Mere overseas court docket order will not dis-entitle Indian mother continued custody: HC to Sri Lankan dad | India Information
MUMBAI: The Bombay Supreme Court on Tuesday rejected a habeas corpus motion filed by a Sri Lankan-Canadian father last November to commission his underage daughter and son who was with his estranged wife in India are together to witness and hand over custody to him. The Lankan-based father cited an October 2017 order from the local Supreme Court restricting her travel to India with the children and an August 2018 order from a Sri Lankan court granting him child custody and divorce Desertion.
Three days after the stopover in 2017, the Indian mother, who claimed not to know anything about it, had traveled to India with the children. You have lived in Thane ever since.
Judges SS Shinde and Manish Pitale, who delivered the verdict, said the children’s welfare is paramount and “just because there are some orders issued by a foreign court against their mother will not prevent her from further detention exclude underage children ”.
The children, ages 6 and 7, have been in India for the past three years and “seemed comfortable with their mother”. Their progress report also seems to be satisfactory, “stated the HC-Bank.
The family has lived around the globe. Both parents, highly educated, moved to the United States in 2013, three years after their marriage. The daughter was born in the United States and is an American citizen. The younger child, born in India, is a Sri Lankan citizen.
The HC also took note of a report that the American consulate in Mumbai had prepared for the daughter, which stated that she was being well looked after here. Both children had “developed roots” in India and speak the national language and are well adjusted in school, said the HC after the judges had interacted with them.
The HC also noted that while “the opinion of such young children may not in itself be a determining factor”, it was “relevant” that they both “clearly” expressed their desire to stay with their mother in India.
Marital discord soon disrupted their lives and both parents threw serious allegations at each other in the search for police and women’s NGO in Sri Lanka.
In 2015, a court in Lanka granted the mother custody by means of an injunction with instructions to give her father four-hour access for children over the weekend. Later in 2017, when she asked 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 stayed with them at the father’s request. The father filed for divorce in 2016.
The husband’s lawyer, Armin Wandrewala, argued that the woman had defied the HC order and disregarded it and was therefore not allowed to continue living in India, “with illegal custody” of the children. She argued that the mother also denied subpoenas and arrest warrants from Sri Lankan courts to enforce her custody decision.
However, the woman’s lawyer, Amogh Singh, said she was “forced to take the children to India because the petitioner (father) created very difficult conditions”. He said she was “isolated in a foreign country with no knowledge of the local language” when they moved from the US to SL and the differences between the estranged couple had “reached a point of no return”.
Both lawyers stressed the well-being of the children as a reason to support their custody decision and cited rulings from the Supreme Court.
The HC also said that the law established by the SC for the welfare of children must be applied to the facts of the individual case. “A straightjacket formula cannot be established, so it is up to the court to assess facts as they arise … and statements made by competing parties in order to apply the legal position and arrive at an appropriate conclusion.”
The HC found it relevant that the father submitted his petition three years after the children were transferred to India. Wandrewala said it was his “last resort” when he first moved the local courts issuing subpoenas and arrest warrants.
The HC took note of the oversight committee’s ruling that the mere ordering of foreign custody did not make continued child custody in India with the other parent illegal and established that the mother was a natural guardian of children.
The supervisory committee had noted in the past that the citizenship of underage children becomes insignificant while determining the children’s best interest, the HC said, thus saying that this may not be the deciding factor in this case.
The HC said it had not been persuaded to consider custody of the children with the mother illegal, but instead instructed the father to allow two hours a day in India twice a week and video conferencing and telephone access on weekends and holidays as well.
However, the HC said the father could still independently take steps to enforce the order of the Sri Lankan courts and the mother could exercise her rights of defense if he did so.
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