As per case facts, the Petitioner and Respondent No.2, previously US citizens, married and had a son, 'N', before moving to the UK. Due to marital discord, the Respondent No.2 ...
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 3950 OF 2023
Dr. Shreyas Dilip Mandre ..Petitioner
Versus
The State of Maharashtra & Anr. ..Respondents
__________
Ms. Avani Bansal a/w. Ms. Parika Singh, Aryan Chourasia and Rishi
Thakur for Petitioner.
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 for Respondent No.2.
__________
CORAM: SARANG V. KOTWAL &
SANDESH D. PATIL, JJ.
RESERVED ON : 18 APRIL 2026
PRONOUNCED ON: 29 APRIL 2026
JUDGMENT: (PER SARANG V. KOTWAL, J.)
1. Heard Ms. Avani Bansal, learned counsel for the
Petitioner, Mr. Wesley Menezes, learned counsel for the
Respondent No.2 and Ms. Mahalakshmi Ganapathy, learned APP
for the State-Respondent No.1.
2. The petition is filed with the following two main prayers
(a) and (b):
Gokhale
VINOD
BHASKAR
GOKHALE
Digitally
signed by
VINOD
BHASKAR
GOKHALE
Date:
2026.04.29
11:31:57
+0530
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(a) “That this Hon’ble Court be pleased to issue Writ
of Habeas Corpus or any other Writ, thereby
directing the Respondent No.2/Respondents to
produce the Petitioner’s Child ‘N’ before this
Hon’ble Court forthwith;
(b) That this Hon’ble Court be pleased to issue Writ
of Habeas Corpus or any other appropriate Writ,
thereby directing the Respondent
No.2/Respondents that all steps be taken by the
Respondent No.2/Respondents to return the child
to the United Kingdom as per the orders dated
20/10/2023 and 17/11/2023 passed by Hon’ble
Family Court of Justice, Family Division England,
United Kingdom, in case No. FD 23 P 00382, who
continues in the illegal custody of the Respondent
No.2.”
3. The brief facts leading to filing of the present petition
are as follows:
(i) The Petitioner and the Respondent No.2 got married on
16.06.2008 in Mumbai. After the marriage, both of them shifted to
Cambridge MA USA. Their son ‘N’ was born on 24.12.2014 in USA.
In 2014, the Petitioner and the Respondent No.2 had become US
citizens. Their son was born in USA, therefore, by birth he is also a
citizen of USA. The Petitioner got a job in UK in the year 2019 and,
therefore, the family shifted to UK on 30.07.2019 on a Tier Work-1
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VISA. ‘N’ started going to school at Burton Green, Kenilworth. The
parties purchased a house at 147 Duggins Lane, Coventry, CV-
049GP and started residing there since 01.03.2021. Differences
arose between the couple. The Petitioner shifted to a different
residence at Turning Way, Cambridge, UK.
(ii) It is the case of the Petitioner that, ‘N’ told his teacher
that he was afraid of visiting India. The Petitioner made an
application for child care arrangement including an interim care
plan that required interim custody of ‘N’ and prohibition of
International travel with ‘N’. It is the case of the Petitioner that, in
the meantime, the Respondent No.2 took ‘N’ with her to India
without the Petitioner’s knowledge and consent. The Petitioner
approached the High Court of Justice, Family Division, England UK
pointing out the fact that the Respondent No.2 had taken their son
to India without his knowledge and permission. Learned counsel
for the Petitioner referred to the various orders passed by the said
Court in those proceedings.
(iii) In the meantime, the Respondent No.2 had preferred
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Petition No. A-2394 of 2023 in the Family Court at Bandra,
Mumbai, for divorce along with an application restraining the
Petitioner from taking away custody of the child.
In this background, the present petition is filed for the
aforementioned reliefs.
SUBMISSIONS OF MS. AVANI BANSAL, LEARNED COUNSEL FOR
THE PETITIONER:
4. Learned counsel for the Petitioner emphasized that the
Respondent No.2 had left UK without informing the Petitioner.
