The Kerala High Court has clarified that Indian courts have the authority to protect the best interests or welfare of a child or an incapacitated adult, particularly when the concerned individual lacks legal recourse in a foreign court.
A Division Bench, consisting of Justice A. Muhamed Mustaque and Justice Sophy Thomas, emphasized that when exercising its writ jurisdiction, the court has the power to apply parens patriae and nationality principles to ensure the welfare of a child or incapable adult.
However, the court cautioned that jurisdiction should be exercised carefully, especially when the law of the foreign country offers a legal remedy to protect the welfare of the concerned individual.
The bench pointed out that Indian courts should avoid intervening if an effective alternative remedy exists in the foreign jurisdiction. This ruling came in response to a habeas corpus petition filed by the mother of an adult with autism spectrum disorder, alleging unlawful custody by the father in Dubai.
The mother had sought to be appointed as the legal guardian under the National Trusts Act, but her request was initially denied.
The court’s order grants rotational custody to the incapacitated adult, affirming their right to the companionship of both parents in accordance with the Rights of Persons with Disabilities Act and the United Nations Convention on the Rights of Persons with Disabilities.
