[Cites 14, Cited by 0]
Bombay High Court
Jyotirmaysinhji Upendrasinhji Jadeja vs The State Of Maharashtra And Anr on 18 December, 2025
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2025:BHC-AS:56040-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.2540 OF 2025
Jyotirmayasinhji Upendrasinhji Jadeja, ]
Age : 43 years, Occ.: Self-Employed, ]
R/at : Hawa Mahal, Gondal, Rajkot, ]
Gujarat - 360311 ] .. Petitioner
Versus
1. The State of Maharashtra ]
2. Damini Kumari Narhari Pratap Singh, ]
Age : 46 years, Occ.: Part-time Office Work]
Last resided at : C/o. Bhuvneshwari Kumari,]
44 Venus Apartment, 4th Floor, ]
SK Barodawala Marg, Altamont Road, ]
Mumbai - 400 026. ] ..Respondents
Mr. Aman Hingorani, Senior Advocate, with Ms. Sushmita
Sherigar and Ms. Krishna Barot, Advocates for the Petitioner.
Mr. Vikramaditya Deshmukh with Ms. Priya Chaubey, i/by
Ms. Sapana Rachure, Advocates for Respondent No.2.
CORAM : RAVINDRA V. GHUGE &
GAUTAM A. ANKHAD, JJ.
Reserved on : 6th November 2025
Pronounced on : 18th December 2025
JUDGMENT (PER: GAUTAM A. ANKHAD, J.)
1. Rule. Rule is made returnable forthwith and the
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matter is heard finally with the consent of the parties.
2. The Petitioner is an Indian citizen. Respondent no.2
is his wife and a citizen of Germany, holding a German
passport. The Petitioner has filed this Petition under Article 226
of the Constitution of India seeking a writ of Habeas Corpus for
the production and custody of his six-year-old son, who is
presently in Germany with Respondent no.2. The Petitioner
seeks the following reliefs:
"a. The Hon'ble Court, by exercising powers under Article 226 of
the Constitution of India, may be pleased to direct the
Respondent No.2 to produce their son, i.e. the minor child
XYZ before this Hon'ble Court; (name is masked)
b. The Hon'ble Court, by exercising powers under Article 226 of
the Constitution of India, may be pleased to restore the
custody of his son, i.e. the minor child - to the Petitioner."
3. The relevant dates for the purpose of this Petition
are as under:
a. The marriage between the Petitioner and Respondent
no.2 was solemnized on 4 th March 2017 at Goa and a
marriage certificate was issued under the Gujarat
Registration of Marriage Act, 2006. Neither party has
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filed petition for divorce in any jurisdiction.
b. On 25th May 2019, the couple was blessed with a son.
The parties applied for and obtained an Indian
passport (no. T9810309) for the minor, which was valid
until 19th November 2024.
c. On 29th January 2020, Respondent no.2 travelled to
Germany with the minor to visit her family residing
there. Travel restrictions due to Covid-19 were
imposed in March 2020. Respondent No.2 and the
minor did not return to India. However, the Petitioner
visited them in Germany once in March 2022, once the
travel restrictions eased.
d. On 28th March 2024, Respondent no.2 has initiated
custody proceedings before the Würzburg District
Court in Germany. Summons was issued to the
Petitioner, but he did not participate in these
proceedings. Respondent no.2 visited India between
26th July 2024 and 27th August 2024, along with the
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minor. Apart from this brief visit, Respondent no.2 and
the minor have continued to reside in Germany.
e. The Würzburg Court by its order dated 18 th September
2024 initially appointed a procedural guardian, Mrs.
Ulrike Hubmann, in accordance with German law. The
scope of her duties involved representing the interests
of the minor in the custody proceedings.
f. Around 21st September 2024, the petitioner filed the
present petition. On 11 th December 2024, this Court
passed the following order:-
"1. In the Writ Petition filed for production of the
Corpus, the minor child, who according to the
Petitioner has been allegedly removed from his
custody and taken to Germany by Respondent No.2,
she has marked her appearance through the learned
Counsel Mrs. Mrunalini Deshmukh, who has advanced
arguments traversing the accusations in the Petition.
However she is desirous of filing Affidavit in Reply,
which we permit to be filed, on or before 08/01/2025,
with a copy to be served in advance upon the learned
counsel for the Petitioner.
