The Bombay High Court in its judgment dated September 14, 2023 granted custody of minor child to the father in a habeas corpus petition.
A Bench of Justice Revati Mohite Dere and Justice Gauri Godse said:
The expression “best interest of child” which is always kept to be of paramount consideration is indeed wide in its connotation and it cannot remain the love and care of the primary care giver i.e. the mother in case of the infant or the child who is only a few years old.
Parties got married in the year 2010 and later to moved the USA to settle down there permanently.
They then obtained a green card, and thus the child born to them in 2019 automatically gained US Citizenship.
In December 2020, following matrimonial disputes, the mother traveled back to India along with the child and restricted all contact with the petitioner’s father. Legal actions were then initiated in both countries – India and the USA.
In April 2021, a court in the USA granted custody of the US born child to the father. The father also filed a habeas corpus petition in the Bombay High Court seeking the custody of his child.
Bombay High Court
Hearing the matter, a bench of Justice Revati Mohite Dere and Justice Gauri Godse of the Bombay High Court observed that the mother’s actions in India seemed to be an attempt to obstruct the child’s return to the USA and emphasized the detrimental impact such disputes can have on children.
Referring to several judgements from the Supreme Court of India, the High Court termed the child as “a victim in custody battles”. It quoted:
In this fight of egos and increasing acrimonious battles and litigations between two spouses, our experience shows that more often than not, the parents who otherwise love their child, present a picture as if the other spouse is a villain and he or she alone is entitled to the custody of the child.
The court must therefore be very wary of what is said by each of the spouses.
Elaborating further on the basic human right and the mental health impact on children of separated parents, the Bombay High Court once again referring to the past apex court judgments, said:
The child, especially a child of tender years requires the love, affection, company, protection of both parents. This is not only the requirement of the child but is his/her basic human right.
Just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents. A child is not an inanimate object which can be tossed from one parent to the other.
Every separation, every reunion may have a traumatic and psychosomatic impact on the child. Therefore, it is to be ensured that the court weighs each and every circumstance very carefully before deciding how and in what manner the custody of the child should be shared between both the parents…..
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Accordingly, the Bombay High Court ordered the child’s return to the father within 15-days (from the date of judgment). The same read as follows:
In the event the respondent no.1 (mother) fails to intimate her willingness as directed in clause (a) above, the petitioner shall be entitled to take physical custody of on expiry of fifteen days from date of this order and the respondent no. 1 shall hand over physical custody of and his original passport to the petitioner if he visits India for the same or to the mother of the petitioner if so authorized by him in writing.
In the event the physical custody of is handed over to the petitioner’s mother, she shall within a period of two weeks thereafter accompany to the US and hand over custody of to the petitioner.
What is Habeas Corpus Petition?
A Habeas Corpus is a writ recourse available in the law to report an unlawful detention or imprisonment before a High Court or the Supreme Court. The petitioner can request the court to order the custodian of the detained person, to bring him/her to court and determine whether the detention is lawful or not. If it is found that the custodian is acting beyond their capacity, the Court can order the release of the detainee.
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