of child custody cannot direct a parent to leave India and to go abroad with the child.

"A writ Court while dealing with the issue of habeas corpus cannot direct a parent to leave India and to go abroad with the child. If such orders are passed against the wishes of a parent, it will offend her/his right to privacy", the bench of Justices Ajay Rastogi and Abhay S. Oka observed.

In this case, the Punjab and Haryana High Court issued several directions while allowing a petition for habeas corpus filed by the husband seeking custody of the minor child. The mother was directed to return to USA along with minor child on or before 30.09.2021. The following were the directions issued by the High Court:

"(i) respondent No.2 is directed to return to USA along with minor child on or before 30.09.2021;

(ii) in case respondent No.2 opts to return to USA, the petitioner shall bear the travel and incidental expenses of respondent No.2 and the minor child for return to and also the expenses for their stay in USA till decision of the custody petition and the petitioner shall not initiate any criminal/contempt proceedings against respondent No.2 for inter country removal of the minor child;

(iii) if respondent No.2 fails to comply with aforesaid direction, respondent No.2 shall hand over custody of the minor child and his passport to the petitioner on 01.10.2021 or on such other date as may be agreed to by the petitioner;

(iv) in case respondent No.2 fails to hand over custody of the minor child and her passport to the petitioner on 01.10.2021 or on such other date as may be agreed to by the petitioner, respondent No.1 shall take over the custody and passport of the minor child from respondent No.2 and hand over custody and passport of the minor child to the petitioner on such date as may be agreed to by the petitioner;

(v) on custody of the minor child and his passport being handed over to the petitioner, the petitioner shall be entitled to take the minor child to USA;

(vi) in case passport of the minor child is not handed over to the petitioner or respondent No.1 by respondent No.2 on the ground of loss/damage etc., the petitioner shall be entitled to get the duplicate passport issued from the concerned authority; and (vii) on such return of the minor child to USA, either of the parties shall be at liberty to revive the proceedings before US Court for appropriate orders regarding appointment of guardian and grant of custody of the minor child."

Challenging this order, the mother approached the Apex Court.

On behalf of mother, it was contended that the welfare principle would mean balancing the interests of all the members of the child's family. It was contended that the mother as the primary caregiver must be kept in mind as a person who has legal rights which must be respected and protected. An article by Mr.John Ekelaar which some criticism of "the welfare principle" was relied upon. Addressing this contention, the bench referred to Kanika Goel v. the State of Delhi (2018) 9 SCC 578  and Prateek Gupta v. Shilpi Gupta (2018) 2 SCC 309 and observed that the rights of the parents are irrelevant when a Court decides the issue of custody of their minor child.

The bench thus considered the issue as to whether the Court can compel one of the parents to move from one country to another? In this regard, the bench observed thus:

The Courts, in such proceedings, cannot decide where the parents should reside as it will affect the right to privacy of the parents. We may note here that a writ Court while dealing with the issue of habeas corpus cannot direct a parent to leave India and to go abroad with the child. If such orders are passed against the wishes of a parent, it will offend her/his right to privacy. A parent has to be given an option to go abroad with the child. It ultimately depends on the parent concerned to decide and opt for giving a company to the minor child for the sake of the welfare of the child. It will all depend on the priorities of the concerned parent.

The court therefore modified the directions issued by the High Court:

(i) It will be open for the appellant no.1 to travel to USA along with the minor child and to contest the proceedings pending in USA. If the appellant no.1 is willing to travel to USA along with the minor child, she will communicate her willingness to do so to the respondent no.1 by email within a period of fifteen days from today. The appellant no.1 shall communicate to the respondent no.1 the possible dates on which she proposes to travel along with the minor child. The possible dates shall be within three months from today;

(ii) On receiving an intimation as aforesaid, the respondent no.1 shall book air tickets after consulting the appellant no.1. The respondent no.1 shall make proper arrangements for separate stay of the appellant no.1 in USA after consulting her. The arrangements for residence shall be made at the cost of 36 the respondent no.1. As and when the appellant no.1 wants to return to India, it shall be the responsibility of the respondent no.1 to pay for her air tickets. If she wishes to continue in USA, the respondent no.1 shall take all possible steps for the extension of visa or for getting a new visa;

(iii) In the event the appellant no.1 agrees to travel to USA along with the minor son, it will be the responsibility of the respondent no.1 to pay a sufficient amount per month to the appellant no.1 for maintenance of herself and the minor son. Along with the air tickets, the respondent no.1 shall remit US$ 6,500 to the appellant no.1 by a mutually convenient mode. The amount shall be utilised by the appellant no.1 to meet initial expenditure in USA. After the expiry of period of one month from the date on which the appellant no.1 arrives in USA, the respondent no.1 shall regularly remit a mutually agreed amount to the appellant no.1 for maintenance. If there be any dispute, the parties are free to adopt remedy in accordance with law. The respondent no.1 shall provide proper medical insurance to the appellant no.1 and the minor child while they are in USA. Moreover, the respondent no.1 shall be under an obligation to provide proper medical treatment to the minor child;

(iv) In the event, the appellant no.1 along with the minor child visits USA in terms of this order, for a period of three months from the date of her arrival, the respondent no.1 shall not take any steps to implement or enforce the order dated 3rd February 2020 passed by the Circuit Court of Benton County, Arkansas which will enable the appellant no.1 to move the concerned Court for contesting the petition filed by the respondent no.1 and to file appropriate proceedings. A written undertaking to that effect shall be filed by the respondent no.1 in this Court within two weeks from today. Thus, for the said period of three months, the custody of the minor shall remain with the appellant no.1; (v) After the appellant no.1 and minor child reach USA, subject to the orders which may be passed by the competent Court in USA, for a period of 3 months from their arrival, the respondent no.1 shall be entitled to have temporary custody of the minor child from 10 am to 5 pm on every Sunday or as 38 mutually agreed upon by the appellant no.1 and the respondent no.1. In addition, the respondent no.1 shall be entitled to make a video call to talk to the minor child for about half an hour on every day (except Sunday) between 5 pm to 6 pm;

(vi) In the event, the appellant no.1 is not willing to visit USA along with her minor son and fails to communicate her willingness to visit USA within a period of fifteen days from today, it will be open for the respondent no.1 to take custody of the child. After the respondent no.1 visits India, the appellant no.1 shall hand over the custody of the minor child to him and the respondent no.1 shall be entitled to take the minor child with him to USA. In such an event, the appellant no.1 will be entitled to talk to the minor child on video call for half an hour on every day between 5 pm to 6 pm (USA time) or at such time as mutually agreed upon by the appellant no.1 and the respondent no.1;

(vii) As observed by the High Court in paragraph 58 of the impugned Judgment, an option of adopting agreed joint parenting plan remains open to the parties. If they wish to do  so, they can always file appropriate application before the High Court; and

(viii) This order shall not be construed to mean that any final adjudication has been made on the rights of the parties.

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