Keywords: Child Custody, Divorce, Welfare of the Child, Guardian.
A bench of Judges comprising of Justice Revati Mohite Dere and Gauri Godse made the remark while deciding the case of custody, a habeas corpus petition filed by a father in 2020 for the custody of his 3-year-old US-born child. The father of the child was seeking the physical custody to take his child to the USA.
It was asserted by the court that the issue of the custody must be decided solely on the basis of what is in the interest and benefit of the child for his upbringing and future development. This implies that the love and care of the primary caregiver that is mother of the child (who is just a few years old) cannot be considered to be paramount rationale for the custody of the child. This must be ensured that the child is getting the fulfilment of his basic rights and needs, identity, social well-being along with physical, emotional and intellectual development. However, there must be evaluation of both the father and mother capabilities which has to be considered for deciding the welfare of the child.
The couple was married in 2010 and went to USA in June, 2010 to settle down permanently. They obtained green card in October and the child was born in 2019. The respondent mother came back India with his son in 2020 and informed the petitioner father to not contact her.
The petitioner father filed petition for the custody of his child meanwhile the mother lodged a domestic violence complaint against the father in India and also filed for divorce. The court is mandated to exercise parent patriae jurisdiction and compel the parties to do something that is in the best interest of the child. In such circumstances, the responsibility of the court to pretend the role of guardian for the child. Furtherance, the court held the custody in favour of the father after observing the overall aspects for the benefits of the child physical, mental and intellectual growth.
Name- Aayushi Arun Satyadeo , College Name- Bharati Vidyapeeth University, New Law College, Pune., Sem- IIIrd, an intern under Legal Vidya.
