The Supreme Court has recently observed that any parent who has been denied custody of the child should have the right to talk to his/her child for 5-10 minutes every day. The Bench comprising of Justice Deepak Gupta and Justice Aniruddha Bose observed that the courts dealing with the custody matters should clearly define the nature, manner and specifics of the visitation rights. In this particular case, an appeal was filed by the wife who was directed by the High Court (in a Habeas Corpus Petition filed by the Husband) to return to the USA along with her minor daughter to enable the jurisdictional court in USA to pass further orders in this regards in the proceedings already pending.

When the wife filed the appeal, one of the contentions raised was that the writ petition was not maintainable. In this regard, the bench observed, “It is too late in the day to urge that a writ of habeas corpus is not maintainable if the child is in the custody of another parent. The law in this regard has developed a lot over a period of time but now it Is a settled position that the court can invoke its extraordinary writ jurisdiction for the best interest of the child.”

The High Court directed the wife to return to the USA along with her minor daughter within a period of 6 weeks to enable the jurisdictional court in USA to pass further orders in this regard in the proceedings already pending. The Bench said,” The wife is an adult and no court can force her to stay at a place where she does not want to stay. Custody of a child is a different issue, but even while deciding the issue of custody of a child, we are clearly of the view that no direction can be issued to the adult spouse to go and live with the other strained spouse in writ jurisdiction.”

The court placed this judgment on the opinion that while deciding matters of custody of a child, primary and paramount consideration is welfare of the child. It stated, “A child, especially a child of tender years requires the love, affection, company, protection of both parents. This is not only the requirement of the child but is his/her basic human right. Just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents. A child Is not an inanimate object which can be tossed from one parent to another It is only in extreme circumstances that one parent is to be denied contact with the child.”

The Court also issued certain directions to be carried out in case the mother has no intention to go to the USA with the child that included that even if the mother does not visit USA, the father shall ensure that the child visits India at least twice a year, once during summer vacations and once during the winter break, as per the child’s school schedule.

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Link to judgment: Yashita Sahu v. State of Rajasthan