LEGAL ISSUE: International Child Custody Dispute and Habeas Corpus
CASE TYPE: Habeas Corpus, Family Law
Case Name: Rohith Thammana Gowda vs. State of Karnataka & Ors.
Judgment Date: 29 July 2022
Date of the Judgment: 29 July 2022
Citation: (2022) INSC 645
Judges: A.M. Khanwilkar J. and C.T. Ravikumar J.
Can a child’s preference outweigh their best interests in an international custody battle? The Supreme Court of India recently tackled this question in a case where a child was brought from the United States to India by one parent without the other’s consent. The court had to decide whether to prioritize the child’s current comfort or their long-term welfare, considering their citizenship and upbringing. This case highlights the complexities of international child custody disputes and the paramount importance of the child’s best interests.
The judgment was delivered by a two-judge bench comprising Justice A.M. Khanwilkar and Justice C.T. Ravikumar, with Justice C.T. Ravikumar authoring the opinion.
Case Background
The appellant, Rohith Thammana Gowda, had been residing in the USA for about two decades. He married Respondent No. 3 in Bengaluru on 19 March 2008, and they subsequently moved to the USA, establishing their matrimonial home there. Both obtained Green Cards on 7 September 2010, granting them permanent residency in the USA. Their child, Aarya Ranjini Rohith, was born in Washington, USA, on 3 February 2011, and is a naturalized American citizen with a US passport. The child was studying in the third standard in Washington during 2019-20.
Conflicts arose in the marriage, and on 3 March 2020, Respondent No. 3 brought the child to Bengaluru without the appellant’s consent. The appellant was in India at the time, attending to his ailing mother. Upon returning to the USA, he discovered the child was missing. He initially filed a complaint with the Office of Children’s Issues, USA, alleging kidnapping, but withdrew it after learning the child was in Bengaluru. Subsequently, he filed a Habeas Corpus petition in the High Court of Karnataka in September 2020, seeking the child’s return to the USA.
The appellant also filed a custody petition in the Superior Court of Washington, obtaining an ex-parte order on 26 October 2020, directing the child’s return. This order was later vacated. Respondent No. 3 then challenged the US Court’s jurisdiction, but the court upheld it on 15 January 2020. Subsequently, she herself sought temporary orders for child and spousal support from the US Court. The US Court on 9 March 2021, granted her spousal support and directed her to return the child to the US. Earlier, a custody petition filed by Respondent No.3 in Bengaluru was dismissed for lack of jurisdiction. The matter is now pending before the High Court of Karnataka in a civil revision petition.
Timeline
| Date | Event |
|---|---|
| 19 March 2008 | Marriage of the appellant and Respondent No. 3 in Bengaluru. |
| 7 September 2010 | Appellant and Respondent No. 3 obtained Green Cards in USA. |
| 3 February 2011 | Birth of the child, Aarya Ranjini Rohith, in Washington, USA. |
| 3 March 2020 | Respondent No. 3 brought the child to Bengaluru without the appellant’s consent. |
| September 2020 | Appellant filed a Habeas Corpus petition in the High Court of Karnataka. |
| 26 October 2020 | Ex-parte order by Superior Court of Washington for child’s return to USA. |
| 30 October 2020 | Ex-parte order vacated by the Superior Court of Washington. |
| 15 January 2020 | Superior Court of Washington upheld its jurisdiction over the minor child. |
| 9 March 2021 | US Court ordered spousal support and directed the child’s return to the US. |
| 29 April 2021 | US Court issued contempt order for non-compliance of order for return of child. |
| 7 September 2021 | High Court of Karnataka rejected the Habeas Corpus petition. |
| 29 July 2022 | Supreme Court of India allowed the appeal and ordered the child’s return to the USA. |
Course of Proceedings
The High Court of Karnataka rejected the appellant’s Habeas Corpus petition, but granted visitation rights to the appellant. The High Court interacted with the child and noted that the child was comfortable staying with the mother and studying in Bengaluru. The High Court concluded that the child was comfortable and secure in the custody of his mother in Bengaluru. The High Court rejected the contention of the appellant that the child was in unlawful custody and that the respondent was continuing with the custody of the child in derogation of the orders of the US Courts.
The appellant challenged this decision before the Supreme Court, arguing that the High Court ignored the orders of the US Court and failed to consider the best interests of the child, particularly the child’s US citizenship and upbringing. The appellant contended that only the US Courts had jurisdiction to decide the question of the custody of the minor child.
