The Delhi High Court, on Thursday, directed a woman to return to the United States with her child, opining that her decision to stay in India in view of her disputes with her husband was taken without keeping the best interest of the child in mind.
While doing so, the Bench comprising Justice Vipin Sanghi and Justice Deepa Sharma observed, "The expression “best interest of child”, as used by the Supreme Court in the above referred decisions, is wide in its connotation. It cannot be read as being only the love and care of the primary care giver, i.e. the mother in the case of an infant, or a child who is only a few years old...
... Thus, best welfare of the child, normally, would lie in living with both his/ her parents in a happy, loving and caring environment, where the parents contribute to the upbringing of the child in all spheres of life, and the child receives emotional, social, physical and material support - to name a few. In a vitiated marriage, unfortunately, there is bound to be impairment of some of the inputs which are, ideally, essential for the best interest of the child. Then the challenge posed before the Court would be to determine and arrive at an arrangement, which offers the best possible solution in the facts and circumstances of a given case, to achieve the best interest of the child."
The Court was hearing a Writ of habeas corpus filed by the father of a three year old girl, demanding that the child be removed from her mother's custody and be allowed to be taken to the US. This was in view of an order passed in January this year by the Circuit Court of Cook County, Illinois, USA.
He submitted that while on a trip to India, his wife filed a Petition under Section 13(1) of Hindu Marriage Act, seeking dissolution of marriage on the ground of cruelty. She had also filed an application under Section 26 of the Act, seeking an order restraining the Petitioner from taking away their minor child from India.
Meanwhile, the Petitioner had approached the Circuit Court, which ordered that the child be immediately returned to her father, who was granted interim sole custody of the child. The Petitioner had now approached the High Court, demanding that this order be complied with.
He had alleged that his wife was guilty of "inter-parental child removal/abduction" and that such abduction was causing "major adverse consequences to the overall development and wellbeing of the child M".. He had further asserted that the provisions of the Hindu Marriage Act were not applicable to the parties in dispute as they were not domiciled in India.
The wife, on the other hand, had alleged that her husband subjected her to cruelty by forcing her to have sexual intercourse with him against her wish. She had also cited several instances of being forced to denounce Hinduism and follow traditions of the Sikhism.
She had further contended that the child had not been illegally removed from the custody of the Petitioner, as the mother is the natural guardian of the child and the residence of the child follows that of the mother.
Giving due consideration to the contentions put forth by both parties, the Court began by examining precedents with similar factual situation. It then noted that the paramount consideration in such cases is the welfare of the minor child.
It went on to take note of the allegations leveled by the wife, and observed that the allegations per se did not suggest "any grave undesirable conduct or deviant behavior on the part of the petitioner, or his mother qua the child M – even if they were to be assumed to be true for the time being."
It was of the view that the wife's decision to stay back in India was "entirely personal to her, and her alone" and that the best interest of her minor child had been sidelined by her.
The Court further opined that it was Chicago that was the child's natural environment and observed, "There is no reason why she should be allowed to be uprooted from the environment in which she was naturally growing up, and to be retained in an environment where she would not have the love, care and attention of her father and paternal grandparents, apart from her peers, teachers, school and other care givers who were, till recently, with her."
Thereafter, directing the mother to return to the US, it observed, "Chicago, USA was the petitioners and respondent no.2’s Karam Bhumi. Respondent no.2 cannot run away from her Karam Bhumi and escape to India – which is her comfort zone, at the cost of her child’s best interest. Respondent no.2 should return to Chicago, USA to fight her battles on that turf, so that the child M can be with both her parents. Respondent no.2 is not alone, and carries with her the responsibility of bringing up the child jointly with her father. It would have been a different matter if the couple had not had a child."
Juvenile Justice (Care & Protection) Act, 2015
The Court also took note of various provisions of the JJ Act, in order to throw light on the concept of “best interest of the child”, as understood by the Parliament in India.
Emphasizing on the role of both the parents in bringing up the child, it then observed, "When involvement of one of the parents is not shown to be detrimental to the interest of the child, it goes without saying that to develop full potential of the child, it is essential that the child should receive the love, care and attention of both his/ her parents, and not just one of them, who may have decided on the basis of his/ her differences with the other parent, to re-locate in a different country. Development of full potential of the child requires participation of both the parents.
The child, who does not receive the love, care and attention of both the parents, is bound to suffer from psychological and emotional trauma, particularly if the child is small and of tender age. The law also recognizes the fact that the primary responsibility of care, nutrition and protection of the child falls primarily on the biological family. The “biological family” certainly cannot mean only one of the two parents, even if that parent happens to be the primary care giver."