YASHITA SAHU versus STATE OF RAJASTHAN & ORS.

Citation: [2020] 1 S.C.R. 417 · Decided: 20-01-2020 · Supreme Court of India · Bench: DEEPAK GUPTA, ANIRUDDHA BOSE

Cited by 2 judgment(s) · cites 5 · see the full citation network in Lexace

Judgment (excerpt)

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YASHITA SAHU
v.
STATE OF RAJASTHAN & ORS.
(Criminal Appeal No. 127 of 2020)
JANUARY 20, 2020
[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]
Child and Family Welfare – Child Custody – Parents in two
different continents – In 2016, couple got married in India –
Appellant-wife accompanied the husband, working in USA – A
daughter was born in 2017 – Relationship of the couple got strained
– Appellant inter alia sought sole custody of the minor child from the
Norfolk Juvenile and Domestic Relations District Court– Consent
order passed inter alia making provision for shared parenting –
Before the next date fixed in the Norfolk Court, the appellant along
with the child came to India– Husband filed motion for emergency
relief before the said Court – Ex-parte order inter alia granted him
custody of the child – Husband also filed petition for issuance of
writ of habeas corpus before the Rajasthan High Court – High Court
inter alia directed the wife to return to USA along with minor daughter
– On appeal, held: It is too late in the day to urge that writ of habeas
corpus is not maintainable if the child is in the custody of another
parent – Court can invoke its extraordinary writ jurisdiction for
the best interest of the child – Contention of the appellant that the
writ petition was not maintainable, rejected – Further, since the
wife brought the minor child to India in violation of the orders of
the jurisdictional court in USA, her custody of the child cannot be
said to be strictly legal – However, the High Court could not have
directed the appellant to go to USA – Custody of a child is a different
issue, but even while deciding such issue, no direction can be issued
in writ jurisdiction to the adult spouse to go and live with the other
strained spouse – In matters of custody of a child, the welfare of
the child will always remain the paramount consideration – In cases
like the present one where the parents are in two different continents,
effort should be made to give maximum visitation rights to the parent
   [2020] 1 S.C.R. 417
417
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SUPREME COURT REPORTS
[2020] 1 S.C.R.
who is denied custody – Directions issued in two parts– First part
will apply if the appellant is willing to go to USA on terms and
conditions offered by the husband in his affidavit which is recorded
as an undertaking to the Court and the husband is duty bound to
abide by it– Second part to apply if she is not willing to go to USA,
how should the husband be granted custody of the child – Further,
in case if the visa/work permit of the husband is not extended and
he has to leave USA then the appellant is at liberty to move Supreme
Court for fresh directions – Constitution of India – Art.226 –
Doctrine of comity of courts.
Constitution of India – Art.226 – Writ of habeas corpus –
Maintainability of, in matters of child custody – Discussed – Child
and Family Welfare.
Doctrines/Principles – Doctrine of comity of courts – Held:
Doctrine of comity of courts is a very healthy doctrine – If courts in
different jurisdictions do not respect the orders passed by each other,
it will lead to contradictory orders being passed in different
jurisdictions – No hard and fast guidelines can be laid down in this
regard and each case has to be decided on its own facts– Child and
Family Welfare– Child Custody.
Child and Family Welfare – Child Custody – Visitation rights;
Contact Rights – Duty of Courts – Held: It is to be ensured that the
Court weighs each and every circumstance very carefully before
deciding how and in what manner the custody of the child should
be shared between both the parents – Even if the custody is given to
one parent the other parent must have sufficient visitation rights to
ensure that the child keeps in touch with the other parent and does
not lose social, physical and psychological contact with any one of
the two parents – Courts dealing with the custody matters must while
deciding issues of custody clearly define the nature, manner and
specifics of the visitation rights – In addition to ‘Visitation Rights’,
‘Contact rights’ are also important for development of the child
specially in cases where both parents live in different states or
countries – Concept of contact rights in the modern age would be
contact by telephone, e-mail or in fact, the best system of contact, if
available between the parties should be video calling.
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Disposing of the appeal, the Court
HELD : 1.1 Whether a writ of habeas corpus i

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