The Supreme Court permits a father’s software for custody of a kid

The Supreme Court found that asking the child “what is the wish/desire” is different and distinct from asking “what would be in the best interest of the child”.

“The question ‘what is the child’s wish/desire’ can be established through interaction, but the question ‘what would be in the child’s best interest’ is a matter for the court to decide, taking into account all the relevant circumstances,” the noted Jury composed of judges AM Khanwilkar and CT Ravikumar.

The bank was considering an appeal filed by a “father” whose habeas corpus petition was dismissed by the Karnataka High Court. In the Supreme Court, he had argued that the child was unlawfully in the mother’s custody and continued custody of the child in derogation of US court orders for the child’s return to the United States. After interacting with the child, the High Court found that he had expressed his desire to stay with his mother and went on to say that he was doing well at school and had been studying at the school for a year. Therefore, it found that the child was not in unlawful or unlawful custody and thus rejected the written application, but was subject to visitation rights.

In its appeal judgment, the Chamber stated that in cases of this kind the best interests of the child should come first.

It should be said at the outset that when it comes to a question of custody, it is important to note that the question “What is the child’s wish/demand” is different from the question “What would be in the best interest of the child”. Certainly the child’s wish/desire can be ascertained through interaction, but the question of ‘what would be in the child’s best interests’ is a matter for the court to decide, taking into account all the relevant circumstances. When couples are at odds and wanted to separate as a Parthian shot, they can use extreme allegations against each other to portray the other as unworthy of having custody of the child. In the circumstances, we believe that for the purpose of considering a claim for custody of a minor child, the question can and must be decided, unless there is very serious proven conduct which should render either of them unworthy, seek custody of the child concerned solely on the basis of “what would be in the best interests of the child concerned”. In other words, the best interests of the child should come first.

The Court found that the High Court, even after having correctly asked the above question, had deviated from the above point and taken into account certain aspects which were not relevant for the above purpose. The court also found that the High Court should not have refused to honor the orders of the US courts ordering the minor child’s return to his father, having in mind the best interests of the child.

“In our opinion, a consideration from the point of view of the best interests of the child would only speak in favor of ordering the child’s return to its home country, namely the USA, because the child is a naturalized American citizen with an American passport. He grew up in the social and cultural milieu of the USA and therefore accustomed to the way of life, language, customs, rules and regulations of his native United States and will have better opportunities and prospects when he returns to the United States as a naturalized American citizen,” the court said.

The Chamber upheld the appeal and issued various instructions on the child’s return and visitation rights.

case details

Rohith Thammana Gowda vs Karnataka State | 2022 LiveLaw (SC) 643 | July 29, 2022 | CA 4987 OF 2022 | Judges AM Khanwilkar and CT Ravikumar

top notes

Custody – The question ‘What is the child’s wish/desire’ is different from the question ‘What would be in the child’s best interest’. Certainly the child’s wish/desire can be ascertained through interaction, but the question of ‘what would be in the child’s best interests’ is a matter for the court to decide, taking into account all the relevant circumstances. When couples are at odds and wanted to separate as a Parthian shot, they can use extreme allegations against each other to portray the other as unworthy of having custody of the child — unless it’s a very serious, proven behavior that should render one of them unworthy to seek custody of the child concerned, the question can and should be decided solely on the basis of “what would be in the best interests of the child concerned” – the best interests of the child should come first. (paragraph 8)

Constitution of India, 1950; Article 226 – Habeas corpus – Custody of children – Jurisdiction of parens patriae – Even where the declaration of habeas corpus is deemed to be a minor, the High Courts may in a particular case order the return of the child or refuse to change the custody of the adopting child Considering the Accompanying Facts and Circumstances – V. Ravi Chandran Vs Union of India (2010) 1 SCC 174 and Nithya Anand Raghawan Vs State (NCT of Delhi) & Anr. (2017) 8 SCC 454. (para. 9)

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