Upon the Affidavit being filed, Petitioner is at liberty
to file Rejoinder, if necessary.
2. Mrs. Deshmukh, the learned counsel for
Respondent No.2, on instructions make a categorical
statement that she has no objection if the Petitioner
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intend to visit Frankfurt during Christmas Vacation to
meet the Corpus.
She also makes a categorical statement that
there is no prohibition on the Petitioner or his family
members reaching to the Corpus through Video
Conferencing, with advance intimation and the time for
which shall be mutually decided by the parties.
Re-notify to 16/01/2025."
g. On 16th December 2024, the Würzburg Court by its
order granted interim parental custody of the minor to
Respondent no.2. The Petitioner by his letter dated
14th June 2025 addressed directly to the learned
Judge at Würzburg Court, protested to the custody
proceedings. The Petitioner did not engage an
attorney nor filed the necessary application as required
under German law to object to the proceedings before
the Würzburg Court.
h. On 18th August 2025, the Würzburg Court by its final
order has granted sole custody to Respondent No.2
authorising her to take all decisions relating to the
minor's education, health, and general welfare. The
Petitioner has not challenged either the interim order
dated 18th September 2024 or the final order dated 18 th
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August 2025 granting sole custody to Respondent
no.2.
4. Mr. Hingorani, learned senior counsel for the
Petitioner, submits that during a family holiday at Goa in July-
August 2024, the Petitioner discovered for the first time that the
minor had been issued an OCI (Overseas Citizen of India) card
reflecting his nationality as "Deutsch" (German). The Petitioner
was shocked to learn that Respondent no.2 had allegedly
procured a German passport for the minor without his
knowledge or consent. The Petitioner obtained a copy of the
OCI card from the hotel records. The Petitioner later learnt that
Respondent no.2 had applied for the minor's German passport
by falsely declaring her marital status as "single" and based on
such misrepresentation, the German passport was issued.
Thereafter, the minor's Indian passport was surrendered in
December 2023. According to the Petitioner, the minor's
nationality is changed fraudulently. The minor was originally an
Indian citizen, domiciled in India and a permanent resident of
Hawa Mahal, Gondal, Rajkot district, Gujarat. The minor is the
only child and it is inconceivable that the minor is deprived of
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Indian citizenship or alienated from Indian culture and
traditions.
5. Mr. Hingorani further submits that on 27 th August
2024, Respondent no.2 abruptly left India for Germany along
with the minor, thereby unlawfully removing the minor from the
Petitioner's access and custody. Respondent no.2 cannot
unilaterally decide that the minor will continue to reside in
Germany. The Petitioner's repeated request to return to India
are declined and the minor's exact whereabouts are not known.
He submits that the Würzburg Court lacks jurisdiction as the
parties married as per Hindu law in India and orders passed
therein are not binding on the Petitioner. It is only the Courts in
India that will have jurisdiction over the disputes between the
parties. Hence, the Petitioner has invoked the extraordinary writ
jurisdiction of this Court seeking production of the minor and
restoration of the status quo ante. In support of his
submissions, Mr. Hingorani has relied upon Elizabeth Dinshaw
vs. Arvand Dinshaw (1987) 1 SCC 42, Tejaswini Gaud vs.
Shekhar Jagdish Prasad Tewari (2019) 7 SCC 42, Y.
Narasimha Rao vs. Y. Venkata Lakshmi (1991) 3 SCC 451 and
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Abhijit Singh Shingote vs. State of Maharashtra (2024 SCC
OnLine Bom 1288) and submits that Respondent no.2 cannot
take advantage of her wrong-doing and this Court ought to
order Respondent no.2 to return the minor to the Petitioner.
The restoration of custody is consequential to the restoration of
status quo ante. Accordingly, the petition deserves to be
allowed with costs.
6. Mr. Deshmukh, learned counsel for Respondent
no.2, denies the contentions and submits that the petition is not
maintainable. He submits that the marriage between the parties
was never consummated and that the minor was conceived
through donor eggs and fertility treatment. Even after the child's
birth, the relationship between the Petitioner, Respondent no.2
and her in-laws remained strained. Respondent no.2 is a
German citizen by birth and in 2020 relocated to Germany with
the minor to escape the cruelty inflicted upon her by the
Petitioner and his family. Since then, the Gondal residence
ceased to be her matrimonial home. Under German law, the
minor automatically acquires German citizenship
notwithstanding his place of birth, and a German passport was
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issued on Respondent no.2's application. Owing to marital
discord, Respondent no.2 is now permanently settled in
Germany with the minor. Respondent No.2 visited India in July-
August 2024 to resolve the disputes, but the efforts failed.
