Separating 7-Yr-Old From Mother & Handing Over To Father Settled In Dubai Not In Child's Best Interest Irrespective Of Father's Finances: Rajasthan HC

The Rajasthan High Court has ruled that the far better financial condition of a father cannot be the decisive factor in affirming that the child's welfare would be best assured if the minor's custody was handed over to the father.The division bench of Chief Justice Manindra Mohan Shrivastava and Justice Shubha Mehta was hearing a habeas corpus petition filed by a father who was alleging illegal and wrongful detention of his minor child by his wife who had brought the child to India illegally, without his knowledge, from his native country Dubai where the child was born and ordinarily residing. Preliminarily, the Court addressed the arguments raised regarding the maintainability of the habeas corpus writ petition and observed that the writ was maintainable even if filed by one parent against the other since the paramount consideration was the welfare of the child. Pursuant to hearing all the arguments, allegations and counter-allegations from both sides, the Court held that there was no clinching evidence submitted by either of the parties to support their allegations against one another. Hence, there was no element of unsuitability that could render either the father or the mother detrimental to the life and security of the minor. “The parties might be quarreling with each other and making wild allegations, there is nothing on record which shows that either the petitioner or the Respondent No.6 has treated the minor with such behavior which would render it unsafe to continue the custody of the child with either of them.”The Court further observed that except for the father having a far better financial condition, all other factors were almost at par with the mother and in such a light, the decision of custody inclined in the favour of the mother since the mother was the closest to the child of a tender age who was under the constant care of his mother at all times and was highly dependent on her for everything. The Court further opined that removing the child from his mother's custody and handing it over to the father who was residing in Dubai would not be in his best interests. “In our opinion, the present age of the child is such that his welfare would be best sub-served if he is allowed to continue in the custody of his mother for some more time and it is only when the expenses of his education and other requirements go on higher side in times to come that the interest of the child may be adversely affected in allowing him to continue the custody of his mother, unless, of course the mother improves her financial capacity in such a manner that she is able to cater to all the needs of the child including his health, education, extracurricular activities and all other needs for his overall physical and mental growth in appropriate manner.”While reaching the decision, the Court also addressed one of the primary arguments of the father to the effect that the minor child was illegally removed from his native country i.e. Dubai where he was born and also attending school and thus, courts in India did not have a jurisdiction to enter into a detailed enquiry regarding all the allegations since the writ petition was summary in nature. It was also submitted that he being the natural guardian of the child as per the Guardians and Wards Act, 1890, should be having the child's custody in the absence of any proof that such custody shall be detrimental to the child. Rejecting these arguments, the Court held that firstly, being the natural guardian could not be the sole consideration for determining the child's custody since the paramount consideration was the welfare of the child and it was the Court's duty, adopting a parens patriae approach, to examine all relevant considerations to arrive at a just conclusion. The Court referred to many Apex Court cases wherein the primacy of a child's welfare over the parents' statutory rights has been observed. Secondly, on the question of jurisdiction, the Court again referred to multiple Supreme Court cases to opine that even when a child was removed from his/her native country and brought to India while examining the claim for custody, the Court's approach had always been guided by the principle of welfare of the child being the paramount consideration. And based on that the Courts had either sent the kid back to the native country or given custody to the parent who came back to India. In this light, the Court granted visitation rights to the father and opined that the mother shall be obliged to allow full access to the father since the father was equally important for the child's welfare. “It is of utmost importance that irrespective of the differences and disputes between the parents, the child grows with the care, love affection, bonding and attachment equally with the father as well as the mother… It is advisable to both the parents that their dispute should not affect their son and he is not deprived of love, care and attention of both of them.”Accordingly, the writ...

Separating 7-Yr-Old From Mother & Handing Over To Father Settled In Dubai Not In Child's Best Interest Irrespective Of Father's Finances: Rajasthan HC

Nupur Agrawal

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