Mumbai: The expression "best interest of the child," which is always considered to be of paramount importance, is broad in its interpretation, and it cannot solely encompass the love and care of the primary caregiver, as stated by the Bombay High Court. The Court added that it is a fundamental human right of a child to have the care and protection of both parents.
A division bench of Justices Revati Mohite Dere and Gauri Godse, on Thursday, directed a woman to return custody of her three-and-a-half-year-old son, who is a US citizen by birth, to her estranged husband within a period of 15 days.
Child custody case
The High Court was hearing a petition filed by the father seeking custody of the child after the wife refused to return to the US with the child. They had previously agreed that their child would be a US citizen, and despite this, she refused to return with the child after they came to India for the child’s first birthday.
The court noted that it was in the best interest of the child to return to the US, where he was born. The judges stated that if the woman wishes, she can accompany the child to the US and directed the man to provide residence and monthly maintenance to her and the child.
“The expression 'best interest of the child,' which is always considered to be of paramount importance, is indeed broad in its interpretation, and it cannot be limited solely to the love and care of the primary caregiver, i.e., the mother in the case of a child who is only a few years old,” the court said. It emphasized that any decision regarding the child should ensure the fulfillment of the child's basic rights and needs, including identity, social well-being, and physical, emotional, and intellectual development.
The court added, “However, while deciding the welfare of the child, the view of one spouse alone should not be the sole consideration. The courts should decide the issue of custody solely based on what is in the best interest of the child.”
Except for the tender age of the child, where he needs the care and protection of a mother, there are no other factors in her favour, the judges opined.
“We believe that at this tender age, the child is entitled to have the company of both his parents. It is, in fact, his basic human right to have the care and protection of both parents. Thus, the wife is not justified in unreasonably depriving the child of the company of his father,” the court asserted.
Separation of couple
The couple got married in Mumbai on March 31, 2010, under the Special Marriages Act. They moved to the USA on June 16, 2010, where they remarried in the Texas Family Court. They received their green cards in October 2020, enabling them to stay in the USA permanently. They started living in Texas, where the child was born on December 25, 2019.
The couple and the child traveled to India on December 21, 2020, with a return ticket for January 13, 2021. She stayed with her parents for two days before planning to join the man at his parents’ place. However, three days later, she informed her husband not to contact her.
On December 25, 2020, the man wrote an email to the US Embassy in India, stating that his son, who is a US citizen, had been abducted. Five days later, he filed a petition in the High Court seeking a habeas corpus order for the son.
He filed for legal separation and custody of his son in a Texas court on January 8, 2021, which directed that the son be returned to the father by January 25, 2021.
Subsequently, the woman initiated domestic violence proceedings against her husband in the Belapur court and also filed for divorce proceedings in the Thane court.
In April 2021, the Texas court allowed the divorce petition and granted irrevocable custody of the child to the father.
The man then amended the habeas corpus petition and sought compliance with the Texas court order.
The High Court noted that custody battles can be bitterly fought, and the role of the courts becomes crucial as guardians of the child.
"In our country, matrimonial disputes constitute the most bitterly fought adversarial litigation, and when the issue of custody of children is involved, children suffer the most,” the court said, adding, “In such cases, the role of the court becomes crucial. The court is required to exercise parens patriae jurisdiction and compel the parties to do what is in the best interest of the child. Hence, in such a peculiar situation, it is the responsibility of the court to take on the role of a guardian for the child.
