The Supreme Court has ordered a seven-year-old girl to return to the United States nearly four years after her mother brought her to India in violation of a US court’s custody order, holding that the child’s best interests would be served by growing up and receiving her education in the country of which she is a citizen.
A bench of justices JB Pardiwala and KV Viswanathan allowed the father’s appeal against a Karnataka High Court judgment that had declined to direct the child’s return, ruling that the girl’s formative years in India with her mother did not establish that her welfare could be served only by remaining here.
The dispute arose after the parents, who had married and established their matrimonial home in the US, separated and initiated divorce and custody proceedings there. It also restrained either parent from taking the girl out of California without the other parent’s written consent or an order of the court. The child’s welfare remains paramount, and an Indian court must independently assess where her best interests lie.
In August 2022, a California court, after hearing both sides, granted them joint custody and shared parenting, with an equal division of time with the child. Barely two weeks later, on September 8, 2022, the mother left the US with the child and travelled to India. Because they have been passed by a competent court abroad, at the same time, the bench underscored that Indian courts cannot mechanically enforce foreign custody orders merely.
In December that year, the California court recorded a violation of its earlier order and directed the mother to return the child to the father’s physical custody in California.
The father offered to arrange separate accommodation for the mother near his residence in the US, bear the rent and other expenses, assist her in restoring her lapsed Green Card and provide her $3,200 a month in financial support, in line with the US court’s earlier directions. In the present case, the mother herself had initiated the US custody proceedings, and the California court had granted joint custody after considering the parties’ claims. Importantly, the court made clear that it was not compelling the mother to relocate to the US against her wishes or to continue the marriage. He also undertook not to initiate legal action against her in the US over the alleged violation of the custody order and to cooperate in any other proceedings there.
However, the bench said a foreign court’s order must be given due weight, particularly where it was passed after hearing both parents and examining the child’s best interests. But it said she could not insist that the child must also remain in India or deny the father the joint custody and shared parenting that had been granted to him.
