Thursday, January 13, 2022

Declaration of guardian of a minor, the welfare of the minor shall be the paramount consideration- Supreme Court

Read Judgment

The rights of the parents are irrelevant when a Court decides the custody issue. It is not a consideration at all for deciding the issue.

The father, a permanent resident of America, and the appellant-wife were married in 2011 in New York. A child was born to them in 2016. The child holds an American passport. When the child suffered from hydronephrosis (kidney swelling), the parents were in no position to conduct the surgery in the US.
The case arose when the mother did not allow the minor child to return on successful completion of the medical procedures.
The father approached the Circuit Court of Benton County, Arkansas, USA, seeking primary care, control, and custody of the minor on account of his wrongful detention outside the USA, which was granted by way of an interim order.

the mother continued to keep the minor son in India.

The father then filed a Habeas Corpus petition before the Punjab & Haryana High Court which allowed the plea and directed the mother to return to the USA with the child.

"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 the USA. The High Court has not treated the order of the USA court as conclusive...The exercise of power by the High Court cannot be said to be perverse or illegal," the Bench noted.

"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 a guardian of a minor, the welfare of the minor shall be the paramount consideration."

"In the event, the mother is not willing to visit the USA along with her minor son and fails to communicate her willingness to visit the 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.

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