LI Network
Published on: December 19, 2023 at 12:09 IST
The Kerala High Court has clarified that Indian courts have the authority to safeguard the best interests or welfare of a child or an incapable adult, particularly when it deems that the concerned party has no legal recourse in a foreign court.
The Division Bench, comprising Justice A. Muhamed Mustaque and Justice Sophy Thomas, underscored that the court, when invoking its writ jurisdiction, possesses the power to adjudicate and apply parens patriae and nationality rules to ensure the child’s best interest or the well-being of the incapable adult.
The court, however, emphasized the need for caution in exercising jurisdiction, especially when the law of the foreign country provides a legal remedy for protecting the welfare or best interest of the child or incapable adult.
The bench stated that Indian courts should refrain from intervening when an alternative effective remedy is available in the foreign jurisdiction. The ruling came in response to a petition seeking a writ of habeas corpus filed by the mother of an adult with autism spectrum disorder, alleging illegal custody by the father in Dubai.
The petitioner, the mother, had sought appointment as the legal guardian under the National Trusts Act, but her request was initially rejected.
The Court’s order directs rotational custody for the incapable adult, asserting the right to the company of both parents as per the Rights of Persons with Disabilities Act and the United Nations Convention on the Rights of Persons with Disabilities.
