Bombay High Court orders 7-year-old girl's repatriation to US in father's custody

The Bombay High Court has directed that a 7-year-old girl who was born in the USA should be repatriated to the country to stay with her father as it held that "return to the country of origin is very essential for the child."

The bench of Justices Ajay Gadkari and Shyam Chandak was hearing a habeas corpus petition filed by the father seeking custody of his 7-year-old daughter.

The court pointed out that the conduct of the mother, who abducted and brought the child to India "was intended to serve her (mother's) own interest, not the child’s."

The bench said that the "story weaved, and the scheme designed by the mother to return to India by abducting her daughter, unmindful of the ill-consequences of the said act, is not acceptable, it being devoid of merits."

The bench said that the child’s "custody of her mother, cannot be said to be strictly legal." It also observed that the child suffered no harm or inconvenience till she was in the custody of her father.

The child had lived in the USA for most part of her life until she was brought to India by the mother who had taken a unilateral decision, observed the court. "This will help her overall development and thus, serve her best interest, which is the principal consideration," said the bench.

The bench also saw the conduct of the father who had promptly filed the petition and remained present on the dates of hearing, travelling from the USA whenever possible.

The bench said that this "convinced us to hold that he is a responsible father and has a sincere interest in the child. Besides, he is carrying sufficient means and resources to maintain, up-bring and provide a quality of life for the child in the USA. This would bring better prospects to the child and aid her to step into society as a respectable person. As such, we see no harm to the child from the hands of the husband, if she goes back to the USA."

Though the man holds an Indian passport, since 2007, he has been working and residing in the USA.

The couple got married on January 16, 2015, in Pune and soon shifted to the USA. In 2016, they were blessed with a daughter who is an American citizen and holds an American passport.

However, the relationship between the couple worsened, and the legal proceedings began in District Court of Mecklenburg County, in North Carolina.

There it was decided that, till the final hearing, the parties would continue to exercise joint physical custody on a week-on-week off basis.

However, in December 2023, the wife suddenly withdrew her daughter from school and brought her to India. While she remained incommunicado, the husband moved to the Mecklenburg Court, which ex-parte granted Emergency Custody, which means sole legal and physical care, custody and control of their child to the husband.

The wife said that as she was dependent on her husband for a visa in the USA, he was allegedly blackmailing her with this issue to get custody of the child. Moreover, she alleged that he had moved to his brother's house with their daughter to separate the mother and daughter. However, the husband denied all these allegations.

Looking through the facts of the case, the bench said "These circumstances fortify our conclusion, that the wife just wanted to keep the daughter in her custody and keep the husband away from her. This is unfair from the viewpoint of the child and the law as well."

The court directed that if the wife wanted, then she too could travel to the USA and the husband would have to make arrangements for travel and stay in America.