Legal Framework
The Supreme Court referred to its previous decisions in Nithya Anand Raghavan vs. State (NCT of Delhi) & Anr. [(2017) 8 SCC 454] and V. Ravi Chandran vs. Union of India [(2010) 1 SCC 174]. These cases establish that in international child custody disputes, the paramount consideration is the welfare of the child. The Court reiterated that the wish of the child is distinct from the best interest of the child. While the child’s wishes can be ascertained through interaction, the court must decide what is in the child’s best interest, considering all relevant circumstances.
The Court also noted that while India is not a signatory to the Hague Convention of 1980, it has imbibed the spirit of the principle of parens patriae jurisdiction. This means that courts in India, within whose jurisdiction the minor has been brought, must “ordinarily” consider the question on merits, bearing in mind the welfare of the child as paramount importance, while reckoning the pre-existing order of the foreign court, if any, as only one of the factors and not get fixated therewith.
The Court referred to the decision in Dhanwanti Joshi vs. Madhav Unde [(1998) 1 SCC 112], which in turn referred to the decision of the Privy Council in Mckee vs. Mckee [(1951) AC 352]. In Mckee, the Privy Council held that the order of the foreign court would yield to the welfare of the child and that the comity of courts demanded not its enforcement but its grave consideration.
The Supreme Court emphasized that in cases where a child has been removed from their native state, the court must consider whether the child has gained roots in the new jurisdiction and whether it would be in the child’s welfare to return to their native state. The court also clarified that in exceptional cases, it can refuse to direct the return of the child if it is satisfied that the child’s return may expose them to a grave risk of harm.
Arguments
Appellant’s Submissions:
- The appellant argued that the High Court had ignored the orders of the US Court directing the return of the child and failed to take a proper decision on the question of what would be in the best interest of the child.
- The appellant contended that the child is a naturalized American citizen with an American passport and was living and studying in the USA until the respondent brought him to India without his consent.
- The appellant submitted that the US Courts had jurisdiction to decide the question of custody of the minor child.
- The appellant highlighted the child’s affinity and affection towards him and argued that the child’s best interest would be served by returning to the USA.
- The appellant submitted that he was willing to provide accommodation for the respondent and her parents in the USA if she wanted to accompany the child.
Respondent’s Submissions:
- The respondent contended that though the child was brought to India without the appellant’s consent, she was subsequently permitted to have custody of the child by the appellant himself, as well as by the US Courts.
- The respondent relied on an email sent by the appellant on 15 March 2020, as proof of his consent for keeping the child in her custody.
- The respondent argued that the child was now admitted to a school in Bengaluru and was pursuing his studies there.
- The respondent argued that the child was comfortable and secure in her custody in Bengaluru.
- The respondent contended that the US Courts did not have jurisdiction to entertain any dispute arising out of their marriage, which was conducted in Bengaluru according to Hindu rites.
Submissions Table
| Main Submission | Appellant’s Sub-Arguments | Respondent’s Sub-Arguments |
|---|---|---|
| Jurisdiction |
|
|
| Best Interests of the Child |
|
|
| Validity of US Court Orders |
|
|
Issues Framed by the Supreme Court
The primary issue before the Supreme Court was:
- Whether the High Court was correct in rejecting the Habeas Corpus petition filed by the appellant for the return of the minor child to the USA?
Treatment of the Issue by the Court
The following table demonstrates as to how the Court decided the issues
| Issue | Court’s Decision | Brief Reasons |
|---|---|---|
| Whether the High Court was correct in rejecting the Habeas Corpus petition filed by the appellant for the return of the minor child to the USA? | The Supreme Court held that the High Court was incorrect in rejecting the Habeas Corpus petition and ordered the return of the child to the USA. | The Court emphasized that the child’s best interest lies in returning to the USA, where he is a naturalized citizen and was raised for nearly a decade. The Court also noted that the High Court had swayed away from the point of welfare of the child and entered into consideration of certain aspects not relevant for the said purpose. The High Court also did not give due weight to the orders passed by the US Courts. |
Authorities
The Supreme Court relied on the following authorities:
On the principle of welfare of the child:
- Nithya Anand Raghavan vs. State (NCT of Delhi) & Anr. [(2017) 8 SCC 454] – Supreme Court of India
- V. Ravi Chandran vs. Union of India [(2010) 1 SCC 174] – Supreme Court of India
- Dhanwanti Joshi vs. Madhav Unde [(1998) 1 SCC 112] – Supreme Court of India
- Mckee vs. Mckee [(1951) AC 352] – Privy Council
These cases established that in international child custody disputes, the paramount consideration is the welfare of the child and that the wish of the child is distinct from the best interest of the child. The court must decide what is in the child’s best interest, considering all relevant circumstances.
