IMPORTANT POINT
Custody of child – Welfare of child should be paramount consideration – What is wish/desire of child’ is different and distinct from question what would be in best interest of child.

JUDGMENT :

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 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.”

3. As per the impugned judgment, the High Court rejected the 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 2019-20.”

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 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. 3-wife. Later, in the evening he could contact his father-in-law 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 ex-parte 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 ex-parte order. Consequently, the ex-parte 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 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.