'Best Interest of Child' not solely based on 'love and care' provided by Mother, HC awards custody to Father [Read Judgement]

The Bombay High Court has held that the expression “best interest of the child”, used in deciding custody cases, has a wider connotation, and it cannot remain only the love and care of the primary caregiver i.e. the mother.

A Division Bench of Justice Revati Mohite Dere and Justice Gauri Godse while allowing writ-petition of a father seeking custody of his child further observed that 'mother's care and love' can't be a sole decider in view of child's best interest and both spouses needed to be considered.

"The expression “best interest of the child”, which is always kept to be of paramount consideration, is indeed wide in its connotation, and it cannot remain only the love and care of the primary caregiver i.e. the mother in the case of the child who is only a few years old and the basis for any decision taken regarding the child, is to ensure fulfilment of his basic rights and needs identity, social well-being and physical, emotional and intellectual development. However, while deciding the welfare of the child, it is not the view of one spouse alone which has to be taken into consideration. The Courts should decide the issue of custody only on the basis of what is in the best interest of the child."

Brief Facts of the Case

The petition was filed by the father of a minor child seeking his custody. At the time of filing of the petition, the child was one year old. By way of amendment, the petitioner then sought a direction against the respondent to handover physical custody of to the petitioner for taking along with him to the United States of America in compliance of order issued therein.

The petitioner and respondent are citizens of India; however, they are permanent residents of the US. is a citizen of the US by birth. The petitioner was first petitioner was permitted access to the child through WhatsApp Video Calls. By order dated 6th December 2022, the petition was admitted, and by consent of the parties, they were granted time to submit modalities of visitation rights of the petitioner to meet the child. By order dated 16th December 2022, it was recorded that under the orders of this court, the petitioner had availed visitation rights of , and the petitioner was well aware of the whereabouts of ; hence, the petition was disposed of.

Aggrieved, the petitioner approached Supreme Court and subsequently the impugned order was set aside and present petition was directed to be restored to file for a fresh decision.

Contention of the Parties

It was the petitioner's submission that their entire marital life was in US. They were gainfully employed in there and had also purchased a house in the joint name. With the intention of permanently settling down in the US, they had decided to have their child born in the US. After the child was born in the US, the parties decided to visit India with return-tickets pre-booked. However, the respondent unilaterally changed the decision and refused to return to the US along with the child. It was contended that the respondent-mother had never made a single complaint against the petitioner, alleging physical or mental torture. It was only after this court granted access to talk to through WhatsApp Video Calls that the respondent, by way of counterblast, filed a domestic violence proceeding by making false and baseless allegations. As a counterblast to the proceeding initiated by the petitioner in the Texas Court, the respondent filed divorce proceedings in the Thane Court.

It was thus submitted that the parties always intended to permanently settle down in the US and also bring up their child in the US and there was no material on record to even remotely suggest that there would be any stake/or physical harm caused to if he was repatriated to the US. Noting that there are no orders passed in favour of the respondent with respect to the custody of child and therefore, the respondent has illegally detained the child in India, which is against his welfare and interest.

To buttress his submission, the Counsel relied on a slew of decisions including Shilpa Aggarwal Vs. Aviral Mittal & ANR., 2010 Latest Caselaw 112 SC, V.Ravi Chandran Vs. Union of India & Ors., 2009 Latest Caselaw 931 SC, Lahari Sakhamuri Vs. Sobhan Kodali, 2019 Latest Caselaw 291 SC,  YASHITA SAHU vs. STATE OF RAJASTHAN
2020 Latest Caselaw 52 SC,  Vasudha Sethi Vs. Kiran V. Bhaskar 2022 Latest Caselaw 43 SC

He then submitted that though the parties had initially got married in Mumbai in India, both the parties remarried in the US and submitted to the jurisdiction of the Texas Court. Hence, the proceedings initiated by the respondent in India are without jurisdiction and that the respondent is under obligation to comply with the orders passed by the Texas Court and hand over custody of child to the petitioner.

Relying on YASHITA SAHU vs. STATE OF RAJASTHAN, 2020 Latest Caselaw 52 SC, he submitted that without prejudice to the rights and contentions of the petitioner, he is ready and willing to provide all the facilities to the respondent as well as for their stay in the US, to enable her to take appropriate steps within the jurisdiction of Texas Court and apply for modification of the orders passed in the event the said orders aggrieve her.

On the other hand, counsel for respondent submitted that the dates and events, as narrated by the counsel for the petitioner, would show that the petitioner has acted in a hasty manner. She submitted that without waiting for a single day, the petitioner approached the police station, making allegations of abduction against the respondent. She submitted that the child is in the lawful custody of his biological mother ad there are no compelling circumstances to uproot him. In the US, will be left to the mercy of outside help while in India, the grandparents of are available to take care of and thus it is beneficial for to stay in India as he will be brought up in his native place, she averred.

She further submitted that instead of initiating appropriate proceeding under the Hindu Minority and Guardianship Act, 1956, the petitioner instructed his lawyer in the US to file proceedings for separation and custody while the petitioner himself was in India. There was no pre-existing order in the present case, and hence, the petition for habeas corpus would not be maintainable.

