Woman Brings US-Born Daughter To India In Violation Of Foreign Court Order: Karnataka HC Refuses To Interfere, Says Child's Welfare Paramount

The Karnataka High Court has dismissed the habeas corpus petition filed by a father residing in the USA, seeking a direction upon his wife to hand over their 4 year-old daughter's custody to him.

The man claimed that his wife had brought the child to India in violation of the US-Court's orders. A division bench of Justice P S Dinesh Kumar and Justice T G Shivashankare Gowda however dismissed the petition saying, “Keeping in view the welfare of minor girl, in our considered opinion, the girl being a four year old girl child, it would be in her best interest to remain in the custody of her mother.”

It added “Though, the husband may be financially well placed, in the facts and circumstances of this case and the bitter hostility between the couple, in our considered view, it would not be appropriate to compel the wife to move to the USA.”

The husband in his petition claimed their daughter was born in the USA and she is a citizen of the USA. He averred that the Superior Court of California, County of Contra Costa granted him and his wife shared joint legal custody of the child with 50:50 time share. Additionally, the Foreign Court imposed travel restrictions, whereby any parent could not take daughter out of USA without the written permission of the other parent or the order of the Court.

However, it was claimed on 30.07.2022, the husband received an e-mail from his estranged wife expressing her interest to visit India for a three-week vacation along with daughter. On 08.09.2022, she left USA along with daughter and arrived in Bengaluru.

Thus, the petitioner sought direction in the nature of Habeas Corpus to the State authorities to immediately trace the minor child and deliver her custody to him so as to repatriate her to USA.

On going through the records, the bench held “So far as daughter's custody with mother is concerned, we are inclined to hold that it is not an illegal custody because the law is fairly well settled on this point. As per Section 6 of Hindu Minority and Guardianship Act, 1956, custody of a female child aged below 5 years with the mother, is lawful.”

Noting that the wife had moved to India in September 2022 and since then the daughter was living in Jamshedpur and attending school, Court said, “Admittedly, the present Writ Petition was filed on May 25, 2023, which is nearly eight months after minor daughter's arrival in Bharat. Thus, in our view, in a case of this nature which involves emotional attachment and bonding, eight months is fairly a long period. Suffice to note that husband has not taken any immediate action.”

It added “It is also relevant to note that no evidence is forthcoming to show that any harm has been caused to daughter by wife except the violation of the Foreign Court's Order.”

On hearing the advocates and parties in chamber the court said “Suffice to record that daughter's demeanor firmly disclosed that she was comfortable only with her mother.”

The court recorded assurances from the husband that he would make all efforts to mitigate the consequences of violation of the Foreign Court's order. Similarly, the wife submitted that she shall have no objection for the petitioner to visit the girl in Jamshedpur and also communicate on phone.

The bench said, “It is open for the parties to work out their rights with regard to custody of child and visitation rights separately. We trust and hope that minor girl shall have the benefit of love and affection of both parents and they shall endeavour to achieve this goal.”

Appearance: Senior Advocate Pramod Nair for Advocate Samarth M Raju for Petitioner.

HCGP M V Anoop Kumar FOR R1, R4 AND R5.

Senior Advocate Jayna Kothari for Advocate V Naveen Chandra for R6.

Citation No: 2024 LiveLaw (Kar) 5

Case Title: ABC AND State of Karnataka & Others

Case No: W.P.H.C NO. 43 OF 2023