Introduction:
In a recent legal battle before the Karnataka High Court, a father residing in the USA filed a habeas corpus petition, seeking custody of his 4-year-old daughter, who was allegedly brought to India by his estranged wife in violation of the US court’s orders. The case, titled ABC AND State of Karnataka & Others (W.P.H.C NO. 43 OF 2023), unfolded a complex narrative involving international custody disputes and legal intricacies.
Arguments:
The petitioner, represented by Senior Advocate Pramod Nair, claimed that their daughter, born in the USA and a citizen thereof, was granted shared joint legal custody with a 50:50 time share by the Superior Court of California. Additionally, travel restrictions were imposed, requiring written permission or court orders for the child to be taken out of the USA. The wife, represented by Senior Advocate Jayna Kothari, expressed her intention to visit India for a three-week vacation, but upon arrival in Bengaluru in September 2022, she chose to stay, taking their daughter to Jamshedpur, where the child began attending school.
The petitioner sought a Habeas Corpus direction, urging state authorities to trace and deliver the child’s custody to him for repatriation to the USA. However, the court, consisting of Justice P S Dinesh Kumar and Justice T G Shivashankare Gowda, dismissed the petition. The judgment highlighted the legality of the daughter’s custody with the mother, citing Section 6 of the Hindu Minority and Guardianship Act, 1956, which deems custody of a female child below 5 years with the mother as lawful.
Court’s Judgment:
The bench noted the emotional attachment and bonding formed during the eight months the daughter lived in India and emphasized the lack of immediate action by the husband. The court found no evidence of harm caused to the daughter by the wife, except for the violation of the foreign court’s order. Daughter’s demeanor during the proceedings indicated comfort only with her mother. The court recorded assurances from both parties regarding visitation rights and urged them to work out their custody and visitation arrangements separately. The judgment emphasized the importance of the child benefiting from the love and affection of both parents.