A recent Supreme Court judgement has granted Indian courts unlimited discretion in deciding which parent can take the custody of minor children in cases involving cross-border parental child abduction.
The verdict has found that courts can decline any relief of repatriation of a child granted to the parent living abroad even in cases of a concerned foreign court passing the orders to that effect.
Welfare Of Child Paramount
A bench comprising Chief Justice of India Dipak Misra and Amitava Roy have held the welfare of the child as being the “paramount’ and predominant” consideration while hearing a case involving an international custody battle.
Authored by Justice Roy, the judgement noted that the child’s welfare came ahead of a foreign country’s repatriation order since India was not a signatory of the Hague Convention dealing with “The Civil Aspects of International Child Abduction”.
The apex court found that the “principle of comity of courts” does not have “a yielding primacy or dominance” over the child’s welfare and well-being.
According to the verdict, a court can refuse repatriation of the child to a parent living overseas if it is satisfied that the child is settled in its “new environment” in India or in cases where the child would be exposed to an “intolerable or unbearable situation” with the parent abroad or if the child on attainting maturity doesn’t want to go.
Custody Case Involved US Court Order
The judgement by the Supreme Court Bench came in a case wherein the father took the younger of his two children from his wife’s custody in US and brought the son to India.
The mother alleged that the father had taken the child away on the pretext of visiting a nearby mall. A U.S. Court upheld her custody request, ordering the father to return his son to the mother.
Evaluating the case, the Supreme Court found that the boy now aged 5 and half years was well-settled in India, studying in a reputed school and living with his extended family.
The apex court has allowed the child to remain with the father in India highlighting that the parents were in touch over email. The justices held that uprooting the boy from his present home may be counter-productive to his welfare.
