Custody battle: Gujarat High Court gives priority to 13-year-old’s desire, allows him to stay with foster father

In a case regarding the custody of a 13-year-old boy, heard as a habeas corpus petition by his biological parents accusing his uncle and foster father of kidnapping and keeping the child in illegal custody, a division bench of the Gujarat High Court gave priority to the child’s desire and directed that the child may continue in the custody of his foster father, in an order dated January 19.

The boy, born to a Botad couple in 2006, was adopted by his father’s sister and her then husband. The adoption was formalised by December 2008. However, the couple who adopted the boy divorced by mutual consent in July 2019 and it was agreed upon that their child will continue with the foster mother and the adoption deed would be revoked.

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The custody was thus handed over to the foster mother and biological parents. The child was residing at Patdi in Surendranagar since the age of two years until 12 years. He was attending school and had friends in the locality. However, he was taken to his foster mother’s native place in Botad where the child found it difficult to adjust. His schooling was interrupted with no school admission processed by the biological parents.

“The biological mother and the foster mother voluntarily called up the foster father and asked him to take away child… as he was not able to adjust to the new place,” advocate Amrita Ajmera, representing the foster father, submitted before the court, in response to the habeas corpus petition moved by the biological parents in December 2020, seeking that their child be produced before the court.

Speaking to The Indian Express, Ajmera said, “The child was at the residence of the biological parents, who are tailors by profession, for approximately three months after the divorce. Thereafter the biological parents as well as the foster mother themselves dropped off him at the residence of foster father, who is a doctor by profession, in Surendranagar.”

In December, a division bench of the Gujarat HC directed the Social Welfare Officer of Surendranagar to visit the child, talk to him and submit a report. A second visit of the child by the social welfare officer was also directed by the court in January.

As per the social welfare officer’s report to the division bench of HC led by Justice Sonia Gokani on January 19, the child was well taken care of by the foster father who was keen on continuing to care for the child.

The bench also spoke to the child, who expressed desire to continue with his foster father. The court found that the foster father would agree if the foster mother or the biological mother wanted to visit the child.

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