Court Direction To A Parent To Go Abroad With Child While Granting Custody Offends Right To Privacy
Case: Vasudha Sethi vs Kiran V. Bhaskar
Coram: Justices Ajay Rastogi and Abhay S. Oka
Case no.: CrA 82 OF 2022
Court Observation: “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”
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 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 will be open for the appellant no.1 to travel to USA along with the minor child and to contest the proceedings pending in USA. If the appellant no.1 is willing to travel to USA along with the minor child, she will communicate her willingness to do so to the respondent no.1 by email within a period of fifteen days from today. The appellant no.1 shall communicate to the respondent no.1 the possible dates on which she proposes to travel along with the minor child. The possible dates shall be within three months from today;
- On receiving an intimation as aforesaid, the respondent no.1 shall book air tickets after consulting the appellant no.1. The respondent no.1 shall make proper arrangements for separate stay of the appellant no.1 in USA after consulting her. The arrangements for residence shall be made at the cost of 36 the respondent no.1. As and when the appellant no.1 wants to return to India, it shall be the responsibility of the respondent no.1 to pay for her air tickets. If she wishes to continue in USA, the respondent no.1 shall take all possible steps for the extension of visa or for getting a new visa;
- In the event the appellant no.1 agrees to travel to USA along with the minor son, it will be the responsibility of the respondent no.1 to pay a sufficient amount per month to the appellant no.1 for maintenance of herself and the minor son. Along with the air tickets, the respondent no.1 shall remit US$ 6,500 to the appellant no.1 by a mutually convenient mode. The amount shall be utilised by the appellant no.1 to meet initial expenditure in USA. After the expiry of period of one month from the date on which the appellant no.1 arrives in USA, the respondent no.1 shall regularly remit a mutually agreed amount to the appellant no.1 for maintenance. If there be any dispute, the parties are free to adopt remedy in accordance with law. The respondent no.1 shall provide proper medical insurance to the appellant no.1 and the minor child while they are in USA. Moreover, the respondent no.1 shall be under an obligation to provide proper medical treatment to the minor child;
- In the event, the appellant no.1 along with the minor child visits USA in terms of this order, for a period of three months from the date of her arrival, the respondent no.1 shall not take any steps to implement or enforce the order dated 3rd February 2020 passed by the Circuit Court of Benton County, Arkansas which will enable the appellant no.1 to move the concerned Court for contesting the petition filed by the respondent no.1 and to file appropriate proceedings. A written undertaking to that effect shall be filed by the respondent no.1 in this Court within two weeks from today. Thus, for the said period of three months, the custody of the minor shall remain with the appellant no.1; (v) After the appellant no.1 and minor child reach USA, subject to the orders which may be passed by the competent Court in USA, for a period of 3 months from their arrival, the respondent no.1 shall be entitled to have temporary custody of the minor child from 10 am to 5 pm on every Sunday or as 38 mutually agreed upon by the appellant no.1 and the respondent no.1. In addition, the respondent no.1 shall be entitled to make a video call to talk to the minor child for about half an hour on every day (except Sunday) between 5 pm to 6 pm;
- In the event, the appellant no.1 is not willing to visit USA along with her minor son and fails to communicate her willingness to visit USA within a period of fifteen days from today, it will be open for the respondent no.1 to take custody of the child. After the respondent no.1 visits India, the appellant no.1 shall hand over the custody of the minor child to him and the respondent no.1 shall be entitled to take the minor child with him to USA. In such an event, the appellant no.1 will be entitled to talk to the minor child on video call for half an hour on every day between 5 pm to 6 pm (USA time) or at such time as mutually agreed upon by the appellant no.1 and the respondent no.1
- As observed by the High Court in paragraph 58 of the impugned Judgment, an option of adopting agreed joint parenting plan remains open to the parties. If they wish to do so, they can always file appropriate application before the High Court; and
- This order shall not be construed to mean that any final adjudication has been made on the rights of the parties.
Previous Posts
Textual Interpretation Of Statute Should Match With Contextual Interpretation: Supreme Court
Rights Of Parents Irrelevant When Court Decides Custody Of Their Child: Supreme Court
‘Ambush PILs’ Filed To Preclude Genuine Litigants; Summary Dismissal Of Earlier Article 32 Petition Won’t Operate As Res Judicata: Supreme Court Download Judgement
