Ex-Parte Order Of German Court Granting Custody To Mother Not Acceptable, Welfare Of Child Paramount: Karnataka High Court

The Karnataka High Court has refused to accept an ex-parte order passed by a court in Germany, granting custody of a 9 year old child to his mother who resides there.

A division bench of Justice P S Dinesh Kumar and Justice T G Shivashankare Gowda dismissed a petition filed by a woman seeking custody of her child who is presently residing with his father.

The woman had argued that a German Court where she resides now has transferred the right to decide the place of residence and school in her favour. However, the court rejected this contention saying “It is an ex parte order passed by the German Court whilst the child was in India.”

Further it held “The Court in Germany did not have the benefit of interacting with the child. In contradistinction, as recorded hereinabove, this Court has conducted two chamber hearings and had a lengthy interaction with the child. In view of the settled position of law in India that the welfare of the child is paramount, for reasons recorded hereinabove and based on the interaction we had with the child, we are of the considered opinion that Adi (name changed) is happy in his present environment in Bangkok with his father and hence, the contention with regard to the ex-parte order passed by the German Court is noted only to be rejected.”

The couple got married in 2010 and moved to Germany in 2022. It is alleged that on the pretext of taking the child to a park, the husband boarded a flight to Dubai en route India. In her habeas corpus plea the woman argued that in a case of this nature Courts will have to protect child’s interest and welfare. The child has intimate contact with the environment in Germany, was studying there and he was removed illegally by the husband., it was averred.

It was further argued that as per the settled law, the Child has to be returned to the country of his ‘habitual residence’ on the principle of ‘Comity of Courts’ for the determination of the child's best interest.

The husband opposed the plea saying in matrimonial cases, courts in Germany sometimes grant child’s custody to the State. Hence, keeping in view the child’s welfare in mind he had initially brought the child to India. Further, as per Section 6 of the Hindu Minority and Guardianship Act, 1956, father is the natural guardian of a child aged more than five years. Thus the custody of the child with him is not illegal and this Writ Petition is not maintainable, it was argued.

Also Read: Indian Courts Duty Bound To Independently Examine Foreign Court Judgments Involving Child Welfare Matters Including Custody: Telangana HC

The bench held in chamber meetings with the parents and the child and noted that the child was clear in his mind to stay in Bangkok, where the couple earlier resided. It observed, “On an overall assessment, we are of the considered opinion that Adi is a brilliant child with a high intelligent quotient and capable of exercising options wisely. He has a good comprehension of contemporary affairs in the world and is very resolute in his views. He expressed in no uncertain terms that he desired to reside with his father in Bangkok.”

Following which it said “It is relevant to note that husband was very liberal in his offers and flexible to consider alternative options, if any, whereas, wife was steadfast in her view and expressed a solitary option to remain in Germany and sought for Advik’s custody. Therefore, in our considered view, the petitioner is more keen on her career prospects in Germany than the welfare of the child.”

Court disposed of the petition directing that the custody of minor child shall remain with his father with place of residence as Bangkok and it shall be subject to the orders of Jurisdictional Family Court, if any, in future. It also granted visitation rights to the petitioner- once in three months with advance notice of 15 days, along with provision for phone/video call twice a week.

Appearance: Senior Advocate S. Susheela for Advocate H Somanatha for Petitioner.

HCGP Anoop Kumar FOR R1 TO R5.

Advocate S Karthik Kiran for Advocate Kapil Dixit for R6 & R7

Citation No: 2023 LiveLaw (Kar) 376

Case Title: ABC & State of Karnataka & Others

Case No: W.P.H.C NO.79 OF 2023

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