Welfare Of Child Should Be Paramount Consideration- SC Asks Mother To Ensure Return Of Son To US To Be With Father

The Supreme Court has recently observed that a claim for custody of a minor child should be decided solely looking into the question as to, 'what would be the best interest of the child concerned'.

"…we are of the view that for considering the claim for custody of a minor child, unless very serious, proven conduct which should make one of them unworthy to claim for custody of the child concerned, the question can and shall be decided solely looking into the question as to, 'what would be the best interest of the child concerned'. In other words, welfare of the child should be the paramount consideration." the Bench of Justice AM Khanwilkar and Justice CT Ravikumar observed.

The Court was adjudicating upon an appeal against the decision of the Karnataka High Court whereby the writ petition seeking custody of the minor child filed by the present appellant-father of the minor child was rejected.

As per the case of the father of the child, he has been living in the USA since the last 20 years along with his wife and minor son. According to the appellant-father, his wife came to Bengaluru with the child, without his consent. Subsequently, he filed the Habeas Corpus writ petition before High Court of Karnataka and he also filed a Custody Petition in the Superior Court of Washington, County of King, and obtained an ex­parte order. The US Court passed an order directing her to return the child to US.

The writ petition before the High Court came to be rejected. Aggrieved the father of the minor child approached Supreme Court.

Advocate SS Jauhar appeared for the appellant-father whereas Advocate Siddhant Buxy appeared for the respondents.

The contention of the appellant was that the High Court had ignored the orders of the US Court and also failed to take a proper decision on the question as to what would be in the best interest of the child. His attempt was to establish that for the interest of the child, the child should return to US.

His wife had raised the contentions before the High Court to establish that the child was not in illegal or unlawful custody and claimed that the appellant was not entitled to the prayer sought for and on the contrary, she was entitled to continue with the custody of the minor child.

At the outset, the Court observed that in a matter of child custody welfare of the child should be the paramount consideration.

The Court noted "We have stated earlier that the question 'what is the wish/desire of the child' can be ascertained through interaction, but then, the question as to 'what would be the best interest of the child' is a matter to be decided by the court taking into account all the relevant circumstances. A careful scrutiny of the impugned judgment would, however, reveal that even after identifying the said question rightly the High Court had swayed away from the said point and entered into consideration of certain aspects not relevant for the said purpose."

On perusal of the impugned judgment, the Court noted that the High Court had enquired about the desire and comfort of the child with respect to his schooling and stay and the Court found that the child expressed no difficulty in his schooling or his stay in Bengaluru and ultimately satisfied that the child was comfortable with staying with his mother.

The Court stated that "Merely because he was brought to India by the mother on 03.03.2020 and got him admitted in a school and that he is now feeling comfortable with schooling and stay in Bengaluru could not have been taken as factors for considering the welfare of the boy aged 11 years born and lived nearly for a decade in USA."

The Court observed that a consideration on the point of view of the welfare of the child would only support the order for the return of the child to his native country viz., USA.

"For, the child is a naturalised American citizen with American passport. He has been brought up in the social and culture value milieu of USA and, therefore, accustomed to the lifestyle, language, custom, rules and regulations of his native country viz., USA. Further, he will have better avenues and prospects if he returns to USA, being a naturalised American citizen.", the Court noted.

Accordingly, the Court directed the wife of the appellant to ensure that the child returns back to the United States of America. The Court also held that she may accompany the child and stay back in USA, if she wishes.

"We also make it clear that if respondent No.3 requires custody or visitation rights of the child, she may do so by invoking the jurisdiction of appropriate forum in USA.", the Bench noted before concluding.

Cause Title- Rohith Thammana Gowda v. State Of Karnataka & Ors.

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