HC grants minor boy's custody to NRI father

The Delhi High Court has granted custody of a 10-year-old boy to his NRI father, an industrialist living in Kenya, saying the man was in a better position to take care of the child.

A bench of Justices G S Sistani and Jyoti Singh also observed that while the woman, an advocate practicing here, may be well within her rights to seek alimony from her husband, using the minor as a "chattel to be traded for alimony or other benefits can never be in the best interests of the child".

The high court dismissed an appeal filed by the woman challenging a trial court's order by which the child's custody was granted to his father.

 

"We are of the view that the father/respondent is in a better position to take care of the child and the best interests of the child would be protected by granting his custody to the father. Accordingly, we find no merit in the appeal and the same is dismissed," it said.

The high court said the Supreme Court has reiterated time and again that while deciding as to which parent would get the custody of the minor, paramount consideration has to be given to the 'welfare of the child' and the 'best interest' principle.

The court was hearing an appeal by the mother challenging a family court's January 2018 order granting the child's guardianship to his father and directing the mother to hand over the boy's custody to the man at the end of the academic session of 2017-2018.

The estranged couple got married in July 2007 and a son was born to them in December 2009. After problems with her husband, the woman along with the child had come to India in 2012.

The woman had alleged the father was unfit to be granted the child's custody as he was habituated to alcohol and that he was racist and was not interested in the child before the commencement of the litigation.

She said the man was a busy businessman who travels for days in a month and he wanted to entrust the child's custody to paternal grandparents who are old and would be unable to bring up the minor.

The man, however, alleged that the woman was trying to isolate the child from him and his family and she was telling the boy about demons in Kenya and that the plane might crash during his flight to dissuade him from travelling to Kenya.

He said he and his family were highly educated NRI industrialists having their business interests spread over in Kenya and the United Kingdom and the child being the prospective heir of their business, should be exposed to the business environment at a young age.

He added that the woman, an advocate by profession, lives in a small accommodation with her aged mother and was busy taking care of her family litigations which are pending in India.

The high court, in its order, said the man is holding dual citizenship of Kenya and the United Kingdom and his business interest was spread out in both the countries.

"In comparison, the appellant (woman) and her mother both are not working and stay at home reaping rental income. They would not be an ideal role model for the child. We may hasten to add that though financial superiority can never be the sole ground to grant custody, however, the same can always be one of the factors to be considered while ascertaining where the overall welfare of the minor lies," it said.