New Delhi: Making an exception, Delhi High Court has granted the custody of a child to the father, ordering the mother to either join the husband in the US or hand over the child’s custody if she prefers to remain in India.The court took a dim view of the wife’s action of enrolling the son in Delhi, even though he was studying in the US and was a citizen there by virtue of birth.“It need not be re-emphasised that in such consideration, it is the welfare of the minor child which is paramount, and that the welfare of the parents cannot be confused as the welfare of the minor child. None of the warring parents can be allowed to dictate what the welfare of the minor child would be, and it would be for the court to independently assess this issue, taking into account all surrounding circumstances presented before it,” the bench of Justices Navin Chawla and Renu Bhatnagar said in a recent verdict.The court was clear that “such forceful removal/detention of a child from his original place of residence and shifting him to a new residence will not make him an ordinary resident of the new place.” It allowed the plea of the father, who had initiated legal proceedings in the US to get his child back.Appearing for the father, advocate Prabhjit Jauhar argued that the child remained in India only because the mother had unilaterally removed the child away from the husband at the airport, against the wish of the husband, and decided to remain in India, keeping the child with herself. He also highlighted that the child was accustomed to an environment in the US, was attending a good school there, and had come to India only for a short vacation but is now not being allowed to return.On behalf of the wife, advocate Jai Sahay Endlaw submitted that the welfare of the child lay in his remaining in India and in the custody of the mother, who could provide a safe and loving environment to him. The advocate said that the husband had indulged in domestic violence and, therefore, it was not good for the child to return to that environment.The court pointed out that the child was studying in the US and there was no allegation of any misconduct by the husband towards the child.It specified that the husband would bear the cost of travel and stay in the US for both the mother and the child along with her maintenance while she is in the US. It further directed that if the wife so desired, she could return to the US with the child on or before July 1, and on return, the husband shall allow the wife and the child to stay at their earlier shared residence and not be around it until further orders from the concerned US court. He was also directed to pay the wife maintenance at $2,000 per month for herself and the child.In case the wife decided to not go to the US, the court asked her to hand over the child’s custody to the father and warned that if she failed to abide by the order, the local SHO will render all assistance to the husband.
