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Bombay High court: Rejects Custody of child to her Father facing violence charges not safe

Case title: The state of Maharashtra & ANR Vs Siddhesh Bhole& ANR
Case no.: CRIMINAL WRIT PETITION NO. 341 OF 2024
Dated on:7th May 2024
Quorum: Justice Hon’ble Mr. Justice A.S. Gadkari and Mr. Justice Shyam C. Chandak.

FACTS OF THE CASE
This is a Writ Petition under Article 226 of the Constitution of India. Since the Petition is concerning a girl child aged about 7 years as of date; to respect her anonymity, we deem it appropriate to refer her as Miss ‘R’ for the purpose of our decision. This Hon’ble Court be pleased to issue an appropriate writ, order or direction in the nature Habeas Corpus to the Respondents and more particularly Respondent No.2 to produce the minor daughter Miss ‘R’ before this Hon’ble Court and deliver her custody to the Petitioner Father so as to repatriated her to the U.S.A in compliance of the order passed by the U.S court dated 14/12/2023 and 12/01/2024. The husband’s case is that, since 2007, he has been working and residing in the United States of America. He is having an Indian passport. The husband and the wife are Indian Citizens by birth. Their marriage was solemnized on 16th January, 2015 at Pune, India. On 09th February 2015, the couple shifted to the USA. On 24th June 2016, the couple was blessed with Miss ‘R’. She is a citizen of the USA and holds a passport thereof. It is alleged that, meanwhile the husband was subjected to physical, mental, social, emotional and financial harassment by the wife.
The husband and the wife, therefore, fallen apart on 05th September 2023 itself, the husband filed a Motion before the District Court of Mecklenburg County, in the States of North Carolina, the USA (‘The Mecklenburg Court’, for short), seeking for Miss ‘R’s custody, child support and equitable distribution. The wife appeared in the said case and filed her verified Answers-cum-Counter-claims for post separation support, alimony, child custody, equitable distribution, Motion for Temporary Parenting Arrangement, child support and Attorney fees. It was followed by the husband’s verified defence, reply and responsive pleadings. During the hearing for ‘Temporary Parenting Arrangement’, it was confirmed that, till final hearing, the parties would continue to exercise joint physical custody on a week on-week off basis. One Lynna Moen was appointed as a Parenting Co-ordinator. It is averred that, on 06th December 2023, suddenly the wife withdrew Miss ‘R’ from her School. On 07th December 2023, she flew to India along with Miss ‘R’ but without intimation to and consent of the husband. Thus, the wife flouted the temporary arrangement of Miss ‘R’s custody and the Orders of the competent Court. Thereafter, the wife was non-communicating. It is stated that, after coming to India, the wife filed a report bearing F.I.R.No.567/2023 with Nerul Police Station, Navi Mumbai against the husband and his relatives alleging offences punishable under Sections 323, 406, 498-A, 504, 506 read with Section 34 of the Indian Penal Code, 1860 (‘I.P.C.’, for short). The husband also filed a report dated 09th January 2024 with Nerul Police Station, Navi Mumbai against the wife alleging offences punishable under Sections 361 and 363 of I.P.C By its Order dated 19th January 2024, the Mecklenburg Court permanently granted the sole custody of Miss ‘R’ to the husband. The said Court also issued a suo moto Order to the wife to show cause as to why she be not held in willful civil/criminal contempt of the Court for violating the terms of Temporary Parenting Arrangement dated 06th December 2023 as well as fleeing the jurisdiction of said Court etc. In the backdrop, custody of Miss ‘R’ with the wife is illegal. The wife filed a Custody Petition D. No.03/2024, under Section 7 of The Guardians and Wards Act, 1890 with the Family Court, at Pune claiming permanent custody of Miss ‘R’. Hence, the Petition. The wife filed her Affidavit-in-Reply and resisted the Petition. The wife contended that, the husband and his family members subjected her to cruelty, therefore, on 12th December 2023, she filed the F.I.R. alleging cruelty. On 05th January 2024, she filed the Custody Petition in which the husband recorded his appearance and opted for mediation. On 05th February 2024, she filed a petition for domestic violence against the husband at District Court, Pune. It is contended that, on 06th September 2023, the husband through his attorney, blackmailed the wife saying that, the only way for her to see Miss ‘R’ again is if she agrees to equal visits of Miss ‘R’ over the week. The husband restricted all her access to Miss ‘R’ until she agrees to equal custody. Trapped in this critical situation, she agreed for that arrangement with the husband through their lawyers. The USA Court was not involved in determination of the custody schedule till the wife traveled back to India. It is contended that, the husband was packing stale-food and uncooked sausages in Miss R’s lunch box for school and sending her without proper clothing and It is contended that, the lifestyle of the husband is unsuitable for Miss ‘R’. He has been leading an immoral life. He has an anxiety issues. His smoking habit has taken heavy toll on Miss ‘R’s health. In contrast, the wife was and has been taking every good care of Miss ‘R’. There is good physical and emotional bond between the two. It is contended that, now, Miss ‘R’ is going to Universal Wisdom School, Pune, from 08th January, 2024. Miss ‘R’ is settled in the said school environment and enjoying the care and attention from the wife and her family members. Miss ‘R’ has been taking child therapy from Ms. Nisrin Poonawala, Pune. It is contended that, the wife has been employed since last two years, therefore, she is able to meet the financial needs of Miss ‘R’. In the backdrop, the best interest of Miss ‘R’ can be achieved if she remains in the wife’s custody only. And this is possible as Miss ‘R’ holds an ‘Overseas Citizenship of India’ Card (OCI) and she can have Indian citizenship after she becomes major. Hence the Petition be dismissed.

