SC directs mother to take 7-year-old daughter back to US by December 31 in custody dispute

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.

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.

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. 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 also restrained either parent from taking the girl out of California without the other parent’s written consent or an order of the court.

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. It also considered the time that had elapsed since her arrival in India.

The Supreme Court, however, found these considerations insufficient to conclude that 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,” the court said, adding that this made a strong case for her to continue her life in the US, particularly when nothing on record suggested that growing up there would hamper her progress or run contrary to her interests.

The court also cautioned against placing undue reliance on the child’s apparent preference to remain with her mother, observing that, given her tender age and the fact that she had lived exclusively with her mother for four years, her demeanour was only natural and could not be treated as decisive.

At the same time, the bench underscored that Indian courts cannot mechanically enforce foreign custody orders merely because they have been passed by a competent court abroad. The child’s welfare remains paramount, and an Indian court must independently assess where her best interests lie.

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. 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.

The court noted that the child was brought to India in clear breach of the conditions imposed by that order, with nothing on record suggesting that the mother’s circumstances were so grave or frightening that she had no option but to leave the US with the child.

It held that the circumstances of the child’s removal, read with the principle of comity of courts, reinforced the conclusion that her welfare would be better served in the US.

“The appeal, therefore, deserves to be allowed, and the child must be returned to the United States into the custody of the Appellant,” the bench said.

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.

During the hearing, the mother’s counsel, Malavika Rajkotia, informed the court that her client would accompany the child to the US. Accepting the statement, the bench directed her to complete the journey with the child by December 31 and take the necessary steps to secure the requisite visa and travel documents. The father was directed to extend prompt cooperation.

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. 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.

The bench recorded these undertakings and directed the father to furnish security of ₹1 crore through a fixed deposit in the name of the Supreme Court registrar, initially for 18 months on an auto-renewable basis, within two weeks. It said the security would help ensure that he honoured his commitments and that adequate care was taken of both the child and the mother.