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IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.N.PRAKASH, N. ANAND VENKATESH, JJ.
Kiran Chava Alias Kiran Kumar Chava - Appellant
Versus
Usha Kiran Anne - Respondent
HCP No.1689 of 2022
Decided on : 03-01-2023
HABEAS CORPUS - CHILD CUSTODY - FOREIGNERS ACT, 1946, HINDU MARRIAGE ACT, 1955, DOMESTIC VIOLENCE ACT, 2005, INDIAN PENAL CODE, 1860 - The court discussed the best interests of the children in a custody dispute between American citizen parents residing in India and the USA. The judgment emphasized the paramount consideration of the welfare of the children and the most intimate connect principle in determining custody. The court allowed the Habeas Corpus Petition, directing the children to return to the USA with the petitioner, considering their upbringing, education, and well-being.
Fact of the Case:
The petitioner, an American citizen, sought custody of his twin boys, also American citizens, who were residing in India with the 1st respondent, his estranged wife. The children's stay in India was extended, leading to legal proceedings for custody and divorce initiated in the USA and India. The court focused on the best interests of the children, considering their upbringing, education, and well-being.
Finding of the Court:
The court found that the best interest of the children would be served by returning to their native country, the USA, where they were born and raised. The court emphasized the children's upbringing, education, and well-being, and the need to ensure their emotional and academic progress. The court also considered the order granting permanent custody to the petitioner by the competent Court in the USA.
Issues: The main issue was the custody of the twin boys, who were American citizens residing in India with their mother, while legal proceedings for custody and divorce were initiated in the USA and India. The court focused on determining the best interests of the children, considering their upbringing, education, and well-being.
Ratio Decidendi: The court's decision was based on the paramount consideration of the welfare of the children, emphasizing their upbringing, education, and well-being. The court also considered the most intimate connect principle and the order granting permanent custody to the petitioner by the competent Court in the USA.
Final Decision: The court allowed the Habeas Corpus Petition, directing the children to return to the USA with the petitioner. The 1st respondent was given the option to accompany the children to the USA, and the petitioner was directed to provide all facilities and maintenance. The court also allowed the 1st respondent to work out her remedy for custody or visitation rights before the appropriate Court in the USA.
ORDER :
N. ANAND VENKATESH, J.
“The Child is father of the Man” is a famous quote from William §Wordsworth’s poem “My Heart Leaps Up”. The popular understanding of this phrase is that the behaviour and activities of a person’s childhood go a long way in building his personality. Children used to be enchanted with the joys of childhood and those thoughts evoke nostalgia when the child becomes a man. For Wordsworth, a rainbow in the sky made his heart leap. Alas, gone are the days when children used to enjoy their childhood and they are now helplessly made to witness the fight between their father and mother, because of their petty egos and it is painful to notice that in most of those fights, it is the children who are used as a pawn. The mental health of such a child takes a beating and how such a child is going to grow into a man and manage relationships, is a million dollar question. We were constrained to start this judgment with such a poignant note since we encounter two or three such cases on a daily basis while dealing with Habeas Corpus Petitions. This is yet another case which falls under this category and we have to deal with it keeping in mind the best interest of the children involved in this case.
2. The father of Tanush Chava and Tarun Chava, twin boys, has knocked the doors of this Court seeking for handing over the custody of the children and to take them back to the United States of America(USA) in order to continue their living and education at USA.
3. The brief facts of the case are as under:
3.1. The petitioner got married to Usha Kiran Anne (1st respondent herein) on 21.04.1999 according to Hindu rites and customs. Even before marriage, the petitioner and the 1st respondent were citizens of USA and naturally, both of them left India after 10 days of their marriage and started their matrimonial life in Virginia. Through the marriage, the twin boys were born on 16.04.2008 and they also acquired American citizenship by birth.
3.2. The children were raised and educated in USA and this continued till December 2020. The children came along with their mother to India on 27.12.2020 to meet their grandparents and to stay with them. By then, there was friction in the relationship between the petitioner and the 1st respondent.
3.3. The grievance of the petitioner is that the stay of the children in India was extended from time to time upto May 2021. Even thereafter, the 1st respondent was not returning back to USA. As a first step, the petitioner caused a legal notice on 23.09.2021 calling upon the 1st respondent to return back to USA along with the children. The 1st respondent issued a reply notice dated 22.10.2021, which mostly gave her justification to stay away from the petitioner, in India. The reconciliation process did not fructify and ultimately, an action was initiated by the petitioner during October 2021 for divorce and custody of the children before the appropriate Court at Virginia. The 1st respondent submitted herself to the jurisdiction of the said Court and moved a motion to transfer the jurisdiction from Virginia and this motion was denied by the Circuit Court of Fairfax County through order dated 27.01.2022 and the matter was set for trial for the custody of the children.
3.4. The 1st respondent moved O.P.No.719 of 2021 before this Court seeking for the relief of permanent custody of the minor children. The petitioner filed a petition in Application No.384 of 2022 seeking for the rejection of the petition and this Court by an order dated 21.03.2022 rejected the petition in O.P.No.719 of 2021 and gave liberty to the 1st respondent to work out her remedy before the Circuit Court of Fairfax County, USA. The 1st respondent, aggrieved by the same, filed O.S.A.No.102 of 2022 and this Appeal was dismissed as withdrawn on 12.07.2022.
3.5. The petition that was moved by the petitioner was taken up by the Circuit Court and an order was passed on 21.07.2022, giving the sole custody of the children to the petitioner and
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