'Their Best Interest Can Be Ensured Only If They Return To Native Country': Madras High Court Directs Mother To Return Twins To Father In US

The division bench of Justice PN Prakash (since retired) and Justice Anand Venkatesh said the children are now living in an environment which is alien to them since for nearly 13 years, they were in the US.

"In our considered view, the best interest of the children can be ensured only if the children return back to their native country viz., USA. The children, who are naturalised American citizens, 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," the court said.

The court gave the ruling on a Habeas Corpus Petition filed by the father for custody of his minor sons, who were taken by the mother to India in 2020. The couple married according to Hindu rites and customs in 1999 and left for Virginia after 10 days of marriage. They were already US citizens. Their twin children, who were born in 2008, acquired US citizenship by birth.

However, later, some friction arose between the couple. In 2020, the wife left for India with the twin boys. Since she did not return, the petitioner husband sent a legal notice to which the wife replied and gave justification for her stay in India. Since the reconciliation process failed, the husband initiated divorce proceedings before the appropriate court in Virginia. The Circuit Court in Virginia gave sole custody of the children to the father.

In the meantime, the wife had approached the High Court in India seeking permanent custody of the minor children but the same was rejected. The High Court gave liberty to the wife to work out her remedies before the circuit court in Virginia. Since she failed to return with the boys, the petitioner filed a habeas corpus petition.

The court followed the decision of the Supreme Court in Rohit ThammanaGowda v. State of Karnataka and Others wherein the Apex Court observed that the question of 'what is the wish/desire' of the child is different and distinct from the question 'what would be the best interest of the child'. The court had to thus look into the welfare of the child.

The children told the division bench that they are willing to let go of the facilities in the USA and expressed their willingness to continue with online classes and be in India with their mother. The court however held that the current status would damage the progress of the children not only academically but also emotionally.

The court added that the woman could not be allowed to disregard the order passed by the foreign court and continue to hold the children in her custody in India. Thus, the court directed her to return the twin boys back to the USA and hand over their custody to the husband.

The court at the beginning of the order referred to William Wordsworth’s poem 'My Heart Leaps Up', particularly the famous quote “The Child is father of the Man”.

"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."

Case Title: KC v. UK and others

Citation: 2023 LiveLaw (Mad) 39

Case No: HCP No.1689 of 2022