The Supreme Court has observed that a parent who is denied custody of the child should have the right to talk to his/her child for 5-10 minutes everyday. In our opinion, this is a basic right of a parent even if they are separated, however, thankfully the apex court has explicitly announced this in the below judgement.
The bench comprising Justice Deepak Gupta and Justice Aniruddha Bose observed that the courts dealing with the custody matters must while deciding issues of custody clearly define the nature, manner and specifics of the visitation rights.
In the current matter, the top Court was considering an appeal filed by a wife who was directed by the Rajasthan High Court (in a Habeas Corpus Petition filed by Husband) to return to the USA along with her minor daughter to enable the jurisdictional court in USA to pass further orders in this regard in the proceedings already pending.
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- Couple got married in May 2016 in India
- The husband was already working in the US prior to marriage
- The woman too had visited him once before and was fully aware that she would be settling down with him there
- A daughter was born to the couple in May 2017 and she is a citizen of the USA
- The relationship between the husband and wife got strained and they made various allegations and counter allegations against each other
- The wife applied for an Emergency Protection Order in August 2018 to the Norfolk Juvenile and Domestic Relations District Court praying for her protection and an ex-parte preliminary protection order was passed against the husband
- Thereafter, in August in the same year, the wife instituted a petition in the same Court seeking sole custody of the minor child
- She also filed a petition praying that the husband be directed to give monetary support to her and the minor child
- The said Court passed an order in September 2018 in terms of the agreement reached between the parties as below:
Agreement by both parties:
- Father to continue paying rent and utilities for October 2018 and November 2018
- Father will add mother to lease as an authorized occupants or leaseholder
- Father to pay mother 150/week for child support for October and November, 2018/ and 200/week for December, 2018
- Parties to work together to reach a resolution as to who will continue occupy the martial residence after November, 2018
- Mother to look for employment consistent with her educational and professional experience
- Mother and father have joint legal custody of minor child and shared physical custody of child father’s parenting time to start
Wife Returned To India Along With Child Against Court Orders
Just before the next date which was due on October 1, 2018, the wife left with the child and returned to India on September 30, 2018. When the husband learnt about this, he filed a motion for emergency relief before the Norfolk Court on October 02, 2018.
An ex-parte order was passed in favour of the husband whereby the Norfolk Court granted sole legal and physical custody of the child to the husband and directed the wife to return to the USA along with the child. A warrant was also issued against the wife for violating the order dated 26.09.2018 of the Norfolk Court.
Husband Moved Court In India
The husband also filed a petition for issuance of a writ of habeas corpus before the Rajasthan High Court for production of his minor child. The High Court by the impugned judgment dated July 1, 2019 directed the wife to return to the USA along with her minor daughter within a period of six weeks to enable the jurisdictional court in USA to pass further orders in this regard in the proceedings already pending. The husband was directed to make all arrangements for the stay and travel of the wife and the minor child and any companion.
Aggrieved by the High Court Judgement, Ms. Malvika Rajkotia, lawyer representing the wife stated that the High Court had erred in their order since the child is only about 2 ½ years old and moreover being a girl child required the care, attention and protection of the mother and, therefore, it was in the interest of the child to be placed in custody of the mother.
With regard to the proceedings before the Norfolk Court in the USA, it was contended that the wife was unable to comprehend the proceedings before the Norfolk Court because of lack of knowledge of English and that too spoken in an American accent.
Mr. Prabhjit Jauhar, counsel representing the husband, contended that it was the wife who approached the Court in Norfolk and, by agreement, an order was passed giving shared parenting to both the parents. The wife had been specifically directed neither to leave the USA nor take the child out of the USA, but she has violated the orders of the jurisdictional court, which jurisdiction was invoked by the wife herself.
According to him the wife cannot be permitted to violate the orders passed by a court in another country and then seek protection in the Indian courts. He also submitted that in this modern age it is a well recognised principle of parenting that even a father can be an appropriate natural guardian for the minor daughter. Lastly, he submitted that the husband is not interested in divorcing the wife and his intention is to live with the child and the wife. He also urged that the husband is willing to make all arrangements for stay and travel for the wife and the child, if the wife comes to the USA along with the child.
What The Top Court Said In This Case
- Welfare of the Child
It is well settled law by a catena of judgments that while deciding matters of custody of a child, primary and paramount consideration is welfare of the child. If welfare of the child so demands then technical objections cannot come in the way. However, while deciding the welfare of the child it is not the view of one spouse alone which has to be taken into consideration. The courts should decide the issue of custody only on the basis of what is in the best interest of the child.
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The honourable court also said,
The child is the victim in custody battles. In this fight of egos and increasing acrimonious battles and litigations between two spouses, our experience shows that more often than not, the parents who otherwise love their child, present a picture as if the other spouse is a villain and he or she alone is entitled to the custody of the child.
Adding further on the visitation rights awarded by Indian courts, the Supreme Court said,
The concept of visitation rights is not fully developed in India. Most courts while granting custody to one spouse do not pass any orders granting visitation rights to the other spouse. As observed earlier, a child has a human right to have the love and affection of both the parents and courts must pass orders ensuring that the child is not totally deprived of the love, affection and company of one of her/his parents.
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- Decision Making Factors For Top Court:
1.Age of the Child
The child is less than 3 years old. She is a girl and, therefore, there can be no manner of doubt that she probably requires her mother more than her father. This is a factor in favour of the wife.
2. Nationality of the Child
The child is a citizen of USA by birth. Her father was already working in the USA when he got married. We are told that the mother had visited the USA once before marriage and when she got married it was done with the knowledge that she may have to settle down there. The child was born in a hospital in the USA and the mother did not come back to India for delivery which indicates that at that time the parents wanted the child to be a citizen of USA.
3. On Wife Not Comprehending proceedings at Norfolk Court
We are not in agreement with the contention raised on behalf of the wife that she could not understand the order of the Norfolk Court. This is not the first time that the wife had approached the court. The wife is educated. She was working in Walmart in the USA. She had contacted an NGO and on 09.09.2017 had sent an email to Parsipanny Police Department against her husband.
We are clearly of the view that it is in the best interest of the child to have parental care of both the parents, if not joint then at least separate. We are clearly of the view that if the wife is willing to go back to USA then all orders with regard to custody, maintenance etc., must be looked into by the jurisdictional court in USA.
PART I of the Order
We feel that it will be in the interest of the child if the mother herself accompanies the child to USA. The appellant wife may like to live in USA or not, and this is a personal choice of the appellant wife. However, if she goes back to USA along with the child, then she must comply with the orders of the Norfolk Court.
PART II of the Order
In case the wife does not inform the counsel for the husband within one week from today that she is willing to go back to USA then it shall be presumed that she has no intention to go to USA along with the child.
The wife shall handover custody of minor girl to the husband or if the husband is unable to travel to India, then to the mother of the husband, before the Registrar General/Registrar(Judicial), of the High Court of Rajasthan on 03.02.2020 at 11.00 A.M. Thereafter, the husband shall make necessary arrangements for taking the child to USA accompanied by at least one of the husband’s parents.