The Division Bench comprising of Justice PN Prakash and Justice Anand Venkatesh in a Habeus Corpus petition held that for the custody of the children, their best interest must be looked into and the same in the current case was to hand over the custody to the father in the US.
Brief Facts:
In the current case, the father is the petitioner who has filled a Habeas Corpus Petition for the custody of his minor sons from the illegal custody of the respondent to produce them in order to take them to the USA where they have been living and studying since they are the citizens of USA.
The petitioner got married to the first respondent in the year 1999, according to the Hindu rites and customs in India, but they were both US citizens even before the marriage. They left India after 10 days of their marriage and started their matrimonial life in Virginia. In 2008, they had twin boys and the boys also acquired American citizenship by birth. They were both raised and educated in the USA itself, till December 2020. In December 2020, the children along with their mother came to India to meet their parents and by them, some friction had arisen between the parents.
The grievance of the petitioner is that the stay of the children in India was extended till May 2021 First the petitioner sent a legal notice asking the first respondent to return back to the USA along with the children. This was followed by a reply from the respondent’s side which justified the extension of the stay. The conciliation process did not work and in October 2021, the petitioner filed for a divorce and the custody of the children before the court in Virginia. The motion for transfer of jurisdiction was denied and the matter was set for the custody of the children. The circuit court in Virginia gave sole custody of the children to the father. In the meantime, the wife had filed a petition in the High court in India for the permanent custody of the children. The high court directed the wife to work out her remedies with the circuit court in Virginia. Now because the Wife failed to return with the children, even after the custody was given to the father, the petitioner filed a habeas corpus petition
Observations of the Court:
The court referred to the decision of the Supreme court in the case of Rohit ThammanaGowda v. State of Karnataka and others. Where the apex court noted the difference between the question of ‘what is the wish/desire’ of the child and ‘what would be the best interest of the child’. The welfare of the child has to be looked into. This was noted because the children had told the division bench that they were willing to let go of the facilities in the US and they wanted to continue with online classes while living in India with their mother. In this regards the court observed that the current status would damage the progress of children not only just academically but also emotionally.
Further, the court also mentioned that the mother cannot be allowed to disregard the decision of the foreign court and she cannot keep the children in her custody in India as against the decision.
The decision of the Court:
The Hon’ble Court allowed the Habeas Corpus petition and put forth certain terms for the same. The respondent aka the mother was directed to immediately take steps to ensure that the children return back to the USA and this process must be completed in 6 weeks, further the petition must be handed over to the custody within 8 weeks. The petitioner was also directed to provide them with all facilities/opportunities which they used to enjoy earlier.
Case Title: KC v. UK and others
Coram: Justice PN Prakash ; Mr. Justice N. Anand Venkatesh
Case No.: HCP No.1689 of 2022
Advocate for the Appellant: Mr. G. Rajagopalan
Advocate for the Respondent:
Mr. M. Muthappan for R1 to R5
R. Muniyapparaj (Additional Public Prosecutor for R9)
Read Judgment ;
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(With input from news agency language)
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