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Division Bench’s Directions Contrary To Principles Laid Down By Supreme Court: Madras High Court Single Judge On Custody Battle For US-Born Twins
Upasana Sajeev
2 Feb 2023 7:35 PM IST
Due weightage is to be given in respect of the choice and wishes of the children, who are minors, but matured enough to express their desires: Single Judge
Nearly a month after a division bench of Madras High Court directed a woman to hand over her twin sons to their father in the US, a single judge of the high court said the 15-year-old twins are not "mere minors" but "matured minors" who cannot be treated as properties to be handed over to a person "with whom the children are not willing to join and reside." The single judge also granted...
Nearly a month after a division bench of Madras High Court directed a woman to hand over her twin sons to their father in the US, a single judge of the high court said the 15-year-old twins are not "mere minors" but "matured minors" who cannot be treated as properties to be handed over to a person "with whom the children are not willing to join and reside."
The single judge also granted interim custody of the minors to their mother till the pendency of the matrimonial dispute in India.
The couple had married in 1999 in India. They were citizens of USA even prior to marriage and left India soon after the marriage. The twin sons were born to them in April 2008. In December 2020, the twins were brought to India by their mother. She did not return to the US due to" friction in the relationship". In 2022, the father of the minors filed a habeas corpus petition seeking their return to the US. A Court in Virginia has granted custody of the children to the father.
Habeas Corpus
The division bench of Justice PN Prakash (since retired) and Justice Anand Venkatesh, while deciding the habeas corpus filed by the father on January 03, relied upon the decision of Rohit Thammana Gowda v. State of Karnataka and Others, 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".
"We had an opportunity to interview the children and we realised that the children are under the complete control of the 1st respondent and they were willing to let go of all those facilities which they enjoyed and were expressing their intention to continue with online classes," said the court, adding the best interest of children can be ensured only if they return to their native country where they are naturalised citizens and have lived for nearly 13 years.
The division bench had also said that the children were brought up in the social and cultural value milieu of USA and they are accustomed to the lifestyle, language, customs, rules and regulations of their native country and they will have their better avenues and prospects only if they return back to USA. "The children have not developed roots in India and hence, no harm will be caused to them if they return back to USA," said the court.
Revision Petitions Against Wife's Domestic Violence Complaint & Her Plea For Restitution Of Conjugal Rights
A month later, Justice SM Subramaniam, while dismissing the husband's petitions, said that the law in India does not prohibit a person holding an Overseas Citizenship of India (OCI) card or person temporarily residing here from seeking relief under the Domestic Violence Act in the Indian courts.
However, in the same judgment, the single judge also gave his own opinion on what is best for the children.
"This Court has to borne in mind that the 15 year old twin children are not “mere minors”, but they are “matured minors” and answering the questions in a spontaneous manner with clear thoughts and thus they cannot be treated as properties for the purpose of handing over them to a person with whom the children are not willing to join and reside. Forcible handing over of the minor children aged about 15 years no doubt would result in psychological disadvantages and the minor boys may not be in a position to have peaceful life in the absence of their mother, who is spending her full time along with the children right from their birth".
The single bench also had independently examined the children on January 24. Justice Subramaniam said when the children emphatically state that they are willing to live along with their mother at Chennai, "forcible handing over of the 15 year old twin minor children shall cause physical and psychological harm to the children."
"Within another three years, the minor boys will attain the age of majority. They have taken a strong decision to stay along with their mother at Chennai. Destroying their choices and wishes at this juncture through any Court proceedings would be directly in violations of the judgments of the Hon'ble Supreme Court of India and the child rights recognised worldwide," the court said.
While taking note of the contrary observations given by the division bench earlier, the court agreed that it cannot sit "on appeal for reconsideration." However, it said it is duty bound to consider the binding precedents of the Supreme Court in the matter of custody of the children coupled with the welfare of the child along with their desire and reasonable preference.
The Court took note of Article 12(1) of the United Nations Convention on the Rights of the Child, 1989 - “States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child”.
Justice Subramaniam also relied on Gaytri Bajaj vs. Jiten Bhalla, where the Supreme Court has held that while deciding custody matters, the desire of the child coupled with the availability of a conducive and appropriate environment for proper upbringing together with the ability and means of the parent concerned to take care of the child are the relevant factors. It also took of similar decisions of the other high courts.
"Looking into the various judgments of the Hon'ble Supreme Court of India and the judgment of the High Courts across the country, due weightage is given in respect of the choice and wishes of the children, who are minors, but matured enough to express their desires. Considering those judgments of the Supreme Court and the spirit of the principles laid down, this Court is of the humble opinion that the directives issued in the Habeas Corpus Petition (HCP) proceedings are running counter to those principles laid down by the Hon'ble Supreme Court of India and the judgments of the Supreme Court are binding precedents as far as this Court is concerned," said the court.
The court further said that 15 years old matured twin children expressed their clear intention in a spontaneous manner that they are willing to live with their mother at Chennai and continue their education and other activities happily. "When the matured minors, aged about 15 years are capable of taking a clear decision about their future, forcible handing over of the boys to the petitioner presently residing in United States of America (USA) undoubtedly would be detrimental to their interest and future life," it added.
It further said: "Considering the facts, circumstances and the statements made by the respondent and the deposition made before this Court currently by the twin minor children aged about 15 years, expressing their desires, this Court is inclined to grant Interim Custody of twin minors in favour of the respondent herein, until the matrimonial disputes and the domestic violence proceedings are disposed of on merits and in accordance with Law."
Case Title: KC v. UK