There are various orders passed by the High Court of Justice,
Family Division, UK giving specific directions to the Respondent
No.2 to bring back the child. The Respondent No.2 has violated
those orders. Custody of ‘N’ with the Respondent No.2 is
completely illegal. She had illegally removed ‘N’ from UK and
illegally retained his custody in India. Therefore, it was necessary
that the custody was restored with the Petitioner and ‘N’ was sent
back to UK.
5. Learned counsel for the Petitioner invited our attention
to the various orders passed by the Hon’ble Court in England. She
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invited our attention to the various orders as follows:
(i) In the order dated 07.09.2023, the Court had recorded
its satisfaction and had declared on a provisional basis that, on the
date of the application, ‘N’ was habitually resident in the
jurisdiction of England and Wales. ‘N’ was removed from England
in July 2023 and retained out of the jurisdiction thereafter. That
the Courts of England and Wales had primary jurisdiction in the
matters of parental responsibility over the children pursuant to
Article 5 and 7 of the 1996 Hague Child Protection Convention. It
was ordered that, ‘N’ was made a ward of the said Court during his
minority or until further orders.
(ii) The order dated 12.10.2023 records satisfaction and
declaration based on consideration of the parties’ statements on
the issues. It was ordered that, ‘N’ would remain a ward of the said
Court during his minority or until further orders.
(iii) Vide the order dated 17.11.2023 the Respondent No.2
was directed to return ‘N’ to the jurisdiction of England and Wales
by not later than 06.12.2023. The same order was continued and
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further dates were given.
(iv) The order dated 14.03.2024 records that, in addition to
the earlier directions, the Respondent No.2 was directed to return
to England and Wales, at least under the auspices of a tourist visa,
whilst her immigration position was further considered and
regularized. The order also notes a warning that if the Respondent
No.2 disobeyed that order, she would be held to be in contempt of
Court and may be imprisoned or fined. Pending such return, the
Respondent No.2 was directed to make ‘N’ available for indirect
contact with the Petitioner-father either by telephone or video link
at 3:00pm Indian time every Saturday.
(v) The subsequent order shows that the Petitioner had
initiated the contempt application.
(vi) The order dated 03.09.2024 records that the
proceedings in India initiated by the Petitioner were returned to
the High Court of Bombay by the Hon’ble Supreme Court for
expeditious disposal. In those circumstances, the Petitioner did not
seek any final determination of his application for the Respondent
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No.2-wife to be held in contempt of Court for her repeated
breaches of the return order made in respect of ‘N’ by the Court.
The Petitioner’s contempt application was adjourned generally
with liberty to the Petitioner to restore the same forthwith upon
any relevant developments in the proceedings in India.
6. The compilation includes the proceedings mentioning
that the Respondent No.2 had put forth her case before the said
Hon’ble Court.
7. Learned counsel for the Petitioner relied on certain
Judgments as follows:
(I)Nithya Anand Raghvan Versus State of NCT of Delhi &
Anr.
1
. She submitted that the said Judgment emphasizes that the
paramount consideration in this case is the best interest and
welfare of the child.
(II)Lahari Sakhamuri Versus Sobhan Kodali
2
. In this case,
the parameters of the principles of welfare of the child were
mentioned.
1 (2017) 8 Supreme Court Cases 454
2 Civil Appeal Nos.3135-3136 of 2019 : Decided on 15.03.2019
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(III)Rohith Thammana Gowda Versus State of Karnataka
and others
3
; in which, it was held that the desire of the child can
be ascertained through interaction, but the question as to what
would be the best interest of the child, is the matter to be decided
by the Court taking into account all the relevant circumstances.
(IV)Yashita Sahu Versus State of Rajasthan and others
4
.
This Judgment discussed the necessity to grant visitation rights to
other parent who does not have custody of the child.
(V) Vivek Singh Versus Romani Singh
5
. This judgment
discussed the Parental Alienation Syndrome.
(VI)Abhay Versus Neha Joshi and another
6
. This judgment
is passed by a Division Bench of this Court, in which, the custody
of the child was handed over to the father. He was permitted to
take his child to USA for his better future.
Learned counsel referred to some other Judgments, but
these are the main judgments on which she based her submissions.
