July 16, 2022
“I will be master of what is mine own.
She is my goods, my chattels; she is my house,
My household stuff, my field, my barn,
My horse, my ox, my ass, my anything.
And here she stands, touch her whoever dare.”
-William Shakespeare (1564 – 1616), English dramatic poet
The above reflects the way husbands articulated their claims over their wives. Apparently, claiming rights has been well rooted in history going back to the Old Testament of the Bible wherein King Solomon (The Wise) had to decide the claims of two women over an infant. He ordered his aide to bring a sword and divide into half the child’s body, head to toes, and give the cut parts each to the two claimant women.
One of the two women opted out of the idea and offered the other claimant woman to take the infant. Solomon gave up the dividing idea and handed over the infant to the woman who opted out of the idea of equally giving the half infant each between the two claimant women.
Now we have no kings and Solomon-like wisdom is supposed to reside in the Supreme Court and its judges. Nowadays the permanency and indissolvability of marriage is being challenged and the courts become arbiters going all the way up to the Supreme Court (SC) and its judges.
The scenario now is how to assign kids between the divorcing parents. Here is the latest ruling of the SC delivered on July 14, 2022 and widely carried in the media.
The SC held that the welfare of a child must always prevail over the legal rights of parents while deciding the custody of a minor child and said that it is a fundamental right of a parent not to be deprived of the love and affection of a child without any reason.
Adjudicating a legal battle of an NRI couple over custody of two minor children who were clandestinely taken away by their father from the USA where the family was living for the last twelve years, a bench of Justices A M Khanwilkar and J B Pardiwala said that such matter was to be decided not on consideration of the legal rights of the parties but on the sole and predominant criterion of what would best serve the interest and welfare of the child.
Referring to the Hindu Minority and Guardianship Act and the Guardians and Wards Act, the bench said, "A mere reading of the provisions of the two Acts makes it obvious that the welfare of the minor predominates to such an extent that the legal rights of the persons claiming to be the guardians or claiming to be entitled to the custody will play a very insignificant role in the determination by the court."
In this case the couple got married in 2008 and moved to the US along with a minor daughter and they were blessed with another child in 2013. The relationship between them got soured over the time and they were at loggerheads in US courts for getting custody of children and the father took both the children and left for India in August 2021 without informing his wife. The wife thereafter moved the apex court through her advocate and filed Habeas Corpus petition to trace her children and seek direction to her husband to produce them before the court.
The court after hearing both sides came to the conclusion that it was for the betterment of the children, one of them is a natural US citizen, to go back and stay in the US where they spent more than 10 years and got accustomed to that culture and society. It directed the husband to go back to the USA with both the minor children and abide by the shared parenting plan as ordered by the Court at Ohio.
"Both the minor children, in the case on hand, have already been enrolled in the school in the USA. Therefore, if the minor children are repatriated to the USA, they will not be subjected entirely to any foreign system of education. It is the fundamental right of the petitioner-mother to have the company of her children and not to be deprived of the same without a reasonable cause," Justice Pardiwala, who penned the judgement for the bench, said. The court appealed to the warring parents not to burden their children with their matrimonial problem and try to look after them.
"We would like to convey to the parties that their two minor children are watching them very closely. Showing the children that their parents can respect each other and resolve the conflict respectfully will give them a good foundation for the conflicts that may, God forbid, arise in their own lives. The parties should try to do their best to remain relaxed and focused. It is critical to maintain boundaries between the adult problems and children. It is of utmost interest to protect the innocence of children and allow them to remain children," it said.
Without further adding to the subject’s exposition, I would rather have readers to respond with their comments in the format given below (Pl. scroll down a bit.) Welcome to reason once again. Over to you.