Submitting that the child has roots in India, and hence, it would not be in the interest of to uproot him from India and take him to the US, which is a foreign land, she cited the decision of the Hon’ble Supreme Court in the case of Nithya Anand Raghavanto support her submission that the orders passed by the Texas Court are without jurisdiction, and the petitioner is not entitled to invoke the same in India. She further cited Mrs. Kanika Goel Vs. State of Delhi through S.H.O. and ANR, 2018 Latest Caselaw 477 SC to support her objection that the courts in the US would not have any jurisdiction to deal with the dispute between the parties and that only the courts in Mumbai would have jurisdiction to decide the dispute between the parties.

She also relied on Dhanwanti Joshi Vs. Madhav Unde, 1997 Latest Caselaw 723 SC, Prateek Gupta Vs. Shilpi Gupta & Ors., 2017 Latest Caselaw 868 SC, Y. Narasimha Rao & Ors Vs. Y. Venkata Lakshmi & ANR, 1991 Latest Caselaw 145 SC to submit that in either contingency of the court deciding to hold a summary enquiry or an elaborate enquiry; the court would be guided by the pre-dominant consideration of the welfare of the child on the basis of all the facts and circumstances.

Supreme Court's Observation

The Court at the outset looked at the precedents wherein the minor children held citizenship of a foreign country, and the parents were permanent residents of that country and one of the spouses had removed the child to India, disregarding the orders passed by the foreign court. It observed that the child was repatriated to the country's jurisdiction from where the child was removed, except in one (Dhanwanti Joshi Vs. Madhav Unde). 

The Court noted that since in India, matrimonial disputes constitute the most bitterly fought adversarial litigation, and when the issue of custody of children is involved, children suffer the most and therefore Court is required to exercise parent patriae jurisdiction and compel the parties to do something that is in the best interest of the child.

After considered the submissions made by both parties by keeping in mind the well-established principles of law, the court observed that it is well established that the summary jurisdiction be exercised if the Court to which the child has been removed is moved promptly and quickly.

"The overriding consideration must be the interest and welfare of the child. That the doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding custody of the minor child, citizenship of the parents and the child, etc., cannot override the consideration of the best interest and the welfare of the child and that the direction to return the child to the foreign jurisdiction must not result in any physical, mental, psychological, or other harm to the child", the court remarked.

However, it opined that the expression “best interest of the child”, which is always kept to be of paramount consideration, is indeed wide in its connotation, and it cannot remain only the love and care of the primary caregiver i.e. the mother in the case of the child who is only a few years old and the basis for any decision taken regarding the child, is to ensure fulfilment of his basic rights and needs,identity, social well-being and physical, emotional and intellectual development.

Stating that while deciding the welfare of the child, it is not the view of one spouse alone which has to be taken into consideration, the court remarked that Courts should decide the issue of custody only on the basis of what is in the best interest of the child.

It is in the background of the above, it framed three question to be decided:

(i) whether the refusal on the part of the respondent-mother to return to the US with the child, as scheduled, is justified and whether such refusal will amount to illegally detaining the child in India.

(ii) whether, in the facts of the case, the petition seeking a writ of habeas corpus is maintainable and

(iii) whether the petitioner-father is justified in seeking repatriation of the child to the US.

The Court, in view of the facts of the case, the allowed the writ-petition and handed-over the custody to the father to take the child back to the United States.

"Considering the age of it cannot be said that he has developed any roots in India. Nothing adverse was brought on record to show that it would be prejudicial or harmful to send to his native country. There is nothing adverse brought on record to show that the petitioner is incapable of taking care of . We have already held that there is substance in the submission of the petitioner that it will be more beneficial for to live in the US, in as much as he being a US citizen is entitled to all the educational, social and medical benefits available there. We find that the stay of in India for last two and half years is too short a period to facilitate his integration into the social, physical, physiological, cultural and academic environment of India. Hence, if repatriated to the US, he will not be subjected to an entirely foreign education system", the court observed.

Noting that considering the tender age of child, the natural process of grooming in the environment of the native country is indispensable for his comprehensive development, the court further observed:

"Except for the tender age of , where he needs the care and protection of a mother, we do not see any factor in favour of the respondent. At the same time, we believe that at this tender age, is entitled to have the company of both his parents. Rather, it is his basic human right to have the care and protection of both parents. Thus, the respondent is not justified in unreasonably depriving of the company of his father. The respondent cannot deprive of his basic human rights only because she has suddenly decided that she does not want to go back to the US, where the parties were permanently settled."

Case Title: X vs Y
Case Details: Criminal Writ Petition 
Coram: Hon'ble Mr. Justice Revati Mohite Dere and Hon'ble Mr. Justice Gauri Godse
Advocates for Petitioner: Mr. Prabhjit Jauhar a/w. Mr. Niranjan Mundargi, Ms. Keral Mehta and Mr. Vikrant Shinde i/b. Ms. Jai Abhyudaya Vaidya
Advocates for Respondent: Ms. Lata Desai, Senior Advocate a/w. Dr. Pallavi Divekar, Ms. Manasi Hirve i/b. Ms. Darshana Pawar

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