Child Custody in International Disputes: Supreme Court Addresses Habeas Corpus and Parental Rights in Yashita Sahu vs. State of Rajasthan (20 January 2020)

Introduction

Date of the Judgment: 20 January 2020

Citation: (2020) INSC 27

Judges: Deepak Gupta, J., Aniruddha Bose, J.

Can a parent who takes a child from one country to another, violating a court order, claim that the child is not in illegal detention and therefore a writ of habeas corpus cannot be issued? The Supreme Court of India recently addressed this complex issue in a case involving a child taken from the USA to India. The core issue was whether the High Court was right in directing the mother to return to the USA with the child, and how much weight should be given to foreign court orders in child custody disputes. The judgment was delivered by a two-judge bench comprising Justice Deepak Gupta and Justice Aniruddha Bose, with Justice Gupta authoring the opinion.

Case Background

Yashita Sahu (the wife) and Varun Varma (the husband) married on 30 May 2016 in India. The husband was already working in the United States of America (USA). The wife joined him in the USA on 17 July 2016. Their daughter, Kiyara Verma, was born on 3 May 2017 and is a citizen of the USA. The relationship between the husband and wife deteriorated, leading to various allegations and counter-allegations. On 25 August 2018, the wife applied for an Emergency Protection Order in the Norfolk Juvenile and Domestic Relations District Court (Norfolk Court), resulting in an ex-parte order against the husband. On 29 August 2018, she filed a petition in the same court seeking sole custody of the child and monetary support. On 26 September 2018, the Norfolk Court issued an order based on an agreement between the parties, which included provisions for shared custody, parenting time, and financial support. The order also stipulated that the parties were to cooperate with each other and surrender their passports, including the child’s passport, to the guardian ad litem if a settlement was not possible. The wife was to reside in the marital residence until 1 December 2018.

It is undisputed that on 30 September 2018, the wife left the USA with the child for India, violating the Norfolk Court’s order. The husband, upon learning this, filed a motion for emergency relief on 2 October 2019. The Norfolk Court granted him sole legal and physical custody and issued a warrant against the wife for violating the 26 September 2018 order.

Timeline

Course of Proceedings

The husband filed a petition for a writ of habeas corpus in the Rajasthan High Court seeking the production of his minor child. The High Court, in its judgment dated 1 July 2019, directed the wife to return to the USA with her daughter within six weeks. The High Court also directed the husband to arrange for the wife and child’s travel and stay, including alternative accommodation if the wife did not wish to stay with the husband. Aggrieved by this decision, the wife appealed to the Supreme Court.

Legal Framework

This case primarily concerns the interpretation and application of the writ of habeas corpus in child custody matters. While there are no specific sections of any statute directly related to the writ of habeas corpus, the Supreme Court has consistently held that the writ jurisdiction can be invoked for the welfare of the child. The Court relied on previous judgments to establish that the paramount consideration in such cases is the welfare of the child, and that the orders of a foreign court are not binding, but persuasive. The Court also emphasized the importance of the doctrine of comity of courts, which requires courts of different jurisdictions to respect each other’s orders, but reiterated that this principle cannot override the welfare of the child.

Arguments

Arguments by the Wife (Appellant):

• The wife argued that a writ of habeas corpus is not maintainable because the child is with her, the natural guardian, and is not in illegal detention.
• She contended that the High Court erred in directing her to travel to the USA, asserting that she cannot be forced to stay where she does not want to.
• The wife claimed that the child, being a young girl, requires her care and protection and that it is in the child’s best interest to remain with her.
• She stated that she did not understand the Norfolk Court proceedings due to a lack of English knowledge and an American accent and that her legal aid was inadequate due to communication issues with her lawyer.
• The wife also argued that the Norfolk Court order was not binding on her and that the husband’s work permit in the USA was expiring, jeopardizing their future there.

Arguments by the Husband (Respondent):

• The husband argued that the wife approached the Norfolk Court and agreed to a shared parenting order.
• He stated that the wife violated the Norfolk Court’s orders by leaving the USA with the child.
• He submitted that the wife cannot violate a foreign court’s orders and then seek protection in Indian courts.
• The husband contended that a father can be an appropriate natural guardian for a minor daughter.
• He asserted that he is not seeking a divorce and wishes to live with his wife and child in the USA.
• He also stated his willingness to make all arrangements for the wife and child’s travel and stay in the USA.

Submissions Table:

Innovativeness of the Argument: The wife’s argument that she did not understand the Norfolk Court proceedings due to language barriers and inadequate legal aid was a novel approach to challenge the validity of the consent order. This argument sought to highlight the potential vulnerabilities of individuals in foreign legal systems.

