In a significant ruling on a cross-border child custody dispute, the Bombay High Court has dismissed a petition filed by an Indian father seeking the return of his six-year-old child from Germany. The court found no merit in the father's claim of illegal detention, emphasizing the child's established life and lawful custody with the mother in Germany.
Court's Rationale for Dismissal
The division bench of Justices Ravindra Ghuge and Gautam Ankhad delivered the order on December 18. The bench noted a critical lapse in the father's legal approach. The father, a resident of Gujarat, had filed a habeas corpus petition directly with the high court, asking it to order his wife to produce the child from Germany.
The court observed that the father took no steps to seek custody under Indian law through a family court in India. He also failed to provide any explanation for this inaction or to challenge the jurisdiction of the German court at the appropriate time.
Background and Key Facts of the Case
The child has been living with the mother in Germany since January 2020 and is now a German citizen. Crucially, a court in Germany had granted sole custody to the mother five years ago. The Bombay High Court stated that the mother, being a natural guardian and having custody rights granted by a competent foreign court, cannot be said to hold the child illegally.
"There is no question of the mother having abducted the minor," the high court categorically stated. It further highlighted that any case for restoration of custody must be decided on its facts by a family court, not through a habeas corpus petition in this instance.
Child's Welfare Held as Paramount Consideration
The judgment heavily relied on Supreme Court precedents which establish that the welfare of the child is the supreme consideration, overriding the legal rights of either parent. The bench reiterated that in habeas corpus petitions concerning minors, the primary objective is to determine whose custody would best serve the child's interests.
Applying this principle, the court concluded that the child's best interest would be served by remaining in his existing environment. The child is already admitted to a German school and has been in the country for nearly five years. Uprooting him would not align with his welfare, the court reasoned.
Court's Directive on Father's Access
While dismissing the habeas corpus plea, the Bombay High Court issued a directive to ensure the father maintains a connection with the child. The court ordered that the mother must continue to facilitate video calls between the child and his father as well as the paternal family in India.
This ruling underscores the complexities of international child custody disputes, where courts prioritize the child's settled life and well-being over jurisdictional battles initiated without pursuing proper legal channels first.
