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.
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‘Welfare of child’ governing principle
Directing the mother to travel with the child to the US by December 31, 2026, the court said the decision rested primarily on the child’s welfare, while the circumstances in which she was brought to India and the need to respect the orders of a competent foreign court further supported the conclusion.
“The welfare of the child has remained the governing consideration throughout,” said the bench, adding that the principle that a parent should not benefit from their own wrongdoing was relevant only after the child’s welfare had been fully considered. Senior advocates Mukul Rohatgi, along with advocate Prabhjir Jauhar, appeared for the father.
{{/usCountry}}“The welfare of the child has remained the governing consideration throughout,” said the bench, adding that the principle that a parent should not benefit from their own wrongdoing was relevant only after the child’s welfare had been fully considered. Senior advocates Mukul Rohatgi, along with advocate Prabhjir Jauhar, appeared for the father.
{{/usCountry}}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. It restrained either parent from taking her out of California without other’s consent or a court order.
Formative years in the US
Barely two weeks later, on September 8, 2022, the mother left the US with the child and travelled to India. 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 subsequently approached the Karnataka High Court seeking the child’s return. The high court dismissed his plea, reasoning, among other things, that the child was comfortable with her mother, had begun attending school in India and had not been shown to have suffered any harm in her care.
The Supreme Court, however, found these considerations insufficient to conclude the girl’s welfare could be served only by remaining with her mother.
The bench acknowledged that the child had spent nearly four years in India and that her early formative years had unfolded here. But it said this did not establish that she could not be better served by returning to the US. “On the other hand, the child is a citizen of the United States and is entitled to all the benefits that such citizenship carries”.
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. 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.