The Delhi High Court has refused to repatriate a minor boy to the US to be with his father on the grounds that the latter did not act in the best interests of his son and took no interest in his initial development.
A Bench of Justices G. S. Sistani and Vinod Goel was hearing a petition moved by the father, Madan (name changed), seeking the repatriation of his son to California, US.
The court also observed that it would be “cruel” to send the child to a land where his mother cannot enter in the absence of a visa, which was denied to her by the petitioner himself.
“To hand over the custody of the child, who has spent the last six years in the care of his mother, to the petitioner so that he is taken to a land with unfamiliar surroundings and cultures would do much harm to him and in our view, would not be in the interest of his welfare. Further, to send the child to a land where his mother cannot even enter in the absence of a visa, which was denied to her by the petitioner himself, would not only be cruel to the child, but also to the mother,” said the Bench.
The court also analysed the welfare of the child to say, “The child has been living in India since 2010. We have gone through his academic and co-curricular records, which show that good care is being taken care of him.. Thus, it appears that the child has developed roots in India.”
‘Brighter prospects’
Madan had stated that the child had brighter prospects in the US as he was financially sound. He also had an order of a US court which had in 2013 granted him full custody of his child and ordered his estranged wife, Kanika (name changed), to return the child within 10 days.
The High Court, however, refused to subject the mother and child to the jurisdiction of the foreign court while holding that, “any contest in a foreign court between the petitioner [father], who holds a Green Card, secured job and backing of family and friends in addition to being armed with the order of the foreign court, on one hand; and the respondent no.4 [mother] without a visa, job, funds, security and familial support on the other hand, would inevitably place her on an unequal footing”.
In the instant case, the parties got married in April 2008, and started living in California, US. Subsequently, Kanika acquired a H4 visa, being his dependent family member. In 2009, the child was born to them. Being a trained dental surgeon, Kanika appeared for examinations there, but could not secure admission to any institute.
In October 2010, Kanika travelled to India with her child with return tickets for January 2011, but could not return as Madan ignored her requests for requisite documents to get her visa. The court took note of several e-mails sent by Kanika to Madan requesting for documents to enable her and the child to return and to attend to her telephone calls, but all of them went unanswered. Thereafter, Kanika started living with her parents, went to Mumbai for another course and finally settled in Delhi while the child was admitted to a school. She, in the meantime, also approached a court in India for restitution of conjugal rights.
‘No response to emails’
“Not only did the petitioner not respond to the emails sent by his wife, but he also showed no interest in the return of his son. The emails also reflect the fact that the petitioner was not interested in interacting with his child.
“Prima facie, if the petitioner had love and concern for his son, he would have voluntarily provided financial support. Love and concern for the welfare of the child seem to have suddenly sprung up in the mind of the petitioner,” the Bench observed.
