The Bombay High Court dismissed a writ petition filed by the father seeking a writ of habeas corpus for production of his minor son and for directions to return the child to the United Kingdom in terms of orders passed by the Family Court of Justice, Family Division, England. The Court held that in the peculiar facts of the case, the child’s custody with the mother in India could not be treated as unlawful, particularly when the child expressed a strong desire to continue living in India with his mother and the mother’s lawful stay in the UK was not assured.
Court’s Decision
The Division Bench of the Bombay High Court dismissed the habeas corpus petition and refused to direct the return of the minor child to the UK.
The Court observed that the child had been interviewed in chambers, away from both parents and their lawyers. The Court found the child capable of understanding the situation and giving intelligent answers. The child specifically stated that he wished to continue staying in India with his mother, though he was willing to try having dialogue with his father.
The Court held:
“It is not possible to hold that custody of the minor child with the Respondent No.2 is illegal.”
The Court further observed that the mother had already filed proceedings for divorce, maintenance and custody before the Family Court at Bandra, and that issues of custody, interim custody, access and visitation could be effectively decided by the Family Court after both parties lead evidence.
Facts
The petitioner-father and respondent-mother were married in Mumbai in 2008. After marriage, they shifted to the United States, where their son was born in 2014. The parents later became US citizens, and the child, having been born in the US, was also a US citizen. In 2019, the family shifted to the United Kingdom after the father obtained employment there. The child studied in school in the UK, and the family also purchased a house there.
However, matrimonial differences arose between the parties. The father shifted to a separate residence in the UK. According to the father, the child had expressed fear of visiting India, and he therefore initiated child care proceedings in the UK, including a request for interim custody and prohibition on international travel with the child.
The father alleged that the mother took the child to India without his knowledge and consent. He thereafter approached the High Court of Justice, Family Division, England, where orders were passed declaring the child a ward of that court and directing the mother to return the child to the jurisdiction of England and Wales.
Meanwhile, the mother filed proceedings before the Family Court at Bandra, Mumbai, seeking divorce, maintenance and custody-related reliefs. The father then approached the Bombay High Court through the present habeas corpus petition.
Issues
The principal issues before the Bombay High Court were:
- Whether the child’s custody with the mother in India could be treated as illegal or unlawful.
- Whether the Court should issue a writ of habeas corpus directing the child’s production and return to the UK.
- Whether foreign court orders directing return of the child would automatically justify removal of the child from the mother’s custody in India.
- Whether the child’s welfare required return to the UK or continuation of stay in India with the mother.
Petitioner’s Arguments
The father argued that the mother had left the UK without informing him and had taken the child to India without his consent.
It was submitted that the Family Division of the High Court in England had passed repeated orders directing the mother to return the child to the jurisdiction of England and Wales. According to the father, the mother had violated those orders and had illegally retained the child in India.
The father contended that the child’s best interest would be served by sending him back to the UK. It was argued that the child was still admitted to school in the UK, was eligible for healthcare services there, and could potentially obtain UK citizenship if he continued to reside there for the required period. It was also submitted that the father was financially capable of providing stability to the child and the mother.
The father further argued that the mother’s act of bringing the child to India amounted to forum shopping, as she had chosen a forum in India after the UK proceedings had already begun.
Respondent’s Arguments
The mother opposed the petition and contended that the circumstances in which she left the UK had to be properly considered.
It was submitted that the UK Home Office had revoked her visa and required her to leave the country by 16 July 2023. According to the mother, this situation arose because the father had informed the UK Home Office that the parties had separated. Since the child was in her custody at the relevant time, she had no real option but to leave the UK with the child and come to India.
The mother also relied on a letter from the child’s school in the UK, which recorded that the child was attending play therapy sessions due to the breakdown of the parents’ marriage and had expressed that he did not want to see his father without his mother being present.
The mother further submitted that the father was not cooperating in giving a no-objection certificate for renewal of the child’s US passport, which could prejudice the child’s legal status and future prospects. She argued that the father had not given any assurance to facilitate her valid stay in the UK.
It was also argued that the father had no close relatives in the UK, his parents were in India, and he had health-related concerns. Therefore, sending the child to live with him alone in the UK would not be in the child’s best interest.
Analysis Of The Law
The High Court relied heavily on the principle that in child custody matters, the welfare and best interest of the child are paramount.
The Court referred to Nithya Anand Raghavan v. State of NCT of Delhi, where the Supreme Court held that in a habeas corpus petition, the Court must first examine whether the minor is in lawful or unlawful custody. The Supreme Court had observed that where the child is with the biological mother, who is a natural guardian, such custody is presumed lawful, and only in exceptional circumstances should the child be removed from the mother’s custody in writ jurisdiction.
The High Court specifically applied this principle and held that the custody of the child with the mother could not be treated as illegal merely because a foreign court had passed orders directing return of the child.
The Court also considered Yashita Sahu v. State of Rajasthan, where the Supreme Court emphasized that even where custody remains with one parent, the other parent should ordinarily be granted adequate visitation and contact rights, especially through telephone, email or video calls where parents live in different countries.
The Court further considered the concept of parental alienation referred to in Vivek Singh v. Romani Singh, but held that although the child’s interaction with the Court alone may not be the complete picture, it was still relevant to ascertain the child’s desire.
Precedent Analysis
The Court distinguished the judgments relied upon by the father on the ground that the facts of the present case were peculiar.
In several cited judgments, return of the child to a foreign country was considered where both parents could lawfully reside in that country or where the foreign country was the child’s natural residential environment.
However, in the present case, the child and both parents were US citizens, but the father was not seeking return of the child to the US. Instead, he wanted the child to be sent to the UK, where the mother’s lawful stay was uncertain and dependent on circumstances connected to the father.
The Court noted that this made the present case materially different from cases where a child was directed to return to the country of citizenship or habitual residence along with both parents having the ability to stay there.
Court’s Reasoning
The Court found that it was practically impossible for the mother to settle in the UK on her own. The Court noted that the father himself had withdrawn support which enabled the mother’s stay in the UK, leading to the UK Home Office notice requiring her to leave.
The Court observed that when the mother received the notice to leave the UK, the child was already residing with her. Therefore, it was understandable that she brought the child to India.
The Court also placed significant weight on the child’s interaction with the Bench. The child expressed a strong desire to remain in India with his mother. The Court noted that the child was receiving good education in India and that removal from the mother’s custody could cause serious emotional harm.
The Court held that if the father was permitted to take the child to the UK while the mother’s stay there was not reasonably assured, there was a real possibility that the child may not see his mother for a very long time. The Court said that such a situation would not be in the child’s best interest.
The Court also noted the allegation that the father was not giving NOC for renewal of the child’s US passport. According to the Court, this raised serious apprehension that the father was not acting in the best interest of the child and was making the mother’s life extremely difficult.
The Court observed:
“If the custody is directed to be handed over to the Petitioner, then there would be irreparable emotional loss to the child, if he is unable to meet his mother.”
The Court therefore concluded that the child’s stay in India with the mother could not be held unlawful.
Conclusion
The Bombay High Court dismissed the father’s habeas corpus petition and refused to direct the child’s return to the UK.
The Court held that the mother’s custody of the child in India was not illegal, and that the child’s welfare required continuation of the present arrangement rather than a forced return to the UK.
The Court clarified that the pending Family Court proceedings at Bandra for divorce, maintenance and custody would be the appropriate forum for both parents to establish their claims by leading evidence. Questions of access, interim access, interim custody and temporary access may also be considered by the Family Court in accordance with law.
