Gauhati High Court
Page No.# 1/12 vs Mrs Sushmita Bora on 16 July, 2025
Page No.# 1/12
GAHC010073102025
2025:GAU-AS:9176
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/131/2025
PRAKASH FAKIRA DHANORE
SON OF FAKIRA CHIMAN DHANORE, PERMANENT ADDRESS- 7 PRERNA
SOCIETY, TAKALI ROAD, GANDHI NAGAR, NASIK, MAHARASTRA, 422006
(INDIA), P.S. NASIK, DISTRICT NASIK, MAHARASTRA PRESENT ADDRESS-
39540 AIBANT COMMON, APTO, FREMONT - CA - 94358, U.S.A.
VERSUS
MRS SUSHMITA BORA
D/O SRI UTTAM CHANDRA BORA, W/O SRI PRAKASH FAKIRA DHANORE,
RESIDENT OF M.D ROAD, NORTH HAIBORGAON, NAGAON TOWN (NEAR
CONCEPT JR. COLLEGE), P.S. NAGAON SADAR, DISTRICT NAGAON,
ASSAM
Advocate for the Petitioner : MR. M NATH, MAUSAM NATH,P JHA,MR. A
BHATTACHARJEE,MR. D P BORAH
Advocate for the Respondent : MS. S CHAKRAVARTY, T RAMCHIARY,MRS. P. SARMA
BEFORE HON'BLE MRS. JUSTICE YARENJUNGLA LONGKUMER Advocates For the Petitioner : Mr. M. Nath, Senior Counsel assisted Page No.# 2/12 by Mr. D. P. Borah, Adv.
For the respondent : Ms. S. Chakravarty, Adv.
Date of Hearing : 16.07.2025
Date of Judgment : 16.07.2025
JUDGMENT & ORDER
16/07/2025
This is an application under Article 227 of the Constitution of India r/w Section 115 of the CPC, challenging the legality of the Order dated 20.02.2025 passed by the learned District Judge, Nagaon in MISC (Guardianship) Case No. 7/2024. By Impugned Order dated 20.02.2025, the learned District Judge, Nagaon has rejected the petition No. 105/2025 arising out of MISC (Guardianship) Case No. 7/2024, whereby the present petitioner was seeking an interim direction for taking his daughter to the USA for three months in order to avail medical treatment.
2. I have heard learned Senior Counsel, Mr. M. Nath assisted by learned counsel, Mr. D. P. Borah for the petitioner and Ms. S. Chakravarty, for the respondent.
3. It is the contention of the petitioner that the marriage between the petitioner and the respondent took place at Nagaon on 07.11.2016 and thereafter, they left for the US and were residing in California. On 07.11.2021, a baby girl namely Ms. Aarna was born to them in the US through IVF process from an unknown donor and the baby is an American citizen. On 03.11.2023, the petitioner along with the respondent and minor daughter came to India and Page No.# 3/12 after visiting the parents of the petitioner in Maharashtra, they came to Nagaon, Assam on 21.11.2023 to the paternal house of the respondent. Thereafter, the petitioner left for California, USA leaving behind the respondent and his minor daughter for a few days. It is stated that the minor daughter of the petitioner has been suffering from some ailments which has been diagnosed as Autism by one Dr. Ruth Chee Chan, MD in the US.
4. It is stated that the minor daughter of the petitioner being born in the US is a citizen of the US and she came to India on a tourist VISA for a period of 180 days only w.e.f., 03.11.2023 which has expired on 02.05.2024. The petitioner and the respondent also came to India on Green Cards.
5. Thereafter the petitioner came back to India on 15.04.2024, to take back the respondent and the minor daughter to the US. However, the respondent kept her mobile phone switched off and because of which the attempt of the petitioner to reach out to the respondent and his minor daughter became unsuccessful.
6. It is argued by the Senior Counsel for the petitioner that the minor daughter of the petitioner is suffering from autism and as such, she is required to receive expert medical treatment in the US but, due to non-cooperation of the respondent, it has become impossible for the petitioner to take back the respondent and his minor daughter to the US.