Issues Framed by the Supreme Court

The Supreme Court addressed the following issues:

1. Whether a writ of habeas corpus is maintainable when the child is in the custody of a parent.
2. Whether the High Court was correct in directing the wife to return to the USA with the child.
3. What is in the best interest of the child.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court relied on the following authorities:

Cases:

• Elizabeth Dinshaw vs. Arvand M. Dinshaw & Ors. [1987] 1 SCC 42 – The Court cited this case to emphasize that in child custody matters, the primary consideration is the welfare of the child, not the legal rights of the parties. This case also highlighted that a child’s presence in a country due to illegal abduction does not grant any advantage to the abducting parent.
• Nithya Anand Raghavan vs. State (NCT of Delhi) & Anr. [2017] 8 SCC 454 – This case was used to support the view that a High Court can direct the return of a child or decline to change custody, keeping in mind the child’s welfare, and that the order of a foreign court must yield to the welfare of the child. It also clarified that a writ of habeas corpus cannot be used for mere enforcement of foreign court orders.
• Lahari Sakhamuri vs. Sobhan Kodali [2019] 7 SCC 311 – The Court referred to this case to reiterate that the doctrines of comity of courts and intimate connect cannot override the consideration of the best interest and welfare of the child. The direction to return the child to a foreign jurisdiction must not result in any harm to the child.
• Kanika Goel vs. State of Delhi [2018] 9 SCC 578 – This case was cited to emphasize that the focus should be on the best interest of the child and whether the child’s removal from their native country has interfered with their overall growth and grooming.
• V. Ravi Chandran (Dr.) (2) vs. Union of India (UOI) and Ors. [2010] 1 SCC 174 – This case was used to highlight that the court in the country to which the child has been removed must first consider whether to conduct an elaborate inquiry on custody or summarily order the return of the child to their native country.

Legal Provisions:

• There were no specific legal provisions (like sections of a statute, rules, or articles) mentioned in the judgment. The legal framework was based on the court’s interpretation of the writ of habeas corpus, and the principles of comity of courts and the welfare of the child.

Table of Authority Consideration:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Court followed Elizabeth Dinshaw vs. Arvand M. Dinshaw & Ors. [1987] 1 SCC 42*, emphasizing that the welfare of the child is paramount and that a child’s presence in a country due to illegal abduction does not grant any advantage to the abducting parent.
• The Court followed Nithya Anand Raghavan vs. State (NCT of Delhi) & Anr. [2017] 8 SCC 454*, clarifying that a writ of habeas corpus cannot be used merely for enforcing foreign court orders and emphasizing the welfare of the child.
• The Court followed Lahari Sakhamuri vs. Sobhan Kodali [2019] 7 SCC 311*, reiterating that the doctrines of comity of courts and intimate connect cannot override the child’s welfare.
• The Court followed Kanika Goel vs. State of Delhi [2018] 9 SCC 578*, emphasizing that the focus should be on the best interest of the child and the impact of removal from their native country.
• The Court followed V. Ravi Chandran (Dr.) (2) vs. Union of India (UOI) and Ors. [2010] 1 SCC 174*, highlighting the process of deciding whether to conduct a summary or elaborate inquiry in child custody cases.

What weighed in the mind of the Court?

The Supreme Court’s decision was driven by a careful consideration of several factors, with the paramount concern being the welfare of the child. The Court acknowledged the importance of the child’s age, nationality, the proceedings in the Norfolk Court, and the conduct of the parents. The Court noted that the child, being less than three years old and a girl, might require her mother’s care more than her father’s. However, the Court also noted that the child is a citizen of the USA, and the wife had approached the Norfolk Court herself. The Court found that the wife had violated the Norfolk Court’s order by bringing the child to India. The court also considered the facilities of education and social security available in the USA. The court concluded that the child should have the care of both parents, if not joint, then at least separate.

Sentiment Analysis of Reasons Given by the Supreme Court:

Fact:Law Ratio:

The court’s decision was influenced more by the factual aspects of the case, such as the circumstances of the child’s removal from the USA and the conduct of the parents, than by purely legal considerations. However, the legal principles of comity of courts and the welfare of the child were also crucial in the decision-making process.

Logical Reasoning:

The court considered the welfare of the child as the paramount consideration and also considered the conduct of the parents and the circumstances of the case. The court also considered the legal principles of comity of courts and the welfare of the child.

The Court considered alternative interpretations, such as the wife’s argument that she did not understand the Norfolk Court proceedings and that the child should remain with her. However, the Court rejected these arguments, stating that the wife was educated and aware of her rights and that the child should not be deprived of the facilities available in the USA. The final decision was based on the overall welfare of the child and the need to balance the rights of both parents.

The Supreme Court held that while the High Court was correct in considering the welfare of the child, it erred in directing the wife to return to the USA. The Court emphasized that no court can force an adult to stay where she does not want to. The Court also held that the child should have the care of both parents, if not joint, then at least separate. The Court issued directions in two parts, one if the wife was willing to go back to the USA and another if she was not. The Court also emphasized the importance of visitation rights and contact rights for the child.

The majority opinion was authored by Justice Deepak Gupta, with Justice Aniruddha Bose concurring. There were no dissenting opinions.