The Court also considered the principle of parens patriae jurisdiction, which means that courts in India, within whose jurisdiction the minor has been brought, must “ordinarily” consider the question on merits, bearing in mind the welfare of the child as paramount importance, while reckoning the pre-existing order of the foreign court, if any, as only one of the factors and not get fixated therewith.
Authority Usage Table
| Authority | Court | How Used |
|---|---|---|
| Nithya Anand Raghavan vs. State (NCT of Delhi) & Anr. [(2017) 8 SCC 454] | Supreme Court of India | Reiterated the principle that the welfare of the child is paramount in international child custody disputes and that the order of the foreign court is only a factor to be considered. |
| V. Ravi Chandran vs. Union of India [(2010) 1 SCC 174] | Supreme Court of India | Reiterated the principle that 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. |
| Dhanwanti Joshi vs. Madhav Unde [(1998) 1 SCC 112] | Supreme Court of India | Referred to the decision of the Privy Council in Mckee vs. Mckee and reiterated that the order of the foreign court would yield to the welfare of the child. |
| Mckee vs. Mckee [(1951) AC 352] | Privy Council | Established that the order of the foreign court would yield to the welfare of the child and that the comity of courts demanded not its enforcement but its grave consideration. |
Judgment
Treatment of Submissions
| Party | Submission | Court’s Treatment |
|---|---|---|
| Appellant | The High Court had ignored the orders of the US Court and failed to take a proper decision on the question of what would be in the best interest of the child. | Accepted. The Supreme Court held that the High Court did not give due weight to the orders passed by the US Courts and did not properly consider the best interests of the child. |
| Appellant | The child is a naturalized American citizen with an American passport and was living and studying in the USA until the respondent brought him to India without his consent. | Accepted. The Supreme Court emphasized that the child’s US citizenship and upbringing were crucial factors in determining his best interests. |
| Appellant | The US Courts had jurisdiction to decide the question of custody of the minor child. | Accepted. The Supreme Court noted that the US Courts had passed orders for the return of the child and that the High Court should have given due weight to these orders. |
| Appellant | The child’s best interest would be served by returning to the USA. | Accepted. The Supreme Court concluded that the child’s best interest lies in returning to the USA, where he is a naturalized citizen and was raised for nearly a decade. |
| Appellant | The appellant was willing to provide accommodation for the respondent and her parents in the USA if she wanted to accompany the child. | Noted and accepted. The Supreme Court included this in its directions. |
| Respondent | Though the child was brought to India without the appellant’s consent, she was subsequently permitted to have custody of the child by the appellant himself, as well as by the US Courts. | Rejected. The Supreme Court held that the US Court orders were for the return of the child and not for the custody of the child. The Court also noted that the High Court should not have entertained this submission after the US Court had passed orders for the return of the child. |
| Respondent | The respondent relied on an email sent by the appellant on 15 March 2020, as proof of his consent for keeping the child in her custody. | Not considered relevant. The Supreme Court did not give any weight to this email. |
| Respondent | The child was now admitted to a school in Bengaluru and was pursuing his studies there. | Not considered relevant. The Supreme Court held that the child’s comfort in Bengaluru was not a sufficient reason to deny his return to the USA. |
| Respondent | The child was comfortable and secure in her custody in Bengaluru. | Not considered relevant. The Supreme Court emphasized that the child’s best interest was paramount and not his current comfort. |
| Respondent | The US Courts did not have jurisdiction to entertain any dispute arising out of their marriage, which was conducted in Bengaluru according to Hindu rites. | Rejected. The Supreme Court held that the US Court orders were not strictly for the return of the respondent but were for the return of the child, who is a naturalized US citizen. |
Treatment of Authorities
| Authority | Court’s View |
|---|---|
| Nithya Anand Raghavan vs. State (NCT of Delhi) & Anr. [(2017) 8 SCC 454] | Followed. The Supreme Court reiterated that the welfare of the child is paramount in international child custody disputes, and the order of the foreign court is only a factor to be considered. |
| V. Ravi Chandran vs. Union of India [(2010) 1 SCC 174] | Followed. The Supreme Court reiterated that 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. |
| Dhanwanti Joshi vs. Madhav Unde [(1998) 1 SCC 112] | Followed. The Supreme Court referred to this case to reiterate that the order of the foreign court would yield to the welfare of the child. |
| Mckee vs. Mckee [(1951) AC 352] | Followed. The Supreme Court relied on this case to emphasize that the comity of courts demanded not enforcement of the foreign court order but its grave consideration in light of the child’s welfare. |
The Supreme Court held that the High Court had erred in rejecting the Habeas Corpus petition. The Court emphasized that the paramount consideration in such cases is the welfare of the child. The Court noted that the child in this case is a naturalized US citizen with an American passport, and he had lived and studied in the USA for nearly a decade before being brought to India. The Court observed that the High Court had swayed away from the point of welfare of the child and entered into consideration of certain aspects not relevant for the said purpose. The High Court also did not give due weight to the orders passed by the US Courts.
