Bombay High Court: In a writ petition filed by a US-resident husband (father/petitioner) for the custody and repatriation of his minor daughter, who had been removed from the US by her mother (also resident in the US), without the consent or informing the husband, after an American County Court had issued temporary arrangement of custody of their daughter, the Division Bench comprising of Shyam C. Chandak* and A.S. Gadkari, JJ., allowed the petition and issued several time specific directions for the couple and directed that the minor daughter be repatriated to the US with her father and afforded the mother a choice of joining them.
Keeping in mind the best interest of the daughter, the Court also declined to grant the respondent-wife’s request to stay the afore-said order for 2 weeks, so that she can challeng the order before the Supreme Court.
Background
Since 2007, the husband was working and residing in the United States of America (“USA “or “US”) on an Indian passport. The couple are Indian citizens by birth and were married in 2015 and moved to the US the same year, and in 2016 they had their daughter (“R”), who had American citizenship by virtue of being born there.
In September 2023, the husband filed a motion seeking R’s custody, child support, and equitable distribution before the District Court of Mecklenburg County of North Carolina, USA. Subsequently, a Temporary Parenting Arrangement was established until final hearing, wherein the parties would continue to exercise a joint physical custody of R on a week-to-week basis.
In December 2023, the wife suddenly withdrew R from her school and the following day flew to India with her without intimating or seeking consent of the husband. To this effect, a week later, the Mecklenburg Court granted a motion by the husband for an ex-parte Emergency Custody (sole legal and physical care, custody and control of R).
Upon arriving in India, the wife filed an FIR with a Navi Mumbai police station against the husband and his relatives, alleging offences punishable under Sections 323, 406, 498-A, 504, 506, read with 34 of the Penal Code, 1860 (“IPC”). The husband also filed an FIR against the wife alleging offences punishable under Sections 361 and 363 of the IPC.
In January 2024, the Mecklenburg Court granted the husband the permanent sole custody of R, and responding, the wife then filed a Custody Petition under Section 7 of the Guardians and Wards Act, 1890 before the Family Court, Pune, claiming permanent custody of R.
Therefore, the husband filed the instant petition before the High Court to secure the custody of R and repatriate her to the US, in compliance with the Mecklenburg Court’s order. The wife objected to the maintainability of the petition.
Court’s Analysis
Child’s Welfare
The Court responded to the objections of maintainability raised by the wife, following the precedent of the Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67, wherein, the Supreme Court had laid down that a writ of habeas corpus is not maintainable if the child is in the custody of another parent, however, the Court can invoke its extraordinary jurisdiction for the best interest of the child.
The Court further referred to the case of Rajeswari Chandrasekar Ganesh v. State of Tamil Nadu, 2022 SCC OnLine SC 885, wherein it was stated that when confronted with a question pertaining the custody of a minor child, the Court as parens partriae, should not decide on the consideration of the legal rights of the parties, but on the sole and predominant criterion of the child’s best interest and welfare.
The Court further referred to the case of V Ravi Chandran v. Union of India, (2010) 1 SCC 174 wherein, the Supreme Court was dealing with a custody of a child removed by a parent from one country to India in contravention of the orders of the court where the parties were matrimonially residing with the child before such removal. The Court was faced with a question of whether it could conduct an elaborate enquiry on the question of custody or by dealing with the matter summarily order a parent to return custody of the child to the country from which the child was removed and all aspects relating to child welfare be investigated in the court of their own country.
The Supreme Court held that if the Court were to elect an elaborate enquiry, it was bound to consider the welfare and happiness of the child as the paramount consideration, and peruse all the relevant aspects for their welfare, including stability and security, loving and understanding care and guidance and full development of the child’s character, personality and talents. To achieve this end, emphasis could be placed on the foreign Court’s order.
The High Court also referred to Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454.
