NEW DELHI: Giving a word of advice to an estranged married couple to avoid legal battle for divorce and custody of children, the Supreme Court on Friday said both husband and wife should try to bear the “ordinary wear and tear of married life” for the larger interest of their offspring as such fights adversely affect their mind and psychology.

“Spouses overcome the temperamental disharmony which usually exists in every marriage, rather than magnifying it with impulsive desires and passions. Parents are not only caretakers, but they are instrumental in the development of their child’s social, emotional, cognitive and physical well-being and work harmoniously to give their children a happy home to which they are justly entitled to,” a bench of Justices A M Khanwilkar and Ajay Rastogi said.

The bench, which was adjudicating a custody battle between a US-based NRI couple, directed the appellant woman to return to the US with the two children, both US citizens, she brought to India, failing which the US consulate general in Hyderabad would take their custody.

The bench said: “Divorce and custody battles can become quagmire and it is heart wrenching to see that the innocent child is the ultimate sufferer who gets caught up in the legal and psychological battle between the parents.”

In this case the husband and wife, both green card holders and settled in the US, had been fighting battle for custody of their seven-year old son and five-year old daughter since 2016 and had filed a case in a US court. During the pendency of their case in the US, the wife took the children and returned to India in 2017. She has since refused to go back to the US.

The US court passed the order directing her to bring the children back from India but she refused to comply, compelling the husband to file a habeas corpus petition in Andhra Pradesh high court. The HC passed the order in favour of the husband and directed her to hand over the custody to him. She thereafter moved SC. She contended that the interest of the children would be best protected if they remained with her in India. But advocate Prabhjit Jauhar, appearing for the husband, told the bench that being born and brought up in the US, the children must be repatriated until the case for custody is decided.

The court said the interest of the children being of paramount importance will best be served if they return to the US and enjoy their natural environment and to resume their school. It also suggested the couple resolve their differences for the sake of children.

“We accordingly direct the appellant to return to the US along with both the children within a period of six weeks from today. We further direct respondent (husband) to make all arrangements of stay and travel expenses,” the bench said. The court further said if the wife was not inclined to go to the US, the consulate general at Hyderabad will take the custody of the children and they be handed over to the husband.



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