3 (2022) 20 Supreme Court Cases 550
4 (2020) 3 Supreme Court Cases 67
5 (2017) 3 Supreme Court Cases 231
6 2023 SCC OnLine Bom 1943
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8. To support her contention that the best interest of the
child would be served if he is sent back to UK, she submitted that,
‘N’ is still admitted in a school at UK. He is eligible to all health
care services. The petitioner is able to provide financial stability for
both i.e. for ‘N’ and for the Respondent No.2. ‘N’ already has
permanent residency and if he is in UK for one full year, he can
get UK citizenship as well. Thus, he would have dual citizenship in
UK and USA which would be excellent for his future. The
Respondent No.2 can come to UK on a tourist visa or even on
spousal visa and then she can approach the Court in UK for
appropriate reliefs. In fact, the Hon’ble Court in UK had heard the
Respondent No.2 on video conferencing for quite some time.
9. Learned counsel further submitted that the Respondent
No.2 deliberately brought ‘N’ to India. It would amount to forum
shopping. She is choosing a forum in the country of her choice i.e.
India.
SUBMISSIONS OF MR. WESLEY MENEZES, LEARNED COUNSEL
FOR THE RESPONDENT NO.2:
10. Learned counsel for the Respondent No.2 relied on the
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Affidavit in Reply filed by her. He submitted that the circumstances
in which the Respondent No.2 had to leave UK will have to be
taken into consideration. He invited our attention to Paragraph-
4(iii) of the Affidavit in reply. He submitted that the Respondent
No.2 had received a letter from UK Home Office informing that her
visa was revoked and she was to leave the country by 16.07.2023.
He submitted that, it was a direct result of the complaint/letter
sent by the Petitioner against the Respondent No.2 to UK Home
Office informing them that the Petitioner had separated from the
Respondent No.2. At that time, ‘N’ was in Respondent No.2’s
custody and, therefore, she was forced to leave with ‘N’ for India.
Learned counsel invited our attention to the said letter dated
17.05.2023 issued by UK Home Office to the Respondent No.2.
The said letter includes the reasons for that decision. It was
mentioned that on 30.07.2019 the Respondent No.2 was granted
permission to enter the UK until 30.11.2024 as the spouse of the
Petitioner. The decision was made to cancel the said permission in
respect of the Respondent No.2. It was mentioned that, since the
Petitioner and the Respondent No.2 were no longer living together
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as spouses, the Secretary of the State was not satisfied that their
marriage was subsistent and, therefore, she did not meet the
requirement of immigration rules under which the permission was
granted.
11. Exhibit-A annexed to the Affidavit in reply is the letter
dated 05.07.2023 issued by the Headteacher of Burton Green CofE
Academy, wherein, it was mentioned that, ‘N’ was currently
attending play therapy sessions to support him with the breakup of
his parents’ marriage and ‘N’ had expressed that he did not want to
see his father and was worried about seeing him without his
mother-Respondent No.2 being present. There are other
documents annexed to the Affidavit in reply regarding the
Respondent No.2’s case that she had suffered domestic violence at
the hands of the Petitioner.
12. Learned counsel for the Respondent No.2 submitted that,
she has filed a petition for divorce U/s.13(1)(ia), interim
application for maintenance U/s.24 and 25 and application for
custody of minor son U/s.26 of the Hindu Marriage Act, 1955.
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13. The Petitioner has not established his bonafides by filing
an Affidavit that he will give NOC for renewal of ‘N’s USA passport.
Learned counsel submitted that the Petitioner is not co-operating
in giving NOC for renewal of USA passport. This will seriously
prejudice N’s prospect. It will have adverse effect on his future. ‘N’
cannot go to UK because of the dispute between his parents. He
cannot go to USA because neither of his parents has a job in USA
and, therefore, it is imperative that his stay in India is legal. For
that purpose, it is necessary that his USA passport is renewed; for
which, the Petitioner’s NOC is required. However, the Petitioner is
not giving that NOC, thereby adversely affecting ‘N’s prospect.
