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SC: Child Welfare Should be Deciding  Factor in Custodial Matters

2 min read

Priya Gour

Published on: 5 August 2022 at 20:43 IST

The Supreme Court while hearing a plea, directed a mother to hand over the child’s custody to the father. The Court noted that best interests of the child shall be taken into consideration, more than which of the parent the child wishes to live.

The Case:

An NRI father’s plea for getting the child’s custody was rejected by the Karnataka High Court, after which he moved to the Supreme Court. The NRI couple had been living in the USA post marriage and had a child. The child was a naturalized US citizen. Lately, due to an estranged marriage, the mother brought the child back with her to India, without the father’s knowledge and had been residing in Bangalore. This made the father approach before the Karnataka HC for getting the child custody. Its rejection led him to move to the apex court.

The Supreme Court Bench Justices A M Khanwilkar and C T Ravikumar held that since the child was born and brought up in the culture of USA, it will be in the child’s best interest to live with the father in that country. He is accustomed to his country’s lifestyle, language, customs, rules and regulations.

The Court noted:

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 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.”

It was also said that merely because the child had got accustomed in India with his schooling, other factors can not be denied. The child had lived in the US for around a decade and is an American citizen, so his future prospects there can not be denied.

The very fact that he is a naturalised citizen of the US with an 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 been born and was brought up for about a decade.”

Thereby, the court set aside the High Court’s verdict and directed the mother to ensure that the child returns to the US. Also, the husband was directed to make all arrangements for her and her parents if they wish to stay there.