Pinnacle Court says that the rights of parents are irrelevant when deciding custody of a child

The Top Court has ruled that in matters involving the custody of a minor child having foreign citizenship, the predominant right of child welfare can’t be weighed against the rights of parents who are involved in a dispute over the repatriation of the child.

A bench of Justices Ajay Rastogi and Abhay S Oka also said that custody of a minor and the matter of his repatriation to his native country can only be addressed on the criteria of the child’s welfare and not based on the legal rights of the parents.

The court was hearing a mother’s plea against the decision of the Punjab and Haryana High Court, which had granted custody of the minor to the father, a United States citizen. The High Court had directed the mother to return to the US with the child. However, she had challenged the High Court’s order before the Supreme Court.

Challenging the order of Punjab and Haryana High Court, the mother approached the Apex Court.

On behalf of the 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 court said that while it cannot ask the parents where they would live as it would infringe their right to privacy, it can order them to ensure the child’s welfare.

“A parent has to be given an option to go abroad with the child,” it said. “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 that the mother could travel to the US with her child and challenge the custody there. However, if she refuses to do so, the father can take custody of the minor.

The bench also 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.

Bench finally mentioned that “A parent has to be given an option to go abroad with the child”; and said “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.”