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3-min read

Indian Courts Need Not Follow Foreign Court Orders: SC on Child Custody

Negating the order of a court in England, the Supreme Court has said that Indian courts are not to get "fixated" with orders of the foreign courts and that they have to be guided only by the best interest of a child in custody battles.

Utkarsh Anand | CNN-News18

Updated:July 4, 2017, 11:51 AM IST
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Indian Courts Need Not Follow Foreign Court Orders: SC on Child Custody
File photo of the Supreme Court.
New Delhi: Negating the order of a court in England, the Supreme Court has said that Indian courts are not to get "fixated" with orders of the foreign courts and that they have to be guided only by the best interest of a child in custody battles.

A bench led by Justice Dipak Misra held that courts in India were not obligated to ratify the orders passed by foreign courts when the paramount interest of the child could be in peril by such approvals.

The judgment, authored by Justice A M Khanwilkar, noted that India was still not a signatory to the Hague Convention and would therefore not breach any international obligation if domestic courts applied their minds independently in custody cases.

"As regards the non-convention countries,the law is that the Court in the country to which the child has been removed must consider the question on merits bearing the welfare of the child as of paramount importance and reckon the order of the foreign Court as only a factor to be taken into consideration," said the top court.

It added that whether it is a case of a summary inquiry or an elaborate inquiry, "the paramount consideration is the interests and welfare of the child', and that a pre-existing order of a foreign court can only be one of the factors to be taken into consideration while deciding such issues.

Justice Khanwilkar noted that an Indian court was well within its authority to refuse to send a child to a foreign country from where he or she has been removed if it is satisfied that the child's return bring to him grace risk or harm.

"Thus, while examining the issue the Courts in India are free to decline the relief of return of the child brought within its jurisdiction, if it is satisfied that the child is now settled in its new environment or if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return," added the verdict.

The SC said that high courts or any other family court in India are not to get "fixated" with the orders of the foreign courts.

"This means that the Courts in India, within whose jurisdiction the minor has been brought must “ordinarily” consider the question on merits, bearing in mind the welfare of the child as of paramount importance," clarified the bench.

It further underlined that the principle of comity of courts cannot be given primacy or more weightage for deciding the matter of custody or for return of the child to the native state.

The SC order came as it handed over the custody of a seven-year-old girl to her mother, who had been directed by a court in England to return the child by January 22, 2016. The foreign court has declared the child to be a 'ward' of the court until the custody row between the estranged parents was finally decided.

Married in Chennai in 2003, both the parents had acquired British citizenship after working for a few years there. Alleging torture, the mother came back to India in July 2015 with the daughter while the custody case in the foreign court was on.

The father had moved a habeas corpus petition in the Delhi High Court, citing the order by the court in England. The High Court relied upon the foreign court's order and ruled in favour of the father. It directed the mother to give the custody of the daughter to the father, who had to take her back to England.

But the SC set aside this order. "Taking the totality of the facts and circumstances into account, it would be in the interests of the child to remain in custody of her mother and it would cause harm to her if she returns to the UK," it held.

The apex court also granted visitation rights to the father and asked the mother to participate in the proceedings instituted before the court in England, expenses of which will be borne by the husband.
| Edited by: Swati Sharma
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