Mother 'Illegally Detaining' Child By Not Returning Him To Native Country: Bombay High Court Grants Custody Of 3-Yr-Old US Citizen To Father

A division bench of Justice Revati Mohite Dere and Justice Gauri Godse held that the mother’s unilateral refusal to return the child to US without a valid or justifiable reason amounted to illegally detaining the child.

“her action of not permitting xxxxxx to return to his native country without any valid and justifiable reason amounts to illegally detaining xxxxxx in India…it is his basic human right to have the care and protection of both parents. Thus, the respondent is not justified in unreasonably depriving xxxxxx of the company of his father. The respondent cannot deprive xxxxxx 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”, the court observed.

Highlighting the father's capability to provide the child with a balanced upbringing, combining both American and Indian influences, the court noted that the father's job allows him to work from home most of the time and he is "also a certified Cricket Australian Coach and is already coaching the kids."

The court said that repatriating the child to the US would offer better future prospects for him due to all the educational, social and medical benefits available there. The child's age being just three and a half years old, the natural process of grooming in the environment of the native country is essential for comprehensive development, the court stated.

The court observed that the best interest is not “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, the court stayed the order for three weeks at the request of the mother’s counsel.

Background

Both parents are Indian citizens and permanent US residents with green cards. The child is a US citizen by birth. In December 2020, while in India to celebrate the child's first birthday, the mother refused to allow the father to meet the child and declined to return to the US with the child, leading to the father reporting the child to the US Embassy as abducted.

The present petition was also filed in December 2020. The court initially granted the father access to the child through WhatsApp video calls and later allowed physical access when the father travelled to India.

Meanwhile, legal separation and custody proceedings were initiated by the father in the US, while the mother filed domestic violence and divorce proceedings in Indian courts. The Colin County court, Texas granted divorce and irrevocable custody of the child to the father.

The present petition was disposed of based on certain agreements between the parties. However, the father appealed to the Supreme Court which directed the case to be restored for fresh consideration.

Arguments

Advocate Prabhjit Jauhar for the father submitted that the couple had a clear intention to permanently settle in the US, pointing to their employment, joint property ownership, and the child's birth in the US.

Jauhar argued that the child, being a US citizen, would have better prospects of education and social security there, and is entitled to healthcare facilities as well as comprehensive insurance coverage. He highlighted the father's qualifications and employment in the US to demonstrate his ability to care for the child in the US.

Senior Advocate Lata Desai for the mother argued that the father's actions are hasty as the child is currently in the lawful custody of his biological mother. She contended that there are no compelling reasons to uproot the child from India and take him to the US.

Desai claimed there were no pre-existing custody orders, making the habeas corpus petition non-maintainable. She further contended that the child has strong ties to India, and taking him to the US would not be in his best interest. The mother contended that the child has been settled in India for over two years, and there is no reason to disrupt his custody.

Ruling

The court held that there being no pre-existing custody order of the US Court in the present case cannot be a ground to contend that a writ for habeas corpus is not maintainable. “…a writ for habeas corpus cannot be used only for mere enforcement of the directions given by a foreign court”, the court observed.

The court highlighted that summary jurisdiction can “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.” The court held that child's best interest cannot be overshadowed by issues such as the comity of courts, foreign court orders or citizenship.

The court noted that the father had taken prompt action to locate his son after he was denied access on his first birthday. He filed a complaint to the US Embassy alleging inter parental abduction and initiated legal proceedings. This cannot be said to be hasty, the court held.

Despite being served with notices and proceedings, the mother did not contest the US court’s orders, nor did she challenge them in any way, the court noted. The court opined that the proceedings initiated by the mother in India seem to be an afterthought aimed at preventing the father from taking the child back to the US as there were no prior complaints of physical or mental abuse.

The court opined that the child's stay in India for two and a half years is not sufficient to integrate into physical, physiological, cultural and academic environment of India. Hence, he will not face an entirely foreign education system in the US, the court said.

The court declined to extensively examine jurisdictional issues regarding the Texas Court or Indian courts. It opted for a summary inquiry, considering the emergent situation of repatriating a minor child who is a US citizen and has lived in India for over two years.

The court ordered the mother to return the child to the father within fifteen days. If she is willing to travel to the US with the child, the court directed the father to book air tickets for her and the child. The father was held obligated to arrange the mother and child's residence for three months, as per his undertaking. The father also agreed not to take coercive steps against the mother for non-compliance with US court orders.

The court allowed daily video calls between the mother and the child for half an hour. The court also encouraged both parents to consider a plan for joint parenting through appropriate legal channels.

Case Title – ABC v. XYZ

Case no. – Criminal Writ Petition No. 97 of 2021

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