Respondent no.2 thereafter returned to Germany with the
minor to resume their normal life. The minor is enrolled at a
playschool at Rottendorf, Germany. There was no sudden or
unlawful removal of the minor from India. The minor has been
residing in Germany since he was 8 months of age and since
January 2020, it is his natural habitat. Since Respondent no.2
is a German citizen and the minor was under her custody, it
was a natural decision to apply for the German passport. It is
denied that German passport was fraudulently obtained. The
Petitioner has shown minimal interest in the minor's welfare,
has not contributed to his maintenance, and has not visited him
in Germany except once in 2022 and that too only for a period
of four days.
7. Mr. Deshmukh relies upon the interim custody order
dated 16th December 2024 and the final order dated 18 th August
2025 passed by the Würzburg Court and submits that the said
orders are binding on the Petitioner. Despite being served with
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the summons, the Petitioner has not taken steps to challenge
the Würzburg Court's orders or even commence custody
proceedings in any competent Court in India. The petition is not
maintainable, as the whereabouts of the minor are known and
the custody was never with the Petitioner. Lastly, he submits
that Respondent no.2 has facilitated regular video calls and
had even invited the Petitioner to meet the minor during the
Christmas holidays in Germany. Pursuant to this Court's order
dated 11th December 2024, Respondent no.2's consent to the
Petitioner visiting the minor is recorded. Further, the Petitioner
has regularly interacted with the minor through video calls. He
submits that no case is made out and relies upon the
judgments in Nithya Anand Raghavan vs. State of NCT of Delhi
(2017) 8 SCC 454, Jose Toral vs. State of West Bengal (2021
SCC OnLine SC 3434), Rajeswari Ganesh vs. State of Tamil
Nadu (2023) 12 SCC 472 and Somprabha Rana vs. State of
M.P. (2024) 9 SCC 382, for the dismissal of the petition with
costs.
[
Reasons and Analysis:
8. We have heard the learned counsels and perused
the written submissions as well as the compilation of judgments
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tendered by them. In our view, the Petitioner has failed to make
out any case for the grant of reliefs.
9. It is a well-settled law that in matters concerning the
custody of children, the paramount consideration is always the
welfare and best interests of the child. In Somprabha Rana
(supra), the Hon'ble Supreme Court has succinctly reiterated
the legal position governing the issuance of a writ of habeas
corpus in child-custody disputes. The Court has summarized
the governing principles as follows:
"9. After having perused various decisions of this Court, the
broad propositions of settled law on the point can be
summarized as follows:
9.1. Writ of habeas corpus is a prerogative writ. It is an
extraordinary remedy. It is a discretionary remedy;
9.2. The High Court always has the discretion not to
exercise the writ jurisdiction depending upon the
facts of the case. It all depends on the facts of
individual cases;
9.3. Even if the High Court, in a petition of habeas
corpus, finds that custody of the child by the
respondents was illegal, in a given case, the High
Court can decline to exercise jurisdiction under
Article 226 of the Constitution of India if the High
Court is of the view that at the stage at which the
habeas corpus was sought, it will not be in the
welfare and interests of the minor to disturb
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his/her custody; and
9.4. As far as the decision regarding custody of the
minor children is concerned, the only paramount
consideration is the welfare of the minor. The
parties' rights cannot be allowed to override the
child's welfare. This principle also applies to a
petition seeking habeas corpus concerning a
minor."
