SC grants custody of child to father in International Guardianship


By Diksha-

Supreme Court Bench comprising Justices Indu Malhotra, Uday Umesh Lalit and Hemant Gupta today passed a judgment by 2:1 majority granting the custody of an 11-year old boy to his father after the child expressed his will to live with him.

The Court also told him to get a mirror judgment from a Court in Nairobi, Kenya.

Justice Hemant Gupta however expressed his dissent in the matter.

Both the parties to the suit got married in 2007 and had the child in 2009 but got separated in 2012.

The father of the child holds a dual citizenship of Kenya and UK while his mother is an Indian citizen and a practicing lawyer.

The petitioner filed the suit restraining her husband and his family from removing the child from her custody and various orders had been passed ever since regarding his visitation rights.

A suit was filed by the father in a family court of Saket in November 2012 under Section 7 of the Guardians and Wards Act, 1860.

The family court upheld the custody of the father in 2018 and it was affirmed by the High Court earlier this year, which was followed by an appeal in the Supreme Court.

Justices Indu Malhotra and U.U. Lalit observed that what matters is that the child should be capable of making an intelligible choice.

They further observed the child shared a “strong and deep bond with his father, which had evidently grown by the regular visitations of his father and grand­parents every month during the past 8 years.”

The Hon’ble Court also told the Respondent to get a mirror order from the appropriate Court in Nairobi, Kenya so that the visitation rights and temporary custody of the mother were not impaired.

Citing the rising number of cases of transnational custody cases, the Court said, “Such orders are passed to safeguard the interest of the child who is in transit from one jurisdiction to another. The courts have found mirror orders to be the most effective way of achieving protective measures.”

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