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Synopsis

The Supreme Court on March 3, 2025, allowed custody of a 22-year-old US citizen who has the cognitive abilities of an 8 to 10-year-old child due to Ataxic Cerebral Palsy and Mild Intellectual Disability to his mother, also a US citizen.

The bench of Justices Surya Kant, Dipankar Datta, and Ujjal Bhuyan said even though courts are well within their rights to come to a finding distinct from an expert’s report, they cannot discard the expert’s opinion, as a whole, for no rhyme or reason. 

In its judgment, the bench also said the principle of comity of courts and a pre-existing order of a foreign court must yield to the best interests of the child, especially when the court has decided to conduct an elaborate enquiry in this regard. It said such cases must be decided on the sole and predominant criterion of ‘what would serve the interests and welfare’ of the minor.

The parents, also US citizens, fought a legal battle over the custody of their son since their divorce in 2007. The mother contended that the Madras High Court passed the order in her habeas corpus plea in favour of the father and ignored the specific pleadings regarding her son's intellectual disability and cognitive limitations, substantiated by the reports of the evaluation committee of the Idaho Department of Health and Welfare, United States of America. She said that her son had lived his entire life in the US.

On the other hand, the father's counsel said his son was a major and the decision not to live with the mother was taken by him only.

"Given that the dispute before the High Court concerned the sensitive and complex issue of alleged illegal detention of a person with severe cognitive limitations, the High Court ought to have considered and given due credence to the Evaluation Committee’s report. If the High Court had any doubt as to the reliability of the report and its conclusions, it ought to have ordered an enquiry through a reputable medical institution," the apex court said.

It opined that dismissing all aspects of scientific assessment in a highly specialised and niche area of medicine was misconceived and ill-founded. 

Court added that the impugned judgment did not enlighten it as to the son's decision-making abilities.

The top court relied on the reports produced by NIMHANS, Bengaluru, and the evaluation committee, which had concurred that owing to his cognitive and physical limitations, the son did not possess the capacity to make well-informed, independent decisions, for his own benefit on complex subject matter, such as long-term residence.

In the event there is any confusion or doubt regarding a person’s capacity and ability to make independent decisions and if there is a definitive opinion on disability endorsed by a specialist, domain expert, or a doctor, the court should give due credence to that opinion, the apex court said.

"If the expert’s report concludes that the mental or physical age of the person concerned is well below the age of majority, there can be no inference of any ‘implied’ or ‘express’ consent to any act which might have a substantive impact on the consenting person. Unless there are strong reasons to disbelieve an expert’s report to this effect, the Courts must be overly-cautious in coming to a.finding contrary thereto," the bench said.

Court concluded that as the son was assessed to possess the cognitive abilities of an 8 to 10-year-old child, the reasoning assigned by the high court, of him consenually living in India, was seriously errant.

It held that the son could not make independent, legally-binding decisions on his own. 

"We find ourselves compelled to hold that the High Court erred in coming to a finding on the son's alleged illegal detention solely based on his perceived ‘independent’ decision to reside in India with the father," the bench said.

The court highlighted that the principle of comity of courts and a pre-existing order of a foreign court must yield to the best interests of the child, especially when the court has decided to conduct an elaborate enquiry in this regard. Such cases must be decided on the sole and predominant criterion of ‘what would serve the interests and welfare’ of the minor, it stressed.

The pre- existing order of a foreign court is merely one of the circumstances to consider when assessing the best interests and welfare of the person concerned-his doctrine was evolved to protect children who may, unwittingly, become collateral damage in their parents’ legal disputes, the bench said.

It has gained significance over the past several years, owing to the frequency and ease of migration, it added.

"To consider the interests of the child, the court must take into account all attending circumstances and the totality of the situation. The court must consider the welfare and happiness of the child as the paramount consideration and go into all relevant aspects of welfare including stability and security, loving and understanding care and guidance, and full development of the child's character, personality, and talents," it said.

The bench also emphasised that the court has to give due weightage to the child's ordinary contentment, health, education, intellectual development, favourable surroundings, and future prospects. Further, over and above physical comforts, moral and ethical values also have to be taken note of, as they constitute equal if not more important factors than the others, it said.

The dispute escalated when the father took the son to India in December 2023. The mother claimed she had been granted full guardianship by an Idaho court. The father took the son to Chennai in December 2023 without her consent, violating Idaho court orders. 

The mother filed a habeas corpus petition in the Madras High Court, which held on August 2024 that the son was not illegally detained, based on his apparent willingness to stay with the father.

On the mother's plea, the apex court ordered a comprehensive medical assessment of the son by NIMHANS, Bengaluru, to evaluate his decision-making capacity.

The court allowed the mother's appeal, holding that the son was incapable of independent decision-making and that he should reside in the US with the mother and brother, who has autism spectrum disorder. It further held that the mother would have sole custody, effective immediately.

The court also allowed the mother to return to the US within 15 days, facilitated by the US Consulate-General, Chennai. It directed both parents to maintain contact and not restrict access to the other. It also dropped contempt proceedings against the father due to compliance with interim orders.

Case Title: Sharmila Velamur Vs V Sanjay & Ors