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

Date of the Judgment: 12 January 2022
Citation: 2022 INSC 40
Judges: Hon’ble Justices Abhay S. Oka and Ajay Rastogi
Can a parent’s right to autonomy outweigh the child’s best interests in an international custody battle? The Supreme Court of India recently addressed this complex question in a case involving a child who is a citizen of the USA, but whose mother wished to keep him in India. The court had to balance the rights of the parents with the welfare of the child, especially in a cross border dispute. The judgment was delivered by a two-judge bench comprising Justices Abhay S. Oka and Ajay Rastogi, with Justice Oka authoring the opinion.

Case Background

The case involves a custody dispute between Vasudha Sethi (appellant no. 1), the mother, and Kiran V. Bhaskar (respondent no. 1), the father, regarding their minor son, Aaditya Kiran. The couple married in the USA on January 13, 2011, and their son was born there on January 21, 2016, making him a U.S. citizen. The child was diagnosed with hydronephrosis, requiring surgery. Due to difficulties in securing a timely appointment in the U.S., the parents agreed to have the surgery performed in India at Max Hospital, Saket. A consent for international travel was executed on February 4, 2019, allowing the mother to take the child to India from February 5, 2019, to September 26, 2019. The consent stipulated that any changes to this plan required mutual agreement. The child underwent surgery on March 14, 2019. The father, a permanent resident of the U.S., returned to the U.S. for work after the surgery. The mother did not return to the U.S. by the agreed date of September 26, 2019, leading the father to allege illegal detention of the child in India. Consequently, the father filed a petition in the Circuit Court of Benton County, Arkansas, USA, which granted him primary custody on February 3, 2020, and ordered the mother to return the child. Despite this order, the mother remained in India, prompting the father to file a habeas corpus petition in the Punjab and Haryana High Court seeking the child’s release from the mother’s custody.

Timeline:

Date	Event
January 13, 2011	Vasudha Sethi and Kiran V. Bhaskar were married in New York, USA.
January 21, 2016	Aaditya Kiran, their son, was born in the USA.
February 4, 2019	Consent for international travel was executed, allowing the mother to take the child to India for surgery.
February 5, 2019	Child left USA for India.
March 14, 2019	Child underwent surgery at Max Hospital, Saket, New Delhi.
September 17, 2019	Dr. Anurag Krishna issued a certificate stating the child was doing well and needed a follow-up after 6-7 months.
September 26, 2019	Agreed date for the child to return to the USA, as per the consent form.
January 30, 2020	Father filed a petition in the Circuit Court of Benton County, Arkansas, USA, for custody of the child.
February 3, 2020	The Circuit Court granted the father primary custody and ordered the mother to return the child.
October 21, 2020	Psychological Evaluation Report of the father was issued.
August 31, 2021	Punjab and Haryana High Court allowed the father’s habeas corpus petition.
September 24, 2021	The Supreme Court of India recorded the assurance that the father had secured a USA visa for the mother.
November 24, 2021	The Supreme Court attempted to find an amicable resolution but was unsuccessful.
January 12, 2022	The Supreme Court delivered its judgment.

Course of Proceedings

The respondent no.1 (father) filed a petition seeking a writ of habeas corpus in the High Court of Punjab and Haryana, requesting the release of the minor child from the custody of the appellants (mother and her parents). The High Court appointed an amicus curiae to interact with both parents and submit a report. The High Court allowed the writ petition, directing the mother to return to the USA with the child by September 30, 2021. It also stipulated that if the mother chose to return, the father would bear the travel and stay expenses and would not initiate any criminal or contempt proceedings against her for the child’s removal. If the mother failed to comply, she was directed to hand over custody of the child and his passport to the father. The High Court also allowed visitation rights to the father. The High Court also stated that the observations in the present order have been made for the purpose of disposal of the present writ petition and shall not bind any Court or authority in disposal of any other case involving question of custody or welfare of the child.

Legal Framework

The judgment primarily revolves around the interpretation and application of principles related to child custody and welfare, particularly in the context of international parental child abduction. The court considered the following:

Section 13 of the Hindu Minority and Guardianship Act, 1956: This section emphasizes that the welfare of the minor is the paramount consideration in the appointment or declaration of a guardian. The court noted that this principle is central to all custody disputes. “In the appointment or declaration of any person as guardian of a Hindu minor, the welfare of the minor shall be the paramount consideration.”
Section 6 of the Hindu Minority and Guardianship Act, 1956: This section defines the natural guardians of a Hindu minor. It specifies that the father is the natural guardian for a minor boy or girl, but the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. “The natural guardians of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are— (a) in the case of a boy or an unmarried girl—the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother”
Article 226 of the Constitution of India: This article grants High Courts the power to issue writs, including habeas corpus. The court discussed the parameters for exercising this power in cases involving minors brought to India from their native country.

