HC asks woman to give her estranged husband the child’s custody

The order to the woman to return the custody of the child to his father in 15 days was passed on September 14.

The Bombay High court has said the best interest of a minor cannot be only the love and care of the primary caregiver, the mother, and directed the woman to give her estranged husband the child’s custody.

A Division Bench of Justices Revati Mohite Dere and Gauri Godse was hearing a petition filed by the father of a three-and-half-year-old child living in the U.S. He sought directions to his estranged wife living in India that she and their child, who is a U.S. citizen, return to the country.

The couple got married in March 2010 and moved to the U.S. in June 2010 where they both got the green card. The child was born in December 2019 and the woman came to India with the child in December 2020 and told her estranged husband not to contact her. He then wrote a letter to the U.S. Embassy in India that his son, who is a U.S. citizen, was abducted and soon filed a habeas corpus petition in the High Court. The woman, on the other hand, initiated domestic violence and divorce proceedings against the man in different courts in India.

The court said, “The expression ‘best interest of the child’ is of paramount consideration and had a wider connotation. It cannot be 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, while deciding the welfare of the child, it is not the view of one spouse alone which has to be taken into consideration.”

The 73-page-order to the woman to return the custody of the child to his father in 15 days was passed on September 14 and it took into consideration the husband’s profile. The court said, “It considered the petitioner’s [man’s] work profile, as he is allowed to work from home most of the time. It is not disputed that the petitioner is also a certified Cricket Australia coach and is already coaching the kids; he is an excellent cook and can cook any cuisine. Being a U.S. national, he is also entitled to all the health care facilities in the U.S., which includes comprehensive insurance packages covering the minor child.”

The court added, “We believe that at the tender age of the child, it is entitled to have the company of both his parents. Rather, it is his basic human right to have the care and protection of both parents. Thus, the respondent [woman] is not justified in unreasonably depriving the child of the company of his father.”