HC gives custody of minor to NRI father, US court to take final call

CHANDIGARH: The Punjab and Haryana high court has granted custody of a minor child to his NRI father and directed the wife to return to the US with the child.

The HC bench of justice Arun Kumar Tyagi observed that it will be in best of interest of the minor that an order be passed for his return to the US, from where he was removed.

It will be appropriate that the question of appointment of guardian/handing over custody of the minor child to either of the parents be left for adjudication by the court of competent jurisdiction in the US on the basis of paramount consideration of welfare of the child, it said. The order came on the plea of an NRI techie from Benton County, Arkansas, US. The couple had gotten married in New York in 2011 and the child was born in January 2016.

The mother left for Gurugram in January 2019 for surgery of the child. But as per the petitioner father, she started making excuses to not return to the US even as the deadline as per consent given by him for travel of the child ended in September 2019.

In June 2020, the father had approached HC seeking custody of the child with the minor being a US citizen. He had also secured an order on custody of the child from jurisdictional court in the US in his favour.

The mother had argued that only one surgery has been performed and that child needs to be operated upon again.

The child is being monitored and requires regular follow-ups. The standard medical care and ease of availability of medical advice is better in India, she had argued. She had also levelled allegations of domestic violence against the NRI petitioner.

The court had sought a report from lawyer Anil Malhotra who was appointed as amicus curaie. He had opined that the jurisprudence in child abduction law varies in India.

The welfare of the child principle being the paramount consideration, there is a tendency among Indian courts to digress from a consistent approach, he had submitted.

The court took note of the fact that there is a pre-existing order of the foreign court in favour of the father. But added that the same is not determinative of the question of repatriation of the minor child as same is to be decided on the test of “best of interest and welfare” of the minor child.