10. The scope of a petition seeking a writ of habeas
corpus is limited to tracing out an individual who is alleged to
be missing or securing the release of a person from unlawful
restraint. The parens patriae jurisdiction of this Court is invoked
only to intervene against an abusive or negligent parent, legal
guardian or caretaker, and to act in the best interests of a child
who requires protection. In the present case, there is nothing
on record to indicate that Respondent no.2 is exercising
unlawful custody over the minor or is incapable of providing
proper care to her son. In Shafin Jahan v. Asokan K.M. & Ors.,
(2018) 16 SCC 368, the Hon'ble Supreme Court has
categorically held that this extraordinary jurisdiction is to be
exercised only in exceptional circumstances. The relevant
portion of the judgment reads as under:
"39. Constitutional Courts in this country exercise parens
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patriae jurisdiction in matters of child custody treating the
welfare of the child as the paramount concern. There are
situations when the Court can invoke the parens patriae
principle and the same is required to be invoked only in
exceptional situations. We may like to give some
examples. For example, where a person is mentally ill and
is produced before the Court in a writ of habeas corpus,
the Court may invoke the aforesaid doctrine. On certain
other occasions, when a girl who is not a major has eloped
with a person and she is produced at the behest of habeas
corpus filed by her parents and she expresses fear of life
in the custody of her parents, the Court may exercise the
jurisdiction to send her to an appropriate home meant to
give shelter to women where her interest can be best
taken care of till she becomes a major."
"45. Thus, the constitutional Courts may also act as parens
patriae so as to meet the ends of justice. But the said
exercise of power is not without limitation. The Courts
cannot in every and any case invoke the parens patriae
doctrine. The said doctrine has to be invoked only in
exceptional cases where the parties before it are either
mentally incompetent or have not come of age and it is
proved to the satisfaction of the Court that the said parties
have either no parent/legal guardian or have an abusive or
negligent parent/legal guardian."
11. In our view, having regard to the facts on record,
this is not an exceptional case warranting the issuance of a writ
of habeas corpus. The material before us indicates that
Respondent no.2 left India in January 2020 and since then, the
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minor has been in her sole care. Except for brief visits by the
parties between India and Germany, the minor is residing
continuously in Germany with Respondent no. 2. The minor is
now a German national. In the present proceedings we are not
required to adjudicate on the Petitioner's allegation that the
minor's German passport was obtained through fraud or
misrepresentation. The whereabouts of the minor are known to
the Petitioner. Respondent no.2 has also facilitated video calls
and has undertaken before this Court to permit the Petitioner
and his family members to interact with the minor. In these
circumstances, the writ petition is not maintainable.
12. We further note that Respondent no.2 has initiated
custody proceedings before the Würzburg Court in Germany, in
which orders dated 16th December 2024, and 18 th August 2025
have been passed granting sole custody to Respondent no.2. It
is an admitted position that the Petitioner did not appear before
the Würzburg Court despite service of the proceedings. A
translated copy of the order dated 18 th August 2025 has been
placed on record through Respondent no.2's additional affidavit
dated 11th September 2025, and the Petitioner has raised no
objection to the translation. The order sets out detailed reasons
WP-2540-25.Final.odt Dixit
for granting Respondent no.2 sole custody of the minor. The
relevant portion of the order reads as under:
"The petitioner applied for sole custody.
The respondent stated that he did not consider himself subject
to German law. In his opinion, the petitioner had deceived him
and taken the child away. He intended to assert his rights in
India.
The petitioner's application was served upon the respondent
in India by way of judicial assistance. A guardian ad litem was
appointed for the child. The Youth Welfare Office was also
heard. The child was likewise heard, with reference made to
the hearing records.
The District Court of Würzburg has international and local
jurisdiction pursuant to $$99,152 FamFG. India is not a
contracting state to the Hague Convention on Child Abduction
(HKU) or the Hague Convention on Parental Responsibility
(KSU). Nor is there any other applicable international treaty
(see Higher Regional Court Karlsruhe, decision of 20.11.2024
- 16 UFH 2/24, BeckRS 2024, 38698). International
jurisdiction is therefore based on $ 99 para. 1 no. 1 and no.2
FarmFG.
Substantive German law applies pursuant to Art. 21 EGBGB:
The legal relationship between a child and its parents is
governed by the law of the state in which the child has its
habitual residence. The parents have joint custody as they
were married at the child's birth.
This decision is further based on $ 1671 para. 1 BGB. Under
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this provision, the Court shall transfer parental custody, or part
thereof, to one parent upon application if the parents live
separately on a more than temporary basis, they jointly hold
custody, and it is to be expected that termination of joint
custody and transfer to the applicant parent best serves the
welfare of the child.