Arguments

Submissions of the Appellants (Mother)

The child requires constant medical care post-surgery, and any lapses could be fatal.
The child’s doctor has prescribed a strict care regime, including careful monitoring of his health and water intake.
The grandmother of the child is also taking care of the child, and there is family support available.
The mother has filed a detailed affidavit explaining why the child should remain in India until he is 9-10 years old.
The father had plans to settle in India, purchasing land in Bangalore, and selected a pre-school for the child while in India in April 2019.
The father wanted the mother to work in India and bought property in Bangalore where his mother resides.
The petition in the USA was filed after the mother asked the father to return money taken for land purchase in Bangalore.
The mother is the primary caregiver, and the doctrine of tender years and maternal preference under Section 6 of the Hindu Minority and Guardianship Act, 1956, should apply.
Compelling the mother to return to the USA would violate her fundamental right to autonomy and privacy under Article 21 of the Constitution of India.
The welfare of the child means balancing the interests of all family members, and the mother’s rights must be protected.
The mother is a fit parent, and special care is needed to counter the dominant presence of the father.
The citizenship of the child should not determine the welfare principle.
The decisions 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] are binding precedents.
A writ of habeas corpus was not maintainable as the mother’s custody was not illegal.
The cases of Yashita Sahu v. State of Rajasthan [(2020) 3 SCC 677] and Lahari Sakhamuri v. Sobhan Kodali [(2019) 7 SCC 311] are exceptions to the general rule.
The issue of medical evaluation of the child requires a detailed hearing.
The visa granted to the mother is a tourist visa, and the father’s support is illusory.
The Indian medical system is better suited for the child, and the grandmother is a doctor.

Submissions of the Respondent (Father)

The mother has spent more than nine years in the USA, including eight years after marriage.
The consent for the child to travel to India was only for a specific period, from February 5, 2019, to September 26, 2019.
The mother violated the consent by not returning the child to the USA, amounting to illegal detention.
No documents have been produced to show that the child needs continuous follow-up treatment.
The father has been interacting with the child regularly through video conference.
The father has obtained a B-2 non-immigrant visa for the mother to travel to the USA.
The father will cover all travel and stay expenses for the mother and child in the USA.
The order of the High Court is balanced and consistent with the law laid down in Lahiri Sakhamuri v. Sobhan Kodali [(2019) 7 SCC 311] and Yashita Sahu v. State of Rajasthan [(2020) 3 SCC 677].

Main Submission	Sub-Submissions (Appellants)	Sub-Submissions (Respondent)
Child’s Medical Condition	✓ Child needs constant medical care and strict monitoring. ✓ Indian medical system is better suited for the child.	✓ No document to show continuous follow-up is required. ✓ Periodic reviews can be arranged even in USA.
Parental Rights and Autonomy	✓ Mother is primary caregiver; doctrine of tender years applies. ✓ Compelling mother to return to USA violates her autonomy and privacy. ✓ Welfare means balancing interests of all family members.	✓ Mother violated international travel consent. ✓ Father has the skills to care for the child.
Legal Precedents	✓ Nithya Anand Raghavan and Kanika Goel are binding precedents. ✓ Yashita Sahu and Lahari Sakhamuri are exceptions.	✓ High Court order is consistent with Lahari Sakhamuri and Yashita Sahu.
Child’s Citizenship and Welfare	✓ Citizenship is not relevant to welfare. ✓ Best interest is to stay in India with primary caregiver.	✓ Child is a US citizen with better prospects in USA. ✓ Child’s natural grooming is in native country.
Habeas Corpus Maintainability	✓ Custody with mother is not illegal.	✓ Mother illegally detained the child by not returning to USA.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the main issues that the court addressed were:

Whether the High Court was correct in ordering the return of the child to the USA in a habeas corpus petition.
Whether the mother’s right to autonomy should be given precedence over the child’s welfare.
Whether the principles laid down in Nithya Anand Raghavan and Kanika Goel were correctly applied by the High Court.
Whether the custody of the child with the mother is illegal.

Treatment of the Issue by the Court

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

Issue	Court’s Decision	Brief Reasoning
Whether the High Court was correct in ordering the return of the child to the USA in a habeas corpus petition.	Partially Correct	The High Court was correct in ordering the return of the child to the USA, but the order was modified to give the mother an option to return with the child.
Whether the mother’s right to autonomy should be given precedence over the child’s welfare.	No	The welfare of the child is paramount and takes precedence over the rights of the parents.
Whether the principles laid down in Nithya Anand Raghavan and Kanika Goel were correctly applied by the High Court.	Yes	The High Court correctly applied the principles, emphasizing that the welfare of the child is the paramount consideration.
Whether the custody of the child with the mother is illegal.	Yes	The mother’s custody became illegal after she did not return the child to the USA as per the consent agreement.