CONTENTIONS OF THE APPELLANT
The learned Advocate for the wife pointed that, being concerned for Miss ‘R’s health, the wife took her to a Child Therapist Nisrin Poonawala for psychological assessment and therapy. It immensely helped improving Miss ‘R’s mental well-being. However, we restrict ourselves from relying on the assessment/therapy report given by said Poonawala, because she has done just Master of Arts (Psychology), as informed by learned Advocate for the wife. Secondly, the health issues with which Miss ‘R’ encountered with as demonstrated by the wife, were of greater magnitude, as on multiple occasions Miss ‘R’ stated that, ‘I hate myself; I wish I was dead’. In our considered view, such a state of mind is medically better handled and treated by specially qualified child psychiatrists, who are easily available in Pune. Nevertheless, instead of first taking Miss ‘R’ directly to such a scientific expert after returning to India on 07th December 2023, the wife caught up with her Advocate and engaged in filing F.I.R. of cruelty and domestic violence case.

CONTENTIONS OF THE RESPONDENTS
Mr. Siddhesh Bhole, learned counsel for the respondent submitted that, the cruelty to the husband by the wife caused a separation between them. Since birth, Miss ‘R’ was ordinarily residing at North Carolina, the USA. She, therefore, was used to the living conditions there. She was studying in a school. She had developed good friendship with children there. During this time, Miss ‘R’ was comfortable and safe in the company of the husband as he showered upon her the best love and affection. The certificate issued by Miss ‘R’s School Authority shows that, she has no health issues and on the contrary, she is a normal and a bright student. Even after separation between the husband and the wife, the former took every best possible care of Miss ‘R’. The claim made in that Motion that, said Court has jurisdiction to adjudicate all the issues between the parties, has been conceded by the wife in her Answer-cum-Counter claims. However, when the said case was scheduled for hearing on 06th December 2023, suddenly, the wife moved to India along with Miss ‘R’, but without bothering about the ill-effects of such uprooting on Miss ‘R’. The learned counsel submitted that, the ground of cruelty raised by the wife is an afterthought. The wife’s allegation that, the husband was intending to withhold her documents of immigration to make her stay in the USA illegal, is not only baseless but also false. Said ground has been taken just to entangle the husband in the litigation in India and deny him the child’s custody. Lastly, learned Advocate submitted that, the husband is fit in all respects i.e., physically, mentally, financially and socially to look after Miss ‘R’ and raise her as a respectable member of the society. Absolutely, there is no harm to Miss ‘R’ if she resides with the husband in the USA. If Miss ‘R’ resides and grows in the USA, she will have good prospects. As such, repatriation of Miss ‘R’ to the USA would serve her best interest, which should be a primary consideration in such litigation. Learned counsel submitted that, financially, the wife is stable. She is capable to provide every financial support to Miss ‘R’.

