MUMBAI: The Bombay high court on Tuesday dismissed a habeas corpus petition filed last November by a Sri Lankan-Canadian father for orders to produce his minor daughter and son who are with his estranged wife in India and hand over their custody to him. The father, based in Lanka, cited an October 2017 order of the high court there restraining her travel to India with the children and an August 2018 order of a Sri Lankan court which had granted him physical custody of both children and divorce, on grounds of desertion.
Three days after the interim stay in 2017, the Indian mother claiming to be unaware of it had travelled to India with the children. They have since been residing in Thane.
Justices S S Shinde and Manish Pitale who pronounced the judgment said the children’s best interest is of paramount importance and “merely because there are some orders passed by a foreign court against their mother, according to us, that would not dis-entitle her from continued custody of the minor children”.
The children aged 6 and 7 are in India since the last three years and “appeared to be comfortable with their mother’’ also their progress report appears to be satisfactory,” observed the HC bench.
The family has lived around the globe. Both parents, highly educated, had shifted to the US in 2013, three years after their marriage. The Daughter was born in the US and is an American citizen. The younger child born in India, holds Sri Lankan citizenship.
The HC also took note of a report prepared by the American Consulate in Mumbai for the daughter which said she was being well looked after here. Both children had “developed roots” in India and speak the local language and are well adjusted in school, said the HC after the Judges interacted with them.
The HC also noted that though “opinion of such small children in itself may not be a deciding factor’’, it felt it was “relevant’’ that both “unequivocally stated’’ their desire to stay with their mother in India.
Marital discord soon disrupted their life and both parents hurling serious allegations at each other, with help of the police and women’s NGO being sought in Sri Lanka.
A court in Lanka in 2015 by an interim order granted custody to the mother with directions to provide weekend four-hour access of children to their father. Later in 2017 when she sought permission to take the children to India to visit their grandmother, while the lower court granted permission for a two week trip, the HC on the father’s plea stayed it. The father had sought divorce in 2016.
The husband’s counsel Armin Wandrewala hence argued that the wife had defied and flouted the HC order and hence cannot be permitted to continue to reside in India “with illegal custody” of the children. She argued that the mother also refused summons and warrant issued by Sri Lankan courts to enforce its custody order.
The wife’s counsel Amogh Singh however said she was “constrained to bring the children to India, because very difficult conditions were created by the petitioner (father)’’. He said she found herself “isolated in a foreign land without knowledge of local language’’ when they had moved from US to SL and the differences between the estranged couple had “reached a point of no return’’.
Both counsel emphasized the welfare of children as a reason to back their plea of custody and cited Supreme Court rulings.
The HC too said the law laid down by the SC of welfare of children needs to be applied to facts of each case. “no straight jacket formula can be laid down and therefore it is for the court to appreciate facts as they emerge…and submissions made by rival parties to apply the position of law and to reach an appropriate conclusion.’’
The HC found it relevant that the father filed his petition three years after the children were brought to India. Wandrewala said it was his “last resort” as he first moved local courts which issued summons and warrants.
The HC took note of the SC judgment in that said mere order of a foreign court of custody does not render continued custody of children in India with the other parent, illegal and had noted that mother is a natural guardian of children.
The SC had in the past held that citizenship of minor children pale into insignificance while determining best interest of children said the HC and hence said it cannot be the deciding factor in this case.
The HC said it was not persuaded to hold the children’s custody with mother to be illegal but directed that the father must be given access and visitation rights whenever he visits India for two hours per day twice a week and also video conferencing and phone access on weekends and holidays too.
The HC said the father can however still take steps independently to enforce the order of the courts in Sri Lanka and the mother can exercise her rights to defend when he does.