The Bombay High Court on Wednesday dismissed a petition filed by a UK-based father seeking the return of his minor child, who was allegedly brought to India illegally by the estranged mother. The division bench of Justices Sarang Kotwal and Sandesh Patil delivered the judgment on April 29, stating that the child, now aged 9, was brought to India in 2023 and has expressed a desire to remain with the mother.
Court's Observations
The High Court emphasized the best interest of the child as paramount. It noted that if the father were allowed to take the child to the UK, there was a real possibility that the child might not see the mother for a long time, given that the father had withdrawn his consent for the mother's stay in the UK. This would cause irreparable emotional loss to the child.
The court also considered the practical difficulties faced by the mother in returning to the UK on her own, as her visa had been revoked. The child is receiving a good education in India, and the court ruled that the child's stay or custody with the mother cannot be considered unlawful. The father can visit India to meet the child.
Background of the Case
The couple married in 2008 and moved to the US, where their child was born in 2014. In 2019, the father secured a job in the UK and relocated the family. Differences arose in 2021, and the father alleged that the wife took the child to India without his knowledge or consent. The mother filed for divorce in the Bandra family court and sought to restrain the father from taking the child away.
The father's petition, argued by advocate Avani Bansal, sought a writ of habeas corpus to produce the child before the court and have the mother return the child to the UK. The mother, represented by advocate Wesley Menezes, argued that her visa was revoked by the UK Home Office in July 2023, forcing her to leave.
Child's Preference
The High Court interacted with the child privately on April 8, and the child expressed a desire to stay in India, indicating a willingness to maintain dialogue with the father. The court observed that the mother would be at the mercy of the father for her valid stay in the UK, as he had not provided consent for renewing the child's US passport, creating difficulties for both.
The father argued that UK courts had primary jurisdiction under the 1996 Hague Child Protection Convention. However, the mother countered that the father lives alone in the UK and is not keen to facilitate her obtaining a valid UK visa. The court dismissed the father's plea, prioritizing the child's welfare and the mother's precarious immigration status.