Accordingly, custody had to be transferred solely to the
mother. The Court found that the parents are unable to make
joint decisions. Although the father contend the Court after
previously refusing contact with the Youth Welfare Office or
the child's counsel, it is unfortunately not possible to
meaningfully engage with him further, as he does not
recognize German jurisdiction. He accuses the mother of
having taken the child from him. However, it is established that
the mother never concealed her address that she provided the
father's last known address to the Court and that she
attempted to summer 2024 to reach an amicable solution in
India. By contrast, the father appears to have made no efforts
in recent years to "regain" his son. He himself wrote that he
visited Germany after 2020 in order to see his son. However,
he apparently undertook no legal steps regarding residence or
custody and then departed again. He has also shown no
further interest in this proceeding or the hearing date. His
accusations remain vague and unsubstantiated.
It is established that mother and child have lived together in
Germany for five years. The child is developing well. A stable
relationship between mother and child can be assumed.
In light of all circumstances, the Court cannot assume that the
parents will be able to make joint decisions, nor that the
mother would be able to obtain the father's necessary
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signatures. This is not due to an actual impediment of the
father within the meaning of $ 1674 BGB - he is indeed
reachable - but rather because of his accusations against the
mother. In order to ensure legal certainty, in the best interests
of the child, joint custody must therefore be terminated.
Custody can only be transferred to the mother.
The father resides in India and has no genuine relationship
with his son. The relationship between mother and child
exists. No deficiencies in the mother's parental capacity are
apparent. Both the Youth Welfare Office and the guardian ad
litem support the petitioner's request."
13. We also note that the Würzburg Court has
interacted with the minor and recorded its observations. The
relevant translated extract, annexed to Respondent no.2's
additional affidavit dated 11th September 2025, reads as
follows:-
"Order
Würzburg, 18 August 2025
1. Record of the child's hearing in the presence of the child's
counsel in Room A136.
Jay is excited and shy. He then talks about the
"Huttendorf" (holiday camp) and opens up
somewhat. He has seen his father only once,
last year in India. Father and mother argued in
India. He speaks on the phone with his father.
Again tomorrow. He does not want to visit his
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father again. He also does not particularly like
talking with him on the phone. The father does
not say that he will come to visit in Germany.
The father seems to fear that the mother might
make life difficult for him here. In India, Jay
rode an elephant and a camel. Here, he rides
horses. He further reports that he can speak
many languages and that he has two birds. He
likes animals including rabbits, lizards and
dogs.
2. Record to file.
[signed]
Schneider M.
Judge at the District Court"
14. In these facts and circumstances, we find that
Respondent no.2 has correctly relied upon the judgment of the
Hon'ble Supreme Court in Jose Antonio (supra). In that
decision, the Hon'ble Supreme Court referred to its earlier
decision in Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari ,
(2019) 7 SCC 42, wherein the law governing the maintainability
of a petition for a writ of habeas corpus in child-custody matters
has been clearly delineated. Paragraphs 19 and 20 of Tejaswini
Gaud (supra), which set out the applicable principles, are
extracted below:
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"19. Habeas corpus proceedings is not to justify or examine the
legality of the custody. Habeas corpus proceedings is a
medium through which the custody of the child is
addressed to the discretion of the Court. Habeas corpus is
a prerogative writ which is an extraordinary remedy and
the writ is issued where in the circumstances of the
particular case, ordinary remedy provided by the law is
either not available or is ineffective; otherwise a writ will
not be issued. In child custody matters, the power of the
High Court in granting the writ is qualified only in cases
where the detention of a minor by a person who is not
entitled to his legal custody. In view of the pronouncement
on the issue in question by the Supreme Court and the
High Courts, in our view, in child custody matters, the writ
of habeas corpus is maintainable where it is proved that
the detention of a minor child by a parent or others was
illegal and without any authority of law.
20. In child custody matters, the ordinary remedy lies only
under the Hindu Minority and Guardianship Act or the
Guardians and Wards Act as the case may be. In cases
arising out of the proceedings under the Guardians and
Wards Act, the jurisdiction of the Court is determined by
whether the minor ordinarily resides within the area on
which the Court exercises such jurisdiction. There are
significant differences between the enquiry under the
Guardians and Wards Act and the exercise of powers by a
writ Court which is summary in nature. What is important
is the welfare of the child. In the writ Court, rights are
determined only on the basis of affidavits. Where the
Court is of the view that a detailed enquiry is required, the
Court may decline to exercise the extraordinary jurisdiction
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and direct the parties to approach the civil Court. It is only
in exceptional cases, the rights of the parties to the
custody of the minor will be determined in exercise of
extraordinary jurisdiction on a petition for habeas corpus."
