Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
CIVIL APPEAL NOS. 4987 OF 2022
(Arising out of SLP(C)No.17166/2021)
ROHITH THAMMANA GOWDA …APPELLANT
VERSUS
STATE OF KARNATAKA & ORS. …RESPONDENT(S)
J U D G M E N T
C.T. RAVIKUMAR, J.
1. Leave granted.
2. This appeal is directed against the Judgment and Order dated
07.09.2021 passed by the High Court of Karnataka at Bengaluru
in Writ Petition (Habeas Corpus) No.76 of 2020. The appellant
herein filed the said Writ Petition seeking the following main
relief:
“Issue a Writ of Habeas Corpus or any other
appropriate writ, order or direction directing the
Respondents to secure the minor Aarya Ranjini Rohith, the
only child of the Petitioner, aged about 9 years, and produce
the minor Aarya Ranjini Rohith before this Hon’ble Court
and hand over the custody of the said minor child to the
Signature Not Verified
Digitally signed by
Rachna
Date: 2022.07.29
18:11:00 IST
Reason:
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Petitioner who is the father of the minor, so that the child
can be taken to the United States of America where he was
born and is a citizen of and where he was living and
studying in school”.
As per the impugned judgment, the High Court rejected the
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writ petition, but subject to the visitation rights provided,
thereunder, to the appellant. It is challenging the same that the
above appeal has been preferred. Shorn of details, the case of the
appellant may be stated as hereunder:
“The petitioner has been residing in USA for the past
two decades or thereabouts. On 19.03.2008 the marriage
between him and Respondent No.3 was conducted as per
Hindu rites and ceremonies at Bengaluru. Soon after the
marriage they shifted to USA and made it their matrimonial
home. Both of them applied for Green Card (officially known
as Permanent Resident Card) and obtained the same on
07.09.2010. It makes them entitled to live and work
permanently in USA. On 03.02.2011 their son Aarya
Ranjani Rohith was born in Washington, USA and he is a
naturalised American Citizen with an American Passport.
The child was studying in the Third Standard in the Christa
McAuliffe Elementary School in Washington School District
during the year 201920.”
4. Conflicts and confrontation occurred in the connubial
relationship and they ultimately culminated in the incident which
is the genesis of this proceeding. According to the appellant, on
03.03.2020, Respondent No.3 came to Bengaluru in India with
the child, without his consent. At that time, the appellant was
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already in India to attend his ailing mother viz., from 27.02.2020
till 09.03.2020. Upon reaching USA he realized that the child was
missing from the matrimonial home. He made initial enquiries at
the school, in vain, and thereupon lodged a complaint with the
Office of Children’s Issues, USA, alleging that the child was
kidnapped by respondent No.3wife. Later, in the evening he
could contact his fatherinlaw in India and on being informed of
the availability of his wife and minor child at home in Bengaluru
he withdrew the said complaint on 11.03.2020. Subsequently, he
filed the Habeas Corpus writ petition before High Court of
Karnataka at Bengaluru in September, 2020. He has also filed a
Custody Petition in the Superior Court of Washington, County of
King, on 22.1.2020 and obtained an exparte order dated
26.10.2020. The respondent was directed to return the child to
the United States. On 29.10.2020 respondent No.3 participated
in the proceedings before the US Court and moved a motion for
vacating the exparte order. Consequently, the exparte order to
return the child was vacated. Later, respondent No.3 filed a
petition challenging the jurisdiction of the US Court and as per
order dated 15.01.2020 the US Court upheld its jurisdiction over
the minor child. Still later, she herself invoked the jurisdiction of
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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 appointment of a parenting evaluator. The US
Court passed an order on 09.03.2021 granting her spousal
support of $5000 USD per month subject to conditions. The US
Court also passed an order directing her to return the child to
US. Earlier, respondent No.3 filed a custody petition bearing G &
W No.246/2020 before the Family Court Bengaluru. It was
dismissed as being not maintainable for want of jurisdiction
under Section 9 of the Guardians and Wards Act, 1890. (Now, the
matter is pending before the High Court of Karnataka in Civil
Revision Petition No. 318/2021). According to the appellant, in
the circumstances only the US Courts got jurisdiction to decide
the question of custody of the minor child. The contention of the
appellant is that the High Court had ignored the orders of the US
Court and also failed to take a proper decision on the question as
to what would be in the best interest of the child. The appellant
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. Obviously, his attempt is to establish that for
the interest of the child, the child should return to US.
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5. Respondent No.3 resisted the contentions of the appellant.
