Principle Of Comity Of Courts & Pre-Existing Order Of Foreign Court Must Yield To The Best Interests Of Child: Supreme Court
The Supreme Court allowed a Criminal Appeal in which the controversy was related to the custody of a 22-year-old USA citizen who was diagnosed with Ataxic Cerebral Palsy.
The Supreme Court in a custody case, has reiterated 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.
The Court was deciding a Criminal Appeal in which the controversy was related to the custody of a 22-year-old citizen of the United States of America (USA) who was diagnosed with Ataxic Cerebral Palsy.
The three-Judge Bench comprising Justice Surya Kant, Justice Dipankar Datta, and Ujjal Bhuyan observed, “… it is a settled position of law 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.”
The Court added that 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.
“This doctrine was evolved to protect children who may, unwittingly, become collateral damage in their parents’ legal disputes. It has gained significance over the past several years, owing to the frequency and ease of migration”, it further said.
Senior Advocate V. Mohana appeared on behalf of the Appellant while Senior Advocate Liz Mathew appeared on behalf of the Respondents.
Brief Facts
The Appellant (wife/mother) and Respondent (husband/father) got married in 2001 as per Hindu rites and customs and subsequently resided in Idaho, USA. They acquired US citizenship and had two sons, born in 2003 and 2005, respectively, both of whom were US citizens by birth and suffered from intellectual and developmental disabilities. Due to irreconcilable differences, the Appellant and Respondent dissolved their marriage through an Order of the District Court of the Fourth Judicial District, State of Idaho, USA. The Idaho Court awarded joint legal and physical custody of the sons, who were minors at the time. Thereafter, the Respondent brought the second son back to the Appellant's home, while the first child continued to reside with him. Once the first son attained majority, the Appellant filed a Guardianship Application before the Idaho Court, seeking full and permanent legal guardianship. In response, the Respondent filed a Counter-Petition, contending that the first child was sufficiently capable and did not require a permanent guardian.
During mediation, the Respondent took the first child to Chennai, India, to visit his parents without the Appellant's knowledge. The Appellant discovered this and filed an online Police Complaint, followed by a Complaint with the NRI Cell. Investigations revealed that the Respondent had obtained the child's passport and left the US without the Appellant's knowledge or consent. Consequently, the Idaho Court appointed the Appellant as temporary guardian and passed an Emergency Order directing the son to return to Idaho within 72 hours. However, this Order was not complied with, and the son's whereabouts remained unknown. The Idaho Court ultimately decided the Guardianship Application in favour of the Appellant, appointing her as full and permanent guardian. Despite this, the son's whereabouts remained unknown, prompting the Appellant to approach the Madras High Court via Habeas Corpus Petition. The Madras High Court interacted with the child and determined that there was no illegal detention. Consequently, the US Consulate General revoked the child's passport, and the Appellant, being aggrieved, was before the Apex Court.
Reasoning
The Supreme Court in view of the facts and circumstances of the case, noted, “In our considered view, 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. 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.”
The Court said that 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. It added that, dismissing all aspects of scientific assessment in a highly specialized and niche area of medicine was misconceived and ill-founded.
“… as Aadith was assessed to possess the cognitive abilities of an 8 to 10-year-old child, the reasoning assigned by the High Court, of him consensually living in India, is seriously errant. … As a result, we must answer the first issue in the negative—Aadith cannot make independent, legally-binding decisions on his own. In light of this, we find ourselves compelled to hold that the High Court erred in coming to a finding on Aadith’s alleged illegal detention solely based on his perceived ‘independent’ decision to reside in India with Respondent No. 4”, it held.
The Court observed that since the son cannot make independent decisions, it is the duty of the Court, under the parens patriae doctrine, to determine the course of action that would best serve his interests and welfare.
“… it seems to us that regardless of the parents being divorced, the entire family appears to have set up a comfortable life for themselves in the US. Fortunately, neither of the parents is facing any financial difficulties jeopardizing their lives there. Given their established routine and support systems, we seriously doubt whether it is in Aadith’s best interests to continue residing in India”, it also remarked.
The Court was of the view that it is in the son’s best interests and welfare to return to the US, where he can complete his schooling and reside with his younger brother, under the Appellant’s guardianship. It further clarified that this does not mean that the Respondent should not be a part of his son’s life; rather, it is his duty to become part of the life his son has already established in USA.
“This case, like all custody matters, has taken a toll on all those involved. Given the sensitivity and complexity of the subject matter, it is imperative to put all the disputes to rest”, it concluded.
Accordingly, the Apex Court allowed the Appeal, set aside the High Court’s Judgment, and issued necessary directions.
Cause Title- Sharmila Velamur v. V. Sanjay and Ors. (Neutral Citation: 2025 INSC 299)
Appearance:
Appellant: Senior Advocate V. Mohana, AOR Mayank Pandey, Advocates Ashim Sood, Anish Gopi, Velpula Audityaa, Bhavya Pandey, Ekansh Gupta, Ashish Kumar Pandey, Nirmal Prasad, Ribhav Pande, and Arun.
Respondents: Senior Advocate Liz Mathew, AORs Aakash Nandolia, Sabarish Subramanian, Lzafeer Ahmad B. F., Akhil Anand, Advocates Sachin Dubey, Dheeraj Nair, and Ridhima Sharma.
