The Rights of Parents Are Irrelevant While Deciding Custody of a Child

The Rights of Parents Are Irrelevant While Deciding Custody of a Child

After a divorce, the question of who will have physical custody of a child is a pressing one. The amount of anguish a child must go through to witness the bitter process of their parents splitting has often been cited in films and books. After a divorce or judicial separation is finalised, the court will be faced with the extremely important question of child custody.

A bench comprised of Justices Ajay Rastogi and Abhay S Oka held that the issue of custody of a child, as well as the matter of the child’s repatriation to his or her native country, should be addressed only on the basis of the minor’s welfare, rather than the parents’ legal rights.


This appeal came from a custody of a child case between the wife and the husband over their minor child, Aaditya Kiran. This appeal challenged the learned single bench of the Punjab and Haryana High Court’s judgement and decision dated August 31, 2021, which was issued in a habeas corpus case filed by the herein to get custody of the child.

The Contentions of the Appellant:

The appellant’s counsel argued that there is a need for ongoing medical attention even after the surgery of the child. Any lapses, she claimed, may be exceedingly dangerous to the minor’s life. She claimed that the doctor who operated on the child recommended that the child follow a very strict care regimen. She stressed that his health must be closely monitored at all times. Even the child’s water intake must be properly checked. She also mentioned that the child’s grandmother is caring for the minor child and that she has family support because she lives with her parents. She stated that she has filed a thorough statement outlining the reasons why the child should remain in India till he is 9-10 years old in the best interests of the child.

The Contentions of Respondent:

The counsel representing the respondent stated that the  appellant no. 1 had spent more than nine years in the United States. She spent eight years in the United States after her marriage to him. The counsel pointed to the notice of the court that both parties signed a consent allowing the child to travel to India from February 5th to September 26th, 2019. The counsel argued that, in view of the rise in international parental child abductions from the United States, the Immigration Authorities in the United States do not permit a minor US citizen to leave the country with only one parent without the express approval of the non-traveling parent. The counsel further pointed out that no changes to the consent document were considered between the parties after it was signed. The counsel further argued that documentation on file will reveal that return tickets for September 26th, 2019 were also booked in accordance with the overseas travel consent form. The counsel submitted that appellant no. 1 has failed to return the minor son to the United States in breach of the foreign travel consent, resulting in the minor’s illegal detention in India.

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”

Read Judgement for Detailed Analysis of the Supreme Court


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