Child and Family welfare – Custody of minor child – Appellant (Husband) and respondent no.3 (Wife) shifted to US from India and presently are holders of Permanent US Resident Cards – Their child was born in USA in the year 2011 and till 2020 he was living there – Conflicts and confrontation occurred in connubial relationship – The appellant came to India on 27.02.2020 in India to attend his ailing mother – On 03.03.2020, respondent no.3 came to India and brought the child with herself, without the consent of the appellant – Upon reaching back to USA, appellant initiated several legal proceedings in the USA for the custody of the minor child – In India, appellant filed the writ petition before the High Court for the custody of the child, so that child can be taken to the USA where he was born – High Court after interacting with the child and considering other relevant consideration, concluded that the child feels comfortable and secured in the custody of his mother and thereafter rejected the writ petition of the appellant – Hence, the appellant approached the Supreme Court against the judgment of High Court – Held: There is difference between ‘the wish/desire of the child’ which can be ascertained through interaction and ‘the best interest of the child’ which is a matter to be decided by the Court taking into account all the relevant circumstances – In cases of custody of child the welfare of the child should be of paramount interest – In the instant case, child is a naturalised US citizen thus he will have better avenues and prospects in his native country – Further, he was living and studying there for nearly a decade and considering entire facts and circumstances and the environment in which the child had born, his return to US would be in his best interest – High Court have not considered the above factors – Custody of the child given to appellant – Judgement of High Court was set aside – Directions issued regarding the smooth return of child to USA.
ORS.
Disposing of the appeal, the Court
HELD:1. In a matter involving the question of custody of a child it has to be borne 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 interest of the child’. Certainly, the wish/desire of the child can be ascertained through interaction but then, the question as to ‘what would be in the best interest of the child’ is a matter to be decided by the court taking into account all the relevant circumstances. [Para 8][790-G-H; 791-A]
2. To answer the question of jurisdiction, in Ravi Chandran’s case, this Court took note of the actual role of the High Courts in the matter of examination of cases involving claim of custody of a minor based on the principle of parens patriae jurisdiction considering the fact that it is the minor who is within the jurisdiction of the court. Based on such consideration it was held that even while considering Habeas Corpus writ petition qua a minor, in a given case, the High Courts may direct for return of the child or decline to change the custody of the child taking into account the attending facts and circumstances as also the settled legal position. [Paras 9 and 10][792-A-B]
3. The child in question is a boy, now around 11 years and a naturalised US citizen with an American passport and his parents viz., the appellant and respondent No.3 are holders of Permanent US Resident Cards. These aspects were not given due attention. 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. Taking into account the entire facts and circumstances and the environment in which the child had born and was brought up for about a decade coupled with the fact that he is a naturalised American citizen, his return to America would be in his best interest. In this case it is also to be noted that on two occasions American courts ordered to return the child to USA. True that the first order to that effect was vacated at the instance of respondent No.3. However, taking into account all aspects, this court was of the view that it was not a fit case where courts in India should refuse to acknowledge the orders of the US Courts directing return of the minor child to the appellant keeping in view the best interests of the child. In this court’s view 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. [Para 16][795-C-H; 796-A]
4. This Court issued the following further directions:
1. Respondent No.3 shall ensure that the child returns back to United States of America forthwith. In that regard respondent No.3 as well as the appellant, whoever is in possession of the American passport of the child in question, shall do the needful in accordance with the law to enable the child’s return to his native country viz., USA;
2. Respondent No.3 and the appellant shall take necessary action to get the child relieved from the present school and also to get him admitted in any school in USA where the appellant is presently residing, without causing much interruption to his studies;
3. Respondent No.3, if she wants to accompany the child and stay back in USA will be at liberty to do so. If she requires arrangement of accommodation for herself and her parents in USA she may intimate her desire in that regard to the appellant. Upon such intimation in writing the appellant shall forthwith do the needful to honour the assurance given to this Court, as noted above, so as to enable respondent ORS.
No.3 and her parents, as the case may be, to accompany the child and also to stay back in USA provided they fulfil the necessary legal formalities for their travel and stay in USA;
4. All necessary legal formalities to enable the child’s smooth return to USA shall be taken by respondent No.3 and the appellant expeditiously at any rate within a period of two months so that there will be minimum interruption in pursuing the studies of the child. [Para 18][796-D-H]
Nithya Anand Raghawan v. State (NCT of Delhi) & Anr. (2017) 8 SCC 454 : [2017] 7 SCR 281; V. Ravi Chandran v. Union of India (2010) 1 SCC 174 : [2009]
15 SCR 960 – relied on.
Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC 112 : [1997] 5 Suppl. SCR 30 – referred to.
Mckee v. Mckee (1951) AC 352 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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