Summary
A boy born in the USA in 2011 and a US citizen was brought to Bengaluru by his mother in March 2020 without his father's consent. A Washington court later ordered his return. The Karnataka High Court dismissed the father's habeas corpus petition, relying mainly on the child's expressed wish to stay with his mother. The Supreme Court held that the child's wish and his best interest are different questions, and welfare is the paramount consideration. The High Court had wrongly called the father's US proceedings motivated, treated the US orders as permission for the mother to keep custody, and ignored the child's citizenship and decade-long upbringing in the USA. His return was in his best interest. The mother was directed to return him within two months.
Issues
- Whether, in a habeas corpus petition about a child brought to India from a non-Convention country, the child's expressed wish to stay with one parent is decisive of his welfare.
- Whether the Indian court should give effect to the US court's orders directing the return of a US-citizen child, in his best interest.
Held
- The child's wish, ascertained through interaction, is distinct from his best interest, which the court must decide on all relevant circumstances. Unless serious proven conduct makes a parent unworthy, custody is to be decided solely on the child's welfare as the paramount consideration. (¶¶ 8, 13)
- Following Nithya Anand Raghavan and V. Ravi Chandran, a court in India dealing with a child removed from a non-Convention country considers welfare as paramount. It treats a foreign court's order as one factor, with comity requiring grave consideration of the order but not its enforcement. It may order a summary return where proceedings are prompt and the child has not taken root. (¶¶ 9, 10)
- The High Court erred in calling the father's US proceedings motivated, when the US court had ordered return and taken contempt action, and in treating the absence of a US custody order as permission for the mother to keep the child. Its view that US courts lacked jurisdiction because the marriage took place in India overlooked the purpose of the return order. (¶¶ 11, 14, 15)
- The child's US citizenship, birth and upbringing there for about a decade, and accustomed language and culture were not given due weight. His comfort in a new Bengaluru school did not decide his welfare. Return to the USA was in his best interest, and this was not a case for refusing to recognise the US orders. (¶ 16)
Result
Appeal allowed. The High Court's judgment was set aside, the habeas corpus petition was allowed, and the mother was directed to ensure the child's return to the USA within two months. She was at liberty to accompany him, with the father arranging accommodation on request, and to seek custody or visitation before the appropriate US forum.