Andhra Pradesh High Court: In a petition filed for declaration of the custody of the petitioner’s minor son, aged four and a half years with Respondents 3 and 4 as illegal and seeking direction to the respondents to produce his son before this Court and to give the custody of his son to the petitioner-father, the Division Bench of U. Durga Prasad Rao and Sumathi Jagadam, JJ., stated that in the present case, the child was born and brought up for considerable period in a foreign country and he adapted to the foreign conditions rather than acclimatizing to Indian conditions. Admittedly, he was suffering with health problems, so taking the welfare of the minor child i.e., his education, health and future, the Court stated that the minor boy’s welfare would be best served in the hands of his father.
Thus, the Court directed the respondents to hand over the minor child’s custody to the father within three weeks and his father was permitted to take the minor boy along with him to USA and to look after the all-round welfare of the minor child, by admitting him in a good school.
Background
In the present case, the marriage of the child’s father and mother-respondent 2 was performed in December 2010 at Vijayawada. The father of child was citizen of USA, working as software professional. After marriage, both the couple lived in Chicago till July 2022 and then shifted to Dallas area. The child’s mother was also permanent resident of USA with US Green Card. Both the couple blessed with a male child on 25-05-2019 and he was a citizen of USA . The child was admitted in a good school, and he stayed in USA till February 2023.
Thereafter, due to strained relationship between the parties, child’s mother along with the child came to India in March 2023 and stayed with her parents, i.e. Respondent 3 and 4. Due to irreconcilable differences, the child’s father filed divorce petition attributing physical and mental cruelty against his wife. In retaliation, his wife initiated criminal proceedings against him Sections 498-A, 506 read with Section 34 of the Penal Code, 1860 (corresponding Sections 85, 351(2) and 3(5) of Nyaya Sanhita, 2023 respectively) and Sections 3 and 4 of Dowry Prohibition Act, 1961.
The main thrust of the father’s pleadings was that child’s mother abandoned his minor child and left for USA in August 2023. The minor child was now with the respondents 3 and 4 who were elderly citizens and unable to look after the child’s physical and mental health and particularly his educational requirements. Further, the minor child was living in unhygienic surroundings in a cramped house with a stinking open drain in front of the house which he was not accustomed at all. Further, the atmosphere in the house of respondents 3 and 4 was not conducive for the child to grow as besides being old, respondent 3 and his son consume alcohol at home creating unhealthy and unfriendly environment for the child.
Analysis, Law and Decision
The Court stated that more than the rights of the parents, the custody of the child in the hands of one of the parents being not illegal, the apparent consideration for the court would be the welfare of the child. The Court had to make a scrupulous enquiry as to in whose hands the minor’s welfare would be safe and his all-round welfare would be served. The Court stated that, in cases of dislocation of minors from a foreign country to India, whenever children were removed from their native country to India, the Court should, in the best interest of the child, order for the return of the child to his native country. If the child had not developed roots in India and no harm would be caused to the child on such return.
The Court stated that in the present case, the child was born and brought up for considerable period in a foreign country and he adapted to the foreign conditions rather than acclimatizing to Indian conditions. Admittedly, he was suffering with health problems, so taking the welfare of the minor child i.e., his education, health and future, the Court stated that the minor boy’s welfare would be best served in the hands of his father. Further, the Court noted that the divorce proceedings were pending against the child’s parents and stated that in case, divorce were to be granted, the custody of the minor child would also be enquired into and decided by the said court. However, if divorce was not granted by the court, the present order should continue, and suitable accommodation had to be made for the child’s mother to see her son and spend with him some time.
Thus, the Court directed the respondents to hand over the minor child’s custody to the father within three weeks and his father was permitted to take the minor boy along with him to USA and to look after the all-round welfare of the minor child, by admitting him in a good school. Further, the Court stated that on every Saturday, the father should accommodate the child’s mother to interact with her minor son through internet at least for one hour and the parties should mutually decide the time suitable for them for this purpose.
The Court clarified that these directions were subject to the result in the divorce proceedings pending in the Family Court, Vijayawada. Considering the facts and circumstances involved, the Court directed the Trial Court (whether it be the Family Court at Vijayawada or transferee court) to decide the divorce petition and other related petitions, if any, expeditiously but not later than one year from the date of receipt of a copy of this order. Further, till disposal of the present petition, the child’s father should arrange the mother’s visit to his place of residence in USA once in every six months to see her son and spend for one week and the child’s father should bear the travelling and all other incidental expenses.
[Srinivas Ramineni v. State of A.P., 2024 SCC OnLine AP 2676, decided on 20-06-2024]
Advocates who appeared in this case :
For the Petitioner: V.V. Satish, Advocate;
For the Respondents: P. Rajesh Babu, Advocate.
Buy Penal Code, 1860 HERE
This insightful article on the AP HC’s decision to grant custody to the father, emphasizes the child’s welfare and well-being.