In this case, the Supreme Court held that in exercise of its summary jurisdiction, the Court must be satisfied that-
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the proceeding instituted before it was in proximity and timely filed after the child’s removal from their native state and brought within its territorial jurisdiction
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the child has not gained roots in India
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It will be in the child’s welfare to return to their native state because of the difference in language spoken or social customs and contacts to which they have been accustomed or such other tangible reasons.
“It is noteworthy that Indian Courts are free to decline the relief of return of the child brought within its jurisdiction, if it is satisfied that the child is now settled in their new environment or if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return.”
In the instant case, the Court also mentioned its awareness about the role of a mother in the life of a child of tender age and particularly of a girl child. c’s ca. .
Habitual lifestyle of R in the US
The Court further noted R’s comfort as to the atmosphere and language of the US, because she had been living all her life in the company of her parents in the US, and that she had never been inconvenienced, harmed or injured by her father. Therefore, the mother’s act of sudden removal of R from the USA detached her from her daily routine, her father and friends; such a disconnect is traumatic and painful for a child of her age.
The Court also noted the financial ability of the husband that he was secured financially to provide R with all the amenities and comfort expected in the USA. Further, the Court also took notice of the jointly owned house by the couple in the US, which is sufficiently spacious to accommodate for a separate living arrangement for both the parents.
Taking into consideration all these facts and circumstances, the Court opined that if R were to repatriate to the USA, where she is a citizen, she will adopt the lifestyle there easily without having to restart in India. Further, it will also be advantageous for her to stay and study in the USA as it is considered a developed country, offering numerous opportunities and better prospects. Furthermore, the mother may not be able to afford the similar kind of lifestyle to R in India without the financial support from her husband.
Cases instituted by the wife in India
Vis-a-vis the FIR filed by the wife in 2023, the Court opined that the wife resorted to litigation deliberately to involve the husband in the multifarious complex legal battle in India, so that amidst all the time consumed by the litigation in India, R develops her roots in India, making her repatriation to the US a challenge. The unilateral decision taken by the wife was in her self-interest and not in the best interest of R, which is of utmost importance.
Judgment and Order
The Court allowed the petition but refrained from directing the wife to return to the USA, stating that she was an adult and no court could compel her to stay in a place where she does not wish or want to. However, as for the repatriation of R, the Court passed directions which were in the best interest of R and her parents, irrespective of the mother’s decision to go to the US or not.
Following time-specific directions were issued:
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The wife shall handover the custody of R to the husband along with her passport and other necessary documents in the presence of the husband’s Advocate.
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The wife shall inform the husband’s Advocate of her willingness to go to the US or not within a week from the official uploading of the order. Should she fail to inform, then it would be presumed that she has no intention of going to the US along with R. Should the wife choose to go back to the US along with R, then she must comply with the orders of the Mecklenburg County Court. The husband shall bear the running expenses of the house, educational expenses of R, and medical insurance for both the wife and R until the relevant American court makes provisions for the same and shall not initiate any coercive or penal action against the wife in the USA and if such action has already been initiated by him or any proceedings in that regard are pending, then the same shall be withdrawn.
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If R travels to the US with the husband, then he should ensure that R speaks with her mother through video calling every day. Furthermore, if the wife visits the US hereafter and is staying in the same town as the husband, she will be permitted the custody of R on all weekends during her visit.
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The husband shall ensure that R visits India at least twice a year during which time, she should be living with her mother exclusively
[Abhijit S. Shingote v. State of Maharashtra, 2024 SCC OnLine Bom 1288, Decided on 07-05-2024]
Jugment by*: Justice Shyam C. Chandak
Advocates who appeared in this case :
Advocates for the Petitioner: Siddhesh Bhole, Ashwin Pimple, Abhishek Bandre, Nehal Desale, and Aditya Andhorikar
Advocates for the Respondents: S.V. Gavand, Additional Public Prosecutor for the State, Harshwardhan Salgaokar, Himanshu Patil, and Sangharsh Waghmare
Buy Penal Code, 1860 HERE