7. It is also stated that the petitioner is earning around 2,00,000/- US Dollars per annum which is sufficient to take care of his daughter. Further, the entire treatment of his daughter is covered by a comprehensive health care insurance Page No.# 4/12 in the US and in the event of any unfortunate loss of his life, his daughter would be entitled to receive social security benefits which the petitioner has saved as part of retirement plan amounting to approximately, 2500 US Dollars per month till she attains the age of sixteen years.
8. It is submitted that the petitioner is the fit and proper person to take the custody of the minor daughter being the natural father/guardian, and the respondent does not have any right to keep his minor daughter in India against the petitioner's wish as the minor daughter travelled to India on a tourist VISA for a period of six months only.
9. Learned Senior Counsel further submits that the petitioner's minor daughter who is diagnosed with Autism Spectrum Disorder (ASD) is entitled to receive the highest standard of medical and developmental care available to her by virtue of her birth as a US citizen. Autism is a time sensitive neuro developmental condition and the child's access to evidence based treatment must not be delayed. What the minor child urgently requires is a comprehensive evidence based treatment plan rooted in scientific assessment, including genetic testing at various appropriate stages of personalised treatment plan. Such treatment protocols are extremely expensive in India and therefore, it is imperative that the minor child should be taken back to the US for availing the best medical facilities.
10. Finding no other alternative, the petitioner had filed the petition under Section 25 of the Guardians and Wards Act, 1890 being MISC Case (Guardianship) 7/2024 before the District Judge Nagaon, praying for custody of his minor daughter. The respondent has also appeared and has contested the Page No.# 5/12 aforesaid MISC Case (Guardianship) 7/2024 by filing her written statements. In the said Guardianship Case, the evidence has already been adduced and it is now at the stage of hearing. During the pendency of the said MISC Case (Guardianship) 7/2024, the petitioner filed a petition on 06.02.2025, being petition No. 105/2025 praying for urgent interim direction stating that his minor daughter aged three years, is a citizen of the US diagnosed with autism and that due to her unknown genetic history being an IVF baby from an anonymous female donor, it is crucial to conduct genetic testing urgently, to assess the potential risk of epilepsy, other neurological conditions, and life threatening disorders. It was averred that Autism and epilepsy share a common genetic link and early detection through genetic testing can guide personalised medical intervention helping to select the right treatments and providing insides into inherited risk. This will ensure the best possible care and developmental support for the minor which can only be fully provided in her parent country, the US. The petitioner further stated in the petition no.105/2025 that he has already booked flight tickets for the minor so that the minor can be treated effectively in her parent county. The petitioner also made an undertaking to book return flights for the respondent also and to provide separate accommodation to the respondent in the US. The petitioner also undertook to get the minor child treated for three months and then get her back to Nagaon and submit the progress report in relation to the treatment of the minor before the learned District Judge, Nagaon.
11. The learned Trial Court after hearing the parties rejected the petition of the petitioner by the impugned order dated 20.02.2025. Being aggrieved, the petitioner has approached this Court on the following grounds:-
Page No.# 6/12
a) that the learned Trial Court committed grave error by not considering that the minor child who is a citizen of the US by birth has been suffering from autism and if earliest evidence based treatment based on genetic testing is not provided to her she might never recover from the disease which may lead to her remaining non-verbal for her entire life or may lead to life threatening problems such as epilepsy and other neurological conditions and that being an American citizen the child is entitled to the most advanced treatment available in the US as USA remains the recognised leader in autism research and there is no reason as to why she should be deprived of receiving such advance treatment.
b) the learned Trial Court has wrongly rejected the application for interim custody of the minor child for three months on the ground that since the child had spent most of her life with her mother, be it in America or India, there is a grave danger if the child is suddenly removed from the custody of the mother to the custody of the father. The said finding of the learned trial Court is erroneous as the petitioner never wanted to take the custody of the child but he wanted to take the child along with the mother as well as any attendant to accompany the child to the US only for three months for her treatment and thereafter, to return back to India. The learned Trial Court also failed to appreciate that the allegations of assault or ill treatment of the respondent by the petitioner is a false statement in as much as till she returned to India she has never made any complaints either before the police authorities or any other such help line numbers while in the US.
