Indian-origin parents having a foreign country’s citizenship can no longer fight child custody battles in Indian courts after a Delhi High Court verdict in a recent case held that the courts of the country where children ordinarily reside alone will have the jurisdiction to try such cases.
The judgment came in a child custody case being fought between an Indian-origin couple who acquired US citizenship and was well-settled with a joint dental practice in that country and a daughter, also a US citizen.
However, when relations soured between them, the wife returned to Delhi — her place of origin, just in time before delivering her second child and instituted a case for seeking custody of both the minor children on the ground that the second child is born Indian.
The husband, meanwhile, secured an order of custody from US courts claiming that children are “ordinary resident” of US and sought dismissal of wife’s petition.
Agreeing with the husband, the Bench of Justices Hima Kohli and Deepa Sharma interpreted the term “ordinarily resides” occurring in Section 9 of the Guardian and Wards Act to mean “a place of permanent abode” and held the US court to have jurisdiction in the matter.
The decision is landmark considering the fact that Indian courts have from time to time decided the vexed issue of inter-country child custody cases keeping the best interest of child in mind.
Moreover, India is yet not a signatory to the Hague Convention of 1980 that terms such removal of children from the place where they ordinarily reside to be “child abduction” and even blocks courts of any other country to entertain the request of any one of the parents for initiating a child custody case.
The Delhi HC judgment indirectly applied the salutary principles underlying the Hague Conventions on Civil Aspects of International Child Abduction and laid down the rule saying, “Simply because a marital discord took place between the wife and husband, which made the wife flee from USA and seek refuge with her parents in India, along with her children, cannot be a ground for her to claim permanent custody of the children within the legal system of this country.”
The arguments advanced by husband Navtej Singh’s lawyer Anil Malhotra showed how his wife, a US citizen, stealthily removed their daughter from US to India and set up a custody battle case in India as a ruse for not complying with an order of US Superior Court on January 25, 2017 directing her return and handing interim custody of children to the husband-father.
The HC noted that parents are US citizens and the wife had not surrendered US citizenship or initiated steps to acquire Indian citizenship.
Further, the second child, barely one year old, ran the risk of becoming “stateless” if he remained in India till attaining majority as he will not be an Indian citizen (for parents are US citizens), thus loosing his valuable right to have a passport and travel freely abroad.