HC finds 13-year-old mature enough, refuses to give custody to her UK-based father

A division bench of Justice Bharati Dangre and Justice Shyam C Chandak said they could not compel the girl to accompany her father to the UK, after finding her mature enough to make up her mind to continue to stay with her mother in India

MUMBAI: The Bombay High Court has rejected a petition filed by a UK resident, seeking custody of his 13-year-old daughter who lives in Mumbai with his estranged wife, noting that the teenager was mature enough to make er own decisions and had chosen to stay with her mother in India.

Gavel and law books (Getty Images/iStockphoto)

A division bench of Justice Bharati Dangre and Justice Shyam C Chandak said they could not compel the girl to accompany her father to the UK, after finding her mature enough to make up her mind to continue to stay with her mother in India. “We are convinced that XYZ (the teenager) has matured in all these years and no decision can be forced upon her,” the bench said.

The father had approached the high court in 2021 with a habeas corpus petition, claiming that his wife had retained illegal custody of his daughter, against orders passed by a family court in the UK, and sought custody of the child from his estranged wife, who lives in Mumbai.

According to his petition, he married a Mauritian national, now his estranged wife, in December 2005. In September 2008, the couple chose to shift to the UK, where he worked as an IT consultant and his wife a logistics manager. Their daughter was born in the UK on March 24, 2012.

In April 2015, cracks started to appear in their marriage and, although they continued to live under the same roof, they were physically and mentally estranged from each other.

The father claimed that, apprehending foul play, he had approached the family court in the UK for prohibitory steps, and on January 1, 2016, the family court at Barnet, prohibited his wife from removing the girl from its jurisdiction – England and Wales.

He said later, in October 2016, a child arrangement order was passed, under which he was to get shared custody every weekend. During this arrangement, in April 2017, the family court allowed his wife to take the child to India to meet her grandmother and extended family in India, from May 2017 to June 2017, hoping that she would return to the UK with the girl at the end of the holiday, but she did not.

Since the woman filed a custody petition before the Thane Sessions Court, the father approached the high court for custody of his daughter.

The high court, however, rejected his prayers, observing that in custody matters, the welfare of the child is of utmost importance and it would override even orders passed by courts overseas. “The order of the foreign court, even if any, must yield to the welfare of the child,” the court said.

The judges also met the 13-year-old in chambers and, after interacting with her, realised that she was a mature teenager and had chosen not to accompany her father to the UK. She had opted to stay with her mother in India. The judges said, against this backdrop, they “cannot compel” her to reside with her father and restore her custody to him.

The judges said she is now a young woman, who has “painted the future for herself in India with the love and affection showered upon her by her mother”. They said she looks forward to a future in India, with no intention of returning to her father. They also found her “well settled” in India along with her mother during the last four years.

In their interaction with the child, the judges also noticed that she was completely alienated from her father. They felt her father was to blame for this, as he had made no effort to meet her during the last four years, and said that he had “failed to discharge his obligations of a father”.