High Court denies NRI Custody of Son despite Dallas court Ruling

In a custody battle for a six-year-old son between an NRI couple, the Gujarat HC rejected the father’s habeas corpus petition seeking that he be handed over the child after taking his custody from the mother.

After returning from Dallas in US having obtained a divorce, the father is at present staying in Ahmedabad & the mother lives in Valsad with the boy. The father claimed before the High Court that his wife was permitted to go to Australia for three months in 2017 with the child, but from Australia she applied for overseas citizenship of India for herself & son.

On the other hand, a court in Dallas, Texas, granted him the child’s custody while dissolving the marriage in July 2018, the father claimed. He has also filed a habeas corpus petition in the Dallas court for the child’s custody & the petition is pending.

The wife has also filed for the child’s custody in a Valsad court under the Guardians and Wards Act. She has also sued the husband under the Domestic Violence Act. Both applications are pending.

After hearing the petition, the HC denied the father custody saying that the custody with the mother can't be termed illegal. The father’s habeas corpus petition wasn't maintainable because he had filed a similar petition in a foreign court. The High Court further said that the father has got civil remedy to get custody of the child. The High Court also noted that the habeas corpus petition was filed belatedly.

Besides, as the couple are Muslim, the High Court said that according to Mohammedan law, the mother has a right to the child’s custody, if the child is male & below seven years of age.

The HC also took into consideration the allegation that the husband assaulted his wife & child in the USA at the instigation of a woman he was in an extramarital relationship with. “Now, taking into consideration this situation, we are satisfied that the child’s return may expose him to grave risk of harm. Therefore, it will be appropriate to refuse to issue directions to return the child to native state & more particularly in spite of a pre-existing order of the foreign court,” the High Court said.

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