The High Court of Delhi on Monday reiterated the established proposition that welfare of a child cannot be measured by financial means or superior education alone.
“Even the contentions of Mr.Sahay as to the welfare of the child circle around the financial capacity of the petitioner and brighter prospects of the minor child in the USA. It cannot be forgotten that „welfare‟ is an all-encompassing term, it cannot be measured by financial means or superior education alone. Such specious arguments have already been rejected by the Supreme Court in Dhanwanti Joshi (Supra) and Ruchi Majoo (Supra),” a Bench comprising Justice G.S. Sistani and Justice Vinod Goel observed.
The Court was hearing a Petition filed by one Mr. Chandan Sharma, seeking a Writ of Habeas Corpus for custody of his minor son, so that he could be relocated to California, United States.
Mr. Sharma had gotten married in 2008, and had begun cohabitating with his wife in California from May, 2008. He, however, alleged that his wife had repeatedly neglected the welfare of their minor child, while solely focusing on securing an admission to a dental school.
Subsequently, in June, 2010, the Petitioner-husband alleged that the wife left for India with the child, on the pretext of attending a cousin’s wedding, and thereafter severed all contacts with him. He had then approached the Sunnyvale Superior Court through a legal separation petition. The Sunnyvale Superior Court had, in June, 2013, granted Mr. Sharma full custody of the minor child, directing the wife to return the child to the husband. The wife, however, refused to comply with the direction. Mr. Sharma then approached the Delhi High Court, seeking custody of his son.
He had now submitted that it was in the best interests of the minor child that he be returned to the father. He had further submitted that the principle of ‘first strike’ was also in his favour, as he was the first to approach the appropriate Court of Jurisdiction at the United States to seek custody of the minor child.
The wife had however, alleged physical assault by the Petitioner-husband and her mother-in-law, and had denied all his claims. She had further claimed to have filed an application before the Family Court, Patna for restitution of conjugal rights, and also under the Guardians and Wards Act, 1890, seeking to be declared as the guardian of the minor child.
She further submitted that separating the child from the mother and taking him to a completely different environment would adversely affect the psychology of the minor child, and would be detrimental to his growth.
On an examination of the emails exchanged between the couple, the Court came to the conclusion that it was the petitioner-husband who had deserted the wife and the minor son. “It is clear that it was the petitioner who did not act in the best interests of the child and dealt with him like a ball to be bounced around between the mother and the father,” the Court noted.
Therefore, while dismissing the Petition in favour of the mother, the Court directed the Family Court to conduct an elaborate enquiry in the matter, in order to ascertain the guardianship rights, observing, “In the light of all these circumstances, repatriation of the minor child pursuant to a summary enquiry does not seem feasible in the interest of the welfare of the minor child. An elaborate enquiry is called for. At this juncture, we are faced by two alternatives: first, to conduct an elaborate enquiry ourselves and second, to relegate the parties to the Family Court. Though there is no legal bar in conducting the enquiry by this Court in a petition seeking the writ of habeas corpus, at the same time, this Court might not be the best forum to ascertain the welfare of the minor, which would be better adjudged by a Family Court.”
“We have already held that the principle of ‘comity of courts’ does not seem to be a viable option to be exercised at this juncture and prima facie the welfare of the child would be better served if he continued in the custody of the respondent no.4/mother, especially when it was the petitioner who has repeatedly acted contrary to the best interests of the minor,” it further observed.
Read the Judgment here.