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Supreme Court: The Rights Of Parents Are Irrelevant While Deciding Custody Of A Child

The Hon'ble Supreme Court was hearing an appeal (Vasudha Sethi & Ors. v. Kiran v. Bhaskar & Anr. criminal appeal no. 82 of 2022) arising out of the Judgement passed by the Hon'ble High Court of Punjab and Haryana. The issue of custody of a minor child should be decided on the basis of the minor's welfare, rather than the parent's legal rights, according to a bench comprising of Justice Ajay Rastogi and Abhay S Oka.

This appeal stemmed from a custody battle between the couple over their minor child, Aaditya Kiran. This appeal was filed against a judgment and decision given by the Punjab and Haryana High Court's learned single bench on August 31, 2021, in a habeas corpus.

The Contentions of the Appellant:
Even after the child's surgery, the appellant's attorney claimed, the child need continued medical attention. Any breaches, she claimed, may put the minor's life in jeopardy. The doctor who performed on the child, she claimed, argued that a strict child care routine shall be followed even after surgery. She argued the importance of monitoring the health of the child for all times to come. She further stated that the minor child is being cared for by the child's grandmother and that she has family support because she lives with her parents.

The Contentions of Respondent:
The respondent's counsel asserted that appellant no. 1 had lived in the United States for more than nine years. Following her marriage to the respondent, she spent eight years in the United States. The counsel further stated that once the consent form was signed, no amendments to it were considered by the parties.

The lawyer went on to say that records show that return tickets for September 26th, 2019 were also booked. It was contended that the appellant no. 1 has avoided returning the minor child to the United States in violation of the international travel consent, resulting in the child's illegal detention in India, according to the counsel.
Operative Part of the Judgement:
"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;

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;

In the event the 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 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. 37 Moreover, the respondent no.1 shall be under an obligation to provide proper medical treatment to the minor child.


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