The term ‘best interest of a child’ is wide in its connotation and cannot remain only the love and care of the primary caregiver parent, the Bombay High Court has said, adding it is a basic human right of a child to have the care and protection of both parents.

A division bench of Justices Revati Mohite Dere and Gauri Godse on Thursday directed a woman to return the custody of her three-and-half-year-old son to her estranged husband living in the United States of America within a period of 15 days.

The order was passed on a plea filed by the father claiming he and his estranged wife had a settlement wherein their child, who is a US citizen by birth, was to remain in that country with his mother.

The man, in his plea, said despite this arrangement, his estranged wife came to India with the child and refused to return.

The HC, in its order, said it was in the best interest of the child to return to the US where he was born.

The court said if the woman wishes to accompany her child then she may do so and directed the man to provide residence and monthly maintenance to her and the child.

“The expression ‘best interest of the child’, which is always kept to be of paramount consideration, is indeed wide in its connotation, and it cannot remain only the love and care of the primary caregiver i.e. the mother in the case of the child who is only a few years old,” the HC said.

The basis for any decision taken regarding the child is to ensure fulfilment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development, it added.

“However, while deciding the welfare of the child, it is not the view of one spouse alone which has to be taken into consideration. The courts should decide the issue of custody only on the basis of what is in the best interest of the child,” the judgment said.

The bench also noted that except for the tender age of the child where he needs the care and protection of a mother, there is no other factor in her favour.

“We believe that at this tender age, the child is entitled to have the company of both his parents. Rather, it is his basic human right to have the care and protection of both parents. Thus, the wife is not justified in unreasonably depriving the child of the company of his father,” HC said.

The couple got married in Mumbai on March 31, 2010. They moved to the USA on June 16, 2010, and they received their green cards in October 2020, which enabled them to stay in USA permanently. They started living in Texas where the child was born on December 25, 2019.

The woman and her son travelled to India on December 21, 2020, with a return ticket for January 13, 2021. Three days later, she informed her husband that he should not try to contact her.

On December 25, 2020, the man wrote an email to the US Embassy in India that his son, who is a US citizen, had been abducted. Five days later, he filed the petition in the High Court seeking habeas corpus of the son.

On January 8, 2021, the husband filed for legal separation and his son’s custody in a Texas court. The court directed that the son be returned to the father by January 25, 2021.

After this, the woman initiated domestic violence proceedings against her husband in Belapur court and also filed for divorce proceedings in Thane court.

On January 26, 2021, the USA court extended the time to return the child by four days.

The Texas court allowed the divorce petition in April 2021 and granted irrevocable custody of the child to the father.

The present habeas corpus petition was amended with prayer seeking compliance of the Texas court.

The HC noted that since custody battles were bitterly fought, the role of courts became crucial to enter as a guardian of the child.

“In our country, matrimonial disputes constitute the most bitterly fought adversarial litigation, and when the issue of custody of children is involved, children suffer the most.

“In such cases, the role of the court becomes crucial. The court is required to exercise parent patriae jurisdiction and compel the parties to do something that is in the best interest of the child. Hence, in such a peculiar situation, it is the responsibility of the court to enter into the role of a guardian for the child,” the court observed.

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