c) that the learned Trial Court failed to consider the fact that there is nothing on record to show that right from her birth, the minor child had suffer any Page No.# 7/12 inconveniences, harm or any injury at the hands of the petitioner.
d) that the learned trial Court also failed to consider that the petitioner is employed in the US and earns 2,00,000 US Dollars per year. Additionally, the child is also covered under a comprehensive health insurance in the US and social security benefits of the petitioner. And that the petitioner is capable of providing all the support to his minor daughter.
e) that the learned Trial Court did not consider that the minor child is a US national and it would be more advantageous for her treatment to be in the US because the US being a developed country, offers the best medical treatment and numerous benefits and better future prospects for her.
f) that learned Trial Court failed to consider that the allegations of the respondent that once she goes to the US she apprehends threat to her life is not at all tenable as she can easily call the police on help line numbers or can easily move the court against the ill treatment by the petitioner if any.
That the learned Trial Court committed error by not considering that the respondent had decided to stay in India with the minor child, unmindful of the ill consequences of the said action and that the action of the respondent was indended to serve her own interest and not the child's interest.
g) that the Learned Trial Court did not consider the irreparable lost that would be suffered by the minor child of the petitioner in the event of not receiving proper and advanced medical treatment in the US for the serious ailment of autism.
12. The learned Senior Counsel for the petitioner has relied on the cases of:-
Page No.# 8/12
1) Yashita Sahu - Versus State of Rajasthan & Ors - Respondents reported in 2020(3) SCC 67 ;
2) Mr. Abhijit S. Shingote Versus The State of Maharashtra and Ors-
passed by BOMBAY HIGH COURT and reported in 2024(2) BomCR (Cri) 648
3) Sunaina Rao Kommineni -Versus Abhiram Balusu -reported in CRL.M.A. 21862 of 2023 passed by DELHI HIGH COURT , and
4) Vasudha Sethi and Others Versus Kiran V. Bhaskar and Another reported in 2022 SCC Online SC 43 .
Relying on the aforementioned authorities, the learned Senior Counsel for the petitioner has argued that the facts in the above stated cases are similar to the present case inasmuch as the minor child of the petitioner is a citizen of the USA by birth and holding a passport of that country and therefore, while deciding the issue of custody, the court has to take this factor into consideration. It is submitted that in the above mentioned authorities the Hon'ble Supreme Court, the Bombay High Court and the Delhi High Court had given the custody of the minor child to the natural father of the minor even if the mother of the child did not want to go back to the US.
13. Learned counsel has, therefore, prayed that the Order dated 20.02.2025 passed by the learned District Judge, Nagaon in petition No. 105/2025 arising out of MISC Case (Guardianship) 7/2024 may be quashed and set aside and the petitioner may be allowed the interim custody of the minor daughter for a period of three months only for her treatment in the US. The petitioner has also Page No.# 9/12 undertaken that he is willing to also take the respondent and one of her parents along with the minor child at his own expense to the US and to bring them back after the expiry of three months.
14. Learned counsel for the respondent at the outset has drawn the attention to this Court to Section 6(a) of the Hindu Minority and Guardianship Act, 1956 r/w Section 25 of the Guardians and Wards Act, 1890. She has submitted that as per the proviso to Section 6(a) of the Hindu Minority and Guardianship Act, 1956, the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. She has also submitted that as per Section 25 of the Guardians and Wards Act 1890, an application for custody under the said Section can only be filed if a ward leaves or is removed from the custody of a guardian. In such a situation an application can be filed by the guardian for return of the ward to the custody of his/her guardian. In order to file an application under Section 25, the ward has to be removed from the custody of his/her guardian. And the guardian has the right to file an application under Section 25 to return the ward to the custody of his/her guardian. However, in the present case the application under Section 25 of the Guardians and Wards Act before the District Judge, Nagaon has been filed by the petitioner who is not the natural guardian of the minor in view of the proviso to Section 6(a) of the Hindu Minority and Guardianship Act, 1956. It is only the natural guardian who can file such an application. The petitioner accordingly, has no locus to file the petition under Section 25 of the Guardians and Wards Act, 1890 before the learned District Judge, Nagaon.
