Foreign Court Order Alone Not Determinative Of Legality Of Custody; Welfare Of Child Paramount: Bombay High Court
The Court held that the existence of a foreign custody order does not automatically make a parent’s custody unlawful, and reiterated that the welfare and best interest of the child remains the paramount consideration in habeas corpus proceedings.
The Bombay High Court has held that merely because a foreign court has passed an order regarding custody, it does not render the custody of a minor unlawful per se, emphasising that the determinative factor remains the welfare and best interest of the child.
The Court was hearing a criminal writ petition seeking the issuance of a writ of habeas corpus and directions to return the minor child to the United Kingdom in terms of orders passed by a foreign court.
A Division Bench of Justice Sarang V. Kotwal and Justice Sandesh D. Patil observed, “merely because the order is passed by the foreign Court, custody of the minor will not become unlawful per se.”
Further, upon examining the facts of the matter, the Bench held that “it is not possible to hold that the custody of the minor with the mother has been declared to be unlawful… the custody of the minor with the biological mother will have to be presumed to be lawful.”
Advocate Avani Bansal appeared for the petitioner; Advocate Wesley Menezes appeared for the respondent.
Background
The petition arose out of a custody dispute between the petitioner-father and respondent-mother concerning their minor son, who had been brought to India by the mother from the United Kingdom.
The petitioner contended that the child had been removed from the jurisdiction of the UK courts without their consent and in violation of orders passed by the High Court of Justice, Family Division, England, which had directed the child's return to the UK.
On this basis, it was argued that the custody of the child with the respondent-mother was illegal and that the child ought to be returned to the UK.
The respondent-mother, on the other hand, contended that she had returned to India under compelling circumstances, including issues relating to her immigration status, and that the welfare of the child required that he remain in her custody.
It was further pointed out that proceedings for divorce, maintenance, and custody had already been initiated before the Family Court in Mumbai.
Court’s Observation
At the outset, the Court examined the scope of habeas corpus jurisdiction in matters of child custody. It reiterated that the primary enquiry is whether the custody is lawful or unlawful, and more importantly, what would serve the best interest of the child.
Referring to the judgment of the Supreme Court in Nithya Anand Raghavan v. State of NCT of Delhi (2017), the Court observed that in cases where the minor is in the custody of a natural guardian, such custody is presumed to be lawful unless exceptional circumstances are demonstrated.
In this context, the Court noted that “once it is ascertained that the custody is with the biological mother, it can be presumed to be lawful and only in exceptional situations can it be disturbed.”
Addressing the effect of foreign court orders, the Court held that while such orders are a relevant factor, they are not determinative. The Court emphasised that “even on a fair reading of such orders, it is not possible to hold that the custody of the minor has been declared to be unlawful.”
The Court further noted that the orders passed by the foreign court primarily directed the return of the child and declared him to be a ward of that court, but did not expressly declare the custody with the mother to be unlawful for habeas corpus proceedings.
The Bench also took into account the peculiar facts of the case, particularly the practical difficulties faced by the respondent-mother in returning to the UK, including uncertainties regarding her immigration status and dependence on the petitioner.
The Court found that in such circumstances, directing the return of the child to the UK could result in the child being separated from the mother for an indefinite period, which would not be in his best interest.
The Court interacted with the minor child in chambers and recorded that he expressed a clear preference to stay in India with his mother. While noting that the child’s preference is not conclusive, the Court observed that it is a relevant factor in determining welfare.
The Court also considered the broader circumstances, including the educational environment of the child in India, the absence of assured arrangements for the mother’s stay in the UK, and the potential emotional impact of separation.
Further, the Court observed that the petitioner’s conduct, including issues relating to non-cooperation in renewal of the child’s passport, raised concerns regarding whether the proposed arrangement would serve the child’s welfare.
Reiterating the settled principle, the Court held that the doctrine of comity of courts cannot override the paramount consideration of the welfare of the child.
Conclusion
The Court held that the custody of the minor with the respondent-mother could not be treated as unlawful merely based on foreign court orders, and that the welfare of the child lay in continuing such custody.
Accordingly, the petition seeking habeas corpus and return of the child to the United Kingdom was dismissed, with liberty to the parties to pursue appropriate remedies before the Family Court, including issues of custody, access, and visitation.
Cause Title: Dr Shreyas Dilip Mandre v. State of Maharashtra & Anr.
Appearances
Petitioner: Advocates Avani Bansal, Parika Singh, Aryan Chourasia, Rishi Thakur
Respondent: Advocates Wesley Menezes, Waqaar Pathan, Hemali Mehta Tejani, Yash Athre, and Mahalakshmi Ganapathy, Addl. PP
