Though the interest of the child is of paramount importance, the courts of one jurisdiction should respect the orders of a court of competent jurisdiction even if it is beyond its territories

Kosha Doshi | Symbiosis Law School, Pune | 6th April 2020

Yashita Sahu v. State of Rajasthan [Criminal Appeal No. 127 of 2020; Supreme Court of India]

Facts:

            Yashita Sahu married to Varun Varma on 30/05/2016 had shifted to United States of America on 17/7/2016 wherein a daughter was born on 3/5/2017. The daughter, Kiyara Verma is a US citizen. The relationship between the couple got strained and it was followed by allegations and counter- allegations. The wife, applied for an Emergency Protection order on 25/8/2019 to the Norfolk Juvenile and Domestic Relations District Court. On 29/8/2018, the wife instituted a petition in the same Court seeking sole custody of the minor child. In addition, a petition praying that the husband be directed to give monetary support to her and the minor child. Wherein an order was passed, that the husband would pay a directed amount for child support but the parents have joint custody over the minor child and shared physical custody with the child’s father. 

It was clearly mentioned that the parties shall cooperate with each other and try to reach an amicable settlement with the help of a neutral third party. If a settlement was not possible then they were to surrender their passports including the child’s passport to the guardian ad litem. The wife, along with the child left the USA and came to India on 30.09.2018 i.e. after 26.09.2018 and before 01.10.2018, which was the next date fixed before the Norfolk Court. An emergency relief was filed by the husband and the court passed an ex parte order wherein the sole custody of the child was given to the husband and ordered the mother to return to USA with the child. 

            The husband filed a petition in the Rajasthan High Court of a writ of habeas corpus. The High Court directed the wife to return to USA with the minor within 6 weeks. Against this order, the wife had filed the present appeal. 

Issue:

            Whether the custody of child decision was appropriate keeping in mind the age of the child? Whether the visitation rights granted by way of an agreement were for the welfare of the child? Whether the applicability of Doctrine of Comity is worthy to be applied in this scenario? 

Judgment:

            The case was heard before a bench comprising of Justice Deepak Gupta and Justice Aniruddha Bose who gave the judgment on the 20^th of January, 2020 whereby they stated 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. It was noted that 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.

Further, it was highlighted that if the parents are living in the same town or area, the spouse who has not been granted custody is given visitation rights over weekends only. In case the spouses are living at a distance from each other, it may not be feasible or in the interest of the child to create impediments in the education of the child by frequent breaks and, in such cases the visitation rights must be given over long weekends, breaks, and holidays. In cases like the present one where the parents are in two different continents effort should be made to give maximum visitation rights to the parent who is denied custody.

While deciding matters of custody of a child, the court held the 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. The doctrine of comity of courts is a very healthy doctrine. 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. 

In the fast-shrinking world where adults marry and shift from one jurisdiction to another there are increasing issues of jurisdiction as to which country’s courts will have jurisdiction. In many cases the jurisdiction may vest in two countries. The issue is important and needs to be dealt with care and sensitivity. Though the interest of the child is extremely important and is, in fact, of paramount importance, the courts of one jurisdiction should respect the orders of a court of competent jurisdiction even if it is beyond its territories. When a child is removed by one parent from one country to another, especially in violation of the orders passed by a court, the country to which the child is removed must consider the question of custody and decide whether the court should conduct an elaborate enquiry on the question of child’s custody or deal with the matter summarily, ordering the parent to return the custody of the child to the jurisdiction from which the child was removed, and all aspects relating to the child’s welfare be investigated in a court in his/her own country.