2023 PLRonline 481501 (SC), 2023 SCeJ 0170, (2023-1)209 PLR 755 (SC) (SN), LogIn to read Judgment
Child custody –
Habeas Corpus – In a petition seeking a writ of Habeas Corpus in a matter relating to a claim for custody of a child, the principal issue which should be taken into consideration is as to whether from the facts of the case, it can be stated that the custody of the child is illegal – The exercise of the extraordinary jurisdiction for issuance of a writ of Habeas Corpus would, therefore, be seen to be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful – It is only where the aforementioned jurisdictional fact is established that the applicant becomes entitled to the writ as of right. [Para 75, 79]
Habeas Corpus – Parens Patriae – In issuing the writ of Habeas Corpus in the case of minors, the jurisdiction which the Court exercises is an inherent jurisdiction as distinct from a statutory jurisdiction conferred by any particular provision in any special statute. In other words, the employment of the writ of Habeas Corpus in child custody cases is not pursuant to, but independent of any statute – The jurisdiction exercised by the court rests in such cases on its inherent equitable powers and exerts the force of the State, as parens patriae, for the protection of its minor ward, and the very nature and scope of the inquiry and the result sought to be accomplished call for the exercise of the jurisdiction of a court of equity – The primary object of a Habeas Corpus petition, as applied to minor children, is to determine in whose custody the best interests of the child will probably be advanced – In a Habeas Corpus proceeding brought by one parent against the other for the custody of their child, the court has before it the question of the rights of the parties as between themselves, and also has before it, if presented by the pleadings and the evidence, the question of the interestwhich the State, as parens patriae, has inpromoting the best interests of the child. [Para 91]
Doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding the custody of the minor child – Citizenship of the parents and the child, etc. cannot override the consideration of the best interest and the welfare of the child, and that the direction to return the child to the foreign jurisdiction must not result in any physical, mental, psychological, or other harm to the child. Nithya Anand Raghavan, followed. [Para 105]
Doctrine of Parental Alienation Syndrome – i.e.the efforts made by one parent to get the child to give up his/her own positive perceptions of the other parent and get him/her to agree with their own viewpoint. It has two psychological destructive effects:(1) It puts the child in the middle of a loyalty contest, which cannot possibly won by any parent;(2) It makes the child to assess the reality, thereby requiring to blame either parent who is supposedly deprived of positive traits.The intent of the court should be to circumvent such ill effects.  [Para 108]
Custody of minor child – Comity of courts – Whether it will be in the paramount interest and welfare of both the minor children to go back to the USA ? The dominant consideration to which all other considerations must remain subordinate must be the welfare of the child – This is not to say that the question of custody will be determined by weighing the economic circumstances of the contending parties – The matter will not be determined solely on the basis of the physical comfort and material advantages that may be available in the home of one contender or the other – The welfare of the child must be decided on a consideration of these and all other relevant factors, including the general psychological, spiritual and emotional welfare of the child – It must be the aim of the Court, when resolving disputes between the rival claimants for the custody of a child, to choose the course which will best provide for the healthy growth, development and education of the child so that he or she will be equipped to face the problems of life as a mature adult.              [Para 115]
Ok