Authorities

The Supreme Court considered the following authorities:

Cases

Authority	Court	How Considered	Ratio
Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu and Another [(1984) 3 SCC 698]	Supreme Court of India	Referred to by the appellants to argue for maternal preference.	The court considered the doctrine of tender years and maternal preference.
Elizabeth Dinshaw (Mrs.) v. Arvand M. Dinshaw and Another [(1987) 1 SCC 42]	Supreme Court of India	Referred to by the appellants to argue for maternal preference.	The court considered the doctrine of tender years and maternal preference.
K.S. Puttaswamy v. Union of India [(2017) 10 SCC 122]	Supreme Court of India	Referred to by the appellants to argue that principles of autonomy must inure against non-state persons as well.	The court discussed the principles of autonomy and privacy.
Nithya Anand Raghavan v. State (NCT of Delhi) and Another [(2017) 8 SCC 454]	Supreme Court of India	Referred to by both parties as a binding precedent.	The court reiterated that the welfare of the child is the paramount consideration.
Prateek Gupta v. Shilpi Gupta and others [(2018) 2 SCC 309]	Supreme Court of India	Referred to by the court to emphasize that the issue of repatriation of a child has to be addressed on the sole criteria of the welfare of the child.	The court reiterated that the welfare of the child is the paramount consideration.
Kanika Goel v. the State of Delhi through Station House Officer and another [(2018) 9 SCC 578]	Supreme Court of India	Referred to by both parties as a binding precedent.	The court reiterated that the welfare of the child is the paramount consideration.
Lahari Sakhamuri v. Sobhan Kodali [(2019) 7 SCC 311]	Supreme Court of India	Referred to by both parties as an exception to the general rule.	The court applied the law laid down by the larger bench to the facts of the case.
Yashita Sahu v. State of Rajasthan [(2020) 3 SCC 677]	Supreme Court of India	Referred to by both parties as an exception to the general rule.	The court applied the law laid down by the larger bench to the facts of the case.

Statutes

Hindu Minority and Guardianship Act, 1956
- Section 6: Defines natural guardians of a Hindu minor.
- Section 13: States that the welfare of the minor is the paramount consideration.

Judgment

The Supreme Court upheld the High Court’s decision, with modifications, stating that the welfare of the child is paramount. The court emphasized that while the mother’s autonomy is important, it cannot override the child’s best interests. The court noted that the High Court had considered all relevant factors, including the child’s citizenship, the international travel consent, and the lack of evidence for the need for continuous medical treatment in India. The court also took into account the father’s ability to care for the child in the USA. The court modified the High Court’s order to give the mother an option to return to the USA with the child. It also directed the father to provide financial support, accommodation, and medical insurance for the mother and child in the USA. The court also directed the father not to enforce the order of the US court for three months to enable the mother to contest the custody proceedings there.

Submission	Court’s Treatment
Child needs constant medical care in India.	Rejected; no evidence of continuous medical treatment needed.
Mother is primary caregiver; doctrine of tender years applies.	Rejected; welfare of child is paramount, not parental rights.
Compelling mother to return violates her autonomy.	Rejected; welfare of child takes precedence.
Nithya Anand Raghavan and Kanika Goel are binding precedents.	Applied; the principles of these cases were followed.
Habeas corpus not maintainable as custody with mother is not illegal.	Rejected; custody became illegal after the mother failed to return the child to the USA as per the consent agreement.
Father violated international travel consent.	Accepted; mother violated the consent by not returning the child.
Father has the skills to care for the child in the USA.	Accepted; the court considered the father’s ability to care for the child.
Child is a US citizen with better prospects in USA.	Accepted; the court noted the child’s citizenship and future prospects.

Authority	Court’s View
Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu and Another [(1984) 3 SCC 698]	Referred to by the appellants to argue for maternal preference.
Elizabeth Dinshaw (Mrs.) v. Arvand M. Dinshaw and Another [(1987) 1 SCC 42]	Referred to by the appellants to argue for maternal preference.
K.S. Puttaswamy v. Union of India [(2017) 10 SCC 122]	Referred to by the appellants to argue that principles of autonomy must inure against non-state persons as well.
Nithya Anand Raghavan v. State (NCT of Delhi) and Another [(2017) 8 SCC 454]	Followed; the principles laid down in this case were applied.
Prateek Gupta v. Shilpi Gupta and others [(2018) 2 SCC 309]	Followed; the court relied on this case to emphasize that the issue of repatriation of a child has to be addressed on the sole criteria of the welfare of the child.
Kanika Goel v. the State of Delhi through Station House Officer and another [(2018) 9 SCC 578]	Followed; the principles laid down in this case were applied.
Lahari Sakhamuri v. Sobhan Kodali [(2019) 7 SCC 311]	Followed; the court applied the law laid down by the larger bench to the facts of the case.
Yashita Sahu v. State of Rajasthan [(2020) 3 SCC 677]	Followed; the court applied the law laid down by the larger bench to the facts of the case.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily driven by the principle of the child’s welfare as the paramount consideration. The court emphasized that the child’s citizenship, the international travel consent, and the lack of evidence for continuous medical treatment in India were crucial factors. The court also considered the father’s ability to care for the child in the USA. The court’s reasoning was also influenced by the need to uphold the rule of law and respect international agreements. The court was also concerned about the mother’s violation of the international travel consent and the potential harm to the child’s development if kept away from his native country.

