'Wish/Desire Of Child' Is Different From 'Best Interest Of Child' : Supreme Court Allows A Father's Plea Seeking Child Custody

The Supreme 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 question 'what is the wish/desire of the child' can be ascertained through interaction, but then, the question as to 'what would be the best interest of the child' is a matter to be decided by the court taking into account all the relevant circumstances", the bench comprising Justices AM Khanwilkar and CT Ravikumar observed.

The bench was considering an appeal filed by a 'father' whose habeas corpus petition was dismissed by the Karnataka High Court. Before the High court, he had contended that the child is in unlawful custody of the mother and has been continuing with the custody of child in derogation of the orders of the US Courts to return the child to USA. The High Court, after interaction with the child, noted that it had expressed his desire to stay with his mother and further informed that he was comfortable in the school and studying in the school for the past one year. Therefore, it held that the child was not in illegal or unlawful custody, and thus dismissed the writ petition, but subject to the visitation rights.

In its judgment disposing the appeal, the bench noted that in cases of this nature the welfare of the child should be the paramount consideration.

At the outset we may state that in a matter involving the question of custody of a child it has to be borne in mind that the question 'what is the wish/desire of the child' is different and distinct from the question 'what would be in the best interest of 7 the child'. Certainly, the wish/desire of the child can be ascertained through interaction but then, the question as to 'what would be in the best interest of the child' is a matter to be decided by the court taking into account all the relevant circumstances. When couples are at loggerheads and wanted to part their ways as parthian shot they may level extreme allegations against each other so as to depict the other unworthy to have the custody of the child. In the circumstances, we are of the view that for considering the claim for custody of a minor child, unless very serious, proven conduct which should make one of them unworthy to claim for custody of the child concerned, the question can and shall be decided solely looking into the question as to, 'what would be the best interest of the child concerned'. In other words, welfare of the child should be the paramount consideration. 

The court observed that even after identifying the said question rightly the High Court had swayed away from the said point and entered into consideration of certain aspects not relevant for the said purpose. The court also observed that the High court should not have refused to acknowledge the orders of the US Courts directing return of the minor child to its father keeping in view the best interests of the child. 

"In our view, a consideration on the point of view of the welfare of the child would only support the order for the return of the child to his native country viz., USA. For, the child is a naturalised American citizen with American passport. He has been brought up in the social and culture value milieu of USA and, therefore, accustomed to the lifestyle, language, custom, rules and regulations of his native country viz., USA. Further, he will have better avenues and prospects if he returns to USA, being a naturalised American citizen.", the court said.

Allowing the appeal, the bench issued various directions regarding return of the child and also visitation rights.

Case details

 Rohith Thammana Gowda vs State of Karnataka | 2022 LiveLaw (SC) 643 |  29 July 2022 | CA 4987 OF 2022 | Justices AM Khanwilkar and CT Ravikumar

Headnotes

Child Custody - The question 'what is the wish/desire of the child' is different and distinct from the question 'what would be in the best interest of the child'. Certainly, the wish/desire of the child can be ascertained through interaction but then, the question as to 'what would be in the best interest of the child' is a matter to be decided by the court taking into account all the relevant circumstances. When couples are at loggerheads and wanted to part their ways as parthian shot they may level extreme allegations against each other so as to depict the other unworthy to have the custody of the child - Unless very serious, proven conduct which should make one of them unworthy to claim for custody of the child concerned, the question can and shall be decided solely looking into the question as to, 'what would be the best interest of the child concerned' - Welfare of the child should be the paramount consideration. (Para 8)

Constitution of India, 1950 ; Article 226 - Habeas Corpus - Child Custody - Parens patriae jurisdiction - Even while considering Habeas Corpus writ petition qua a minor, in a given case, the High Courts may direct for return of the child or decline to change the custody of the child taking into account the attending facts and circumstances - V. Ravi Chandran Vs. Union of India (2010) 1 SCC 174 and Nithya Anand Raghawan Vs. State (NCT of Delhi) & Anr. (2017) 8 SCC 454. (Para 9)

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