Supreme Court allows father to seek custody of child

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The Supreme Court observed that the question of “what is the wish/desire” of the child is different and distinct from the question “what would be the best interests of the child”.

“The question ‘what is the wish/desire of the child’ can be determined by the interaction, but then the question of ‘what would be the best interests of the child’ is a question to be decided by the court taking into account all the relevant circumstances,” observed the panel composed of Judges AM Khanwilkar and CT Ravikumar.

The bench was considering an appeal filed by a “father” whose habeas corpus petition had been dismissed by the Karnataka High Court. In the High Court, he argued that the child was in the mother’s unlawful custody and sued for custody of the child in derogation of US court orders to return the child to the United States. The High Court, after interaction with the child, noted that she had expressed her desire to stay with her mother and further advised that he was comfortable at school and studying at the school for a year. Therefore, he found that the child was not in unlawful or unlawful custody, and therefore denied the motion for an order, but subject to access.

In its judgment deciding the appeal, the court noted that in cases of this nature, the welfare of the child should be the primary consideration.

From the outset, we can state that in a case involving the question of the custody of a child, it must be kept in mind that the question “what is the wish/desire of the child” is different and distinct from the question “what would be in the best interests of the child”. Certainly the child’s wish/desire may be determined through the interaction, but the question of “what would be in the best interests of the child” is a matter to be determined by the court taking into account all the relevant circumstances. When couples are at loggerheads and want to separate like Parthians, they may level extreme accusations against each other in order to portray the other as unworthy of custody of the child. In these circumstances, we are of the opinion that for the examination of the request for custody of a minor child, unless there is proven very serious behavior which should render one of them unworthy of claiming custody of the child concerned, the question can and must be decided by examining only the question of knowing “what would be the best interests of the child concerned”. In other words, the welfare of the child must be the primary consideration.

The court observed that even after correctly identifying the said issue, the High Court had deviated from the said point and considered some aspects irrelevant for the said purpose. The court also observed that the High Court should not have refused to recognize US court orders ordering the return of the minor child to his father taking into account the best interests of the child.

“In our view, a consideration from a child welfare perspective would only support the order for the return of the child to his country of origin, namely the United States. For, the child is a naturalized U.S. citizen with a U.S. passport and was raised in the midst of the social and cultural values ​​of the United States and, therefore, accustomed to the lifestyle, language, customs, rules and regulations of the United States. his native country, namely the United States. Moreover, he will have better avenues and prospects if he returns to the United States, being a naturalized American citizen.”, the court said.

Welcoming the appeal, the bench issued various guidelines regarding the return of the child as well as visitation rights.

Case details

Rohith Thammana Gowda vs. State of Karnataka | 2022 LiveLaw (SC) 643 | July 29, 2022 | CA 4987 FROM 2022 | Judges AM Khanwilkar and CT Ravikumar

Summaries

Childcare – The question “what is the wish/wish of the child” is different and distinct from the question “what would be in the best interests of the child”. Certainly the child’s wish/desire may be determined through the interaction, but the question of “what would be in the best interests of the child” is a matter to be determined by the court taking into account all the relevant circumstances. When couples are at odds and want to separate like Parthians, they can level extreme accusations against each other in such a way as to portray the other unworthy of custody of the child – Barring very serious conduct and which should render either of them unworthy to seek custody of the child concerned, the question can and should be decided solely by considering the question of “what would be the best interests of the child concerned” – The good -being of the child should be the primary consideration. (Paragraph 8)

Constitution of India, 1950; Article 226 – Habeas Corpus – Custody of children – Parens patriae jurisdiction – Even when considering the petition for Habeas Corpus as a minor, in a given case, the High Courts may order the return of the child or refuse to change the custody of the child taking into account the facts and circumstances present – V. Ravi Chandran against. Indian Union (2010) 1 SCC 174 and Nithya Anand Raghawan Vs. State (NCT of Delhi) and Anr. (2017) 8 SCC 454. (Paragraph 9)

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