Child Custody in International Disputes: Supreme Court Rules in Vasudha Sethi vs. Kiran V. Bhaskar (2022)

Date of the Judgment: 12 January 2022

Citation: 2022 INSC 37

Judges: Justice Ajay Rastogi and Justice Abhay S. Oka

Can a parent’s desire to remain in a specific country outweigh the principle of the “best interest of the child” in an international custody dispute? The Supreme Court of India recently addressed this complex question in a case involving a child who is a citizen of the United States of America but has been residing in India with his mother. The core issue revolved around whether the child should be returned to the USA, his country of citizenship, or remain in India with his mother. The judgment was delivered by a two-judge bench comprising Justice Ajay Rastogi and Justice Abhay S. Oka.

Case Background

The case involves a dispute between Vasudha Sethi (appellant no. 1), the wife, and Kiran V. Bhaskar (respondent no. 1), the husband, regarding the custody of their minor son, Aaditya Kiran. The couple married in New York, USA, on January 13, 2011. Their son was born in the USA on January 21, 2016, making him a US citizen. The child was diagnosed with hydronephrosis, requiring surgery. Due to difficulties securing a timely appointment in the USA, the parents agreed to have the surgery performed at Max Hospital, Saket, in New Delhi, India.

To facilitate the child’s travel to India, both parents signed a consent document on February 4, 2019. This consent allowed the child to travel with his mother to India between February 5, 2019, and September 26, 2019, with the understanding that he would return to the USA by the latter date. The document explicitly stated that any changes to this plan would require mutual discussion and consent. The child underwent surgery on March 14, 2019, and was examined on July 12, 2019, with a follow-up scheduled six to seven months post-surgery.

The respondent no. 1, a permanent resident of the USA, returned to the USA for work after the surgery. However, the appellant no. 1 did not return to the USA with the child by the agreed date of September 26, 2019. The respondent no. 1 claimed that the appellant no. 1 was illegally detaining the child in India. Consequently, he filed a petition in the Circuit Court of Benton County, Arkansas, USA, on January 30, 2020, seeking primary custody of the child. The Circuit Court granted an interim order on February 3, 2020, awarding primary custody to the respondent no. 1 and directing the appellant no. 1 to return the child to the USA. Despite being informed of the order, the appellant no. 1 continued to keep the child in India, leading the respondent no. 1 to file a habeas corpus petition in the High Court of Punjab and Haryana.

Timeline:

Course of Proceedings

The respondent no. 1 filed a petition seeking a writ of habeas corpus in the High Court of Punjab and Haryana, requesting the court to direct the State of Haryana to secure the release of the minor child from the alleged illegal custody of the appellants. The High Court appointed an amicus curiae to interact with both parties and ascertain their respective positions. After considering the facts and submissions, the High Court allowed the writ petition. The High Court directed the appellant no. 1 to return to the USA with the minor child by September 30, 2021. If the appellant no. 1 chose to return, the respondent no. 1 was to bear the travel and incidental expenses. If the appellant no. 1 failed to comply, she was directed to hand over the custody of the minor child and his passport to the respondent no. 1. The High Court also granted visitation rights to the respondent no. 1 and allowed for video calls. The High Court also clarified that its observations were only for the disposal of the writ petition and would not bind any other court.

Legal Framework

The judgment primarily revolves around the interpretation and application of the principle of the “best interest of the child,” which is the paramount consideration in custody matters. The Supreme Court also considered the provisions of the Hindu Minority and Guardianship Act, 1956. Specifically, the court referred to:

• Section 6 of the Hindu Minority and Guardianship Act, 1956: This section defines the natural guardians of a Hindu minor. Clause (a) states that for a minor boy or girl, the father is the natural guardian, but the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.
• Section 13(1) of the Hindu Minority and Guardianship Act, 1956: This section states that in the appointment or declaration of any person as guardian of a minor, the welfare of the minor shall be the paramount consideration.

The court emphasized that while the law recognizes the natural guardianship of the father and the usual custody of a child under five with the mother, the overarching principle is always the welfare of the child. This principle allows the court to deviate from these norms if the child’s best interests require it.