The Supreme Court observed that the High Court should not have taken the initiation of proceedings before the US Court as motivated and not in good faith. The US Court had passed orders for the return of the child, and the High Court should have given due weight to these orders. The Supreme Court also noted that the High Court had enquired about the desire and comfort of the child with respect to his schooling and stay during the interaction. The High Court found that the child expressed no difficulty in his schooling or his stay in Bengaluru and ultimately satisfied that the child is comfortable and secure with staying with his mother. However, the Supreme Court held that the child’s comfort in Bengaluru was not a sufficient reason to deny his return to the USA.
The Court stated, “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 further stated, “The very fact that he is a naturalised citizen of US with American passport and on that account he might, in all probability, have good avenues and prospects in the country where he is a citizen.”
The Court concluded that considering the child’s US citizenship, his upbringing in the USA, and the orders of the US Courts, his return to the USA would be in his best interest. The Court also noted the appellant’s willingness to provide accommodation for the respondent and her parents in the USA if she wanted to accompany the child.
What weighed in the mind of the Court?
The Supreme Court’s decision was primarily influenced by the following factors:
- The child’s citizenship and upbringing in the USA.
- The orders of the US Courts for the return of the child.
- The child’s best interest, which the court determined to be in returning to the USA.
- The fact that the child is a naturalized American citizen with an American passport.
- The child’s social and cultural milieu in the USA.
- The potential for better avenues and prospects for the child in the USA.
Sentiment Analysis Ranking
| Reason | Percentage |
|---|---|
| Child’s US citizenship and upbringing | 40% |
| Orders of the US Courts | 30% |
| Child’s best interest | 20% |
| Potential for better opportunities in the USA | 10% |
Fact:Law Ratio
| Category | Percentage |
|---|---|
| Fact | 60% |
| Law | 40% |
The Court’s reasoning was heavily influenced by the factual aspects of the case, such as the child’s citizenship, upbringing, and the orders of the US Courts. Legal principles were also considered, but the factual context played a more significant role in the final decision.
Logical Reasoning
Key Takeaways
- In international child custody disputes, the welfare of the child is the paramount consideration.
- The wish of the child is distinct from the best interest of the child.
- Courts in India must consider the orders of foreign courts but are not bound by them if the child’s welfare requires otherwise.
- The citizenship and upbringing of the child are crucial factors in determining their best interests.
- The court will consider the social and cultural milieu of the child.
- The court will consider the potential for better avenues and prospects for the child.
- If a child has been removed from their native state, the court will consider whether the child has gained roots in the new jurisdiction.
This judgment reinforces the principle that in international child custody disputes, the child’s best interests take precedence over all other considerations. It also highlights the importance of considering the child’s citizenship, upbringing, and cultural background when determining their welfare. This case may influence future decisions in similar cases, emphasizing the need for courts to consider the long-term well-being of the child over their current comfort.
Directions
The Supreme Court issued the following directions:
- Respondent No. 3 shall ensure that the child returns to the United States of America forthwith.
- Both the appellant and respondent No. 3 shall take necessary steps to enable the child’s return to the USA.
- Respondent No. 3, if she wants to accompany the child and stay back in the USA, will be at liberty to do so.
- The appellant shall provide accommodation for the respondent and her parents in the USA if she desires to accompany the child.
- All necessary legal formalities to enable the child’s smooth return to USA shall be taken by respondent No.3 and the appellant expeditiously within a period of two months.
- If Respondent No. 3 requires custody or visitation rights of the child, she may do so by invoking the jurisdiction of the appropriate forum in the USA.
Specific Amendments Analysis
Not Applicable
Development of Law
The ratio decidendi of this case is that in international child custody disputes, the welfare of the child is the paramount consideration, and the child’s citizenship, upbringing, and cultural background are crucial factors in determining their best interests. The Court emphasized that the orders of foreign courts are to be considered, but the welfare of the child is paramount. This decision does not change the previous position of law but reinforces the existing legal principles.
Conclusion
The Supreme Court allowed the appeal, setting aside the High Court’s judgment. The Court ordered the returnof the child to the USA, emphasizing that his best interests lie in returning to his native country, where he is a naturalized citizen and was raised for nearly a decade. The Court directed that the child’s return be facilitated within two months and that the appellant provide accommodation for the respondent and her parents if she chooses to accompany the child. This case underscores the importance of prioritizing the child’s welfare in international custody disputes and the need to consider all relevant factors, including citizenship, upbringing, and the orders of foreign courts.