Welfare of child more important than parents’ rights, says HC

Dismisses a petition filed by a US national

The future and welfare of a child is paramount while deciding the custody matters, the Bombay High Court said on Monday as it dismissed a petition filed by a United States (US) national.

A bench of Justice Suresh Gupte was hearing a plea filed by a father, a US national, challenging the orders of another bench of the HC, which decided a separate petition regarding sending his daughter to US for further studies.

According to the father, he wanted to send his daughter to US for her further studies, just the way he had sent his elder son. However, the mother, a Thai national, put up a condition that the daughter could be allowed to pursue studies in US only if their youngest son is sent to Thailand for similar purpose.

Having considered the facts of the case, Justice Gupte said, "Whenever the court is properly seized of a matter concerning custody of a minor, whilst assessing the merits of the controversy and granting suitable reliefs, it ought not to be hampered by strict letter of a statute or by matters of procedure or technicalities for doing justice in consonance with the welfare of the child."

"When it comes to deciding a properly maintainable application before it, the court is not concerned as much with inter se rights of the parties, which are matters of statute or, for that matter, technical considerations of procedure relevant to such application as with the welfare of the child, which it considers to be of paramount importance, that is to say, over and above legal rights of parents or guardians," the court held.

The judge noted that the plea filed before him was not maintainable as it challenged the decision of a division bench.

The bench, accordingly dismissed the plea for want of proper jurisdiction as the orders of division benches of HC could be challenged before the Supreme Court and not a single judge bench of the HC.