Bombay High Court Orders Repatriation Of 7-Year-Old Girl To Father's Custody In USA, Says Mother Abducted Her For Own Interest

The Bombay High Court recently ordered the repatriation of a seven-year-old child to the United States of America (USA) in custody of her father who had been granted sole custody by a court in USA.

A division bench of Justice AS Gadkari and Justice Shyam C Chandak criticized the mother's act of unilaterally relocating the daughter to India despite pending legal proceedings in USA, opining that she abducted the child.

“story weaved and the scheme designed by wife to return to India by abducting Miss 'R', unmindful of the ill-consequences of the said act, is not acceptable it being devoid of merits. The said action of the wife was intended to serve her own interest, not the child's”, the court observed.

The court referred to the observations in case of Philip David Dexter that when the mother is the abducting parent, it is common for her to claim that the matrimonial bond has broken down, often citing ill-treatment and domestic abuse by the male spouse, posing a risk to the child's mental or physical health. The abducting parent may justify their actions by resorting to covert operations, deceiving the spouse and the courts, and seeking refuge in their home country where familial support is available.

The court held that these observations are directly applicable to the present case.

The court allowed a man's habeas corpus writ petition seeking custody of his daughter for repatriation to the USA.

The petitioner's daughter, born in June 2016 in the USA, is a US citizen. The family lived together in New Jersey until August 2020, then in North Carolina until the parents' separation on September 5, 2023.

Seeking sole custody, the petitioner approached the Mecklenburg Court, which granted temporary joint custody till a final decision. However, the wife took their daughter to India in December 2023 without notice, and filed cruelty and custody cases against the petitioner.

The Mecklenburg Court granted sole custody to the petitioner in January 2024. Thus, the petitioner approached the HC seeking custody of his daughter.

The petitioner's wife, in her affidavit-in-reply to the petition, accused him of cruelty and alleged that the petitioner planned to deprive her of their daughter's custody and engaged in coercive tactics. She raised concerns about the daughter's well-being under the husband's care, claiming that there were instances of neglect and emotional distress.

The court observed that during her time in the USA, the child adapted well to the local environment, language, and likely had friends, with no recorded harm from the husband until her sudden removal to India by the wife, causing emotional distress due to separation from her routine and father.

Financially stable, the petitioner, a Data Scientist, can adequately support the child in the USA, where the parents jointly own a spacious house suitable for separate living arrangements, the court said. Considering the daughter's US nationality, the court noted potential future advantages in a developed country, noting possible challenges for the wife to provide similar amenities in India as enjoyed in the USA.

The court questioned the wife's motives in relocating the child to India amid legal proceedings in the USA, especially considering the husband's willingness to provide support and accommodation for both wife and child in the USA.

The wife asserted that the separation caused her daughter stress and anxiety, leading to disciplinary issues at school. She sought counselling for the daughter and alleged that the husband's behaviour exacerbated the situation. However, the court criticized her delay in seeking appropriate psychiatric help for her daughter.

“she avoided to give priority to Miss 'R's health and instead, thought it appropriate to first file cases against the husband. This amounts to serve one's own interest. As such, the plea as to Miss 'R's mental well-being and the related Psychologist's report was nothing but an attempt to mislead the Court”, said the court.

The court said that the wife's allegations of cruelty by the petitioner have to be verified at the trial. It observed that the wife's immediate resort to legal action in India after filing an FIR suggested a strategic use of litigation to prolong the legal battle and hinder the daughter's return to the USA.

“And we are sure, the wife has been led into this complicated situation only because of an improper legal advise given to her in/from India, which is really unfortunate, as it acted against Miss 'R', exactly from the time she left the USA”, the court added.

Despite residing in India, the wife has maintained her job in the USA, earning $84,000 annually, the court noted, adding that there are no indications that she plans to resign and seek employment in India. These circumstances indicate that once the litigation in India concludes, the wife intends to return to the USA with the daughter and settle there permanently, the court said.

From this, the court concluded the wife's actions, involving the abduction of the child and bringing her to India, were driven by her own interests rather than the child's well-being.

The court opined that the husband's conduct highlights responsibility and genuine interest in the child's well-being, reflected in his efforts to regain custody and provide for her needs. Thus, the court deemed it in the daughter's best interest to return to the USA.

While the court cannot compel the wife to return to the USA, it recommended that she accompany the child.

The court directed that if the wife returns to the USA with the daughter, she must comply with the court orders, and the husband will cover travel and stay expenses. The husband must cover all expenses of the daughter until the USA court provides otherwise.

The court clarified that these arrangements will remain until June 30, 2024, or until the USA court which has jurisdiction issues further directions.

If the wife doesn't return to the USA, the court the petitioner to ensure daily video calls with the daughter. Further, the petitioner must ensure the daughter visits India twice a year, staying exclusively with her mother.

Case no. – Criminal Writ Petition No. 341 of 2024

Case Title – ABC v. State of Maharashtra and Anr.