Reason	Percentage
Child’s welfare as paramount consideration	40%
Child’s citizenship and future prospects in USA	25%
Violation of international travel consent	20%
Father’s ability to care for the child	10%
Lack of evidence for continuous medical treatment in India	5%

Category	Percentage
Fact	40%
Law	60%

Issue: Child’s Best Interest

↓

Is the child’s welfare better served in India or USA?

↓

Consideration of child’s citizenship, parental care, medical needs, and violation of travel consent

↓

Decision: Child’s welfare is better served in USA

↓

Order: Mother given option to return with the child to USA.

The Court’s reasoning was step-by-step:

The Court first established that the paramount consideration in any child custody case is the welfare of the child, not the rights of the parents.
The Court then examined the factual circumstances, including the child’s citizenship, the international travel consent, and the medical needs of the child.
The Court considered the evidence presented by both parties, including the mother’s claim that the child needed continuous medical care in India and the father’s assertion that he could provide adequate care in the USA.
The Court evaluated the High Court’s findings, agreeing that the High Court had considered all relevant factors.
The Court concluded that the child’s welfare would be better served by returning to the USA, his native country, while also ensuring the mother’s right to contest the custody proceedings there.
The Court modified the High Court’s order to give the mother an option to return with the child, and also directed the father to provide financial support, accommodation, and medical insurance for the mother and child in the USA.

The Court rejected the argument that the mother’s right to autonomy should override the child’s welfare. The Court also rejected the argument that the child’s citizenship should not be a factor in determining the welfare of the child. The Court emphasized that the child’s citizenship and future prospects in the USA were relevant factors to be considered.

The Court quoted the following from the judgment:

“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.”
“The consideration of the well-being and welfare of the child must get precedence over the individual or personal rights of the parents.”
“Each case has to be decided on its own facts and circumstances.”

There were no dissenting opinions in this case. The bench comprised two judges, both of whom agreed with the final order.

The Court’s decision has potential implications for future cases involving international child custody disputes. It reinforces the principle that the welfare of the child is paramount and that the rights of parents are secondary. It also clarifies the parameters for exercising the power to issue a writ of habeas corpus in such cases. The Court’s decision underscores the importance of respecting international agreements and the rights of children to maintain connections with their native countries. The Court has also clarified that no parent can be forced to leave India and go abroad against her/his wishes.

Key Takeaways

The welfare of the child is the paramount consideration in any custody dispute, and it takes precedence over the rights of the parents.
In international child custody disputes, the child’s citizenship and connection to their native country are important factors.
Courts will consider the ability of each parent to provide for the child’s physical, emotional, and financial needs.
International travel consents must be respected, and violations can result in legal action.
While a parent’s autonomy is important, it cannot override the best interests of the child.
Habeas corpus petitions can be used to address cases of illegal detention of a child, especially in international disputes.
Courts can modify orders to provide options to parents while ensuring the child’s welfare.

Directions

The Supreme Court gave the following directions:

The mother has the option to travel to the USA with the child and contest the custody proceedings there. She must communicate her willingness within fifteen days.
If the mother agrees to travel, the father must arrange for her air tickets, accommodation, and financial support in the USA.
The father must pay US$ 6,500 to the mother for initial expenses and provide monthly maintenance, medical insurance, and medical treatment for the child.
The father must not enforce the order of the US court for three months from the date of the mother’s arrival in the USA.
The father will have visitation rights during the three-month period.
If the mother does not agree to travel, the father can take custody of the child and take him to the USA.
The parties can adopt a joint parenting plan if they agree.

Development of Law

The ratio decidendi of the case is that in international child custody disputes, the welfare of the child is the paramount consideration, and it takes precedence over the rights of the parents. The court also clarified that 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] were correctly applied by the High Court. The court also reiterated that no parent can be forced to leave India and go abroad against her/his wishes.

Conclusion

The Supreme Court’s judgment in this case reinforces the principle that the welfare of the child is the paramount consideration in custody disputes. The court has provided a balanced approach, giving the mother an option to return to the USA with the child while also protecting the child’s rights and interests. The judgment also clarifies the legal principles and parameters for issuing a writ of habeas corpus in international parental child abduction cases.