The Bombay High Court dismissed a father's petition seeking custody of his child and permission to move to Singapore.
The court noted that there were serious allegations against the father, highlighting instances of aggressive behavior and anger management problems.
The parents married in the USA and briefly moved to Singapore. The mother has now moved to India with her child. They tried to reach an amicable settlement but failed to persuade the father to file the said petition.
The court found that since Singapore is not a familiar place of residence for the child or the parties, it is not the ideal place to protect the fundamental rights, identity, social well-being and overall development of the child.
The bench comprising Justice Revati Mohite Dere and Justice Gauri Godse observed, “In view of the past conduct of the petitioner having anger issues, it will not be safe to award custody of the child to him.” We have observed that the decision of the Defendant to come to India and not return to Singapore is justified.”
Senior advocate Geeta Luthra represented the plaintiff, additional public prosecutor PP Shinde represented the state and senior advocate Lata Desai represented the defendant.
The plaintiff and the second defendant married in the USA and had a daughter. After briefly staying in Singapore from April 2022, the parties surrendered their “green cards” in September 2022. In December 2022, the defendant came to India with the child and did not return to Singapore. The parties made unsuccessful attempts to reach an amicable settlement. The father of a three-year-old girl filed a petition in the Supreme Court for a writ of habeas corpus to force the defendant, the plaintiff's wife, to present the child in court. In addition, the plaintiff requested custody of the child as well as her original passport, birth certificate, and relevant immigration and health documents. The plaintiff also requests permission to take the child to Singapore.
The court, while examining the details of the case, found that it cannot be confirmed that the child is ordinarily resident in Singapore. The parties lived separately in the United States for six months when the child was approximately one year and three months old. After reaching a reconciliation agreement in December 2021, they lived together in the United States for about four months before moving to Singapore in April 2022. The child was then brought to India within seven months.
In addition, the court found that the child's residence was not stable due to disputes between the parties and therefore it was difficult to establish a habitual residence. The child is not a citizen of Singapore and the length of his or her stay there is not long enough to be considered habitual residence.
Furthermore, the court rejected the plaintiff's argument that the decision to permanently reside in Singapore should determine the child's custody taking into account various factors such as employment and preschool enrollment. The defendant explained her decision to travel to India with the child.
Upon reviewing the affidavits submitted by the defendant, the court found serious allegations against the plaintiff, which demonstrated violent behavior and anger issues. The plaintiff had claimed that these allegations were false and subsequently rejected them. However, the court noted that complaints were filed against the plaintiff and an interim injunction was issued.
The court found that the couple had experienced domestic violence in the past and established a signed agreement outlining the husband's responsibility for therapy, legal fees and supervised access to children. Despite this agreement, the wife filed complaints about his behavior in both Singapore and India.
The court ruled that the woman's fear of her husband's behavior was justified and motivated her to move to India with her child. The court found no evidence of unlawful deportation or unlawful detention and instead recognized the woman's actions as a necessary step to protect herself and her child.
Furthermore, the court observed that India provides a better and safer environment for raising the child. The respondent, an Indian citizen, has family support and financial independence in India. Therefore, the court held that since Singapore is a foreign country and not a habitual place of residence for the child or the parties, it is not the optimal place to ensure the fundamental rights, identity, social well-being and overall development of the child. Therefore, the court expressed concern that ordering the child to return to a foreign jurisdiction could expose him or her to various forms of harm – physical, mental, psychological or otherwise.
The court stated: “The child is a US citizen and both Singapore and India are foreign countries to her.” However, the defendant, the child's biological mother, is an Indian citizen with roots in India. Therefore, it cannot be assumed that the child lives in a country that is completely foreign to him. Since Singapore is a foreign country and not a habitual residence of the child or any of the parties, it cannot be said that Singapore will be a better place to ensure the fulfillment of the child's fundamental rights and needs, identity, social well-being. Being and physical, emotional and intellectual development”.
Given the child's right to the company of both parents, the court recognized that the parties' conduct should not deprive the child of this right. The court noted that the defendant had regularly communicated the child's welfare, including pictures, via WhatsApp and provided her address in India. Even if the child is not kept away from the plaintiff, the court recommended that questions regarding access/visitation rights be examined by the competent court.
“We have also taken into account the aspect of the child’s right to be in the company of both parents. It is true that the behavior of one of the parties should not deprive the child of the company of both parents. In the parents’ fight, the child should not suffer,” the bench observed.
Accordingly, the court dismissed the petition.
Title of the case: R v State of Maharashtra (2023:BHC-AS:36261-DB)
Click here to read/download the judgment
Comments are closed.