For welfare of the child, Indian courts can deny repatriation of children involved in cross-border parental abduction, says the Supreme Court.

A Supreme Court judgment delivered on Wednesday accords courts in India unlimited discretion to determine which parent should have the custody of minor children involved in international parental child abduction.

The verdict holds that Indian courts can decline the relief of repatriation of a child to the parent living abroad even if a foreign court, located in the country from where the child was removed, has already passed orders for the child’s repatriation.

A Bench of Chief Justice of India Dipak Misra and Amitava Roy held that the welfare of the child was the “paramount and predominant” consideration when such a case came up before a court here.

The judgment, authored by Justice Roy, observed that welfare of the child came first over the repatriation order of the foreign court as India was not a signatory to the Hague Convention of “The Civil Aspects of International Child Abduction”.

“The principle of comity of courts is not to be accorded a yielding primacy or dominance over the welfare and well-being of the child,” the apex court held.

A court, regardless of the repatriation order of the foreign court concerned, can refuse repatriation to the parent settled abroad if it is “satisfied that the child is already settled in its “new environment” in India or if repatriation would expose the child to physical harm or if the child would be placed in an “intolerable or unbearable situation” back with the parent settled abroad, and finally, if the child, on attaining maturity, objects to going back.

The judgment came in a case where the father took the younger of the two sons from his wife’s custody in the United States and came to India. The mother’s version was that he had taken the boy on the pretext of visiting the neighbourhood mall. A U.S. Court upheld her lawful custody and ordered the man to return his son to his wife.

The Supreme Court concluded that the boy, who is five-and-a-half years old, has settled in India, studying in a reputed school here and enjoys his extended family. The apex court allowed the father to retain his son in India, while noting that the parents are frequently in touch over e-mail. Uprooting the boy from his present situation may be counter-productive, the apex court held.