Child custody with mother is lawful after visa expires

A minor child with a foreign passport would not be in the unlawful custody of the biological mother, even if the travel visa has expired, the Supreme Court has said.

The top court allowed a woman, who is a US green card holder, to retain custody of her child for now, even though the father, a US citizen, has filed a case in India and in an American court to take back the child.

A bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud set aside the Delhi High Court's order that had allowed a plea by the father of the then three-year-old girl child to take her custody in compliance with the direction issued by the Circuit Court of Cook County, Illinois, USA.

“The minor girl child has a US passport and has travelled to India on a tenure visa which has expired. That does not mean that she is in the unlawful custody of her biological mother. Her custody with the appellant (mother) would nevertheless be lawful,” the bench said.

The minor child was a US citizen by birth. She grew up in the native country for three years before she was brought to New Delhi by her biological mother in December 2016 due to matrimonial discord between her and her husband. The woman moved a court here for dissolution of marriage. Her husband approached the US court, which directed the woman to bring back the child or hand over the child's custody to the father.

The apex court noted that it was indisputable that the marriage was solemnised as per Sikh and Hindu Vedic rites here on October 31, 2010, and the woman was then an Indian citizen. But a civil marriage ceremony was also performed on March 19, 2011, at Circuit Court of Cook County, Illinois, USA, for facilitating the woman's entry into the US and gaining permanent resident status.

For early disposal

It directed both the woman and her husband to ensure early disposal of proceedings before a family court here. Until then the woman can retain custody of the child and the father would have visitation rights. The woman, however, would be obligated to participate in legal proceedings in the US court, depending upon the outcome of the proceedings in a family court here, the top court said.