Give paramount importance to the welfare of child in a cross border custody case, says SC

The Supreme Court on Wednesday, while setting aside a judgment of Delhi High Court, held that the Indian Courts have unlimited discretion to determine whether to accept or decline the grant of repatriation of a child involved in & lsquo cross-border parent-child abduction'. A bench of CJI Dipak Misra and Justice Amitava Roy held that Indian courts could reject the repatriation of the child irrespective of the orders passed by the foreign court of the country to which the child originally belonged. In the present case, a woman residing in the United States filed a case against her husband for abducting their younger son from her custody and bringing the son to India. The wife claimed that the husband took the son for visiting a neighborhood mall and have not returned since then. The U.S. court, before which the case was filed held that the mother had the lawful custody and ordered the husband to return the son to her. The mother also filed a plea before the Delhi High Court, expressing that she is not willing to stay with her husband because of the endless trauma and torture she suffered in her husband's company. The High court while observing that the child has been staying in U.S. since his birth and must have been accustomed to the conditions there directed the husband to return the custody of the child. The Supreme Court held that as India is not a party to the Hague Convention on “ The Civil Aspects of International Child Abduction” , the decisions on such matters have to be made considering the welfare of the child rather than assigning importance to the comity of the nations. The court also issued the directions on when can a court refuse the repatriation of a child- firstly, if the court is satisfied that the child has already become habitual to the Indian environment secondly, if the repatriation would lead to causing some physical harm to the child thirdly if it appears to the court that the child would have to undergo intolerable or unbearable situation if the repatriation is granted and lastly, if the child after becoming a major, refuses to go back and wishes to stay in India. The Supreme Court while giving primacy to the “ welfare of the child” and considering that the boy is happy while living with his extended family in India and is studying in a good school here, allowed the father to retain the custody of the child and rejected the plea of the mother. The court passed the order notwithstanding that the U.S. court has given a dissenting judgement in this regard.