Before the High Court she contended that though the child was
brought to India without the appellant’s consent subsequently
she was permitted to have the custody of the child by the
appellant himself as also by the US Courts. In support of the
contention that the appellant had given consent for keeping the
child in her custody she relied on an email sent by the appellant
herein on 15.03.2020. The fact is that the child is now, admitted
in a school in Bengaluru and he is now pursuing his studies
there. Obviously, respondent No.3 had raised the contentions
before the High Court to establish that the child was not in illegal
or unlawful custody and therefore, the appellant is not entitled to
the prayer sought for and on the contrary, she is entitled to
continue with the custody of the minor child.
6. A bare perusal of the impugned order would reveal that the
High Court, as per the impugned order, rejected the contentions
of the appellant that the child is in unlawful custody and
respondent No.3 has been continuing with the custody of child in
derogation of the orders of the US Courts to return the child to
USA. The impugned judgment would reveal that the court had
interacted with the child in the chambers and ascertained as to
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whether he was staying with the mother under compulsion.
Paragraph 85 of the impugned judgment would reflect what had
transpired during such interaction. It would reveal that the child
had expressed his desire to stay with his mother and further
informed that he was comfortable in the school and studying in
the school for the past one year. He had also divulged the fact
that he was not facing any difficulty in his schooling as also in
his stay at Bengaluru. On an analysis of the rival contentions
and the facts mentioned in paragraph 85 the High Court came to
the conclusion that the child is comfortable and feels secured in
the custody of his mother in Bengaluru. Ultimately, the High
Court rejected the writ petition, but subject to the visitation
rights, specifically mentioned in paragraphs 89 to 93 therein. In
this circumstances, present appeal has been preferred assailing
the judgment of the High Court dated 07.09.2021.
7. Heard the learned counsel appearing for the appellant and
also the learned counsel appearing for respondent No.3.
8. At the outset we may state that in a matter involving the
question of custody of a child it has to be borne in mind that the
question ‘what is the wish/desire of the child’ is different and
distinct from the question ‘what would be in the best interest of
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the child’. Certainly, the wish/desire of the child can be
ascertained through interaction but then, the question as to
‘what would be in the best interest of the child’ is a matter to be
decided by the court taking into account all the relevant
circumstances. When couples are at loggerheads and wanted to
part their ways as parthian shot they may level extreme
allegations against each other so as to depict the other unworthy
to have the custody of the child. In the circumstances, we are of
the view that for considering the claim for custody of a minor
child, unless very serious, proven conduct which should make
one of them unworthy to claim for custody of the child
concerned, the question can and shall be decided solely looking
into the question as to, ‘what would be the best interest of the
child concerned’. In other words, welfare of the child should be
the paramount consideration. In that view of the matter we think
it absolutely unnecessary to discuss and deal with all the
contentions and allegations in their respective pleadings and
affidavits.
9 . To answer the stated question and also on the question of
jurisdiction we do not think it necessary to conduct a deep
survey on the authorities This Court in
Nithya Anand Raghawan
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Vs. State (NCT of Delhi) & Anr. [(2017) 8 SCC 454] , reiterated
the principle laid in V. Ravi Chandran Vs. Union of India
and further held thus :
[(2010) 1 SCC 174]
“In exercise of summary jurisdiction, the court must
be satisfied and of the opinion that the proceedings
instituted before it was in close proximity and
filed promptly after the child was removed
and brought within its
from his/her native state
territorial jurisdiction,
the child has not gained
roots here and further that it will be in the
child’s welfare to return to his native state
because of the difference in language spoken or
social customs and contacts to which he/she has
been accustomed or such other tangible reasons.
In such a case the court need not resort to an
elaborate inquiry into the merits of the paramount
welfare of the child but leave that inquiry to the
foreign court by directing return of the child. Be it
noted that in exceptional cases the court can
still refuse to issue direction to return the
child to the native state and more
particularly in spite of a preexisting order of
the foreign court in that behalf, if it is
satisfied that the child’s return may expose
”.
