The Bench, even as it termed the dispute unfortunate, observed that there is in fact no evidence to warrant presence of the minor child in India for further medical treatment.
“The High Court has given reasons for coming to the conclusion that it will be in the interest and welfare of the child to return to USA. The High Court has not treated the order of USA court as conclusive…The exercise of power by the High Court cannot be said to be perverse or illegal,” the Bench noted.
This Court underlined that the paramount consideration is the welfare of the minor child and the rights of the parties litigating over the custody issue are irrelevant.
“The principle that the welfare of the minor shall be the predominant consideration and that the rights of the parties to a custody dispute are irrelevant has been consistently followed by this Court. In fact, in sub-section (1) of Section 13 of the Hindu Minority and Guardianship Act, 1956 (for short “the 1956 Act”), it is provided that in appointment or declaration of guardian of a minor, the welfare of the minor shall be the paramount consideration,” the judgment said.
It observed that the Court cannot direct where parents should reside but it can pass directions to ensure the welfare of the child.
“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,” the Court said.
The Court, therefore, provided the appellant-mother an option to travel to the USA and contest proceedings of custody, for which the husband shall be responsible for their expenses.
Otherwise, the father will be allowed to take custody of the minor child.
“In the event, the mother 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 father to take custody of the child,” the Court made it clear.
However, if and when the mother visits USA, the father shall not enforce the Arkansas Court’s order giving the father custody and primary care, for three months.
Source: Barandbench
