Bombay HC Rejects Plea to Send Child to UK, Emphasises Welfare Principle

A bench of Justice Sarang V. Kotwal and Justice Sandesh D. Patil heard a habeas corpus petition filed by a father seeking the production of his minor son and directions to return the child to the United Kingdom where the petitioner asserted habitual residence and jurisdictional rights, and the court examined competing claims of custody and the child’s welfare.

The Court dismissed the petition and gave detailed reasons balancing the jurisdictional orders from the Family Division in England and Wales against the child’s present circumstances in India, placing the welfare of the child at the forefront. The Bench noted that it had interviewed the child in chambers and gave weight to his expressed wish to continue living in India with his mother, while observing that the petitioner could seek remedies in the Family Court at Bandra. The Court relied on principles drawn from earlier authority and specifically relied on Nithya Anand Raghvan Versus State of NCT of Delhi & Anr. which emphasised that the best interest and welfare of the child were paramount and that custody with the biological mother would ordinarily be presumed lawful unless exceptional circumstances were shown. The Court, in its reasoning, observed: "In these circumstances, there is a strong possibility that, if the Petitioner is permitted to take his son to UK and if the Respondent No.2’s stay in UK is not assured with reasonable certainty, then there is a real possibility that the son may not see his mother for a very long time. That certainly would not be in his best interest. On the other hand, it is always possible for the Petitioner to visit India and meet his son whenever it is possible for the Petitioner. Thus, 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. In the present circumstances, we cannot hold that the Petitioner’s son’s stay in India with the Respondent No.2 is unlawful or that his custody with his mother is unlawful. The son is getting good education in India as per our interaction with him."

Background

The petitioner and respondent were married in 2008, acquired US citizenship and lived in the United States and later in the United Kingdom where their son 'N' was born in the US and later resided and attended school in the UK. Differences arose and the mother travelled to India with the child in 2023; the petitioner initiated proceedings in the Family Division of the High Court of Justice, England and Wales seeking return of the child and obtained interim orders declaring habitual residence and wardship, including directions for the child's return. The petitioner then filed the present habeas corpus petition in this Court seeking production of the child and return to the UK. The respondent opposed the petition and filed a counter-affidavit explaining that her UK immigration permission was cancelled by the UK Home Office and that she had been compelled to leave with the child; she also relied on material indicating the child was undergoing play therapy and had expressed fear of seeing his father alone. The respondent had filed a petition for divorce and ancillary relief U/s.13(1)(ia), an interim application for maintenance U/s.24 and 25 and an application for custody of the minor son U/s.26 of the Hindu Marriage Act, 1955.

In addressing the dispute the Court examined the English orders and the parties’ submissions, noted that it had interviewed the child to ascertain his wishes, and applied the legal principle that the welfare of the child was paramount. The bench discussed and applied the reasoning in Nithya Anand Raghvan Versus State of NCT of Delhi & Anr., observing the presumption of lawful custody with a biological mother and that foreign court orders did not automatically render custody unlawful. The Court found that, on the peculiar facts before it — including the respondent’s uncertain immigration position in the UK, the practical impossibility of either parent relocating to the United States, the child’s expressed preference, and apprehensions about the petitioner’s conduct in relation to passport and immigration cooperation — it could not conclude that custody with the mother in India was unlawful or contrary to the child’s best interest. The Court declined to direct transfer of custody to the petitioner, dismissed the writ petition, and observed that questions of access or interim custody could be expeditiously considered by the Family Court at Bandra, leaving those substantive issues for determination in the appropriate forum.

Case Details: Case No.: CRIMINAL WRIT PETITION NO. 3950 OF 2023 Case Title: Dr. Shreyas Dilip Mandre Versus The State of Maharashtra & Anr. Appearances: For the Petitioner(s): Ms. Avani Bansal a/w. Ms. Parika Singh, Aryan Chourasia and Rishi Thakur For the Respondent(s): Ms. Mahalakshmi Ganapathy, Addl.PP for State/Respondent No.1; Mr. Wesley Menezes a/w. Waqaar Pathan, Hemali Mehta Tejani and Yash Athre i/b. Saamya Partners

Source: 2026 CaseBase(BOM) 201