him to a grave risk of harm
(Emphasis added)
10. In Ravi Chandran’s case (supra), this Court took note of the
actual role of the High Courts in the matter of examination of
cases involving claim of custody of a minor based on the principle
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of parens patriae jurisdiction considering the fact that it is the
minor who is within the jurisdiction of the court. Based on such
consideration it was held that even while considering Habeas
Corpus writ petition qua a minor, in a given case, 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. In Nitya Anand’s
case this Court had also referred to the decision in Dhanwanti
which in turn was
Joshi Vs. Madhav Unde [(1998) 1 SCC 112]
rendered after referring to the decision of the Privy Council in
. In Mckee’s case the Privy
Mckee Vs. Mckee [(1951) AC 352]
Council held that the order of the foreign court would yield to the
welfare and that the comity of courts demanded not its
enforcement, but its grave consideration. Though, India is not a
signatory to Hague Convention of 1980, on the “Civil Aspects of
International Child Abduction”, this Court, virtually, imbibing the
true spirit of the principle of parens patriae jurisdiction, went on
to hold in Nithya Anand Raghavan’s case thus:
“40. ... As regards the nonConvention countries,
the law is that the court in the country to which
the child has been removed must consider the
question on merits bearing the welfare of the child
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as of paramount importance and reckon the order
of the foreign court as only a factor to be taken into
consideration, unless the court thinks it fit to
exercise summary jurisdiction in the interests of
the child and its prompt return is for its welfare. In
exercise of summary jurisdiction, the court must
be satisfied and of the opinion that the proceeding
instituted before it was in close proximity and filed
promptly after the child was removed from his/her
native state and brought within its territorial
jurisdiction, the child has not gained roots here
and further that it will be in the child’s welfare to
return to his native state because of the difference
in language spoken or social customs and contacts
to which he/she has been accustomed or such
other tangible reasons. In such a case the court
need not resort to an elaborate inquiry into the
merits of the paramount welfare of the child but
leave that inquiry to the foreign court by directing
return of the child. Be it noted that in exceptional
cases the court can still refuse to issue direction to
return the child to the native state and more
particularly in spite of a preexisting order of the
foreign court in that behalf, if it is satisfied that the
child’s return may expose him to a grave risk of
harm. This means that the 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 of
paramount importance whilst reckoning the pre
existing order of the foreign court if any as only one
of the factors and not get fixated therewith. In
either situation – be it a summary inquiry or an
elaborate inquiry – the welfare of the child is of
paramount consideration. Thus, while examining
the issue the courts in India are free to decline the
relief of return of the child brought within its
jurisdiction, if it is satisfied that the child is now
settled in its new environment or if it would expose
the child to physical or psychological harm or
otherwise place the child in an intolerable position
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or if the child is quite mature an objects to its
return. We are in respectful agreement with the
aforementioned exposition.”
11 . Having taken note of the position thus settled in the said
decisions we will now consider the question whether such an
exercise had been undertaken properly in this case. This is
because in this case foreign Court, as noted above, passed orders
for the return of the child to USA. There is nothing on record to
show that such an order passed on the second occasion was also
vacated subsequently. True that the first order to that effect
passed on 26.10.2020 was subsequently vacated at the instance
of the third respondent on 30.10.2020. However, going by the
records the subsequent order passed in March 2021 Superior
Court of Washington, County of King for the return of the child
owing to noncompliance led to further order for contempt on
29.4.2021. The High Court, obviously, observed that though the
U.S Court subsequently suspended the order of spousal support
did not pass any order regarding the custody of the child and
hence, custody of the child is continuing with respondent No.3.
We have referred to those aspects solely for the purpose of
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pointing out that the High Court was aware of the existence of
order for the return of the child by the US Court.
12 . Be that as it may, we will now consider the question whether
consideration was bestowed by the High Court in the matter in
terms of the position settled by this Court in the aforementioned
decisions i.e., by giving predominant importance to the welfare of
the child. A scanning of the impugned judgment would reveal
that the High Court had rightly identified the vital aspect that
paramount consideration should be given to the welfare of the
child while considering the matter.
13 . We have stated earlier that the question ‘what is the
wish/desire of the child’ can be ascertained through interaction,
but then, the question as to ‘what would be the best interest of
the child’ is a matter to be decided by the court taking into
account all the relevant circumstances. A careful scrutiny of the
impugned judgment would, however, reveal that even after
identifying the said question rightly the High Court had swayed
away from the said point and entered into consideration of
certain aspects not relevant for the said purpose. We will explain
the raison d’etre for the said remark.
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14 . 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 with an intention to
enhance his chance of success in the Habeas Corpus Writ
Petition and to preempt any move by the wife (respondent No.3)
for custody by approaching the Indian Courts. In other words,
the initiation of proceedings before the US Court was motivated
and definitely not in good faith and was also not in the best
interests of the son. In this context, it is relevant to note that US
Court concerned had, admittedly, ordered for the return of the
child and owing to the noncompliance with the said order
initiated action for contempt. The spousal support order passed
by the US Court was also suspended for the reason of non
compliance with the order for return of the child. When US Court
was moved and the court had passed orders the above mentioned
observation can only be regarded as one made at a premature
stage and it was absolutely uncalled for and it virtually affected
the process of consideration of the issue finally. When the US
Court passed such orders and not orders on the custody of the
child it ought not to have been taken as permission for
respondent No.3 to keep the custody of the child. At any rate,
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after the order for return of the child and orders for contempt
such a plea of the respondent No.3 ought not to have been
entertained.
