[Child Custody] Best interest of child not equivalent to love and affection of mother alone: Bombay HC

  • Sakshi Shukla
  • 10:58 AM, 18 Sep 2023

Read Time: 12 minutes


“matrimonial disputes constitute the most bitterly fought adversarial litigation, and when the issue of custody of children is involved, children suffer the most”, the bench said.

In an exceptionally articulated judgment, the Bombay High Court recently allowed a habeas corpus plea by the father seeking custody of his 3-year-old child, observing that “best interest of the child” cannot be construed to mean love and affection of the mother alone. Taking into consideration a catena of judgments, the Court reiterated that care and protection of both parents is a basic human right of a child and that the opinion of one spouse only cannot drive the outcome of custody matters.

A division bench of Justice Gauri Godse and Justice Revati Mohite Dere, while allowing the petition and directing hand over of physical custody within 15 days, observed, “The expression best interest of the child, which is always kept to be of paramount consideration, is indeed wide in its connotation, and it 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… while deciding the welfare of the child, it is not the view of one spouse alone which has to be taken into consideration. The Courts should decide the issue of custody only on the basis of what is in the best interest of the child.”

Following are the other related observations [on merits and custody matters] made by the Court;

1. Doctrines of comity of courts, intimate connect, orders passed by foreign courts, citizenship of parents and the child, etc., cannot override “the best interest of the child”.

2. No explanation coming forth from the respondent for concealing the whereabouts of the child from the petitioner.

3. No pre-existing order in the US Court cannot restrict a plea for habeas corpus.

4. Just because the respondent refused to return, the child stayed in India for around two and a half years – Such a stay cannot be assumed to be the basis for “roots in India”, as contended by the respondent.

5. Facts and circumstances show that the parties made a conscious decision to make their child a US citizen.

6. Care and protection of both parents, a basic human right.

“Except for the tender age of [the child], where he needs the care and protection of a mother, we do not see any factor in favour of the respondent. At the same time, we believe that at this tender age, [the child] 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 is not justified in unreasonably depriving [the child] of the company of his father. The respondent cannot deprive [the child] of his basic human rights only because she has suddenly decided that she does not want to go back to the US, where the parties were permanently settled”, Court further said.

Brief Background

The present petition was filed by the father of a minor child seeking a writ of habeas corpus against respondent no. 1 – the mother of the minor. Directions were sought for handing over the physical custody of the minor to the petitioner, for taking the child along with him to the United States, in compliance with an order dated 26.01.2021 by 470th Judicial District Court, Collins County, Texas.

Though the petitioner and respondent got married under the Special Marriage Act in Mumbai, after travelling to the US, the parties remarried in the Family Court in Texas, and submitted to the jurisdiction of the Texas Court.

As per the facts of the case, the parties to marriage always had an intention of settling down in the US and the child born was a natural citizen of the US. Moreover, the parties had their tickets back to the US, however, the respondent decided not to accompany the petitioner.

The petition was filed on 30.12.2020, when the respondent not only denied the petitioner to meet the child, but also opposed going back to the US with him.

Counsel for the petitioner inter-alia contended that,  (i) detaining the child in India is against the “best interest theory” (ii) both parties were married in Mumbai, but by remarrying in the US they submitted to the jurisdiction of the Texas court and any proceedings conducted in India, were without jurisdiction (iii) No foreseeable threat in case the child is repatriated to the US (iv) ready and willing to provide all necessary facilities – Reliance was inter-alia placed on the decisions in Yashita Sahu v. State of Rajasthan (2020) 3 SCC 67, Nilanjan Bhattacharya v. State of Karnataka 2020 SCC Online SC 928, Abhinav Gyan v. State of Maharashtra 2022 SCC Online Bom 2958.

Counsel for the respondent inter-alia argued that, (i) the child was around 3.5 years and in the lawful custody of his biological mother – as per the Hindu Minority and Guardianship Act, 1956 (ii) case of abduction and other allegations framed against the respondent were made in haste, remain unsubstantiated (iii) no pre-existing order in favour of the petitioner before moving plea for habeas corpus, unlike the cases relied.

“the child's presence in India is only the result of the respondent’s unilateral decision of not returning to the US and her act of neither complying with the order passed by the US Court nor challenging the same by taking appropriate steps. Thus, the respondent cannot claim any advantage by stating that the child has developed roots in India”, the Court added.

Both the husband and wife were Indians, permanently residing in the US.

Case Title: … v. …. | CRIMINAL WP NO. 97 of 2021