Mumbai: Observing that the principle of ‘comity of courts’ cannot be given importance in deciding the custody of a minor, the Bombay High Court recently resolved a custody battle between an Indian father and a Pakistani mother. The HC, while considering the ‘love and affection’ the daughter is receiving from her Indian father, refused to hand over her interim custody to the Pakistani mother.
A single-judge bench of Justice Bharati Dangre, while handing over custody to Bandra-based Shehzad Hemani, rapped the Family Court, which had asked him to hand over the minor daughter to his Pakistani wife. Justice Dangre chided the Family Court for its ‘erroneous’ order saying, “The impugned order completely ignores the fact that the child is in India for the last one-and-a-half-years and has been admitted in a school. Photographs of the child show her in the company of her grandmother but the court failed to take into consideration that if the child at this stage is to be settled in a new environment, she would be exposed to physical or psychological harm, since the child has gained roots in India.”
“The child is not conversant with the Dutch language and would feel completely uprooted if transferred to the Netherlands and is made to live in an atmosphere where the child is left only to the mother, whereas in India, the child is in the company of grandparents with a lot of love and affection being showered on the child. In the peculiar circumstances, the relief of repatriation of the child to the father is not in the interest of the child and would rather affect the physical, psychological, emotional and sociological well-being and growth of the child at this stage,” Justice Dangre ruled.
Justice Dangre was seized with an application filed by Shehzad Hemani, who is engaged in a legal spat with his wife, Nadia Rashid, a Pakistani and Dutch national. The couple had married in April 2011 in India and after that lived for a brief period in the Netherlands where the daughter was born. The couple then returned to India and bought a flat in Bandra. However, in December 2014, Nadia, on the pretext of getting her daughter vaccinated, took her to the Netherlands and then refused to return to India. She even instituted legal proceedings against Shehzad seeking a divorce. However, in 2016, Shehzad brought the minor daughter back to India and since then has been living with his child.