Parent who is denied custody of the child shall have right to talk to him or her every day

Harshit Sharma | Amity Law School, Madhya Pradesh | 22nd January 2020

Yashita Sahu V/s. State of Rajasthan & Ors. Criminal Appeal No. 127/2020

FACTS OF THE CASE

1. The present petitioner was married to her husband Varun Varma on 30.05.2016 and from this wedlock they had a daughter named Kiyara Verma, who is the citizen of USA. 
2. The relationship between the husband and the wife got strained and they made various allegations and counter allegations against each other. The wife applied for an Emergency Protection Order on 25.08.2018 to the Norfolk Juvenile and Domestic Relations District Court (hereinafter referred to as the Norfolk Court), praying for her protection and an ex parte preliminary protection order was passed against the husband. Thereafter, on 29.08.2018, the wife instituted a petition in the same Court seeking sole custody of the minor child. The said Court passed an order on 26.09.2018 in terms of the agreement reached between the parties.
3. The wife with the daughter journeyed back to USA. The husband on coming to know of the fact that his wife, along with their child had left the USA for India, filed a motion for emergency relief before the Norfolk Court on 02.10.2019. 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. 
4. Husband also filed the Habeas Corpus petition, wherein the Rajasthan High Court directed the wife to return to the USA along with her minor daughter within a period of 6 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. 
5. Aggrieved by the judgment of the High Court, the present appeal was preferred. 

ISSUES RAISED

1. Whether writ of habeas corpus is maintainable in the cases of custody where the child in with another spouse? 
2. What are the contact rights and to which degree it be given to the person who doesn’t have the custody of the child? 

RULING OF THE COURT/THE COURT HELD THAT

While issuing directions, the Supreme Court disposed of the appeal while observing the following: 

1. “It is too late in the day to urge that a writ of habeas corpus is not maintainable if the child is in the custody of another parent. The law in this regard has developed a lot over a period of time but now it is a settled position that the court can invoke its extraordinary writ jurisdiction for the best interest of the child.”
2. ” The wife is an adult and no court can force her to stay at a place where she does not want to stay.”
3. ” If courts in different jurisdictions do not respect the orders passed by each other it will lead to contradictory orders being passed in different jurisdictions. We may however again reiterate that the welfare of the child will always remain the paramount consideration”
4. “A child, especially a child of tender years requires the love, affection, company, protection of both parents. This is not only the requirement of the child but is his/her basic human right. Just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents. A child is not an inanimate object which can be tossed from one parent to the other. Even if the custody is given to one parent the other parent must have sufficient visitation rights to ensure that the child keeps in touch with the other parent and does not lose social, physical and psychological contact with any one of the two parents.”
5. “The concept of contact rights in the modern age would be contact by telephone, e-mail or in fact, we feel the best system of contact, if available between the parties should be video calling. Unless there are special circumstances to take a different view, the parent who is denied custody of the child should have the right to talk to his/her child for 5-10 minutes every day. This will help in maintaining and improving the bond between the child and the parent who is denied custody.