On January 20 this year, the Supreme Court passed a landmark judgement in the case of Yashita Sahu ... Appellant(s) Vs the State of Rajasthan & Others ... Respondent(s) recognising the fact that....
The case is a battle for child custody. The spouses (Indian citizens) were married in India in May 2016. The husband was a resident of the USA even before their marriage. The wife too then moved to the US in July that year and lived with him. They begot a female child in May 2017 there and she is an American citizen. Later, the spouses fell apart; the wife moved a court in the USA and obtained custody rights over the child, while visitation and contact rights were given to the husband/father. Flouting the court’s order, the wife came away to India with the child. The case eventually came before our Supreme Court which had passed a detailed judgment wherein, among other issues, the rights of children in such situations are discussed and decided upon.
In this case, the Supreme Court has acknowledged that, “In addition to ‘visitation rights’, ‘contact rights’ are also important for the development of the child, especially in cases where both parents live in different states or countries. The concept of contact rights in the modern age would be contact by telephone, email or in fact, we feel the best system of contact, if available, between the parties should be video-calling.” Further, the court observed, “With the increasing availability of the 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 510 minutes every day. This will help in maintaining and improving the bond between the child and the parent who is denied custody. If that bond 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.”
In this case, the Supreme Court elucidates that the wife who is an adult cannot be ordered to go with the child to the US. But if she chooses to go, safeguards have been made in the order till she can move the local US court for other remedies. The best interest of the child was the only factor considered in passing the order. Not limiting the concept of ‘best interests’ with any narrow definition, the Supreme Court says, “No hard and fast rules can be laid down and each case has to be decided on its own merits. We are also not oblivious of the fact that when two parents are at war with each other, it is impossible to provide a completely peaceful environment to the child. The court has to decide what is in the best interest of the child after weighing in all the pros and cons of both the respective parents who claim custody of the child. Obviously, any such order of custody cannot give a perfect environment to the child because that perfect environment would only be available if both the parents put the interest of the child above their own differences.”
Providing two happy homes with one parent each instead of one happy home with two parents and daily access of the child every day through video-calls is a lovely concept that needs to be made a reality in these days of matrimonial strife and separation to ensure that the citizens of tomorrow are given the best today for their balanced growth and development.
—The writer is Senior Advocate, Madras High Court