A dispute between a husband and a wife always raises the question that if this dispute results in a divorce then who will get custody of the children? Generally, custody is given to the mother and in several cases, the father or grandparents are forbidden to see the child. The bare perusal of the above situation raises an important question i.e. whenever cases related to custody are decided then on what grounds it should be granted whether based on the best wishes of the child or the basis of the best interest of the child?
Custody is a legal term regarding the guardianship of a child after his/her parents’ divorce. Custody can be claimed by both mother and father. The custody cases are decided according to the laws of The Guardian and Wards Act,1890.
The Hon’ble Supreme Court has discussed in detail the laws related to the custody of a child in Rohith Thammana Gowda vs. State Of Karnataka & Ors. on 29.07.2022, wherein emphasis has been laid on as to whether the custody of a child should be decided based on his/her wishes or best interest.
Landmark Judgement in Rohith Thammana Gowda vs. State Of Karnataka & Ors. on 29.07.2022
Brief facts of the Case
In the instant case, Rohith Gowda who was the father of the minor son sought his custody and sought permission to take the child to the United States of America (USA) where he was born. The father was residing in the USA for the last two decades and after marriage, his wife joined and they also obtained a green card on 07.09.2010. On 03.02.2011 their son was born in the USA and he was a naturalized American Citizen. Subsequently, many conflicts and confrontations occurred in the marital relationship and the mother of the child came to Bengaluru in India with the child without the father’s consent and also took the child into her custody illegally. At that time the father was in India and upon reaching the USA he realized that the mother and child were missing from the matrimonial home.
The father complained to the Office of Children’s Issues, USA stating that the child was kidnapped by his wife and he filed the Habeas Corpus writ petition before the High Court of Karnataka at Bengaluru in September 2020 but the same was decided in favor of his wife and due to which he had to approach the Hon’ble Supreme Court.
He has also filed a Custody Petition in the Superior Court of Washington, County of King, on 22.1.2020 and obtained an ex-parte order dated 26.10.2020. The wife was directed to return the child to the United States. On 29.10.2020 wife participated in the proceedings before the US Court and moved a motion for vacating the ex-parte order. Consequently, the ex-parte order to return the child was vacated. Later, his wife filed a petition challenging the jurisdiction of the US Court, and as per the order dated 15.01.2020 the US Court upheld its jurisdiction over the minor child. Still, later, she invoked the jurisdiction of the Superior Court of the State of Washington In and For King County, seeking temporary orders of child support and spousal support as also for the appointment of a parenting evaluator. The US Court passed an order on 09.03.2021 granting her spousal support subject to conditions. The US Court also passed an order directing her to return the child to the US. Earlier, the wife also filed a custody petition bearing G & W No.246/2020 before the Family Court, Bengaluru. It was dismissed as not maintainable for want of jurisdiction under Section 9 of the Guardians and Wards Act, 1890. According to the father, in the circumstances only the US Courts got jurisdiction to decide the question of custody of the minor child. The father contends that the High Court had ignored the orders of the US Court and failed to make a proper decision on the question of what would be in the child’s best interest. The father has taken up contentions and also produced documents in a bid to establish the affinity and affection of the child towards him, in this proceeding. He attempted to establish that for the interest of the child, the child should return to the US.
Observations of the Court
After a series of detailed arguments, the Supreme Court noted that while considering the question of a child’s interest is the paramount consideration, however, the High Court had swayed away from this issue and it entered into consideration of certain aspects not relevant for the said purpose.
The Supreme Court division bench noted that “The High Court after taking note of the various proceedings initiated by the appellant before the US Courts formed an opinion that he had initiated such proceedings only intending to enhance his chance of success in the Habeas Corpus Writ Petition and to pre-empt any move by the wife for custody by approaching the Indian Courts”.
The Supreme Court further took into consideration the question of whether the child was a naturalized US citizen with an American passport and his parents were holders of Permanent US Resident Cards, etc the High Court failed to give attention to these issues.
It was added by the Court that merely because the child was brought to India by the mother and was admitted to a school and that he is now feeling comfortable in India cannot supersede the relevant factor of the child’s welfare who is 11 years old boy was born and lived nearly for a decade in the USA. With this view, Court, allowing the appeal directed the mother to ensure that the child returns to the United States of America.
The case involved the question of custody of a child. The claim for custody of a minor child should be decided solely by looking into the question of, ‘what would be in the best interest of the child concerned. Certainly, the wish/desire of the child can be ascertained through interaction but then, the question of ‘what would be in the best interest of the child is a matter to be decided by the court taking into all the relevant circumstances. As per Supreme Court, a consideration of 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., the USA. The child is a naturalized American citizen with an American passport. He has been brought up in the social and cultural values of the USA and, therefore, accustomed to the lifestyle, language, customs, rules, and regulations of his native country viz., the USA. Supreme Court observed that there needs to be a distinction between the desire of the child and what is best for the child. Given this, the Supreme Court allowed the appeal and issued various directions regarding custody and visitation rights.
If doubts still persist, contact our Legal Experts at