15. In Nitya Anand Raghavan, the Hon'ble Supreme
Court held that the paramount consideration in matters of this
nature is the welfare of the minor child, and not the legal rights
of either parent, the relevant portion of which is as under:-
"47. In a habeas corpus petition as aforesaid, the High Court
must examine at the threshold whether the minor is in lawful or
unlawful custody of another person (private respondent named
in the writ petition). For considering that issue, in a case such
as the present one, it is enough to note that the private
respondent was none other than the natural guardian of the
minor being her biological mother. Once that fact is ascertained,
it can be presumed that the custody of the minor with his/her
mother is lawful. In such a case, only in exceptionable situation,
the custody of the minor (girl child) may be ordered to be taken
away from her mother for being given to any other person
including the husband (father of the child), in exercise of writ
jurisdiction. Instead, the other parent can be asked to resort to a
substantive prescribed remedy for getting custody of the child."
...
69. We once again reiterate that the exposition in Dhanwanti
Joshi [Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112] is
a good law and has been quoted with approval by a three-
Judge Bench of this Court in V. Ravi Chandran (2) [V. Ravi
Chandran (2) v. Union of India, (2010) 1 SCC 174 : (2010) 1
SCC (Civ) 44] . We approve the view taken in Dhanwanti Joshi
[Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112] , inter
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alia, in para 33 that so far as non-Convention countries are
concerned, the law is that the Court in the country to which the
child is removed while considering the question must bear in
mind the welfare of the child as of paramount importance and
consider the order of the foreign Court as only a factor to be
taken into consideration. The summary jurisdiction to return the
child be exercised in cases where the child had been removed
from its native land and removed to another country where, may
be, his native language is not spoken, or the child gets divorced
from the social customs and contacts to which he has been
accustomed, or if its education in his native land is interrupted
and the child is being subjected to a foreign system of
education, for these are all acts which could psychologically
disturb the child. Again the summary jurisdiction be exercised
only if the Court to which the child has been removed is moved
promptly and quickly. The overriding consideration must be the
interests and welfare of the child."
16. Following the proposition laid down in Nitya
Raghavan and Tejaswini Gaud, the Hon'ble Supreme Court in
Rajeshwari Chandrashekhar Ganesh held as follows:
"99. Thus, it is well established that in issuing the writ of habeas
corpus in the case of minors, the jurisdiction which the Court
exercises is an inherent jurisdiction as distinct from a statutory
jurisdiction conferred by any particular provision in any special
statute. In other words, the employment of the writ of habeas
corpus in child custody cases is not pursuant to, but independent of
any statute. The jurisdiction exercised by the court rests in such
cases on its inherent equitable powers and exerts the force of the
State, as parens patriae, for the protection of its minor ward, and
the very nature and scope of the inquiry and the result sought to be
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accomplished call for the exercise of the jurisdiction of a court of
equity. The primary object of a habeas corpus petition, as applied to
minor children, is to determine in whose custody the best interests
of the child will probably be advanced. In a habeas corpus
proceeding brought by one parent against the other for the custody
of their child, the Court has before it the question of the rights of the
parties as between themselves, and also has before it, if presented
by the pleadings and the evidence, the question of the interest
which the State, as parens patriae, has in promoting the best
interests of the child.
...
127. We would therefore hold that in the case at Bar, the dominant
consideration to which all other considerations must remain
subordinate must be the welfare of the child. This is not to say that
the question of custody will be determined by weighing the
economic circumstances of the contending parties. The matter will
not be determined solely on the basis of the physical comfort and
material advantages that may be available in the home of one
contender or the other. The welfare of the child must be decided on
a consideration of these and all other relevant factors, including the
general psychological, spiritual and emotional welfare of the child. It
must be the aim of the Court, when resolving disputes between the
rival claimants for the custody of a child, to choose the course
which will best provide for the healthy growth, development and
education of the child so that he or she will be equipped to face the
problems of life as a mature adult."
17. In view of above principles, a writ of habeas corpus
is not maintainable. The custody of the minor is with the
mother, who is also the natural guardian. The Würzburg Court
also permits it and hence the custody cannot be characterized
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as illegal. The main criteria is the welfare of the minor. He is
already admitted in a playschool at Rottendorf Germany. This is
now his natural habitable environment. In our view, his best
interest would be served in his existing environment at
Germany where he has been since January 2020.