Arguments

Arguments of the Appellants (Mother):

• The child requires constant medical care and monitoring due to his surgery and any lapses could be fatal. The mother, along with the grandmother, is providing the necessary care.
• The respondent no. 1 had plans to settle in India, as evidenced by his purchase of land in Bangalore. The respondent no. 1 also selected a pre-school for the child in India.
• The appellant no. 1 is the primary caregiver, and the child’s best interest is to remain with her.
• The doctrine of tender years and maternal preference under Section 6 of the Hindu Minority and Guardianship Act, 1956, supports the mother’s claim.
• Forcing the mother to return to the USA violates her fundamental right to autonomy and privacy under Article 21 of the Constitution of India.
• The welfare of the child includes the welfare of all family members, especially the primary caregiver (mother).
• The child’s citizenship should not be the deciding factor; the child can stay in India with an OCI card.
• The High Court ignored binding precedents like Nithya Anand Raghavan and Kanika Goel.
• The writ of habeas corpus was not maintainable as the mother’s custody was not illegal.
• The medical evaluation of the child requires a detailed hearing, and the Indian medical system is better suited for his care.
• The visa granted to the mother is a tourist visa, and the father’s support is illusory.

Arguments of the Respondent (Father):

• The mother violated the international travel consent by not returning the child to the USA by September 26, 2019.
• The child’s detention in India is illegal.
• There is no evidence that the child needs continuous follow-up treatment in India.
• The father has a healthy relationship with his son through video conferences.
• The quickest and most viable way to get a visa for the mother and child was a B-2 non-immigrant visa.
• The father is willing to bear all expenses for the mother and child in the USA.
• The High Court order is balanced and consistent with the law laid down by the Supreme Court.

Submissions Table

Issues Framed by the Supreme Court

The Supreme Court considered the following issues:

1. Whether the High Court was correct in directing the appellant no. 1 to return to the USA along with the minor child.
2. Whether the principle of the “best interest of the child” was correctly applied in the present case.
3. Whether the rights of the mother as the primary caregiver were adequately considered.
4. Whether the High Court was justified in exercising its power to issue a writ of habeas corpus in the present case.

Treatment of the Issue by the Court

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

Authorities

The Supreme Court considered the following authorities:

Cases:

• Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu and Another [1984] 3 SCC 698: The Court considered this case for the principle of maternal preference as found under Section 6 of the Hindu Minority and Guardianship Act, 1956.
• Elizabeth Dinshaw (Mrs.) v. Arvand M. Dinshaw and Another [1987] 1 SCC 42: The Court considered this case for the principle of maternal preference as found under Section 6 of the Hindu Minority and Guardianship Act, 1956.
• K.S. Puttaswamy v. Union of India [2017] 10 SCC 122: The Court considered this case in relation to the principles of autonomy against non-state persons.
• Nithya Anand Raghavan v. State (NCT of Delhi) and Another [2017] 8 SCC 454: The Court considered this case for the parameters for exercise of the power to issue a writ of habeas corpus in cases of minors brought to India from their native country.
• Prateek Gupta v. Shilpi Gupta and others [2018] 2 SCC 309: The Court considered this case for the principle that the issue of repatriation of a child has to be addressed on the criteria of the welfare of the child.
• Kanika Goel v. the State of Delhi through Station House Officer and another [2018] 9 SCC 578: The Court considered this case for the parameters for exercise of the power to issue a writ of habeas corpus in cases of minors brought to India from their native country.
• Lahari Sakhamuri v. Sobhan Kodali [2019] 7 SCC 311: The Court considered this case as an exception to the rule laid down in Nithya Anand Raghavan and Kanika Goel as the mothers had submitted to the jurisdiction of the Court in USA.
• Yashita Sahu v. State of Rajasthan [2020] 3 SCC 677: The Court considered this case as an exception to the rule laid down in Nithya Anand Raghavan and Kanika Goel as the mothers had submitted to the jurisdiction of the Court in USA.

Legal Provisions:

• Section 6 of the Hindu Minority and Guardianship Act, 1956: The Court considered this section in relation to the natural guardianship of a minor and the custody of a minor who has not completed the age of five years.
• Section 13(1) of the Hindu Minority and Guardianship Act, 1956: The Court considered this section in relation to the paramount consideration of the welfare of the minor in the appointment or declaration of a guardian.

Authorities Considered by the Court

Judgment

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

How each authority was viewed by the Court?

