Child Custody Cannot Be Determined By Weighing Economic Circumstances Of Contesting Parties: Allahabad HC

In a habeas corpus petition seeking custody of minor children, the Allahabad High Court Judicature at Lucknow bench observed that while deciding the welfare of children, it is not the view of one spouse alone which should be taken into consideration.

A child, especially in his formative years, requires love, affection and company of both the parents; Primary objective of a habeas corpus plea in child custody matters is not to weigh economic circumstances or find a more comfortable home between the two contesting parties, but a home which can act for the welfare of the child including general spiritual, emotional and psychological welfare of the child, said the court.

Court was hearing a plea by a mother seeking change in custody of her children residing in India, on the ground of illegal detention and violation of court orders passed in the US.

Justice Shamim Ahmed, while disposing of the petition and allowing custody to remain with the father, observed, “Whenever a question arises before a court pertaining to the custody of minor child, the matter is to be decided not on consideration of the legal rights of the parties but on the sole and predominant criterion of what would best serve the interest and welfare of the child. The primary object of a Habeas Corpus petition, as applied to minor children, is to determine in whose custody the best interests of the child will probably be advanced. Further, the question of custody cannot be determined by weighing the economic circumstances of the contending parties. The matter will not be determined solely on the basis of the physical comfort and material advantages that may be available in the home of one contender or the other. It is further held that the welfare of the child must be decided on a consideration including the general psychological, spiritual and emotional welfare of the child.”

The court further observed that whatever may be the differences between the parties, the children cannot be denied the company of both the parents, and in light of the same, issued the following directions –

(i) Custody of the Children shall remain with the father;

(ii) Since the petitioner-mother resides in the US, she is permitted to meet the children during her stay in India, in the evening between 6.00 PM to 8.00 PM at the residence of the respondents, in addition to having a conversation through video call/voice call with the children between 8.00 PM to 8.30 PM IST, while residing outside India;

(iii) The petitioner is allowed to gift on account of love and affection or do anything for the well-being of children;

(iv) The petitioner is at liberty to pursue appropriate forum for claiming custody under Minority and Guards Act, 1956 or Wards Act, 1890, as the case may be.

Brief Background

The petitioner and respondent no. 4 entered into wedlock as per Hindu rites and ceremonies on 15.02.2008 and eventually moved to the US.

On things turning sour, the parties entered into an amicable settlement on 02.06.2022 and thereafter approached the family court for divorce by mutual consent.

Superior Court of New Jersey Chancery Division, allowed the settlement deed and granted divorce to the parties.

The counsel for the petitioner submitted that as per Article III of the Matrimonial Settlement Agreement, days were fixed for the physical custody of the children but respondent No.4 kept the petitioner in dark and on certain pretext took the children from the US to India at his native place, without obtaining the consent of petitioner for permanent relocation of children. It was added that initially respondent No.4 used to make the children speak to the petitioner and allowed the petitioner to interact with her children as well, but, later on, he did not allow the conversations to take place either way.

Case Title: Mirah Pandey v. State of UP | HABEAS CORPUS WRIT PETITION NO. 67 of 2023