The techie couple, who were Indian citizens, got married in 2007
Madras High Court
Chennai: A woman, who has been dragged in a five year long legal battle by her husband over the custody of their 6 year old child from the USA court, has finally succeeded in an Indian court. Thanks to her husband for moving the Indian court to declare as conclusive and enforceable, the custody granted to him by a superior court of California, USA.
Holding that the mother would be the proper person to have the permanent custody of the child, the Madras high court has held that the judgment passed by the foreign court is not conclusive and binding on the mother and also not enforceable against her within the jurisdiction of Indian Courts and dismissed the petition and suit filed the husband.
“Having regard to the facts and circumstances of the case and in view of the fact that the child has been brought by the defendant, who is none other than the mother, from the year 2011, I am of the considered opinion that the defendant/ woman would be the proper person to have the permanent custody of the child”, said Justice Pushpa Sathyanarayana while granting liberty to the father to visit the child in India.
The techie couple, who were Indian citizens, got married in 2007. He was a permanent resident of USA and she had a valid H1B visa and after marriage they were employed and settled down in USA. Out of the wedlock, a male child was born on September 16, 2008 in USA. In 2009, they visited India and on their return to USA, she could not make it as there was delay in stamping her passport at the US Embassy in India. Thereafter, he came down to India in 2011 along with the child.
But after coming to know that she was employed in a software company in Chennai, he started to return to USA along with the child. But, on his break at Singapore, he was informed that his sister was detained on the dowry harassment complaint lodged by his wife and also demanding the return of the child. Therefore, he returned to India and handed over the child to her. Thereafter he approached the court in USA and obtained custody of the child.
The judge said it was clear that the father, having left the child in India with the mother, has gone to US and obtained an ex-parte order of custody of the child.
If the order specifically restrains the mother from removing the child from the state of California, the same was unenforceable as it was passed without consideration of the fact because, admittedly, the child on the relevant date was in the custody of the mother in India. Therefore, the said order obtained by the father was bereft of any merit and the same was in-executable, the judge added.
The judge said the conduct of the parents in relation to the child was obviously relevant in determining what was in his best interest. In the instant case, the child has been raised by the mother from 2011 and she had admitted him in a reputed school.
The father had not shared the expenses of the child for his education or maintenance so far. Moreover, till date, the father had come to see his son only once, the judge added.
( Source : deccan chronicle )
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