LEGAL PROVISIONS
Article 226 of the Constitution of India: clearly states that every High Court shall have the powers throughout the territories in relation to which it exercised jurisdiction to issue writ or orders to any person or authority.
Sections 498-A of the Indian Penal Code, 1860: Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Section 506 of the India Penal Code,1860: Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt.
Sections 361 and 363 of I.P.C.: Kidnapping from India and Kidnapping from a legal guardian, as described in Sections 360 and 361 of the Code, are punishable under Section 363 of the Code. A Magistrate of First Class may try it since it is a bailable, cognizable, and non-compoundable offense.
Section 7 of The Guardians and Wards Act, 1890: Power of the Court to make orders as to guardianship.

COURT’S ANALYSIS AND JUDGEMENT
The aforesaid principles of law, every Court is well aware of the role of a mother in the life of a child of tender age and in particular, a girl child. Describing a mother’s role in similar situation, in the case of Vivek Singh vs. Romani Singh: (2017) 3 SCC 231, the Hon’ble Supreme Court observed that, “The role of the mother in the development of a child’s personality can never be doubted. A child gets the best protection through the mother. It is a most natural thing for any child to grow up in the company of one’s mother. The company of the mother is the most natural thing for a child. Neither the father nor any other person can give the same kind of love, affection, care and sympathies to a child as that of a mother. The company of a mother is more valuable to a growing up female child unless there are compelling and justifiable reasons, a child should not be deprived of the company of the mother. The company of the mother is always in the welfare of the minor child ” It is admitted fact that, Miss ‘R’ was born in the North Carolina, USA and she is a citizen thereof. Initially, Miss ‘R’ resided with both parents in New Jersey, 07071 until August 2020, after which she enjoyed the love and care in the company of both the parents under a common roof in North Carolina, 5924, Cactus Valley Road, 28277, until 5th September 2023. Following her parents’ separation, she has resided separately with each parent in different locations i.e. 5304, Rock Hill Lane, Charlotte and 5924, Cactus Valley Road, North Carolina, 28277. Thus, Miss ‘R’ has spent her entire life in the USA only. In her answer to the Motion of the husband filed before the Mecklenburg Court, the wife has stated that, the husband is employed by Zelis as a Data Scientist and earns a base salary of US$ 1,65,000 per year. Additionally, he gets yearly bonuses, investment income and rental income from a property at New Jersey. No doubt, in the F.I.R.No.567/2023 the wife alleged that, immediately after the marriage, the husband and his relatives treated her with cruelty. However, even though the wife was in India during the Ganesh Festival of 2018, she did not try to file the report of cruelty then and there. The F.I.R. does not mention that, after December 2018, the husband caused any specific cruelty. Therefore, veracity of the F.I.R. is subject to trial. Therefore, it was highly probable that, said Court would have passed an Order giving visiting and custody rights of Miss ‘R’ to her both parents. During the hearing of this Petition, on instructions from and in presence of the Petitioner-husband, his learned counsel made a statement that, the husband is ready and willing to give the entire joint house property of the parties in the USA, including his share, for Miss ‘R’ and the wife’s stay there. Besides that, the husband will happily provide all the financial support which Miss ‘R’ and his wife need to reside there. The Writ Petition is allowed with following directions. The wife shall handover custody of Miss ‘R’ to the husband with passport of Miss ‘R’ in presence of the learned Advocate for the husband on 10th May, 2024 at 11:30 a.m. In the same manner, the wife shall handover necessary school documents of Miss ‘R’ to the husband till 04:00 p.m. of 14th May, 2024. Thereafter, the husband shall make necessary arrangements for taking Miss ‘R’ to the USA accompanied by atleast his one close relative. In case the wife is willing to go back to the USA along with Miss ‘R’ but is not willing to live with the husband, we direct that, the husband shall make alternative arrangements for his own stay and handover possession of the joint house property of the parties to the wife namely 5924, Cactus Valley Road, Charlotte, North Carolina 28277 in conformity with his aforenoted statement made through his Advocate. The Writ Petition is disposed off in aforesaid terms. Rule is made absolute. Hence, we are not inclined to grant stay to the impugned Judgment and Order.

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Judgement Reviewed by – HARIRAGHAVA JP

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