HC calls 4-yr-old to decide custody

MUMBAI: At 2:30 pm everyday, four-year-old Karan (name changed) breaks into a smile as he leaves school to go back to his Borivili home. On Tuesday at 2:30 pm, however, the toddler will be making a rather tough decision — that of choosing between his mother and father.

A bitter custody battle between Rishi Nandlal, 46, a South-African national and his wife Deepti, 34, an Indian citizen led to the Bombay high court asking for the child to be brought to court so that his fate can be decided.

DNA was the first to report the case of the parents tussling over the custody of a child who is a South African national.

The law point involved is whether a local court can decide the custody battle between the parents of a child who is a foreign citizen and has been living abroad.

Karan was born on July 16, 2004, in Durban, South Africa, and had been living there till December 2006 when he came to Mumbai with his mother. Within eight days of their arrival, she filed a petition for Karan’s legal custody and divorce from Rishi.

The family court, relying on the Guardians and Wards Act, 1890, refused to entertain her petition. Section 9 of the Act says, “If the application is with respect to the guardianship of a minor, it shall be made to the district court having jurisdiction in the place where the minor ordinarily resides.”

“We will have to talk to the child and then decide what is best for him.” Justice BH Marlapalle said on Monday while hearing Deepti’s appeal against the family court order.

Justice DB Bhosale said, “Prima facie we do not believe that the court has no jurisdiction [to decide this case].”

Alleging ill-treatment, Deepti left Rishi’s house in South Africa and said she could take care of her child as she was in a better position to look after him as she was a house wife and her family could support her. In her appeal before the High Court, Deepti has contended that the place of ordinary stay is not determined by the duration of the stay, the intention of the person migrating or moving to a particular place should be taken into account.

Rishi, however, said, “Karan is a South African citizen and the High Court there has already given his custody to me. But the letters written to the Indian government are unanswered as they say they have no convention with South Aftica to follow their court orders.”

Showing photographs of his plush house in Durban, Rishi said he could give his child a life “better than a two-bedroom flat”. He said he last saw Karan on November 26, 2007, and showed the record of every telephonic conversation with him from December 2006 to August 2008. The judges said they may give him overnight access to Karan if they find that he is “comfortable” with his father.

“Her allegations of ill-treatment are not true. She and her family just wanted me to come and settle in India and they thought they could do it by keeping my child here,” said the civil engineer who was born and brought up in South Africa.

Justice Marlapalle and Justice Bhosale will interview Karan in their chamber on Tuesday.