Court affirms that custody of a minor child with the mother in Germany is lawful and in the child's best interests.
In a significant ruling, the Bombay High Court has dismissed a habeas corpus petition filed by Jyotirmayasinhji Upendrasinhji Jadeja seeking the custody of his six-year-old son, who is currently residing in Germany with his mother, Respondent No. 2. The court, led by Justices Ravindra V. Ghuge and Gautam A. Ankhad, underscored the paramount importance of the child's welfare and best interests in custody disputes.
The petitioner, an Indian citizen, sought the production and restoration of custody of his minor son, citing that the child was allegedly removed from his custody. However, the court found that the child has been lawfully residing with the mother, who is also the natural guardian, since January 2020. The Würzburg Court in Germany had granted sole custody to the mother, a decision the petitioner did not contest in Germany or initiate custody proceedings in India.
The court emphasized that a writ of habeas corpus, typically used to address unlawful detention, is not maintainable in this case as the custody arrangement is neither unlawful nor contrary to the child's welfare. The judgment highlighted the child's stable environment in Germany and noted the absence of any abusive or negligent behavior by the mother.
The High Court also addressed the petitioner's allegations of fraud in obtaining a German passport for the child, stating that these claims did not necessitate a writ of habeas corpus. The court reiterated that the primary consideration in such cases is the welfare of the child, not the legal rights of the parents.
In its decision, the court acknowledged the final order of the Würzburg Court granting sole custody to the mother and noted that the petitioner had not sought any legal remedy in India under the Guardians and Wards Act or the Hindu Minority and Guardianship Act.
The Bombay High Court concluded that the child's welfare is best served in Germany, where he has been settled since infancy, and dismissed the petition without costs. However, the court mandated that the mother facilitate regular video calls between the petitioner and the child, ensuring continued communication.
Bottom Line:
Writ of habeas corpus for custody of a minor child is not maintainable if the custody is lawful and in the best interest of the child.
Statutory provision(s): Constitution of India, 1950 Article 226, Guardians and Wards Act, 1890, Hindu Minority and Guardianship Act, 1956
