The Gujarat High Court on Monday re-emphasized on primacy of child welfare in cases for granting custody of a minor child.
"…while considering the question of the custody of the minor child, the doctrine of comity of Court intimate contact and orders passed by the Foreign Court, etc. cannot override consideration of the best interest and welfare of the child. The Court has to consider on the basis of evidence adduced before it whether the direction to return the child to the Foreign jurisdiction would result into in physical, mental, psychological or other harm to the minor".
The decision was passed by a division bench of Justice S. R. Brahmbhatt and Justice A. G. Uraizee, in an appeal filed by Appellant Swati Binaykia through Advocate Garima Malhotra under section 19 of the Family Courts Act, 1984, read with Section 47 of the Guardian and Wards Act, 1890, seeking custody of her minor child and setting aside of the judgment passed by the Family Court which had granted the child's custody to the Respondent.
The factual matrix of the case is that the Respondent, father of a 6 years old child whose custody was in question, was a green card holder, working in US who later shifted to India and brought the child along, to live with his ailing parents. The Appellant, mother of the child, refused to move back to India and sought the child's permanent custody.
The Respondent husband, Abhishek Binaykia, through Advocates Sharvil Shukhla and Umesh Shukla contested the appeal, stating that the Appellant had a violative behavior and had attempted to suicide. He further submitted that she did not have a job to support the child and even if she did find a job, she'd have no one to take care of the child while she's at her office.
The Appellant on the other hand assailed the judgment of the Family Court stating that:
Refusing to accept the Appellant's submissions, the court found that the Respondent had left his job in the US and had surrendered his rented accommodation and it derived that such actions showed his intention to live permanently in India. It supposed that the attempt to acquire US citizenship was only with a view to facilitate his work related travel and greater ease in doing business and the same did not amount to any intention to permanently settle down in U.S. Thus, the requirement of "ordinary resident" under Section 9 of the Guardian & Wards Act, 1890 was duly fulfilled, the court said.
Reliance was placed on Sm. Kamla v. Bhanu Mal, AIR 1956 Allahabad 328, wherein it was held that,
"…When a person leaves the place where he has been residing as permanent resident for good i.e., with no intention to come back & goes to some other place to live there, the former place where he used to live, ceases to be his ordinary place of residence and the latter place becomes his ordinary place of residence."
In this view it was also held that the courts in India had jurisdiction. The bench relied on a plethora of precedents, including Lahari Sakhamuri v. Sobhan Kodali, AIR 2019 SC 2881 and concluded,
"while considering the question of the custody of the minor child, the doctrine of comity of Court intimate contact and orders passed by the Foreign Court, etc. cannot override consideration of the best interest and welfare of the child. The Court has to consider on the basis of evidence adduced before it whether the direction to return the child to the Foreign jurisdiction would result into in physical, mental, psychological or other harm to the minor".
With regards the Appellant's third contention it was noted that the decision of the court in US passed on September 16 was obtained by the Appellant after the orders dated September 3 and September 11 in 2015 passed by the Indian court, that too without intimating the US court about the orders passed by the Indian court.
In view thereof, reliance was placed on the principle of first strike, as also enshrined in Nithya Anand Raghavan v. State of NCT of Delhi & Anr., 2017 SCC Online SC 694, to hold,
"if the doctrine of first strike principle is applicable, it clearly favours the respondent. Not only did the respondent file the proceedings for protecting the custody., but the respondent was also protected by interim order passed on 3rd September and 11th September, 2015, much before the ex-parte ad interim order was granted by the U.S. Court in favour of the appellant on account of her willful suppression."
Emphasizing on the supremacy of child's welfare over consideration of a foreign order, the bench cited Dhanwati Joshi v. Madhav Unde, (1998) 1 SCC 112, wherein the Apex Court had held that,
"the Court in India has to take an independent decision on merits on the basis of elaborate inquiry in regard to custody of the child having regard to his welfare and the order of foreign Court is only one of the factors for consideration. The question of welfare being a matter of paramount consideration is required to be decided by the Indian Courts and the order if any passed by the foreign Courts is not conclusive, but merely one of the factors to be taken into account while exercising discretion".
After addressing the aforesaid issues on maintainability, the bench upheld the family's court order and granted the child's custody to the Respondent-father. It concurred with the Respondent's submissions that he was more competent to take care of the child than the Appellant mother who was financially unstable and had an unethical and violative character record.
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