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Noting that the rights of the parents are irrelevant when a Court decides the custody issue, the top court on Wednesday said that it is not a consideration at all for deciding the issue.

The Court further said that the issue of custody of a minor, whether in a petition seeking habeas corpus or in a custody petition, has to be decided on the touchstone of the principle that the welfare of a minor is of paramount consideration.

While assailing the order passed by the High Court, a question was raised whether the Court was justified in passing an order directing the appellant-mother to return to USA along with the minor child on or before a particular date. To this the Court said,

"The Courts, in such proceedings, cannot decide where the parents should reside as it will affect the right to privacy of the parents. We may note here that a writ Court while dealing with the issue of habeas corpus cannot direct a parent to leave India and to go abroad with the child. If such orders are passed against the wishes of a parent, it will offend her/his right to privacy."

A bench of Justices Ajay Rastogi and Abhay S Oka further noted that a parent has to be given an option to go abroad with the child.

"It ultimately depends on the parent concerned to decide and opt for giving a company to the minor child for the sake of the welfare of the child. It will all depend on the priorities of the concerned parent", it said.

An appeal was filed by the mother Vasudha Sethi who was directed by the Punjab and Haryana High Court to return to USA along with minor male child Aaditya Kiran on or before September 30, 2021.

Aditya was born in USA on January 21, 2016. Thus, the child was a citizen of USA by birth. Unfortunately, the child was diagnosed with hydronephrosis which required surgery. It was agreed between the parents that the child will undergo surgery at Max Hospital, Saket. As the child is a citizen of USA, consent for international travel with one legal guardian was executed by and between the parents on February 4, 2019.

The consent was executed for the period between February 5, 2019 to September 26, 2019. It was further recorded that any changes to this plan shall be discussed and consented to by both the parents.

Since the child did not return to the USA after the surgery, the petition for habeas corpus was filed by the father in the High Court, stating that his wife continued to detain the minor child in India.

In the impugned order, the High Court directed the mother to return to the USA with the minor child.

The bench noted that in the instant case, an option was given to the appellant-mother to go abroad with the child.

"...an option has to be given to the appellant no.1 to return to USA along with the minor son though she cannot be forced to stay with the respondent no.1. Therefore, the respondent no.1 will have to make proper arrangements for a suitable residence for the comfortable stay of the appellant no.1 in USA. The reason is that the appellant no.1 cannot work in USA on the basis of a B-2 visa. The respondent no.1 will have to provide a reasonable amount per month to the appellant no.1 to maintain herself and the child in USA....", held the Court.

The Court further ordered that the appellant-mother had fifteen days to communicate the respondent-father her willingness to travel to USA with the child.

"If she intends to visit USA, along with her willingness, she must communicate possible dates of travel. The dates should be within maximum period of three months from today. On receiving the same, the respondent no.1 shall arrange for air tickets and make arrangements for the comfortable stay of the appellant no.1 and the minor in USA", said the Court.

The bench further clarified that in the event the mother failed to communicate her willingness to travel to USA within fifteen days, it would be open for the father to take the custody of the child.

Cause Title: Vasudha Sethi & Ors vs Kiran V Bhaskar & Anr. ​​​​​​​