In considering the “best interest” and “safety” of a child, the Bombay High Court dismissed a habeas corpus writ petition filed by a 41-year-old UK citizen who was seeking the custody of his 3-year-old daughter.
A Bench of Justices Gauri Godse and Revathi Mohite Dere noted that the man had severe “anger issues” and that it would be the best interest of child if she stayed with her mother.
“In addition to the reasons recorded above, one more important factor to be considered is that the child is a girl of a tender age of three and half years and thus requires the care and affection of her mother. Considering the past conduct of the petitioner having anger issues, it will not be safe to hand over custody of the child to him. We have held that the respondent is justified in her decision to come to India and not return to Singapore.”
In this case, the petitioner-father of the child is a UK citizen, the respondent mother of the child is an Indian citizen, and the child-their minor daughter is a US citizen.
The estranged couple had married in New York in 2018, and after their child was born in March 2020, the couple lived apart for six months owing to marital disagreements. They later signed a reconciliation agreement and relocated to Singapore. The pair renounced their 'green card' in the United States in September of last year, and after two months, the lady moved to India with her kid and did not return to Singapore.
Amid this, the man (the petitioner) then filed a plea in a Singapore court, which ordered joint custody of the child. In February this year, he approached the Bombay High Court seeking compliance of the Singapore court’s order as well as sought the custody of the child.
After relying on several precedents, the Court stated that doctrines of comity of courts, intimate connect, orders passed by foreign courts in the matter regarding custody of the minor child, forum convenience, citizenship of the parents and the child, etc., cannot override the consideration of the best interest and the welfare of the child.
“Thus, the direction to return the child to a foreign jurisdiction must not result in any physical, mental, psychological, or other harm to the child. It is a well-settled principle of law that the courts should decide the issue of custody only based on what is in the best interest of the child.”
The Court further noted that owing to the differences and disputes between the parties, the child never received any stability at any place. “The child is neither a citizen of Singapore nor has she lived there for a considerable long time to make it a habitual place of residence”, the Court said.
Light was also thrown on various affidavits filed by the Respondent mother which revealed the petitioner father’s anger issues and violent nature. Therefore, the Court failed to agree with the father’s argument that the mother had illegally detained the child in India.
“Thus, in our view the aforesaid circumstances and the petitioner's conduct are justifiable reasons for the respondent to come to India along with the child to reside with her parents. We find substance in the arguments made on behalf of the respondent that she was required to come to India along with the child for their safety. Considering the aforesaid circumstances, we do not find that the respondent has illegally removed the child from Singapore or that she has illegally detained the child in India. Thus, considering the petitioner's conduct, the respondent is justified in bringing the child to India to give her a secure life.”
The Bench also noted that the petitioner agreed to not getting unsupervised access to the child until the respondent consented to the same. Even after the reconciliation agreement, there was a police complaint made by the Respondent mother in the USA and thereafter in Singapore, and finally, the respondent came to India along with the child and refused to return to Singapore.
Since the child is a US citizen, and Singapore and India are both foreign countries to her, the Court noted. However, the Respondent mother is an Indian citizen having roots in India. “Thus, it cannot be said that the child is living in a country which is completely foreign to her”.
“However, only the welfare of the child is of paramount importance, and thus, in view of our observations and findings recorded above, presently, it will be in the best interest of the child to stay in India with her mother, i.e. the respondent”.
While parting with the 59-page order, the Court highlighted the child’s right to have the company of both parents. “It is true that the conduct of either of the parties should not deprive the child of having the company of both parents. In the battle of the parents, the child should not suffer”, the Court said while dismissing the father’s plea. It also added that the issue regarding visitation rights will be considered by a competent court.