Custody Battles – Games People Play
I am often reminded of a quote by Oscar Wilde,
‘Children begin by loving their parents; after a time they judge them; rarely, if ever, do they forgive them.’
Perhaps pages can be filled and novels be written on the hardship that a child endures in the custody battle that causes him/her to grow up and learn to forgive his/her parent. Are we to believe that to live half a week with one parent and the remaining half with the other, to be torn between two people a child loves the most and to listen to the constant fighting and make-believe stories of how the other parent is responsible for all the things that have gone wrong, is the new normal? As a lawyer, I have seen one too many cases where custody battles have gone from bad to worse.
How often do we see the tussle between parents fighting over their own child, belittling the other spouse in the process, forgetting that they are responsible for a beautiful future to be given to their child? Is it then possible to conceive the very idea that Courts have to intervene to bring some form of sanity in these relationships, to provide the child, a life, which bears some form of normalcy?
In today’s day and age where marriages survive less than a decade and there is no happily ever after for many, is it prudent to bring a life into this world only for it to be tossed from one place to another? More so in cases where International jurisdictions are involved. I write today about the latest case law on custody battle and visitation rights for parents in times of COVID-19.
Earlier this year a judgment was delivered by Hon’ble Mr. Justice Deepak Gupta sitting along with Justice Aniruddha Bose, titled Yashita Sahu vs. State of Rajasthan & Ors., Crl. Appeal No. 127 of 2020 (2020 SCCOnline SC 50). The brief facts of the case are as follows:
The couple got married in India sometime in 2016, the husband was already employed in the USA. The wife joined him after the wedding and a daughter was born out of the wedlock who then became a citizen of the USA by birth. In the meantime, the relationship between the parents got strained and many allegations and counter-allegations were levied against each other. The wife applied for Emergency Protection Order from Norfolk Juvenile and Domestic Relations District Court praying for protection and an ex-parte preliminary protection order was passed against the husband. The wife had also instituted a petition for seeking sole custody of the minor child and for maintenance and support.
The Norfolk Court passed an order directing the Father to continue paying rent and utilities and to add the mother in the lease as an authorized occupant. The father was also asked to pay the mother for child support for two months and both parents were given joint legal custody of the child and shared physical custody. The parents were given share-parenting time and were asked to allow WhatsApp calling with the child for a minimum of 5 minutes. They were also directed to surrender their passports and that of the child as well and to cooperate with each other and to arrive at an amicable settlement.
However, the wife left with the child for India before the next date fixed before Norfolk Court. The husband upon coming to know this fact filed a motion of emergency relief and an ex-parte order was passed in his favour giving sole custody of the child to the husband and directed the wife to return to the USA along with the child. It is needless to mention that a warrant was also issued against the wife for violating the order of the Norfolk Court.
The proceedings before the Hon’ble Supreme Court germinated from the order passed by the Rajasthan High Court in a Writ of habeas corpus filed by the husband praying for the production of his minor child. The wife came in an appeal before the Hon’ble Supreme Court against the order wherein it was directed that the wife was to return to the USA in order to enable a jurisdictional court of the USA to pass further orders. The husband was directed to make suitable arrangements for the travel and also alternative arrangements for a place of choice at a reasonable cost.
Before the Supreme Court, the wife raised the following arguments:
1. Primarily that a writ of habeas corpus would not lie for custody of the child since she could not be said to be in illegal detention, as the child was in the custody of the mother who is the natural guardian.
2. Also, it was submitted that the High Court erred in giving direction to the wife to travel to the USA.
3. The child is a minor girl-child of only 2.5 years, required care, attention, and protection of the mother.
4. Interestingly, another contention raised was with respect to the inability of the wife to comprehend English spoken in “American accent” and legal aid provided by ‘Caucasian male’, implying a lack of communication between the two.
5. It was also submitted that the order passed by Norfolk Court was not binding on both the parties as wife had raised her objections to the alleged consent order.
6. Moreover, it was also contended by the wife that the husband’s visa was due to expire in 2020 and the future of wife and child will be in jeopardy if the same was not extended.
Hon’ble Justice Gupta gave an in-depth judgment delving upon many legal points raised during the arguments settling many contentious points.
1. Whether a writ of habeas corpus in maintainable?
It was observed that the law was much settled in regards to writ jurisdiction being invoked for the best interest of the child. Reliance was placed on Elizabeth Dinshaw v. Arvand M. Dinshaw[1], Nithya Anand Raghavan v. State (NCT of Delhi)[2] and Lahari Sakhamuri v. Sobhan Kodali[3] where writ petitions were entertained. The wife being in clear violation of orders of the jurisdictional court in USA, her custody of child could not be considered as strictly legal. Although the directions pertaining to the wife to go to USA, it was clarified that an adult spouse cannot be directed to go and live with the other strained spouse in writ jurisdiction.