14. The Petitioner has not even giving any assurance either
on affidavit or otherwise to facilitate the Respondent No.2 in
getting valid visa for her stay in UK. The Respondent No.2 is
completely dependent on the Petitioner in this behalf. Learned
counsel submitted that, if the Respondent No.2 gets tourist visa, it
is only for six months. The prospect of getting spousal visa for UK
is remote, looking at the earlier stand taken by the Petitioner.
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15. The Petitioner has no close relatives in UK. His parents
are in India. He himself suffers from bad health condition and,
therefore, it is too risky to send ‘N’ to UK to stay alone with the
Petitioner. In case of emergency, considering the tender age of ‘N’,
it would be practically impossible for him to take effective steps
and to look after himself.
16. In all cases cited by the learned counsel for the
Petitioner, the facts situations were totally different to this peculiar
situation when the parents and son are the citizens of USA, but the
Respondent No.2 is not a citizen of UK and her valid stay in UK is
not assured.
17. He submitted that the welfare of the child in this case lay
with the prospect of ‘N’ staying in custody of the Respondent No.2.
IN RESPONSE, SUBMISSIONS OF THE LEARNED COUNSEL FOR
THE PETITIONER:
18. Learned counsel for the Petitioner, in response,
submitted that the Respondent No.2 could have made an
application before 16.07.2023 in the UK Home Office for
extending her stay. She had made such application, but she
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withdrew that application which shows that she was never serious
to stay in UK.
REASONS AND CONCLUSIONS
19. We have considered these submissions. Before we
proceed to refer to the submissions made by both the contesting
parties, we may note here that we have interviewed ‘N’ in our
chambers on 08.04.2026. Our interaction with the child is noted in
the order dated 08.04.2026. We ensured that neither of the parties
nor their counsel were present in the chambers. We found ‘N’ to be
quite capable of understanding the situation. He was giving
intelligent answers. We specifically asked him about his choice. He
told us that he would like to continue staying in India with his
mother. He further stated that, though, he is not very comfortable,
he would still try to have dialogue with his father.
20. In the background of the facts of this case, it is necessary
to refer to the observations made by the Hon’ble Supreme Court in
various judgments referred to herein above.
In Nithya Anand Raghavan’s case, the mother of the
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child had approached the Hon’ble Supreme Court regarding the
issue of the custody of her minor daughter challenging the order
passed by the High Court of Delhi directing production of the
minor daughter allegedly illegally removed by the mother from the
custody of the father of the child from UK.
Though, in that case, the child in question was a minor
daughter and in the present case it is the case of a minor son, but
the facts of allegations of removing the child from UK are
strikingly the same. In that case, the case of the mother of the child
was that, she had come to India along with her daughter because
of alleged violent behaviour of the father of the child. But in that
case the father had also filed a custody/wardship petition before
the High Court of Justice, Family Division, UK seeking return of the
daughter to the jurisdiction of UK Court. In that case, the High
Court of Justice passed an ex-parte order directing the mother to
return the daughter to UK and to attend the hearing at the Royal
Courts of Justice. The High Court of Delhi, in the impugned
Judgment, had directed the mother to produce her daughter and
to comply with the orders passed by the UK Court or handover her
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daughter to the father. The said order was challenged. In that
context, the Hon’ble Supreme Court made observations which are
relevant for the present petition. Paragraph-47 reads thus:
“47. In a habeas corpus petition as aforesaid, the
High Court must examine at the threshold whether
the minor is in lawful or unlawful custody of another
person (private Respondent named in the writ
petition). For considering that issue, in a case such as
the present one, it is enough to note that the private
Respondent was none other than the natural
guardian of the minor being her biological mother.
Once that fact is ascertained, it can be presumed that
the custody of the minor with his/her mother is
lawful. In such a case, only in exceptionable
situation, the custody of the minor (girl child) may
be ordered to be taken away from her mother for
being given to any other person including the
husband (father of the child), in exercise of writ
jurisdiction. Instead, the other parent can be asked to
resort to a substantive prescribed remedy for getting
custody of the child.”
