A divorced American couple of Indian origin is fighting a legal battle in India over custody of their minor daughter.
The Supreme Court on Tuesday asked the mother to produce the child before it on June 4 to find out if the daughter wanted to be with the mother or the father.
“The child is suffering… Have you taken the wish of the child into account? That has to be determined,” a bench of justices CK Thakker and LS Panta said, adding, “The wish of the child is very important.”
It also issued a notice to the father on the mother’s petition challenging the April 30 order of the Calcutta High Court rejecting her plea to allow her to keep the daughter with her in India.
In fact, the dispute started in the US itself. After the couple split, the daughter was with the mother under an order passed by a US court that had given the father “right to visit” the child. The mother, who remarried and had a baby with her second husband, allegedly violated the US court’s order and came to Kolkata with the seven-year-old girl.
The apex court would also decide if a Person of Indian Origin (PIO) could invoke jurisdiction of Indian courts to overrule a foreign court’s order. According to Section 13 of Code of Civil Procedure, the decision of a foreign court is binding upon the parties (in India) unless it appears that such court had no inherent jurisdiction to pass the order.
The mother, now living with her second husband in Kolkata with an Overseas Citizen of India (OCI) status, has alleged that her first husband obtained an ex-parte order from a US court for the girl's visit to that country. She accused her former husband of filing an application before Indian authorities for the cancellation of OCI status granted to their daughter.
She expressed fears that if during the child’s visit to the US her OCI status was cancelled by Indian authorities, the girl will have to stay over there as a US citizen. However, the father’s counsel said all of them (the child and her parents) were US citizens and they had accepted the jurisdiction US courts. Even their marriage was dissolved through a decree of mutual divorce by a New Jersey court.
The mother contended the US court had granted her custody of the child.