LI Network
Published on: October 3, 2023 at 11:08 IST
The Karnataka High Court has declined to recognize an ex-parte order issued by a German court, which granted custody of a 9-year-old child to his mother, who currently resides in Germany.
A division bench comprising Justice P. S. Dinesh Kumar and Justice T. G. Shivashankare Gowda dismissed a petition filed by a woman seeking custody of her child, who is currently living with his father.
The woman argued that a German court, where she currently resides, had granted her the right to decide the place of residence and school for the child. However, the court rejected this argument, stating, “It is an ex parte order passed by the German Court while the child was in India.”
Furthermore, it emphasized, “The Court in Germany did not have the benefit of interacting with the child. In contrast, as recorded hereinabove, this Court has conducted two chamber hearings and had a lengthy interaction with the child. In view of the settled position of law in India that the welfare of the child is paramount, for reasons recorded hereinabove and based on the interaction we had with the child, we are of the considered opinion that Adi (name changed) is happy in his present environment in Bangkok with his father and hence, the contention with regard to the ex-parte order passed by the German Court is noted only to be rejected.”
The couple had married in 2010 and moved to Germany in 2022. It was alleged that, under the pretext of taking the child to a park, the husband boarded a flight to Dubai en route to India. In her habeas corpus plea, the woman argued that in cases like this, courts must prioritize the child’s best interests and welfare. The child had a close connection with the environment in Germany, was attending school there, and had been removed illegally by the husband, she claimed.
It was further argued that, according to established law, the child should be returned to the country of his ‘habitual residence’ based on the principle of ‘Comity of Courts’ for the determination of the child’s best interest.
The husband countered the plea by stating that in matrimonial cases, German courts sometimes grant custody of the child to the State. Hence, with the child’s welfare in mind, he had initially brought the child to India. Furthermore, according to Section 6 of the Hindu Minority and Guardianship Act, 1956, the father is the natural guardian of a child aged more than five years. Thus, he argued that the custody of the child with him is not illegal, and this Writ Petition is not maintainable.
The bench held chamber meetings with the parents and the child and noted that the child had a clear desire to stay in Bangkok, where the couple had previously lived. The court observed, “On an overall assessment, we are of the considered opinion that Adi is a brilliant child with a high intelligence quotient and capable of exercising options wisely. He has a good comprehension of contemporary affairs in the world and is very resolute in his views. He expressed in no uncertain terms that he desired to reside with his father in Bangkok.”
As a result, the court stated, “It is relevant to note that the husband was very liberal in his offers and flexible to consider alternative options, if any, whereas the wife was steadfast in her view and expressed a solitary option to remain in Germany and sought custody of Advik. Therefore, in our considered view, the petitioner is more keen on her career prospects in Germany than the welfare of the child.”
The court disposed of the petition, directing that the custody of the minor child shall remain with his father, with the place of residence being Bangkok, subject to the orders of the Jurisdictional Family Court, if any, in the future. It also granted visitation rights to the petitioner, allowing visits once every three months with a 15-day advance notice, along with provisions for phone/video calls twice a week.