Observing that the children have developed their roots in India, the Bombay High Court on Tuesday refused to hand over the custody of children to their Sri Lankan and Canadian father. The HC has however, allowed the father to visit the children - a daughter and a son - both physically and virtually.
A bench of Justices Sambhaji Shinde and Manish Pitale was seized with a plea filed by Chandima Wijsinghe (48), who is a resident of Sri Lanka.
Chandima holds the citizenship of both Sri Lanka and Canada. He married Sharada Gholap, an Indian and resident of Thane, in March 2010 and the couple subsequently moved to Canada. However, things turned sour between the duo and the Sharada left Chandima's company and flew back to India along with both her daughter and son.
Accordingly, Chandima petitioned local courts in Sri Lanka that even ordered Sharada to bring back the children from India, however, she did not abide by the said orders and in fact filed counter cases in Family Courts here.
Since Sharada did not return to Lanka, Chandima petitioned the bench led by Justice Shinde seeking custody of his children. He claimed that his estranged wife has illegally brought them to India.
On the other hand, the wife Sharada claimed that being the mother she had full right to keep her children along with her. She stressed on the fact that she was taking proper care of her children and since her daughter is a US citizen by birth, she was also being looked after properly. She claimed that she was giving proper education and other facilities to both her children.
Having heard the contentions, the judges met the two children in their chambers and found that they both wanted to stay back with their mom. The judges considered the fact that the children were getting proper education.
"This is an indicator about the manner in which the wife is taking care of the children at Thane in India. The children having stayed in India for the past more than three years, appear to have developed roots, considering the fact that they speak the local language apart from being well adjusted in the school in which they are taking education," the judges noted
"Although the opinion of such small children in itself may not be a deciding factor but it is relevant that when we interacted with them, both have unequivocally stated that they desired to stay with their mother in India," the bench noted.
The judges further noted that the children appeared to be well dressed and they were freely communicating with us. We find that they appear to be comfortable with their mother in India.
The bench further said that the orders passed by courts in Sri Lanka against Sharada won't disentitle her from her children's custody.
"It is in the best interest of the children that in the present circumstances they not torn away from their mother and therefore, the prayer made by the father cannot be granted," the bench said while dismissing the plea.