SC: A direction to return the child to foreign jurisdiction must not harm him

On 15th March 2019, in the matter of Lahari Sakhamuri v. Sobhan Kodali, The Hon’ble Supreme Court observed that divorce and custody battles can become quagmire, spouses must come over the temperamental disharmony which usually exists in every marriage, rather than magnifying it with impulsive desires and passions because the innocent child is the ultimate sufferer who gets caught up in the legal and psychological battle between the parents.

The Hon’ble Supreme Court observed that:

The expression best interest of childwhich is always kept to be of paramount consideration is indeed wide in its connotation and it cannot remain the love and care of the primary care giver, i.e., the mother in case of the infant or the child who is only a few years old. (Para 43)

(Para 49) The crucial factors which have to be kept in mind by the Courts for gauging the welfare of the children equally for the parent’s can be inter alia, delineated, such as

  • maturity and judgment;
  • mental stability;
  • ability to provide access to schools;
  • moral character;
  • ability to provide continuing involvement in the community;
  • financial sufficiency and last but not the least the factors involving relationship with the child, as opposed to characteristics of the parent as an individual.

Child rights may be limited but they should not be ignored or eliminated since children are in fact persons wherein all fundamental rights are guaranteed to them keeping in mind the best interest of the child and the various other factors which play a pivotal role in taking decision to which reference has been made taking note of the parental autonomy which courts do not easily discard. (Para 50)

The doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding 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. (Para 51)

Divorce and custody battles can become quagmire and it is heart wrenching to see that the innocent child is the ultimate sufferer who gets caught up in the legal and psychological battle between the parents. The eventful agreement about custody may often be a reflection of the parents’ interests, rather than the child’s. The issue in a child custody dispute is what will become of the child, but ordinarily the child is not a true participant in the process. While the best­ interests principle requires that the primary focus be on the interests of the child, the child ordinarily does not define those interests himself or does he have representation in the ordinary sense.(Para 52)

The child’s psychological balance is deeply affected through the marital disruption and adjustment for changes is affected by the way parents continue positive relationships with their children. To focus on the child rights in case of parental conflict is a proactive step towards looking into this special situation demanding a specific articulation of child rights. (Para 53)

The judicial resolution of a custody dispute may permanently affect or even end the parties’ legal relationship but the social and psychological relationship will usually continue and it seems appropriate that a negotiated resolution between the parents is preferable from the child’s perspective for several reasons. A child’s future relationship with each of his parents may be better maintained and his existing relationship is less damaged by a negotiated settlement than by one imposed by a court after adversarial proceedings.(Para 54)

Spouses must come over the temperamental disharmony which usually exists in every marriage, rather than magnifying it with impulsive desires and passions. Parents are not only caretakers, but they are instrumental in the development of their child’s social, emotional, cognitive and physical well­being and work harmoniously to give their children a happy home to which they are justly entitled to. (Para 55)

Copy of judgement: Judgement_15th-Mar-2019

-Tushar Kaushik

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