21. In paragraph-48, it was observed that, merely because
the order is passed by the foreign Court, custody of the minor will
not become unlawful per se. In that reference, the paragraph-49
reads thus:
“49. On a bare perusal of this order, it is noticed that
it is an ex parte order passed against the mother after
recording prima facie satisfaction that the minor Nethra
Anand (a girl born on 7-8-2009) was as on 2-7-2015,
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habitually resident in the jurisdiction of England and
Wales and was wrongfully removed from England on 2-
7-2015 and has been wrongfully retained in India since
then. Further, the Courts of England and Wales have
jurisdiction in the matters of parental responsibility
over the child pursuant to Articles 8 and 10 of BIIR. For
which reason, it has been ordered that the minor shall
remain a Ward of that Court during her minority or
until further order; and the mother (Appellant herein)
shall return or cause the return of the minor forthwith
to England and Wales in any event not later than 22-1-
2016. Indeed, this order has not been challenged by the
Appellant so far nor has the Appellant applied for
modification thereof before the concerned court
(foreign court). Even on a fair reading of this order, it is
not possible to hold that the custody of the minor with
her mother has been declared to be unlawful. At best,
the Appellant may have violated the direction to return
the minor to England, who has been ordered to be a
Ward of the court during her minority and further
order. No finding has been rendered that till the minor
returns to England, the custody of the minor with the
mother has become or will be treated as unlawful
including for the purposes of considering a petition for
issuance of writ of habeas corpus. We may not be
understood to have said that such a finding is
permissible in law. We hold that the custody of the
minor with the Appellant, being her biological mother,
will have to be presumed to be lawful.”
22. Paragraph-63 is also relevant; which reads thus:
“63. As regards the fourth factor noted in Clause
(d)
of para 56, Surya Vadanan case [(2015) 5 SCC 450],
we respectfully disagree with the same. The first part
gives weightage to the "first strike" principle. As noted
earlier, it is not relevant as to which party first
approached the Court or so to say "first strike" referred
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to in para 52 of the judgment. Even the analogy given
in para 54 regarding extrapolating that principle to the
courts in India, if an order is passed by the Indian
Court is inapposite. For, the Indian Courts are strictly
governed by the provisions of the Guardians and
Wards Act, 1890, as applicable to the issue of custody
of the minor within its jurisdiction.”
Applying the ratio of this case to the present facts of
the case, it is not possible to hold that custody of the minor child
with the Respondent No.2 is illegal. This Judgment covers almost
all the issues raised in this petition. The ratio squarely applies in
favour of the Respondent No.2’s case.
23. In Lahari Sakhamuri’s case, custody of two children was
considered. Both these children were born in USA and were USA
citizens and held USA passport. They were in USA from their birth.
The mother of the children had filed a petition for divorce and
custody of minor children in USA in December 2016. In those
proceedings, both the parties were directed not to change the
residence of the children. The efforts were going on for
conciliation. The mother travelled to India with both minor
children in March 2017 with return tickets of April 2017. But when
she came to India, at Hyderabad, she filed a petition in the Family
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Court at Hyderabad seeking custody of the minor children and
injunction against the father of the children. She got an ex-parte
injunction. She also filed an FIR against her husband and his
family members, mainly U/s.498A of the IPC. In this background,
the Hon’ble Supreme Court considered the facts and ultimately
directed the mother to return to USA along with her children. It
was observed that the best interest of the children being of
paramount importance would be served if they returned to USA
and enjoyed their natural environment with love, care and
attention of their parents including grandparents and to resume
their school and be with their teachers and peers.
24. In the present case, there is a crucial difference in the
facts of the case, as, though the Petitioner’s son is a USA citizen, he
cannot return to USA because neither of his parents i.e. the
Petitioner and the Respondent No.2 is in a position to go back to
USA. These are the peculiar facts where the Petitioner seeks
custody of the minor son to be taken to UK and not to USA where
the mother i.e. the Respondent No.2 and ‘N’ have citizenship. In
the facts mentioned herein above, it is extremely difficult and/or
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impossible for the Respondent No.2 to stay in UK without the
active support and consent of the Petitioner. Considering the issues
between the parties, there is real apprehension that she would
always be at the mercy of the Petitioner in UK for her valid stay.