2. Comity of Court:
It was clarified that the courts of one jurisdiction should respect orders of a court of competent jurisdiction even if it is beyond its territories. Reliance was placed on V. Ravi Chandram v. UOI[4] specifically in terms of whether an elaborate inquiry was required or the Court was to decide the matter summarily, it was held that,
‘29. While dealing with a case of custody of a child removed by a parent from one country to another in contravention of the orders of the court where the parties had set up their matrimonial home, the court in the country to which child has been removed must first consider the question whether the court could conduct an elaborate inquiry on the question of custody or by dealing with the matter summarily order a parent to return custody of the child to the country from which the child was removed and all aspects relating to child’s welfare be investigated in a court in his own country. Should the court take a view that an elaborate inquiry is necessary, obviously the court is bound to consider the welfare and happiness of the child as the paramount consideration and go into all relevant aspects of the welfare of child including stability and security, loving and understanding care and guidance and full development of the child’s character, personality, and talents. While doing so, the order of a foreign court as to his custody may be given due weight; the weight and persuasive effect of a foreign judgment must depend on circumstances of each case.
30. However, in a case where the court decides to exercise its jurisdiction summarily to return the child to his own country, keeping in view the jurisdiction of the court in the native country which has the closest concern and the most intimate contact with the issues arising in the case, the court may leave the aspects relating to the welfare of the child to be investigated by the court in his own native country as that could be in the best interest of the child…’
The Court held that doctrine of comity of courts is a very healthy doctrine. If courts in different jurisdictions do not respect the orders passed by each other it will lead to contradictory orders being passed in different jurisdictions. No hard and fast guidelines can be laid down in this regard and each case has to be decided on its own facts.
3. Concept of Visitation Rights:
It is settled law that while deciding matters of custody of child, the welfare of child is of paramount consideration. However, while deciding the welfare of a child, it is not the view of one spouse, alone which has to be taken into consideration. The concept of visitation rights is not fully developed in India. Mostly it is seen that while a court may grant custody to one spouse, no order would be passed regarding the visitation rights of the other spouse. In addition to ‘Visitation Rights’, ‘Contact Rights’ are of utmost importance for the development of a child, especially where both parents live in different states or countries. ‘Contact’ here would be defined as contact by telephone, email, or video calling. It was held by Court that,
‘With the increasing availability of internet, video calling is now very common and courts dealing with the issue of custody of children must ensure that the parent who is denied custody of the child should be able to talk to her/his child as often as possible. Unless there are special circumstances to take a different view, the parent who is denied custody of the child should have the right to talk to his/her child for 5-10 minutes every day. This will help in maintaining and improving the bond between the child and the parent who is denied custody. If that bind is maintained the child will have no difficulty in moving from one home to another during vacations or holidays. The purpose of this is, if we cannot provide one happy home with two parents to the child then let the child have the benefit of two happy homes with one parent each.’
The Court then went and elaborated on many aspects of the case being the age of girl child and the importance of a mother in her upbringing. The nationality of the child being the USA was considered as an important factor in determining the factors into consideration. With respect to proceedings before Norfolk Court, it was held that the wife, having worked in Wal-Mart and approaching the Court of competent jurisdiction herself instituting various petitions, she was well aware of her rights. The argument that she was unable to understand what was happening due to lack of translator was found to be untenable on the basis of the above-noted points.
The Court observed finally that the mother entered into an agreement on the basis of which consent order was passed. However, she violated that order and came back to India, this was considered as against her. It was held that if the wife was willing to go back to the USA then all orders with regard to custody, maintenance, etc., were to be looked by competent jurisdiction in the USA. However, it was abundantly made clear that a writ court in India cannot direct an adult spouse to go to America. The orders were finally issued in two parts, first part applying if the wife was willing to go to the USA and second part on if she was not willing to go to the USA, then the grant of custody of the child to the husband.
Recently in cases filed before the Hon’ble Supreme Court with regards to visitation rights in times of COVID-19 and the resultant lockdown, it is seen that the Court has refused to enable the exchange of custody of the child to happen but have directed that ‘contact rights’ cannot be violated and that electronic contact instead of physical visits is substituted. Thus, the technology has again come to rescue at least in these testing times. One may, however, argue that this is not enough, but at the end of the day - especially in custody battles, something is better than nothing.
[1] (1987) 1 SCC 42
[2] (2017) 8 SCC 454
[3] (2019) 7 SCC 311
[4] (2010) 1 SCC 174
PALLAVI PRATAP
She is Managing Partner of Pratap & Co. - a litigating law firm. She is an Advocate-on-Record in Supreme Court and practices in High Court and various Tribunals including NCLT, NCLAT, NCDRC, NGT, DRT.
Qualified MBA in Finance from La Trobe University, Melbourne, Australia and LL.B from Lucknow University, she brings with her more than a decade of experience in legal affairs .