ROHITH THAMMANA GOWDA versus STATE OF KARNATAKA & ORS.

Citation: [2022] 4 S.C.R. 784 · Decided: 29-07-2022 · Supreme Court of India · Bench: A.M. KHANWILKAR · Disposal: Disposed off

Cited by 2 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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784
SUPREME COURT REPORTS
[2022] 4 S.C.R.
ROHITH THAMMANA GOWDA
v.
STATE OF KARNATAKA & ORS.
(Civil Appeal Nos. 4987 of 2022)
JULY 29, 2022
[A. M. KHANWILKAR AND C. T. RAVIKUMAR, JJ.]
Child and Family welfare – Custody of minor child – Appellant
(Husband) and respondent no.3 (Wife) shifted to US from India
and presently are holders of Permanent US Resident Cards – Their
child was born in USA in the year 2011 and till 2020 he was living
there – Conflicts and confrontation occurred in connubial
relationship – The appellant came to India on 27.02.2020 in India
to attend his ailing mother – On 03.03.2020, respondent no.3 came
to India and brought the child with herself, without the consent of
the appellant – Upon reaching back to USA, appellant initiated
several legal proceedings in the USA for the custody of the minor
child – In India, appellant filed the writ petition before the High
Court for the custody of the child, so that child can be taken to the
USA where he was born – High Court after interacting with the
child and considering other relevant consideration, concluded that
the child feels comfortable and secured in the custody of his mother
and thereafter rejected the writ petition of the appellant –  Hence,
the appellant approached the Supreme Court against the judgment
of High Court – Held: There is difference between ‘the wish/desire
of the child’ which can be ascertained through interaction and ‘the
best interest of the child’ which is a matter to be decided by the
Court taking into account all the relevant circumstances – In cases
of custody of child the welfare of the child should be of paramount
interest – In the instant case, child is a naturalised US citizen thus
he will have better avenues and prospects in his native country –
Further, he was living and studying there for nearly a decade and
considering entire facts and circumstances and the environment in
which the child had born, his return to US would be in his best
interest – High Court have not considered the above factors –
Custody of the child given to appellant – Judgement of High Court
was set aside – Directions issued regarding the smooth return of
child to USA.
[2022] 4 S.C.R. 784
784
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Disposing of the appeal, the Court
HELD:1. 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 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. [Para 8][790-G-H; 791-A]
2. To answer the question of jurisdiction, in Ravi Chandran’s
case, this Court took note of the actual role of the High Courts in
the matter of examination of cases involving claim of custody of a
minor based on the principle of parens patriae jurisdiction
considering the fact that it is the minor who is within the
jurisdiction of the court. Based on such consideration it was held
that 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 as also the settled
legal position. [Paras 9 and 10][792-A-B]
3. The child in question is a boy, now around 11 years and a
naturalised US citizen with an American passport and his parents
viz., the appellant and respondent No.3 are holders of Permanent
US Resident Cards. These aspects were not given due attention.
Merely because he was brought to India by the mother on
03.03.2020 and got him admitted in a school and that he is now
feeling comfortable with schooling and stay in Bengaluru could
not have been taken as factors for considering the welfare of the
boy aged 11 years born and lived nearly for a decade in USA.
Taking into account the entire facts and circumstances and the
environment in which the child had born and was brought up for
about a decade coupled with the fact that he is a naturalised
American citizen, his return to America would be in his best
interest. In this case it is also to be noted that on two occasions
American courts ordered to return the child to USA. True that
the first order to that effect was vacated at the instance of
ROHITH THAMMANA GOWDA 

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