HC grants US-born child’s custody to father

The Bombay High Court has directed a woman to hand over custody of her 3-and-a-half-year-old son to her estranged husband in the US within 15 days. The court found that returning to the US would be in the best interest of the child, as he is a US citizen entitled to educational, social, and medical benefits there. The couple had decided to settle in the US, and the child was born there to secure US citizenship. The woman's refusal to return with the child was deemed illegal detention by the court.

MUMBAI: The Bombay high court (HC) on Thursday directed a 41-year-old Navi Mumbai resident to hand over custody of her 3-and-half-year-old son to her estranged husband, a resident of the United States of America within 15 days, after noticing that returning to the USA would be in the best interest of the child.

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“There is substance in the submission of the petitioner (husband) that it will be more beneficial for the kid to live in the US, as he is the citizen of the United States and is entitled to all the educational, social and medical benefits available there,” said the division bench of justice Revati Mohite Dere and justice Gauri Godse.

The judges also took into consideration the fact that the couple had decided to settle down in the US and accordingly after getting married in March 2010, the wife moved to the US, completed her higher studies there, secured a job and both obtained green cards (permanent resident card).

The bench said the couple had consciously decided to have their child born in the US, so that it gets US citizenship and all facilities available to citizens there and accordingly, the woman underwent an IVF procedure in April 2019 and gave birth to the baby boy in 2019. Thereafter the parents of the petitioner went to the US to take care of the child.

The couple had decided to celebrate the first birthday of their son in India in presence of their other family members over a short trip. On December 21, 2020, the couple and their child landed at Mumbai airport from where the woman went to stay at her parent’s house for two days. She was supposed to join the company of her husband on December 23, but instead the next day she sent a WhatsApp message to her husband, instructing him to not try to contact her and sought to end her ties with him.

The husband called his wife a number of times, but his calls went unanswered. On December 25, he went to her parents house in Nerul in Navi Mumbai, but found the house locked. The same day, he sent an email to the US Embassy in Mumbai and reported inter-parental abduction of his son and a week later approached high court with a habeas corpus petition, seeking custody of his son, to be taken to the US.

The woman responded to his petition, claiming that the child was too young to be taken away from the care and protection of the mother. Besides, she claimed that the child had subsequently developed roots in India and therefore could not be uprooted and sent back to the US.

The court, however, found no justification coming forth from the woman to support her unilateral decision to stay back in India and retain custody of the child.

“The reply filed by the respondent (wife) is bereft of any explanation for refusing to return to the US as scheduled,” said the bench while rejecting her contention. The judges also did not find any substance in her submission that the child has developed roots in India. “It is not disputed that the parties had visited India with a scheduled plan to return to the US. Just because the respondent refused to return, the child stayed in India for around two-and-half years, and it cannot be said that he has developed roots in India,” the bench added.

“The undisputed facts reveal that not only had the parties permanently settled down in the US but had taken a conscious decision to make their child a US citizen. Thus, the respondent is not justified in taking a unilateral decision that the child will not return to his native country,” the court said.

The judges said the woman cannot be compelled to change her decision, but her action of not permitting the child to return to his native country without any valid and justifiable reason amounts to illegally detaining the child in India.