Parent who is denied custody shall have Right to Talk to Child every day: SC

Approach of Art.136 Cannot Be Adopted While Deciding Petitions by The High Court Under Art.227: SC

In the era of 21st century, it’s a matter of concern raised in Indian court related to the custody of the child born whose parents have ended up their marriage. From the breakdown of the marriage, the person who suffered the most is the child born out of the marriage.

In the context of Indian law, the welfare of the child is the most important factor while keeping the views on the right of parents to the custody of the child. It is the important factor to decide that who holds the custody of the minor child or the child going to live with whom after the breakdown of the marriage.

The mother and father both have the equal right on the custody of the child but on the matters of facts court will consider few factors on determining the custody of the childl ike safety and economic wellbeing of the child, the upbringing of the child must be done in the ethical environment, and a good education must be imparted to the child.

Based on the factors the court has the discretion to decide the custody of the child. But the Indian court is strict to ensure that the child gets affection of both the parents. The custody of the minor child has been awarded to one parent but that doesn’t mean that another cannot be in the contact with the child or see the child. Based on the conditions determined by the court, another parent has the visitation right on the child. 

Brief facts

The couple got married in India and shifted to the United States of America as the husband was working there and the wife has accompanied him. A child was born out of marriage with citizenship of the USA. The relationship between the couple got strained and they make allegations and counter-allegations against each other and wife have applied for the emergency protection order.

The order was passed against the husband and later on, the wife filed the petition in the court for the sole custody of the child and praying that the husband is directed to give the monetary support to her and minor child. The joint custody was granted on the child to both the parents and each parent have individual parenting time with a child. Even on informing the parent at that period to whom the child belongs, other parent may do WhatsApp call for at least 5 minutes.

The wife has left the USA and move to India along with child after knowing the fact that the husband had filed a motion of emergency relief in Norfolk Court, USA and the ex parte order has been passed in favour of the husband and court directed the sole and physical custody of the child to the husband. The wife was directed by the court to return to USA along with the child and a warrant was also issued against her for violating the previous order of the court.

The husband also filed the writ petition of habeas corpus in Rajasthan high court to produce the minor child. The high court directs the wife to return to the USA with the period of 6 weeks along with the daughter for the further proceedings of the matter in the court of Norfolk.

The wife has filed the present appeal against the order of the Rajasthan high court. It was contended that the writ of habeas corpus would not lie against the wife as the minor child was not in the illegal detention as she is a natural guardian of the child. The child is only 2 and a half years old and as a girl child, she requires care, protection, and attention of the mother.  

Key features

  • The writ petition of habeas corpus is not maintainable as the child is in the custody of another parent. The court will examine whether the minor child was in lawful or unlawful custody of another person.
  • The wife brought the minor child to India against the order of the Norfolk court but her custody to the child was not completely illegal as she was adult and no court could force her to stay where she does not want to stay.
  • While deciding the custody of the child, the welfare of the child will be considered as the paramount interest of the child, not the view of one spouse could be considered.
  • Even the custody is given to one parent another parent in this has the visitation right and the limitation was stated by the court with such visits. 


In this case, the Supreme court has decided that the child is not an object which can be tossed from one parent to another as per the judgment of the Norfolk. The child needs love, affection, company, care and the custody provided to one parent does not take the right of another parent for visitation to the child to get in touch with the child.

It was also stated that the parents who have been denied from the custody of the child have the right to talk with the child for 5-10 mins daily. The habeas corpus was not maintainable as the child is in the custody of the another parent. The wife was directed by the USA court to return there but as the wife is an adult and no court could force her to stay where she does not want to stay. 

Edited by Vartika Gajendra Singh

Approved & Published – Sakshi Raje