NEW DELHI: A child's best interests and welfare are of paramount importance in a custody battle and courts must choose a course which will provide "healthy growth, development and education" and equip the youngster to face problems of life as a "mature adult", the Supreme Court said on Thursday.
Observing that the "dominant consideration to which all other considerations must remain subordinate must be the welfare of the child", a bench comprising justices A M Khanwilkar and J B Pardiwala granted the custody of two minor children to their US-based mother and asked their father, living in Tamil Nadu, to apply for the US visa in a week and travel there to hand over the kids to his estranged wife in a week thereafter.
The woman, whose husband came back to India with their two children allegedly without her consent, had moved habeas corpus (bring the person) plea in the top court here seeking a direction to authorities to "immediately trace and produce the minor children and deliver their custody" to her for their repatriation to the US in compliance with the order passed by a local court there.
Justice Pardiwala, referring to the laws on custody of children and the writ powers of the apex court, said, "There is complete unanimity that the best interests and welfare of the child are of paramount importance."
"We would therefore hold that in the case at bar the dominant consideration to which all other considerations must remain subordinate must be the welfare of the child. This is not to say that the question of custody will be determined by weighing the economic circumstances of the contending parties. The matter will not be determined solely on the basis of the physical comfort and material advantages that may be available in the home of one contender or the other."
"The welfare of the child must be decided on a consideration of these and all other relevant factors, including the general psychological, spiritual and emotional welfare of the child. It must be the aim of the court, when resolving disputes between the rival claimants for the custody of a child, to choose the course which will best provide for the healthy growth, development and education of the child so that he or she will be equipped to face the problems of life as a mature adult," Justice Pardiwala said.
The bench, in its 77-page judgement, said, "We would like to convey to the parties that their two minor children are watching them very closely. Showing the children that their parents can respect each other and resolve the conflict respectfully will give them a good foundation for the conflicts that may, God forbid, arise in their own lives. The parties should try to do their best to remain relaxed and focused."
It is critical to maintain boundaries between the adult problems and children, it said, adding that it is of utmost interest to protect the innocence of children and allow them to remain children.
"They must not be burdened by any adult problem. Minor children do not have the coping skills or the intellectual ability to understand any issues like the financial constraints, adult relationship issues or their parents' unhappiness," it said.
While granting the custody of the children to the mother, the court considered the fact that the minor children are residents of the US and "the son is a natural citizen and the daughter is a permanent resident of the US".
"Both the children have been brought up in the social and cultural milieu of the USA. They are accustomed to the lifestyle, language, customs, rules and regulations, etc. of that country. The children are residents of the USA. One of whom is a natural citizen and will have better future prospects if goes back to the USA," it said.
The woman alleged in her plea that despite the custody order of the US court in her favour, her estranged husband, without informing her, removed the minor children from a school in Ohio and on August 17, 2021, "clandestinely" left for India with the kids.
While allowing the plea, the verdict said, the father "shall, within one week from today, apply to the authority concerned for a visa to travel to the US with the two minor children".
The authority concerned may keep the observations made by this court in the present judgment in mind and, in the larger interest of the two minor children, consider grant of visa to the father, the bench said.
"Once the visa is granted, the respondent (father) shall, within one week thereafter, proceed to travel to the USA," it said, adding, "Once the two minor children reach the USA, thereafter, it will be open for the petitioner-mother to take care of her children."
The bench said if the US authorities decline the visa to the father, then in such circumstances, the mother shall travel to India and pick up her two minor children and go back to the US.
"In such an eventuality, the respondent no.2 and his family members are directed to fully cooperate and not create any impediment of any nature. If it comes to the notice of this court that the respondent no. 2 or any of his family members have created any impediment for the petitioner-mother, then the same shall be viewed as the contempt of this court's order," it said.