The Madras High Court held that the best interest of the child should be looked into while hearing a petition for custody and in the Habeas Corpus Petition it would be in the best interest of the children if the custody was granted to the father.

The Bench of Justice P.N. Prakash and Justice N. Anand Venkatesh observed that "In matters of this nature, the Court does not decide based on what the children say, since they are in the midst of a huge turmoil in their life and hence, the duty is cast upon this Court to decide based on best interest of the children."

The Bench further observed that “the Habeas Corpus Petition is maintainable and this Court can invoke its extraordinary jurisdiction for the best interests of the children.” and granted the custody of the children to the petitioner-father.

The Bench referred to the decision of the Apex Court in the case of Rohit Thammana Gowda v. State of Karnataka and Others, Civil Appeal No.4987 of 2022 'wherein it was held 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.'

Senior Advocate G. Rajagopalan appeared for the petitioner, Advocate M. Muthappan appeared for respondents and APP R. Muniyapparaj appeared for the Commissioner of Police.

Factual Background

The petitioner-father and the respondent-mother, both were US citizens before and their marriage was solemnised in the year 1999 as per Hindu rites and customs in India. They left India after 10 days of the wedding and had twin boys in 2008. Both the children acquired American citizenship by birth and were raised in USA itself, till December 2020.

The respondent and children came to India to meet their grandparents. But there were some matrimonial discord between the petitioner and the respondent due to which the respondent extended the stay till May 2021.

Legal Notice was issued by the petitioner asking the respondent to return to USA along with children. Reply was sent justifying the extension. Further the conciliation process failed and in October 2021, the petitioner filed for divorce and for the custody of children before the Court in Virginia. The Court in Virginia gave sole custody of the children to the petitioner- father.

In the meantime, respondent filed petition for permanent custody of children before the High Court. The High Court directed the wife to work out her remedies with the Circuit Court in Virginia. The respondent-mother failed to return USA and hand over the custody, the petitioner-father filed the Habeas corpus petition to secure custody of his minor sons from the illegal custody of the respondent.

The Court said that on interviewing the children, the Court realised that the children were under complete control of the respondent-mother and that they were willing to let go of all those facilities which they enjoyed earlier in USA.

The Court further expressed its concern over the condition of the Children as the children had lost physical contact with other children and the activities in which they were involved earlier had come to a grinding halt. The children were slowly losing touch with the petitioner and said that “The continuance of the present status, will damage the progress of these children, not only in terms of academics, but more on their emotional quotient”

Therefore, the Court held that the best interest of the children can be ensured only if the children returned back to their native country USA and further granted the custody to the petitioner-father.

The Court also said that the respondent-mother could not be allowed to disregard the decision of the foreign Court and therefore, cannot keep the children in her custody in India.

Accordingly, the Habeas Corpus Petition was allowed and the respondent-mother was directed to ensure that the children returned back to USA within a period of six weeks.

Cause Title- Kiran Chava alias Kiran Kumar Chava v. Usha Kiran Anne & ors.

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