Best interest of child cannot be decided only based on mother's love and care: Bombay High Court grants custody to father

What is in the best interest of a young child cannot be solely based on the love and care of the child's mother, the Bombay High Court recently held in a custody case..A Bench of Justices Revati Mohite Dere and Gauri Godse made the observation while deciding a habeas corpus petition filed by a father in 2020 for the custody of his 3-year-old US-born child. The petitioner father sought physical custody of his child to take him to the USA..The Court directed the mother to return the custody of the minor child to the father within a period of 15 days. It emphasized that the issue of custody ought to be decided only on the basis of what is in the best interest of the child."The expression “best interest of the child”, which is always kept to be of paramount consideration cannot remain 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 judgment stated..The couple got married in March 2010 and moved to the USA in June the same year to settle down permanently. They obtained a green card in October. The child was born in December 2019. The respondent mother travelled with the son to India in December 2020 and informed the petitioner that he should not contact her. The father then informed the US Embassy in India that his son had been abducted and also approached the police in India. He filed the present petition the same month. On the other hand, the mother lodged a domestic violence complaint against the father in India and also filed for divorce. Meanwhile, a US court allowed the father's divorce plea in April 2021 and granted him irrevocable custody of the son..The High Court observed that the proceedings initiated by the mother in India seemed to be an afterthought, only with an intention of not allowing the father to take the child back to the US. It also remarked that since matrimonial disputes involving custody of children are bitterly fought in courts, children suffer the most. In this light, it said,"The Court is required to exercise parent patriae jurisdiction and compel the parties to do something that is in the best interest of the child. Hence, in such a peculiar situation, it is the responsibility of the Court to enter into the role of a guardian for the child.".The Court also observed that the father could provide the best of both countries to his son, who was also entitled to health benefits being a US citizen."Considering the petitioner’s work profile, he is allowed to work from home most of the time. It is not disputed that the petitioner is also a certified cricket coach; he is an excellent cook and can cook any cuisine. The child, being a US National, is also entitled to all the health care facilities in the US. The wife is also a green card holder and permanent resident of the US. Thus, all these factors support the petitioner's case that it will be in the interest of the child to return to the US," the judgment recorded..The Court further noted that after the parties had consciously decided to make the child a US citizen, the mother was not justified in taking a unilateral decision to prevent the child from returning to the USA.The Court also said that other than the child being of a tender age, there was no other factor in the mother's favour. It thus allowed the father's petition subject to certain conditions..Advocates Prabhjit Jauhar, Niranjan Mundargi, Keral Mehta, Vikrant Shinde and Jai Abhyudaya Vaidya appeared for the father.Senior Advocate Lata Desai with Advocates Dr Palavi Divekar, Manasi Hirve and Darshana Pawar appeared for the mother..[Read order]