The court refused custody but granted the father visitation rights, emphasising the importance of the child receiving equal care, love, and bonding from both parents, despite their differences.
The Rajasthan High Court delivered a significant verdict holding that the father’s superior financial condition alone cannot be the decisive factor in determining custody and prioritised the welfare of the child, affirming that custody should remain with the mother.
The court, presided over by the Division bench comprising the Chief Justice Manindra Mohan Shrivastava and Justice Shubha Mehta, dismissed a petition filed by the father seeking custody of his minor son. The court observed: “Weighing pros and cons on the basis of the pleadings on affidavit made by the respective parties, except the father having better financial condition, all other factors are almost at par but the edge is provided in favour of the mother because it is the mother who is closest to the child of tender age because of the child’s dependency on his mother for everything.”
The court was hearing a habeas corpus petition under Article 226 of the Constitution of India, filed by the the father (petitioner), alleging that his minor son was being illegally detained by his mother and the maternal grandfather in India. The petitioner, who works in Dubai, married the child’s mother in 2015, and their son was born in Dubai in 2017. The family lived in Dubai until March 2022 when the mother, along with the child, traveled to India. Following this, the mother refused to return to Dubai with the child, accusing the father of domestic violence and dowry harassment.
The father argued that the child’s welfare would be better served under his custody, emphasising his financial ability to provide a superior standard of living, education, and healthcare for the child in Dubai. He claimed that the mother had no means to support the child and was financially dependent on him. Furthermore, the father pointed to a Dubai court’s order directing the mother to return the child’s passport, arguing that her refusal amounted to illegal custody.
The mother, on the other hand, contested the father’s claims, alleging that he was a drug addict and unsuitable to have custody of the child. She asserted that the child’s best interests would be served by staying in India, where he had already been enrolled in a prestigious school in Jaipur. The mother also emphasised her own capacity to care for the child, highlighting that despite her financial struggles, she had secured employment and was capable of providing a stable and nurturing environment for the child. The mother further argued that the allegations made against her by the petitioner were unsubstantiated and that keeping the child in her custody was more conducive to his mental and emotional well-being.
The High Court, after considering the arguments and the welfare of the child, ruled in favour of the mother. The court stated that while the father’s financial standing was better, it could not be the sole criterion for awarding custody. The court observed that the child, aged seven to eight, had been living with his mother for most of his life and had established roots in Jaipur.
The court also considered the father’s allegations of illegal detention and the order from the Dubai court regarding the child’s passport. However, it noted that the passport order was a technical ruling and did not address the question of custody based on the welfare of the child. The court emphasised that the child’s welfare must be the paramount consideration, and in this case, the child’s well-being was best served by remaining with the mother.
The court further observed that there was no compelling evidence to suggest that either parent was unfit to have custody. Both parents had made allegations against each other, but without any conclusive proof, the court was reluctant to disturb the existing arrangement. The court noted “Father being financially effluent, it would be easier for him to frequently travel to India and visit the child rather than the mother going to Dubai to meet her minor son. Therefore, the arrangements of child being in the custody of the mother would be more beneficent and in the best interest of the child…”
The court emphasised that “no straitjacket conclusion could be drawn merely because the father has a better financial condition as compared to the mother,” ruling that the child should remain in the mother’s custody, considering her ability to provide for his emotional, physical, and educational needs.
However, the court granted the father visitation rights, advising the parents that “it is of utmost importance that irrespective of the differences and disputes between the parents, the child grows with the care, love, affection, bonding and attachment equally with the father as well as the mother.”
The court, thus, allowed the father to meet the child on weekends and during school holidays when he visits India. The court also directed that the father be allowed to interact with the child via video conferencing from Dubai.
