SC: Courts while exercising parens patriae jurisdiction would be guided by the welfare and benefit of the minor child

The Hon’ble Supreme Court, on 28th October 2020, in the matter of Smriti Madan Kansagra v. Perry Kansagra pronounced that the courts while exercising parens patriae jurisdiction would be guided by the welfare and benefit of the minor child. The courts must not allow the determination to be clouded by the inter se disputes between the parties, and the allegations and counter­-allegations made against each other with respect to their matrimonial life.

The Hon’ble Supreme Court observed that:

The courts while exercising parens patriae jurisdiction would be guided by the sole and paramount consideration of what would best sub-serve the interest and welfare of the child, to which all other considerations must yield. The welfare and benefit of the minor child would remain the dominant consideration throughout. (Para 11.1)

The courts must not allow the determination to be clouded by the inter se disputes between the parties, and the allegations and counter­-allegations made against each other with respect to their matrimonial life. (Para 11.1)

To decide the issue of the best interest of the child, the Court would take into consideration various factors, such as the age of the child; nationality of the child; whether the child is of an intelligible age and capable of making an intelligent preference; the environment and living conditions available for the holistic growth and development of the child; financial resources of either of the parents which would also be a relevant criterion, although not the sole determinative factor; and future prospects of the child. (Para 11.3)

Nationality is a factor which is an important aspect and must be taken into consideration, to determine where the welfare of the child would lie. (Para 13(a))

The educational opportunities which would be available to the child is an aspect of great significance while determining the best interest of the child. (Para 13(b))

Given the large number of cases arising from transnational parental abduction in inter­country marriages, the English courts have issued protective measures which take the form of undertakings, mirror orders, and safe harbour orders, since there is no accepted international mechanism to achieve protective measures. Such orders are passed to safeguard the interest of the child who is in transit from one jurisdiction to another. The courts have found mirror orders to be the most effective way of achieving protective measures. The primary jurisdiction is exercised by the court where the child has been ordinarily residing for a substantial period of time, and has conducted an elaborate enquiry on the issue of custody. The court may direct the parties to obtain a “mirror order” from the court where the custody of the child is being shifted. Such an order is ancillary or auxiliary in character, and supportive of the order passed by the court which has exercised primary jurisdiction over the custody of the child. In international family law, it is necessary that jurisdiction is exercised by only one court at a time. It would avoid a situation where conflicting orders may be passed by courts in two different jurisdictions on the same issue of custody of the minor child. These orders are passed keeping in mind the principle of comity of courts and public policy. The object of a mirror order is to safeguard the interest of the minor child in transit from one jurisdiction to another, and to ensure that both parents are equally bound in each State. The mirror order is passed to ensure that the courts of the country where the child is being shifted are aware of the arrangements which were made in the country where he had ordinarily been residing. Such an order would also safeguard the interest of the parent who is losing custody, so that the rights of visitation and temporary custody are not impaired. The judgment of the court which had exercised primary jurisdiction of the custody of the minor child is however not a matter of binding obligation to be followed by the court where the child is being transferred, which has passed the mirror order. The judgment of the court exercising primary jurisdiction would however have great persuasive value. (Para 13(c))

Copy of judgement:Judgement_28-Oct-2020

-Adv. Tushar Kaushik

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