Case Analysis: Vasudha Sethi v. Kiran V. Bhaskar 2022 SCC OnLine SC 43.

Co-Authors: Janhvi Shirsat and Anjali Gupta.

CITATION

2022 SCC OnLine SC 43.

NAMES OF PARTIES

Appellants: Vasudha Sethi & Ors.;

Respondent: Kiran V. Bhaskar and Anr.

JUDGES

Justice Ajay Rastogi;

Justice Abhay S. Oka.

INTRODUCTION

The tragic case headed by Justices Ajay Rastogi, Justice Abhay S. Oka of a custody battle between the appellant-wife and the respondent-husband over their young male kid Aaditya Kiran gave rise to the current case. The couple had a child who was a citizen of the USA, and they were married and residing in New York. The consent for overseas travel with one legal guardian was signed by the appellant and respondent on 04-02-2019 in order for the child to receive surgery in India for hydronephrosis. The document contained the consent to allow the child to travel to India with the mother, the appellant, from February 5 to September 26, 2019.

On March 14, 2019, the boy underwent surgery at Max Hospital in Saket, New Delhi. The child was seen by Dr. Anurag Krishna, Director of Pediatrics and Pediatric Surgery at Max Hospital, on 12-07-2019 and was determined to be doing well. However, it was recommended that the child be reassessed 6 to 7 months after surgery along with a new ultrasound and renal scan. The aim of this analysis is to study if the court could balance the welfare proposition with parental rights.

FACTS

• Dr. Anurag Krishna suggested that child needed to be examined six to seven months after surgery, along with a new ultrasound and renal imaging. Hence, husband took a flight down to India for surgery.
• He returned to the United States for the job after the operation because he had a status as a permanent resident there that was eligible until August 16, 2031.
• According to the husband’s complaint, his wife broke the terms of the overseas travel consent by preventing the minor child from returning to the United States by September 26, 2019, and by keeping the minor in her unauthorized custody in India.
• As a result of the child’s unjustified imprisonment outside of the United States, the spouse petitioned the Circuit Court of Benton County, Arkansas, USA, for primary care, control, and custody of the child.
• After that, the Circuit Court issued an interim order giving the husband primary care, custody, and control of the minor child and directing the wife to return custody.
• Since, the wife continued to detain the minor child in India, the husband approached the High Court of Punjab and Haryana, which directed the second respondent to return to the USA along with the minor child on or before September 30, 2021.
• The High Court also directed that till the decision of the custody petition, the husband shall not initiate any criminal/contempt proceedings against the second respondent for inter-country removal of the minor child.

ISSUES

1. How should the path between the welfare principle and parent’s rights be balanced?
2. Should only the criteria of the well-being of the child be taken into consideration when determining the minor’s custody and whether or not they should be returned to their country of origin?
3. Can the court order one parent to travel from one nation to another while dealing with custody of a minor child?

JUDGMENT

Arguments from the side of Appellants

The child still required medical care following the surgery, according to the appellant’s attorney. Any violations, according to her, could endanger the minor’s life. She stated that the pediatrician who operated on the child insisted that strict childcare guidelines must be followed even after surgery. She stressed the necessity of continuing to keep an eye on the child’s health. She added that the grandmother of the minor child was looking after the child and that she had family support because she lived with her parents.

Arguments from the side of Respondents

Appellant No. 1, the wife has been a resident of the country for more than nine years. She spent eight years in the country after getting married to the respondent. The attorney added that once the consent form was signed, the parties did not consider any changes to it. The attorney continued by citing documents that indicated return tickets for September 26, 2019, had also been reserved. According to the attorney, it was argued that the first appellant evaded returning the minor kid to the United States in breach of the foreign travel consent, leading to the child’s wrongful detention in India.

Findings of the Court

Justice Oka emphasized that the court’s ruling in the case of Kanika Goel v. the State of Delhi through Station House Officer and another reaffirmed the well-established law that the welfare of the minor must come first in decisions regarding custody and repatriation decisions, not the parents legal rights.((Mrs. Kanika Goel v. The State of Delhi Thru S.H.O. 2018)) The Bench said,
“This Court has consistently applied the principle that the welfare of the minor shall be the paramount factor and that the rights of the parties to a custody dispute are immaterial”.