15. Learned counsel for the respondent further submits that the child is undergoing treatment even in Guwahati and she has produced a certificate from Page No.# 10/12 the Pratiksha Hospital, dated 09.07.2025 certifying that the minor child is under occupational and speech therapy in the centre and she is showing little improvement with the therapy. The respondent also states that the genetic testing is also available in India and the same can be availed even without going to the USA. The learned counsel for the respondent submits that being the natural mother of the minor child, the respondent is the natural guardian of the minor child in view of Section 6(a) of the Hindu Minority and Guardianship Act, 1956. The respondent also submits that neither she nor any of her family members is in a position to visit the US at any point of time. Learned counsel has also expressed her insecurity and threat to her life in case of a compulsive visit to the US along with her minor child. The learned counsel for the respondent also submits that there is no requirement for an interim relief to the petitioner at this stage and instead the issue of final custody may be allowed to be contested before the learned District Judge, Nagaon in MISC Case (Guardianship) 7/2024. She has also submitted that there is no illegality in the order dated 20.02.2025 passed in petition No. 105/2025 and hence, the same does not warrant the interference of this Court in the present petition.
16. The Court has duly considered the submissions of the learned counsels for the parties, perused the pleadings and also the authorities and documents relied above. It is an admitted fact that the petitioner and the respondent are both Green card holders; it is also an admitted position that the minor child, who was born in the USA is a citizen of the US. This Court is primarily concerned with the wellbeing and the welfare of the minor child. The petitioner has relied on cases decided by the Hon'ble Supreme Court as well as the High Courts of Delhi and Bombay. However, it is the view of this Court that there are many factors which are to be taken into consideration while deciding what is best in the Page No.# 11/12 interest of the child. And each case has to be decided on its own merits. In the present case, the minor child is an autistic child and for such specially abled children, the motherly affection of his/her natural mother is far more important than medical treatment. While not undermining the superior medical facilities which may be available in the USA, it is not denied by the petitioner also that genetic testing facilities are available in India too.
17. The learned Trial Court has referred to the case of Roxann Sharma Versus Arun Sharma reported in 2015(8) SCC 318 . It would be apposite to take note that in this case the Hon'ble Supreme Court has specified that custody can be granted to the father only if the father establishes cogent reason which indicates that the life of the child is in jeopardy and her welfare and development is greatly hampered by the manner in which the child is being kept by her mother, in the light of Section 6(a) of the Hindu Minority and Guardianship Act, 1956. In the present case, the petitioner has not being able to show that the life of the minor child is in jeopardy and that her welfare and development is being hampered by the manner in which the child is being kept by her mother. In fact for a three year old child with autism, a sudden separation from her mother would create serious adverse impact on the psychology of the child, as the respondent has clearly conveyed before the Trial Court in person that she and her family members would not go the US.
18. The facts of the present case can also be distinguished from the cases relied upon by the petitioner inasmuch as all the cited cases arise out of final custody orders, whereas, the present case relates to a prayer for interim custody.
19. In any view of the matter, the issue of custody is still pending before the Page No.# 12/12 District Judge, Nagaon in MISC Case (Guardianship) 7/2024, which is awaiting adjudication. This Court is of the view that uprooting the minor child from the company of her mother for three months would not be in the best interest of the minor child. The Court has to ensure that disruption to the child's life, including her social life and daily routine is minimal.
20. With regard to the issue of maintainability, raised by the learned counsel for the respondent, the same is not considered in the present petition, however, the respondent is at liberty to agitate the same before the Trial Court, if so advised. In view of the discussion made above, it is held that the order dated 20.02.2025 passed in petition No. 105/2025 arising out of MISC Case (Guardianship) 7/2024 passed by the learned District Judge, Nagaon does not suffer from any infirmities and is accordingly not interfered with. However, it is directed that should the respondent and the petitioner decide to avail the genetic testing treatment for the child in India, the petitioner shall bear the expenses for the same.
The petition stands dismissed.
JUDGE Comparing Assistant