Considering the fact that the marriage between the
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appellant and respondent No.3 was conducted in Bengaluru in
accordance with Hindu rites and ceremonies, the High Court held
that the US Courts got no jurisdiction to entertain any dispute
arising out of the marriage. This conclusion was arrived at
without taking into account the efficacy of the order passed by
the US Court. It was not strictly for the return of respondent
No.3 but was an order intending to facilitate the return of a
naturalised citizen of America holding an American Passport.
Paragraph 85 of the impugned judgment would reveal 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 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.
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16. The child in question is a boy, now around 11 years and a
naturalised US citizen with an American passport and his
parents viz., the appellant and respondent No.3 are holders of
Permanent US Resident Cards. These aspects were not given due
attention. So also, the fact that child in question was born in
USA on 03.02.2011 and till the year 2020 he was living and
studying there, was also not given due weight while considering
question of welfare of the child. 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 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. This crucial aspect has not been
appreciated at all. In our view, taking into account the entire
facts and circumstances and the environment in which the child
had born and was brought up for about a decade coupled with
the fact that he is a naturalised American citizen, his return to
America would be in his best interest. In this case it is also to be
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noted that on two occasions American courts ordered to return
the child to USA. True that the first order to that effect was
vacated at the instance of respondent No.3. However, taking into
account all aspects, we are of the view that it is not a fit case
where courts in India should refuse to acknowledge the orders of
the US Courts directing return of the minor child to the appellant
keeping in view the best interests of the child. In our view, a
consideration on 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., USA. For, the child is a naturalised American
citizen with American passport. He has been brought up in the
social and culture value milieu of USA and, therefore,
accustomed to the lifestyle, language, custom, rules and
regulations of his native country viz., USA. Further, he will have
better avenues and prospects if he returns to USA, being a
naturalised American citizen.
. In this case during the course of the arguments the learned
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counsel for the appellant on behalf of the appellant submitted
that in case respondent No.3 wants to return and stay in US with
her parents so as to have proximity to and opportunity to take
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care of the child the appellant is prepared to do the needful, if the
respondent No.3 so desires. It is further submitted that the
appellant is also prepared to find suitable accommodation for
them in that regard.
In the light of the above discussion, we allow the appeal and
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the impugned judgment passed by the High Court in Writ
Petition (Habeas Corpus) No.76/2020 is set aside. Consequently,
the writ petition stands allowed and we issue following further
directions:
(i) Respondent No.3 shall ensure that the child returns back to
United States of America forthwith. In that regard respondent
No.3 as well as the appellant, whoever is in possession of the
American passport of the child in question, shall do the needful
in accordance with the law to enable the child’s return to his
native country viz., USA;
(ii) Respondent No.3 and the appellant shall take necessary
action to get the child relieved from the present school and also
to get him admitted in any school in USA where the appellant is
presently residing, without causing much interruption to his
studies;
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(iii) Respondent No.3, if she wants to accompany the child and
stay back in USA will be at liberty to do so. If she requires
arrangement of accommodation for herself and her parents in
USA she may intimate her desire in that regard to the appellant.
Upon such intimation in writing the appellant shall forthwith do
the needful to honour the assurance given to this Court, as noted
above, so as to enable respondent No.3 and her parents, as the
case may be, to accompany the child and also to stay back in
USA provided they fulfil the necessary legal formalities for their
travel and stay in USA;
(iv) All necessary legal formalities to enable the child’s smooth
return to USA shall be taken by respondent No.3 and the
appellant expeditiously at any rate within a period of two months
so that there will be minimum interruption in pursuing the
studies of the child.
19 . We also make it clear that if respondent No.3 requires
custody or visitation rights of the child, she may do so by
invoking the jurisdiction of appropriate forum in USA. Further,
the observations made in this judgment shall not come in the
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way of respondent No.3, as the stated proceedings will have to
proceed independently.
20. There will be no order as to costs.
21 . The appeal is disposed of as above.
22 . All pending applications are disposed of.
………….................J.
(A.M. KHANWILKAR)
….............................J.
(C.T. RAVIKUMAR)
NEW DELHI;
29 July, 2022.