Presence of grandparents better for growth of child: Karnataka High Court refuses to repatriate child with father in Germany

The Karnataka High Court recently refused to repatriate a minor child with his father who lives in Germany, noting that the child is living in a "conducive" atmosphere with his mother and grandparents for the last five years in Bangalore [Sankar Viswanathan v. State of Karnataka]..A Division Bench of Justices Alok Aradhe and Vijaykumar Patil said that if the custody is handed over to the father, who lives alone in Germany, it would disturb the child's daily routine life."The presence of grand parents and their love and affection for the son is needed for better growth of the son and the same would not be available in Germany where the petitioner (father) stays alone. At this point of time, if the wife is directed to shift to Germany, the environment of the child would suddenly and abruptly be changed which would disturb the son's daily routine and his education in formative years," the Bench noted in the order passed on March 9. .As per the facts of the case, the couple married in Bangalore in October 2013 and subsequently shifted to Germany. A son was born to the couple in October 2016. However, after the relationship turned sour, the wife left the matrimonial home in Germany. In 2017, the husband filed a petition in a German court seeking custody of the child. On the day orders were passed in his favour, the wife had landed in India along with the son.The wife filed a petition for dissolution of the marriage, and sought custody of the child, along with a declaration that she was the natural guardian of the child. She also sought ₹4 crore in alimony.Later in November 2017, the German court ordered the parties to pursue the child custody dispute before a court in India after both the husband and the wife agreed to do so. .The husband then filed a habeas corpus petition seeking that the child be produced before the High Court, and that custody be transferred to him.In his plea, the husband argued that as per the United Nations Convention on the Rights of the Child (UNCRC), the minor child should return to Germany. He further pointed out that under Section 2(2) of Commission for Protection of Child Rights Act, 2005, all the rights of children under the UNCRC are incorporated in Indian domestic law, and that Indian courts can apply international treaty obligations to domestic cases..However, the Bench noted that a family court in Bangalore had on June 8, 2017 passed an interim order granting the custody of the child to his mother. It noted that the order passed by the German court for custody of the child in the father's favour was an ex-parte one. "The interim custody of the son has been granted to the wife by an interim order by the family court in Bangalore. The said interim order is still in force and therefore, in violation of the said order, which binds the parties, this court in exercise of extraordinary jurisdiction would not direct repatriation of the son to Germany," the order stated..It also referred to the Supreme Court decision in Nitya Anand Raghvan v. State, wherein it was held that when a child is removed from a foreign country by a parent, the custody of the child would be presumed to be legal. Merely because there is a foreign court order directing the mother to produce the child before it, does not deem her custody unlawful, the apex court had stated in that judgment..The Court further said that the interim custody in favour of the wife cannot be deemed to be an illegal one, as the order is still in operation. Moreover, it was noted that the principle of comity of courts, by which courts of one jurisdiction recognize the orders of courts of another jurisdiction, cannot override the best interests and welfare of the child."The remedy of writ of habeas corpus cannot be used for enforcement of an exparte order passed by the German Court, which was not in existence at the time when the son left Germany. No exceptional circumstances are made out by the husband to demonstrate that the son should be repatriated to Germany and in case, the son continues to stay with the wife in Bangalore, it would not be in the interest of the son," the Bench opined. Therefore, the Bench dismissed the husband's plea, keeping in mind the best interests of the child..Advocates Shadan Farasat, Shyam Harindar and Raghuram Cadambi appeared for the husband. Advocate Thejesh P represented the State. Advocate Anu Changappa appeared for the wife. .[Read order]