Paramount consideration should be given to the welfare of the child rather than the wish/desire of the child while considering the matter of custody of a minor child: Supreme court

Law Centrum

31 Jul 2022

In a matter involving the question of custody of a child, Supreme court handed over custody of minor to the father taking into account the best interest of the child.

The bench consisting of Justices A.M. Khanwilkar and C.T. Ravikumar has directed against the judgment passed by the High Court of Karnataka at Bengaluru dated 07.09.2021 in Writ Petition (Habeas Corpus) No. 76 of 2020 in a matter involving the custody of minor.

Brief Facts

The appellant (minor’s father) has been residing in the USA for the previous twenty years. He married the respondent on March 19, 2008, in Bengaluru, as per Hindu rituals and procedures. After getting married, they moved to the USA and on September 7, 2010, they were granted a Green Card (formally known as a Permanent Resident Card). They now have the right to reside and work in the USA permanently. Their son Aarya Ranjani Rohith was born in Washington, USA, on 03.02.2011, and he has an American passport in addition to being an American citizen through naturalisation. The child was studying in Washington School District. Due to the conflict and disagreement between the couple, Respondent came to Bengaluru in India with the child, without the petitions consent.

On 22.1.2020, the petitioner filed a custody petition in the Superior Court of Washington and was granted an ex parte order on 26.10.2020. The respondent was directed to return the child to the United States. Respondent No. 3 later filed a petition challenging the US Court's jurisdiction, but the US Court upheld that jurisdiction over the minor child in an order dated 15.01.2020. Later, she herself referred to the Superior Court of the State of Washington requesting the appointment of a parenting evaluator as well as temporary orders of child support and spousal support. On March 9, 2021, the US Court issued an order providing her spousal support of $5000 USD per month, subject to conditions. She was also directed to return the child to US. According to Section 9 of the Guardians and Wards Act, 1890, the respondent filed a custody petition with the Family Court of Bengaluru, which was rejected as being unmaintainable for lack of jurisdiction. In Civil Revision Petition No. 318/2021, the issue was brought before the High Court of Karnataka in which the appellant contended that only US Courts had the authority to decide the issue of custody of the minor child and that the High Court had disregarded US Court orders and failed to properly determine what would be in the child's best interests.

The High Court ruled that the US Courts lacked jurisdiction to hear any dispute resulting from the marriage because the appellant and respondent's marriage was performed in Bengaluru in accordance with Hindu rituals and traditions. The High Court granted the father visitation rights after finding that the child is secured and feels safe in Bengaluru with his mother.

Judgment

The Supreme court pointed out that “the High court came to its decision without considering the efficacy of the order issued by the US Court”. In the opinion of the Supreme court, the child's return to the United States would be in his best interest given all the relevant facts and circumstances, the setting in which he was born and raised for roughly ten years, and the fact that he is a naturalised American citizen.

Thus, the court ordered the respondent to ensure the child’s return to United States of America. It directed both the respondent and appellant to take the appropriate steps to relieve the child from his current school and to get him admitted into any school in the USA where the appellant is currently residing, without significantly disrupting his academics. The court further stated that the respondent will be at liberty to accompany the child and remain in the USA. In this regard, she can communicate her desire to the appellant if she needs to secure accommodation for herself and her parents in the USA.

The court applied the law laid down by Nithya Anand Raghawan Vs State (NCT of Delhi) & Anr. [(2017) 8 SCC 454], V. Ravi Chandran Vs. Union of India [(2010) 1 SCC 174], Dhanwanti Joshi Vs. Madhav Unde [(1998) 1 SCC 112], Mckee Vs. Mckee [(1951) AC 352] in this regard.