The Bombay High Court dismissed the petition filed by a father seeking custody of his child and permission to relocate to Singapore.

The Court noted that severe accusations were filed against the Father highlighting instances of aggressive conduct and anger management issues.

The Parents were married in the USA and moved to Singapore briefly. Meanwhile, the Mother moved to India with their child. They tried to reach an amicable settlement but failed leading the father to file the said petition.

The Court noted that Singapore, not being a familiar residence for the child or the parties, is not the ideal setting to safeguard the child's fundamental rights, identity, social welfare, and overall growth.

The Bench comprising Justice Revati Mohite Dere and Justice Gauri Godse observed, “Considering the past conduct of the petitioner having anger issues, it will not be safe to hand over custody of the child to him. We have held that the respondent is justified in her decision to come to India and not return to Singapore”.

Senior Advocate Geeta Luthra appeared for the Petitioner, Additional Public Prosecutor PP Shinde appeared for the State and Senior Advocate Lata Desai appeared for the Respondent.

The Petitioner and Second Respondent got married in the USA and had a daughter. After briefly residing in Singapore from April 2022, the parties surrendered their "Green Card" in September 2022. In December 2022, the Respondent, with the child, came to India and did not return to Singapore. The parties made unsuccessful attempts for an amicable settlement. The father of a 3-year-old girl filed a petition before the High Court seeking a Writ of habeas corpus to compel the Respondent, the Petitioner's wife, to present the child before the Court. Additionally, the Petitioner requested custody of the child, along with her original passport, birth certificate, and relevant immigration and health documents. The Petitioner also seeks permission to take the child to Singapore.

The Court, upon examining the case details, observed that it cannot be affirmed that the child's habitual place of residence is in Singapore. The parties lived separately in the USA for six months when the child was around one year and three months old. Following a reconciliation agreement in December 2021, they resided together in the USA for about four months before moving to Singapore in April 2022. Subsequently, within seven months, the child was brought to India.

Furthermore, the Court noted the lack of stability in the child's residence due to disputes between the parties, making it challenging to establish a habitual place of residence. The child is not a citizen of Singapore, and the duration of her stay there is insufficient to qualify as a habitual residence.

Additionally, the Court rejected the Petitioner's argument that the decision to permanently reside in Singapore should determine the child's custody, considering various factors such as employment and preschool enrollment. The Respondent provided justifications for her decision to come to India with the child.

Upon reviewing affidavits filed by the respondent, the Court observed serious allegations against the Petitioner showcasing violent behaviour and anger issues. The Petitioner had asserted that these allegations were false and subsequently dismissed. However, the Bench noted that complaints were filed against the Petitioner and a temporary restraining order was issued.

The Court noted that the couple had a history of domestic violence, with a signed agreement outlining the husband's responsibility for therapy, legal fees, and supervised child access. Despite this agreement, the wife filed complaints about his behaviour in both Singapore and India.

The Court held that the wife's fear of her husband's behaviour was justified and motivated her to move to India with their child. The Bench observed no evidence of illegal removal or unlawful detention, and instead, recognized the wife's actions as a necessary step to protect herself and her child.

Additionally, the Court noted that India offers a better and safer environment for the child's upbringing. The Respondent, an Indian citizen, has familial support and financial independence in India. Therefore, the Court held that Singapore, being a foreign country and not a habitual place for the child or the parties, is not the optimal location for ensuring the child's basic rights, identity, social well-being, and overall development. Consequently, the Court expressed concern that directing the child to return to a foreign jurisdiction could expose her to various forms of harm—physical, mental, psychological, or otherwise.

The Court noted, “The child is a US citizen, and Singapore and India are both foreign countries to her. However, the respondent, who is the biological mother of the child, is an Indian citizen having roots in India. Thus, it cannot be said that the child is living in a country which is completely foreign to her. Thus, Singapore being a foreign country and not a habitual place of the child or of either of the parties, it cannot be said that Singapore will be a better place to ensure the fulfilment of the child’s basic rights and needs, identity, social well-being and physical, emotional and intellectual development”.

Considering the child's right to the company of both parents, the Bench acknowledged that the conduct of the parties should not deprive the child of this right. The Bench noted that the Respondent had regularly communicated the child's well-being, including pictures, through WhatsApp, and provided her address in India. While the child is not kept away from the Petitioner, the Court recommended that issues regarding access/visitation rights be considered by the court of competent jurisdiction.

We have also considered the aspect of the child’s right to have the company of both parents. It is true that the conduct of either of the parties should not deprive the child of having the company of both parents. In the battle of the parents, the child should not suffer”, the Bench noted.

Accordingly, the Court dismissed the Petition.

Cause Title: R v State of Maharashtra (2023:BHC-AS:36261-DB)

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