The court’s reasoning involved a step-by-step analysis of the facts, the legal principles, and the arguments presented by both sides. The court relied on existing precedents to support its decision and applied the principles of comity of courts and the welfare of the child to the facts of the case. The court also considered the practical implications of its decision and issued directions to ensure that the child’s welfare was protected.

The decision has potential implications for future cases involving international child custody disputes. It clarifies that while foreign court orders are persuasive, the paramount consideration is the welfare of the child. It also emphasizes the importance of visitation and contact rights for the child.

The court did not introduce any new doctrines or legal principles but reaffirmed existing principles related to child custody and habeas corpus. The court analyzed the arguments for and against these principles, explaining why it accepted or rejected certain legal points.

The following quotes from the judgment support the court’s reasoning:

“The High Court while dealing with the petition for issuance of a writ of habeas corpus concerning a minor child, in a given case, may direct return of the child or decline to change the custody of the child keeping in mind all the attending facts and circumstances including the settled legal position referred to above.”

“The consistent view of this Court is that if the child has been brought within India, the courts in India may conduct: (a) summary inquiry; or (b) an elaborate inquiry on the question of custody.”

“We are of the considered view that the doctrine of comity of courts is a very healthy doctrine. If courts in different jurisdictions do not respect the orders passed by each other it will lead to contradictory orders being passed in different jurisdictions.”

Key Takeaways

• A writ of habeas corpus is maintainable in child custody cases even when the child is with a natural guardian.
• The welfare of the child is the paramount consideration in child custody disputes, overriding legal rights and foreign court orders.
• Courts should respect the orders of foreign courts (comity of courts) but this principle cannot override the welfare of the child.
• No court can force an adult to stay where she does not want to.
• Children have a right to the love and affection of both parents, and courts must ensure that children are not deprived of contact with either parent.
• Courts must define the nature, manner, and specifics of visitation rights.
• Contact rights, including video calling, are important for children, especially when parents live in different locations.

The judgment may impact future cases by setting a precedent that Indian courts will prioritize the child’s welfare over strict adherence to foreign court orders. It also emphasizes the importance of ensuring that children maintain contact with both parents, even in cases of separation.

Directions

The Supreme Court issued the following directions:

Part 1 (If the wife is willing to go back to the USA):

• The husband must bear all expenses for the wife and child’s travel and stay in the USA.
• The wife must inform the husband’s counsel within one week if she is willing to go back to the USA.
• If the wife is willing to go, the husband must purchase tickets for travel to the USA before 20 February 2020.
• If the wife is not willing to live with the husband, the husband must make alternative arrangements for his stay and hand over the possession of the apartment to the wife.
• The husband must take care of all expenses of day-to-day running of the house, medical insurance, and other incidental expenses until the jurisdictional court in the USA makes a provision in this regard.
• The husband must not initiate any coercive or penal action against the wife in the USA.
• This arrangement will continue up to 30 April 2020, before which the parties must get proper directions from the jurisdictional court in the USA.
• The husband must pay US$250 per week to the wife for her personal expenses in the USA until 30 April 2020 or until the jurisdictional court in the USA passes orders in this regard, in addition to the US$200 per week for the child’s upkeep.

Part 2 (If the wife is not willing to go back to the USA):

• The wife must hand over custody of the child to the husband or his mother before the Registrar General/Registrar(Judicial) of the High Court of Rajasthan on 3 February 2020.
• The husband must make arrangements for taking the child to the USA, accompanied by at least one of his parents.
• The husband must ensure that the child talks to her mother through video calling every day.
• If the wife visits the USA, she will be permitted custody of the child on all weekends.
• The father must ensure that the child visits India at least twice a year, once during the summer vacations and once during the winter break, and that the child is accompanied by him or one of the grandparents.

The Court also clarified that if the husband’s visa/work permit is not extended, the wife will be at liberty to move the Court for fresh directions.

Specific Amendments Analysis

This section is omitted as there is no discussion about any specific amendment in the judgment.

Development of Law

The ratio decidendi of this case is that in child custody disputes, the welfare of the child is the paramount consideration, which overrides legal rights and foreign court orders. The Supreme Court also clarified that a writ of habeas corpus is maintainable in child custody matters even when the child is with a natural guardian. While the court reaffirmed existing principles, it also emphasized the importance of visitation and contact rights for children and clarified that no court can force an adult to stay where she does not want to. There was no change in the previous position of law, but the judgment provided further clarity on the interpretation and application of existing principles.

Conclusion

In the case of Yashita Sahu vs. State of Rajasthan, the Supreme Court addressed a complex international child custody dispute. The Court held that while the High Court was correct in considering the welfare of the child, it erred in directing the wife toreturn to the USA. The Supreme Court clarified that no court can force an adult to stay where she does not want to, and that the child’s welfare is paramount. The Court issued specific directions to ensure that the child has contact with both parents, whether in the USA or in India. This judgment reinforces the principle that in child custody matters, the welfare of the child is the primary consideration, and that courts must balance the rights of both parents to ensure the child’s well-being.