18. We are unable to accept Mr. Hingorani's submission
that the Petitioner refrained from participating in the
proceedings before the Würzburg Court on the ground that it
lacked jurisdiction. In our view, it was open to the Petitioner to
appear before the foreign Court and at least register his protest
regarding its jurisdiction and the consequential orders granting
custody to Respondent no.2. More importantly, we note that the
Petitioner has not taken any steps to seek custody or visitation
rights under the Guardians and Wards Act, 1890, or the Hindu
Minority and Guardianship Act, 1956, before any competent
Court in India. This omission is glaring, and no explanation has
been offered for such inaction. In these circumstances, the
Petitioner cannot contend that the minor is being illegally
detained by Respondent no.2.
19. With respect to prayer clause (b), which seeks
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"restoration of custody" of the minor to the Petitioner, we find
that the relief is wholly misconceived. It proceeds on the
assumption that the minor was previously in the Petitioner's
custody. This is factually incorrect, as the minor has been in the
care of the mother for the past five years. In any event, the
question of restoration of custody is one that must be
adjudicated by a competent Family Court, as it involves the
appreciation of facts and evidence.
20. The judgments relied upon by the Petitioner are of
no assistance as the facts therein are distinguishable. In
Elizabeth Dinshaw (supra), the Hon'ble Supreme Court was
dealing with a case where the American Court granted a
decree for child's custody to the mother and visitation rights to
the father. The father breached the decree by secretly bringing
the child to India against the express orders of the American
Court. The mother had approached the Supreme Court under
Article 32 of the Constitution of India. The Court interviewed
the child and found that his best interest and welfare would be
served if he were with the mother since both were American
citizens and the USA Court had already passed a custody order
in her favour. In that context, the Hon'ble Court held that the
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Respondent-father had abducted the child and a writ of Habeas
Corpus ordering custody of the child was granted to the mother.
The Court holds that matter must be decided not by reference
to the legal rights of the parties, but on the sole and
predominant criterion of what would serve the best interests
and welfare of the minor. Thus, this case is of no assistance to
the Petitioner.
21. The Petitioner's reliance placed upon the judgment
of this Court in Abhijit S Shingote (supra) is equally misplaced.
The Court in this case also faced a comparable situation where
the respondent-mother had taken the child outside USA in
defiance of the American Court orders. The parties had arrived
at a temporary parenting arrangement before the USA Court
viz. that both would have joint physical custody. The wife
breached the order of the USA Court and back to India with the
child thereby denying the husband custody in USA. In view of
this, the USA Court granted sole custody to the husband and
issued contempt proceedings against the wife. It was in this
background that the husband filed the Habeas Corpus petition
in India. The prayer in that petition was to produce the child in
compliance with the order of the USA Court. In those
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circumstances, the custody of child was granted to the father
by applying the principles of status quo ante.
22. In the present case, the minor is now a citizen of
Germany. Since January 2020, i.e., the age of about 8 months,
the minor is staying with Respondent no.2 in Germany. There is
no question of Respondent no.2 mother having abducted the
minor. Moreover, Respondent no.2 is granted sole custody of
the minor by the Würzburg Court. The principles of status quo
ante has no application to the present scenario as Respondent
no.2 has not acted illegally or unlawfully to change any status
quo.
23. Similarly, the judgment of the Supreme Court in "Y.
Narasimha Rao v. deals with the provisions of the Hindu
Marriage Act, 1955 and is in the context of divorce proceedings
between husband and wife. It deals with the recognition of a
divorce decree passed by a foreign Court in India when such
execution of the foreign Court order is sought in India. Neither
does it deal with Habeas Corpus proceedings nor with the
custody of a minor child. Hence this decision is not applicable
to the facts of the present case.
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24. For all the above reasons, this Petition lacks merit.
Criminal Writ Petition No.2540 of 2025 is dismissed without any
order as to costs.
25. We however make it clear that Respondent No.2
shall continue to facilitate video calls for the Petitioner and his
family members. It is made clear that, all the observations
regarding the welfare of the child are made only for the purpose
of deciding the present petition, and at an appropriate stage,
the competent Courts in future are free to take their own
decision in accordance with law regarding the custody and
welfare of the child.
26. Rule is discharged.
[GAUTAM A. ANKHAD, J. ] [RAVINDRA V. GHUGE, J.]
BHARAT
DASHARATH
PANDIT
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