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Vasudha Sethi & Ors. vs Kiran V. Bhaskar & Anr.

Criminal Appeal · 2022 INSC 46Decided 12 Jan 2022
Criminal Appeal No. 82 of 2022
Ajay Rastogi · Abhay S. Oka

Background

A married couple's minor son, a U.S. citizen born in New York, was brought to India in February 2019 with the father's consent so he could undergo surgery at a Delhi hospital, with an agreed return date to the USA of 26 September 2019. The mother did not bring the child back as agreed, and the father obtained an interim custody order from a U.S. court and then filed a habeas corpus petition in the Punjab and Haryana High Court seeking the child's return. The High Court ruled in the father's favour, directing the mother to return to the USA with the child (or hand over custody), reasoning that the child's Indian stay had been too brief to integrate him into India and that his best interests lay in returning to his native country.

Decision Breakdown

The Supreme Court largely upheld the High Court's welfare-of-the-child analysis, noting the child's American citizenship, the father's ability to work from home and provide care, and that the mother herself was not the sole hands-on caregiver in India. However, it held that a court deciding custody cannot simply order a parent to leave India and go abroad against her will, since that would violate her personal right to privacy; a parent can only be given the option to accompany the child. The Court therefore restructured the directions to give the mother a genuine choice: if she chose to travel to the USA with the child within a set timeframe, the father had to fund her travel, provide separate housing, monthly maintenance and medical insurance, and refrain from enforcing the U.S. court's custody order for three months so she could contest it there; if she declined to travel, custody would pass to the father to take the child to the USA, with the mother retaining video-call access.

Lesson Learnt

In child custody disputes, "the welfare of the child" is the paramount and overriding consideration, but a court cannot compel a parent to physically relocate abroad as a means of enforcing that welfare; it can only structure options and safeguards (travel funding, housing, maintenance, temporary non-enforcement of foreign orders) that make the child's welfare-serving choice a realistic one for the parent to accept.

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

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