Baby welfare needs to be foundation to determine custody disputes: Supreme Courtroom | India Information
NEW DELHI: The Supreme Court has said that custody battle for a child between estranged parents be decided on the basis of what is in the best interest of the child which may be different from who the child wishes to live with and directed a woman to hand over the custody of an 11-year-old boy, a naturalized American citizen, to her NRI husband.
In this case the child was born and brought up in the US where the NRI couple was living but the relationship soured and the mother brought the child to India without informing her husband who approached the court to take custody of the child. He had first moved the Karnataka high court which turned down his plea after noting that the child wished to live with her mother in Bengaluru and was comfortable in India despite living abroad for more than a decade.
Adjudicating the dispute, the apex court said that it was in the best interest of the child to return back to the US as he is a naturalized American citizen and being brought up in the social and cultural milieu of that country he is accustomed to the lifestyle , language, customs, rules and regulations of his native country.
“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 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, ” a bench of Justices AM Khanwilkar and CT Ravikumar said.
Allowing the plea of the husband who had filed petition through Advocate Prabhjit Jauhar, the apex court said merely because the child was brought to India by the mother and was admitted in a school and that he is now feeling comfortable with schooling and could stay in Bengaluru not have been taken as factors for considering the welfare of the boy who lived nearly for a decade in the US.
“The very fact that he is a naturalized citizen of the US with an American passport and on that account he might, in all probability, have good avenues and prospects in the country where he is a citizen. This crucial aspect has not been appreciated at all. In our view, taking into account the entire facts and circumstances and the environment in which the child had been born and was brought up for about a decade coupled with the fact that he is a naturalized American citizen, his return to America would be in his best interest,” the court while setting aside HC verdict .
The court directed the mother to ensure that the child returns to the US forthwith and asked the husband to make all arrangements for her and her parents if they decide to stay there.