The court held that Appellant No.1, the wife has to visit the United States with the minor child and challenge the ongoing legal processes there. Within fifteen days of today, respondent No. 1, the husband must receive an email from appellant No. 1 expressing her desire to come to the United States with the minor child. Appellant No. 1 must inform respondent No. 1 of any potential dates for her proposed trip with the minor child. The potential dates must occur within three months of the current date; After speaking with the appellant no. 1, the respondent no. 1 shall arrange flying tickets in response to the aforementioned notification. After speaking with the appellant No. 1, the respondent No. 1 shall make the necessary preparations for her separate stay in the United States. It will be the responsibility of respondent number 1 to purchase appellant number 1’s airline tickets if and when she decides to travel back to India. Respondent No. 1 must take all feasible means to get a visa renewal or extension if she wants to stay in the United States;

If agrees to travel to the USA with the son, respondent no. 1 will be liable for providing a monthly payment to the sufficient for the boys and the upkeep. Respondent no. 1 must send appellant no. 1 US$6,500 in addition to the airline tickets via a method that works for both parties. The money will be used by appellant no. 1 to cover their initial costs in the USA.

After a month has passed since the date the appellant No. 1 arrives in the United States, respondent No. 1 must routinely send appellant No. 1 an amount for support that has been mutually agreed upon. The parties are free to choose a legal remedy if there is a disagreement. While the appellant no. 1 and the minor kid are in the USA, respondent no. 1 is required to supply them with appropriate medical insurance.

ANALYSIS

When addressing the question of habeas corpus, a writ court cannot order a parent to leave India and travel outside of the country with the child. Such directives will violate a parent’s right to privacy if they are made against their desires. It must be possible for a parent to travel with their child abroad. The decision to provide a company to a minor child for the benefit of the child’s well-being ultimately rests with the concerned parent. Everything will rely on the parent’s priorities.

The Court said that the child has spent more than three years in the United States and 2.5 years in India. As a result, it is impossible to say that the child has been fully integrated into the social, physical, psychological, cultural, and academic environments of the United States or India. By definition, the circumstances in a custody dispute cannot be comparable. The child’s welfare depends on a number of variables. Human factors, which are inherently intricate and difficult, are involved in a custody dispute. The determination of a minor’s custody cannot be made using a strict formula because what is in their best interests is always a factual matter.

Although the 39-page decision is applauded, it allows the potential for future decisions to be misinterpreted because it emphasizes that parental rights are unimportant in custody disputes. Even while it can be difficult to determine what is in a child’s “best interest”, the child might suffer if either parent’s rights are completely disregarded. What if giving the mother’s or the father’s rights precedence is in the child’s best interests? If the mother is able to provide the child with emotional support and a safe environment that the child’s father may not be able to, for example, there is a potential that her claims are in the child’s “best interest”.

Additionally, recognizing parental rights will encourage the weaker party in the case—typically the mother—to make her case using rights-based language. The mother’s position in a custody dispute is sometimes questioned because of an economic divide in the marriage. Additionally, it will give the courts a comprehensive understanding of the intricate human factors at play in the custody case.
The court failed to balance the welfare principle and parents rights; this disagreement in Vasudha Sethi indicates that, contrary to what the court has said, parental rights cannot always be ignored. All parties vying for custody of the child must take their rights and demands into consideration. I’m not arguing against the applicability of the child welfare principle in doing so. Instead, I urge that parental rights be viewed as secondary concerns and that efforts be made to strike a balance between them and the idea of the child’s “best interest.” When conflicting parties’ interests in a dispute cannot be resolved, the welfare principle must take precedence. A similar situation was stated in Anju Sara Varkey vs Lalith Raju Plathottam, Kerala mother’s battle for custody of her child: Law vs. Patriarchy.((Anju Sara Varkey vs Lalith Raju Plathottam on 24 July, 2009.))

CONCLUSION

A significant backlog of cases causes the courts to hear time-consuming, expensive custody petitions where the unfortunate removed child is used as a prize in a “war of egos” between the disputing parents. Children unquestionably suffer the most when a family splits up because they have to deal with both the current misery and the improper adjustment to the new family structure. Making the family courts kid-friendly would help to lessen the trauma suffered by the youngster.

The pain of a kid involved in a custody dispute can be recognized by court staff if they have been made more aware of children’s rights. It will be difficult to walk the narrow line between parental rights and the welfare principle. However, it is still a better course of action than wholly relying on the welfare principle, which could lead to “laziness and unwillingness” to give all the interests at stake the attention they need.