Mere Foreign Court Order Will Not Disallow Continuing Custody Of Indian Mother: HC to Sri Lankan Father | India News
MUMBAI: On Tuesday, the Mumbai High Court dismissed a habeas corpus petition filed last November by a Sri Lankan-Canadian father seeking orders to present his youngest daughter and son who are with his estranged wife in India and give you custody. The Lanka-based father cited an October 2017 order from the high court preventing him from traveling to India with the children and an August 2018 order from a Sri Lankan court that had granted him physical custody of the children and divorce for desertion.
Three days after the provisional stay in 2017, the Indian mother, who claimed not to know, had traveled to India with the children. Since then they have been residing in Thane.
Judges SS Shinde and Manish Pitale who issued the sentence said that the best interests of the children is of the utmost importance and “simply because there are some orders issued by a foreign court against their mother, according to us, that would not deprive her of continued custody of the minor children.”
The 6- and 7-year-olds have been in India for the past three years and “seemed to be comfortable with their mother” and their progress report appears to be satisfactory, ”noted the HC bank.
The family has lived all over the world. Both highly educated parents had moved to the United States in 2013, three years after their marriage. Daughter was born in the United States and is a US citizen. The youngest child born in India has Sri Lankan citizenship.
The HC also took note of a report prepared by the American consulate in Mumbai for the daughter who said they were taking good care of her here. Both children had “developed roots” in India and speak the local language and are well adjusted in school, the HC said after the Judges interacted with them.
The HC also noted that although “the opinion of such young children in itself may not be a deciding factor,” it considered it “relevant” that both of them “unequivocally stated” their desire to stay with their mother in India.
Marital Discord soon disrupted their lives and both parents leveled serious accusations at each other, with the help of the police and the wanted Sri Lankan women’s NGO.
A court in Lanka in 2015, through an interim order, awarded custody to the mother with instructions to give the children four-hour access to their father on weekends. Later, in 2017, when he applied for permission to take the children to India to visit their grandmother, while the lower court granted permission for a two-week trip, the HC, at the father’s request, suspended it. The father had filed for divorce in 2016.
Therefore, the husband’s lawyer, Armin Wandrewala, argued that the wife had defied and disobeyed HC’s order and therefore cannot be allowed to continue to reside in India “with the unlawful custody” of the children. He argued that the mother also rejected the summons and order issued by the Sri Lankan courts to enforce her custody order.
However, the wife’s lawyer, Amogh Singh, said that she was “obliged to bring the children to India, because the petitioner (father) created very difficult conditions.” She said she found herself “isolated in a foreign land with no knowledge of the local language” when they moved from the United States to SL and the differences between the separated couple had “reached a point of no return.”
Both attorneys emphasized the well-being of the children as a reason to support their custody statement and cited Supreme Court failures.
The HC also said that the law established by the CS for the welfare of children must be applied to the facts of each case. “A straitjacket formula cannot be established and therefore it is for the court to assess the facts as they arise … and the submissions made by rival parties to apply the position of the law and reach a proper conclusion “.
The HC found it relevant that the father filed his petition three years after the children were taken to India. Wandrewala said it was his “last resort” when he first moved to local courts that issued subpoenas and court orders.
The HC noted SC’s ruling to the effect that such a mere order from a foreign custody court does not make continued custody of the children in India with the other parent illegal and noted that the mother is the natural guardian of the kids.
The CS had argued in the past that the citizenship of minor children pales to insignificance while determining the best interests of children, the HC said, and therefore said it cannot be the deciding factor in this case.
The HC said that it was not convinced that custody of the children with the mother was illegal, but ordered that the father must have access and visitation rights every time he visits India for two hours a day twice a week and also video conferences. and telephone access on weekends. and vacations too.
The HC said that, however, the father can still independently take steps to enforce the court order in Sri Lanka and that the mother can exercise her rights of defense when doing so.