NEW DELHI: Holding that welfare of the child is paramount, the Supreme Court has recently directed return of a seven-year-old US citizen girl to the United States, who was brought to India by her mother in breach of a California custody order, ruling that a foreign court's order must yield to child's welfare though it deserves proper consideration.
"Welfare must be understood in widest sense, not by money or physical comfort alone," said a Bench of Justice J.B. Pardiwala and Justice K.V. Viswanathan.
The apex court allowed the appeal filed by father Vayu Kishore against the Karnataka High Court judgment on December 20, 2023 dismissing his habeas corpus plea for custody and return of child.
The couple married in New Jersey in 2018 and settled in California where their daughter was born in 2019 as US citizen. After matrimonial discord, mother filed dissolution of marriage before Superior Court of California, Contra Costa County, and subsequently sought custody.
On August 25, 2022, California court after hearing both parents granted joint custody with 50:50 shared parenting and specifically barred removal of the child from California without written consent or court order. In violation, mother left for India with child on September 08, 2022, barely two weeks later. On December 02, 2022, California court noted violation and ordered immediate return of child to USA.
Then Karnataka High Court had rejected father's habeas plea holding mother's custody not illegal relying on Section 6 of Hindu Minority and Guardianship Act, 1956 which makes mother natural guardian of child below five years. The HC also cited child's comfort with mother, eight-month delay by father in approaching court and absence of harm to child.
But the Supreme Court said it had made earnest efforts for settlement and took up the matter in Committee Room on not less than ten occasions for mediation but parties failed to reach consensus.
For father, Senior Advocates Mukul Rohatgi and Meenakshi Arora submitted that the mother had surreptitiously removed child in breach of order she herself obtained from California court. They argued child being US citizen should be raised and educated in the USA. The father gave undertakings to provide separate accommodation for mother and child, to take steps for restoration of mother's lapsed Green Card and to pay USD 3,200 monthly support.
Advocate Malavika Rajkotia for mother argued that the child has been in India for almost four years, is well settled, and India is not signatory to Hague Convention on Civil Aspects of International Child Abduction, so return cannot be automatic.
But the Supreme Court laid down broad approach: in inter-parental custody fight, threshold for habeas corpus need not be illegal detention but can be wrongful deprivation of other parent's custody right. Once that threshold is crossed, court must decide only on child's welfare, not parental rights.
The top court emphatically said "an order of a foreign court must yield to the welfare of the child." Mere disobedience of foreign order does not mean automatic enforcement. Habeas corpus cannot be used just to execute foreign order.
However, foreign order must be given proper weight under comity of courts, considering whether foreign court examined best interests on merits, who instituted proceedings there, time elapsed since order, and changed circumstances. Court explained difference between summary inquiry and elaborate inquiry when child has been in India for long.
The SC held HC's reasoning insufficient: child's demeanour only shows she lived with mother for four years, her tender age makes ascertaining wishes impossible, no evidence that she would be harmed if with father, and eight months delay cannot create firm roots in India.
The bench also observed that the child as US citizen should grow up and receive education in the USA, which is in her best interest. It noted mother herself had instituted divorce and custody proceedings in California, order of August 25, 2022 was passed after hearing both the sides, and no grave circumstances forced her to leave.
The court clarified that it cannot compel the mother to move to the US or continue marriage, but she cannot insist the child to remain in India against welfare.
