The NRI father of a 10-year-old minor boy was granted the custody over his advocate mother in March 2020. The Delhi High court granted the custody of the child to his father, who is an industrialist living in Kenya. The high court said the father was granted custody as he was in a better position to take care of the child.
Justices G S Sistani and Jyoti Singh have dismissed the case after giving the custody to the NRI father. The bench said that the woman (the mother of the child), is a practicing advocate here in India and is well within her rights to seek alimony from her husband. She could do that by using the minor as a “chattel to be traded for alimony or other benefits can never be in the best interests of the child.”
The woman had filed an appeal in the high court challenging a trial court’s order. The Delhi high court dismissed the appeal filed by the woman and granted the custody to the father. According to the High Court, it didn’t find any wrongdoing in the trial’s decision, and hence, it was dismissed. The High Court said,
We are of the view that the father/respondent is in a better position to take care of the child and the best interests of the child would be protected by granting his custody to the father. Accordingly, we find no merit in the appeal, and the same is dismissed.
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The high court reiterated what the Supreme court has reaffirmed time and again while granting the custody of the minor boy to either parent. Similarly, the high court considered same principles of ‘welfare of the child’, and the ‘best interest’ as prime in this case.
The couple got married in July 2007 and after two years of their marriage, gave birth to their son in December 2009. The woman left the country and came back to India in 2012 when they faced some problems in their marriage.
The woman has alleged the father to be unfit to be granted the child’s custody. She alleged him to be a habitual alcoholic, also that he was a racist and was not interested in the child before the commencement of the litigation. She also told the court that the man was a busy businessman who would travel for days in a month. So, he would hand over the child’s custody to parental grandparents who are old and would be unfit to raise their boy.
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The man, on the contrary, alleged that the woman was trying to keep away the child from him and his family. She was telling the boy about demons in Kenya and also about how the plane might crash during his flight to prevent him from traveling to Kenya. He also said in the court that he and his family are highly educated NRI industrialists. They have their own business spread over in Kenya and the United Kingdom, and the child is the heir of their business, and hence, he should be exposed to the business environment at a young age.
The husband also told about the woman (the wife), who is an advocate by profession and lives in a small
accommodation with her mother and was taking care of her family litigations pending in India.
The High Court, in its order, said that the man has a citizenship of two countries, Kenya and the United
Kingdom. Also that his business is spread over in both countries. The order read,
In comparison, the appellant (woman) and her mother both are not working and stay at home reaping rental income. They would not be an ideal role model for the child. We may hasten to add that though financial superiority can never be the sole ground to grant custody, however, the same can always be one of the factors to be considered while ascertaining where the overall welfare of the minor lies.
Joint Child Custody for NRI
According to October 2019 PIL, the Supreme Court had sought the Centre’s response on an NRI’s plea for a uniform law that would favour granting joint child custody rights to both the parents in matrimonial disputes.
Sulochana Devi, a London-based petitioner, had highlighted that the various personal and special laws in India hand the custody rights to only one of the spouses, and in most instances it is the father who gets preference in case of NRIs.
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She had argued that these laws are unconstitutional since they violate the fundamental rights to life and liberty (Article 21) of the parent who loses out as well as those of the child, who needs the love and care of both parents.
Devi had sought a child-centric approach based on the idea of shared parenting, which she says does not find a place in the various family laws of the country. Her petition read,
This presumption (for exclusive custody) severely affects the fundamental rights of the spouse who has been denied the custody rights and the fundamental rights of the child who will be deprived of care and love of both parents.
When custody is entrusted to one parent, the well-being of the child and the right to an enhanced quality of life during crucial years of personal development will be severely affected.
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Devi had also referred to the Parsee Act and the Indian Divorce Act, which deals with Christians, both of which grant custody of the child to only one spouse, chosen on the basis of the matrimonial court’s subjective satisfaction.
The Delhi High Court Judgement handing over custody of child to the father is rare, as in most cases, courts find mothers to be the natural guardian, due to the biological advantage they enjoy — particularly in the early years of child’s growth.