The Karnataka High Court recently declined to reunite a little kid with his father, who lives in Germany, observing that the child had spent the previous five years in Bangalore in a “conducive” environment with his mother and grandparents.
A Division Bench of Justices Alok Aradhe and Vijaykumar Patil stated that transferring custody to the father, who lives alone in Germany, will disrupt the child’s daily routine life.
“The presence of grandparental love and affection for the boy is required for the kid’s growth, which is not accessible in Germany where the petitioner (father) lives alone. If the wife is instructed to relocate to Germany at this time, the child’s surroundings will be drastically altered, disrupting the son’s daily routine and schooling during his formative years,” the Bench said in the ruling passed on March 9.
According to the facts of the case, the couple married in Bangalore in October 2013 and then moved to Germany. The couple welcomed a son in October 2016. But, once the marriage failed, the woman fled the matrimonial house in Germany. In 2017, the husband filed a petition in a German court seeking custody of the child. The wife and son had arrived in India on the day the orders were granted in his favour.
The wife filed a petition for divorce and requested custody of the kid, as well as a declaration that she was the child’s natural guardian. She also requested ₹4 crore in alimony.
Later that month, in November 2017, a German court directed the parties to continue the child custody issue in an Indian court after both the husband and wife consented to do so.
The husband then filed a habeas corpus petition seeking that the child be brought before the High Court and custody be transferred to him.
In his petition, the husband contended that the young kid should be returned to Germany in accordance with the United Nations Convention on the Rights of the Child (UNCRC). He further highlighted that under Section 2(2) of the Commission for the Protection of Child Rights Act of 2005, all of the UNCRC’s rights for children are integrated into Indian domestic law, and that Indian courts can apply international treaty commitments to domestic proceedings.
Nevertheless, the Bench noted that on June 8, 2017, a family court in Bangalore issued an interim judgement awarding the child’s mother custody. It was highlighted that the German court’s order for custody of the kid in favour of the father was ex-parte.
“The family court in Bangalore gave the woman interim custody of the boy through an interim order. The aforementioned interim order remains in effect, and so, in breach of the said order, which binds the parties, this court, in exercising exceptional jurisdiction, would not command the son’s repatriation to Germany,” the order read.
“The writ of habeas corpus cannot be utilised to execute an ex parte order issued by a German court that did not exist at the time the son departed Germany. The husband provides no unique circumstances to establish that the kid should be deported to Germany, and continuing to live with the wife in Bangalore is not in the boy’s best interests,” the Bench opined.
As a result, the Bench dismissed the husband’s petition, bearing the child’s best interests in mind.
