Just like a mother can be held capable of providing all the care and protection to a child irrespective of the child’s gender, similarly, even a father needs to be capable of providing all the care and protection to a child irrespective of the child’s gender, said the Bombay High Court. The HC recently held that it would be unfair to hold a father, before it, as incapable of providing all the care and protection to the daughter only on the ground of her gender. A division bench of Justices Revati Mohite Dere and Gauri Godse on Friday noting that the conduct of the father—a US green card holder– was “well intentioned’’ directed the mother to hand over physical custody of the US citizen minor to him for her repatriation to America.
“It is her basic human right to have the care and protection of both parents,’’ said the HC, of the child adding, the mother was “not justified in unreasonably depriving the daughter of the company of her father.’’ And she “cannot deprive the daughter of her basic human rights only because she has decided that she does not want to go back to the USA, where the parties are permanently settled,’’ held the HC.
The HC also held that the mother’s refusal to return to the US was unjustified and said that divorce and custody proceedings she initiated in India do not form a valid ground to not repatriate the minor child to the US.
The HC said that the mother must hand over the child aged 5, in 15 days to the father so he can take the child back. The welfare and best interest of the daughter lies in her living in the USA and that there is no valid ground to detain her in India, said the HC in a ruling pronounced on Friday. The bench said “We find that to ensure the fulfilment of the daughter’s basic rights and needs, identity, social well-being and physical, emotional and intellectual development, it is necessary for her to go back to the USA.’’
The couple, Indian citizens, had got married in Kerala in 2014 and moved to the US where their child was born. The husband is a scientist. In January of 2023, the wife came to visit her family in Mumbai with the child and though scheduled to return in April continued to stay on.
The husband filed a petition of habeas corpus (to produce one who is illegally detained) for directions to his wife to produce the US citizen minor and allow him to take her back to the US with him. His counsel Janay Jain said the child was due for a kindergarten admission interview mid-May, but the mother refused to take her to the US and in May said she had filed a divorce and child custody plea before the Mumbai family court. He flew to Mumbai and said when his estranged wife ‘refused to cooperate’ flew back alone and later sought the assistance of the External Affairs Ministry (MEA) and Mumbai police to help bring his child back, but claiming no response, approached the HC on June 26, 2023.
The husband and wife initially tried for an amicable settlement. The HC appointed a mediator. But on October 5, the HC was informed that mediation failed.
The HC then heard Jain for the husband, wife’s counsel Ansh Karnavat and Nirman Sharma with advocate Jay Bhatia for the in-laws at some length. Jain argued that the wife’s return to India was unjustified which Karnavat countered saying the disputes between them were “long-standing’’ and her decision was because of his “harassment’’ and “altercations’’ requiring her once to call a ‘bilingual bicultural counselor advocate’ in the US.
Both sides argued that the child would be better raised in the country they currently resided in. The mother added she was a better caregiver for the minor daughter.
The HC said it was unfortunate that due to the parents’ personal discord, the child was suffering the most and being deprived of the company of both parents and her “entitlement to rights and privileges in the US as a citizen.’’
Exercising its ‘parens patriae’ jurisdiction as a guardian for the child, the HC thus, in the best interest of the minor after analyzing submissions, said the mother could not substantiate allegations of the father’s conduct being a matter of concern for the minor’s safety.
“We find that the stay of the daughter in India for the last around a year is too short a period to facilitate her integration into the social, physical, physiological, cultural, and academic environment of India. Hence, if repatriated to the USA, she will not be subjected to an entirely foreign environment. Rather, a maximum period of her life, the daughter has lived in the USA,’’ the HC held.
