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Rajeswari Chandrasekar Ganesh vs The State of Tamil Nadu & Ors.

Writ Petition (Criminal) · 2022 INSC 721Decided 14 Jul 2022
Writ Petition (Criminal) No. 402 of 2021
A.M. Khanwilkar · J.B. Pardiwala

Background

The petitioner-mother and respondent-father, both settled in the USA with their two US-citizen/resident minor children, had a shared parenting (joint custody) arrangement approved by an Ohio family court after their marriage broke down. In August 2021, the father misrepresented his travel itinerary, secretly flew to India with the two children without the mother's or the US court's consent, and then became untraceable, cutting off the children's contact with their mother in violation of the Ohio court's shared parenting plan (which the Ohio court later terminated for this reason). The mother filed a habeas corpus writ petition before the Supreme Court of India under Article 32 seeking production of the children and their return to the USA.

Decision Breakdown

The Supreme Court applied the "welfare of the child" as the paramount and overriding test in custody/habeas corpus matters involving foreign court orders, rather than mechanically enforcing comity of courts. It found the children were well-settled, gifted students enrolled in specialized US schools, that the mother was financially stable and capable of caring for them in the USA, and that the father's conduct (deceptive itinerary, false police complaints, cutting off contact) reflected an attempt at "parental alienation," which the Court explained can psychologically harm children by forcing a loyalty contest. It allowed the writ petition and directed the father to apply for a US visa and return with the children within specified timelines, with a fallback that the mother could travel to India to collect the children if the father's visa was refused, while leaving it open for the parties to revive the shared parenting plan before the Ohio court.

Lesson Learnt

In international child custody disputes, Indian courts will treat the child's welfare as the paramount consideration and will not allow a parent to use unilateral, deceptive relocation to a foreign country to defeat an existing custody arrangement made by a court of competent jurisdiction; secretly removing a child from an established home and school environment can itself be treated as harmful "parental alienation."

Official source (sci.gov.in)View Judgment (PDF)

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