• The Court considered the cases of Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu and Another [1984] 3 SCC 698 and Elizabeth Dinshaw (Mrs.) v. Arvand M. Dinshaw and Another [1987] 1 SCC 42, but reiterated that the welfare of the child is the paramount consideration, and the rights of the parents are secondary.
• The Court considered the case of K.S. Puttaswamy v. Union of India [2017] 10 SCC 122, but did not find it relevant in the context of the custody dispute.
• The Court followed the principles laid down in Nithya Anand Raghavan v. State (NCT of Delhi) and Another [2017] 8 SCC 454 and Kanika Goel v. the State of Delhi through Station House Officer and another [2018] 9 SCC 578, regarding the parameters for exercise of the power to issue a writ of habeas corpus.
• The Court followed the principle laid down in Prateek Gupta v. Shilpi Gupta and others [2018] 2 SCC 309 that the issue of repatriation of a child has to be addressed on the criteria of the welfare of the child.
• The Court considered the cases of Lahari Sakhamuri v. Sobhan Kodali [2019] 7 SCC 311 and Yashita Sahu v. State of Rajasthan [2020] 3 SCC 677 as exceptions to the general rule in Nithya and Kanika as the mothers had submitted to the jurisdiction of the Court in USA.
• The Court considered Section 6 of the Hindu Minority and Guardianship Act, 1956, but held that the welfare of the minor is paramount and the rights of the parents are secondary.
• The Court considered Section 13(1) of the Hindu Minority and Guardianship Act, 1956, and reiterated that the welfare of the minor is the paramount consideration.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily driven by the principle of the “best interest of the child.” The Court emphasized that the child’s welfare is the paramount consideration, and the rights of the parents are secondary. The Court also noted that the child is a citizen of the USA and his integration into the social, physical, and cultural environment of his native country is crucial for his development. The Court also considered the fact that the child had spent a significant portion of his life in the USA and that the High Court had considered all relevant factors before passing its order.

Fact:Law Ratio

The ratio of fact to law in the Supreme Court’s decision is as follows:

This indicates that the court gave more weight to the factual aspects of the case, such as the child’s citizenship, the time spent in the USA, and the High Court’s findings, compared to the legal principles and precedents.

Logical Reasoning

Issue 1: Whether the High Court was correct in directing the appellant no. 1 to return to the USA along with the minor child.

Issue 2: Whether the principle of the “best interest of the child” was correctly applied in the present case.

Issue 3: Whether the rights of the mother as the primary caregiver were adequately considered.

Issue 4: Whether the High Court was justified in exercising its power to issue a writ of habeas corpus in the present case.

Final Decision

The Supreme Court partly allowed the appeals and modified the order of the High Court. The Supreme Court held that:

1. The High Court was correct in exercising its power to issue a writ of habeas corpus.
2. The High Court was correct in holding that it was in the best interest of the minor child to return to the USA.
3. The High Court’s order to direct the appellant no. 1 to return to the USA with the minor child was modified. The appellant no. 1 was given an option to return to the USA with the minor child.
4. If the appellant no. 1 chose not to return to the USA, she was directed to hand over the custody of the minor child to the respondent no. 1.

Directions

The Supreme Court issued the following directions:

1. The appellant no. 1 was given the option to return to the USA with the minor child within a period of four weeks from the date of the judgment.
2. If the appellant no. 1 chose to return to the USA, the respondent no. 1 was directed to bear all the travel expenses of the appellant no. 1 and the minor child.
3. If the appellant no. 1 failed to return to the USA within the stipulated period, she was directed to hand over the custody of the minor child to the respondent no. 1.
4. The respondent no. 1 was permitted to take the minor child to the USA.
5. The Supreme Court also directed the Circuit Court of Benton County, Arkansas, USA to decide the issue of custody of the minor child in accordance with the law.

Key Takeaways

The key takeaways from this judgment are:

• The principle of the “best interest of the child” is the paramount consideration in custody disputes.
• The rights of the parents are secondary to the welfare of the child.
• The child’s citizenship and integration into the social, physical, and cultural environment of his native country are crucial for his development.
• The courts have the power to issue a writ of habeas corpus in cases of illegal detention of a minor.
• The courts must consider all relevant factors before passing an order in a custody dispute.
• The courts cannot force a parent to leave India, but can give an option to do so.