As cases of estranged NRI couples fighting for child custody increasingly result in cross-border litigation, with one spouse getting a favourable order from a foreign court while the other moves an Indian court, Supreme Court has said courts here must make an independent assessment of what is good for the child and the ruling of the foreign court should not be automatically followed, though it must be accorded proper consideration.A bench of Justices J B Pardiwala and K V Viswanathan said cases already dealt with by foreign courts were coming before it time and again and their adjudication was not easy as they involved deeply emotional and sensitive issues. It added that the welfare of the child “must be understood in the widest sense, not by money or physical comfort alone”.“This position rests on two foundations. The first is that once the court is seized of the matter, it exercises its parens patriae jurisdiction. That jurisdiction obliges it to consider and assess the matter for itself, through the lens of the child’s welfare. The second is that the decision in such cases turns not on the legal rights of the parties but on the welfare of the child. The same emphasis on welfare over legal entitlement runs through our statutes on custody and guardianship. They make clear that a person otherwise entitled to custody or guardianship need not be granted it if that would not be for the welfare of the child.
There is thus no ambiguity in the fact that an order of a foreign court must yield to the welfare of the child,” the bench said.“Put differently, a court in this country, when exercising its jurisdiction, cannot blindly follow the order of a foreign court and act merely as an executing court,” the apex court bench said.SC said a parent’s disobedience of a foreign court order did not, by itself, require the Indian court to give automatic effect to that order and also that the paramountcy of the child’s welfare did not mean that the order of the foreign court had to be disregarded. “In deciding what the welfare of the child requires, the court must form its own independent judgement. In doing so, however, it must give proper weight to the order of the foreign court,” the bench said.SC passed the order while directing that a seven-year-old girl, a US citizen, who was brought to India by her mother in breach of a California custody order, return to US.
A California court had in 2022 granted the couple joint custody of the child and specifically barred her removal from California without written consent or a court order. In violation of the ruling, the mother left for India with the child after two weeks, leading to the father starting legal proceedings against her in India.SC allowed the petition of the father, who approached the court through advocate Prabhjit Jauhar, against a Karnataka HC order dismissing his plea. After hearing both sides, it said the welfare of the child lay in her continuing to reside in US.