25. Learned counsel for the Petitioner referred to Rohith
Thammana Gowda’s case, to contend that though the desire of the
child can be ascertained through interaction, but the question as to
“what would be the best interest of the child” was the matter to be
decided by the Court, taking into account all the relevant
circumstances. Paragraph-21 of the said Judgment is important;
which reads thus:
“21. The child in question is a boy, now around 11
years and a naturalised US citizen with an American
passport and his parents viz., the Appellant and
Respondent No. 3 are holders of Permanent US Resident
Cards. These aspects were not given due attention. So
also, the fact that child in question was born in USA on
3-2-2011 and till the year 2020 he was living and
studying there, was also not given due weight while
considering question of welfare of the child. Merely
because he was brought to India by the mother on 3-3-
2020 and got him admitted in a school and that he is
now feeling comfortable with schooling and stay in
Bengaluru could not have been taken as factors for
considering the welfare of the boy aged 11 years born
and lived nearly for a decade in USA. The very fact that
he is a naturalised citizen of US with American passport
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and on that account he might, in all probability, have
good avenues and prospects in the country where he is
a citizen. This crucial aspect has not been appreciated at
all. In our view, taking into account the entire facts and
circumstances and the environment in which the child
was born and was brought up for about a decade
coupled with the fact that he is a naturalised American
citizen, his return to America would be in his best
interest.”
In the present facts of the case, though the Petitioner
and the Respondent No.2’s son has the USA citizenship and
passport, it is practically not possible for him to go to USA and it is
not possible that either of the parents can accompany him to stay
in USA. Therefore, the question of ‘the best interest of the child’
will have to be decided in the facts of the present case.
26. In Yashita Sahu’s case the Hon’ble Supreme Court
considered the doctrine of comity of Courts and reiterated that the
best interest of the child was of paramount importance. In
addition, the Hon’ble Supreme Court observed that, if the custody
is given to one parent, the other parent needs to have sufficient
visitation rights to ensure that the child keeps in touch with the
other parent and does not lose social, physical and psychological
contact with any one of the two parents. It was only in an extreme
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circumstance that one parent should be denied contact with the
child. A case where the parents are of two different continents,
efforts should be made to give maximum visitation rights to the
parent who is denied custody. In addition to ‘visitation rights’,
‘contact rights’ are also important for development of the child
specially when both parents live in different countries. The concept
of contact rights in the modern age would be contact by telephone,
e-mail or best would be video calling.
27. In Vivek Singh’s case the Hon’ble Supreme Court
considered the term “Parental Alienation Syndrome”. It was
observed that, it has at least two psychological destructive effects:
First, it puts the child squarely in the middle of a contest of loyalty,
a contest which cannot possibly be won. Second, the child was
required to make a shift in assessing reality. One parent is
presented as being totally to blame for all problems, and as
someone who is devoid of any positive characteristics.
28. Learned counsel for the Petitioner submitted that, in this
case, the interaction with the child will not depict the true picture
23 of 28 901-WP-3950-23
of reality because the son is with the mother who is in a position
either to pressurise or at least influence him against the father.
While, there could be substance in the submissions of
the learned counsel, the best possible way is to interact with the
child at least to elicit from him his desire. In the present case, we
are taking into consideration the best interest of the child as
paramount consideration, and the practical difficulty faced by the
Respondent No.2 along with his wish.
29. We have narrated the history of the dispute between the
parties. In this case, it is practically impossible for the Respondent
No.2 to go to UK and settle down there on her own. It is an
admitted fact that, neither the Petitioner nor the Respondent No.2
has got a job and are likely to get any job in near future in USA. If
the child and both parents could go to USA, then there could be at
least some solution to the problem. In that case, all three of them
had their independent right to reside in USA. But unfortunately
that is not possible. The Respondent No.2 simply cannot go to USA
without a job. It is not possible for her to survive there.
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30. On the other hand, if the Respondent No.2 were to go to
UK, she would be constantly at the mercy of the Petitioner. Their
history shows that the Petitioner himself had withdrawn his
consent to enable the Respondent No.2 to stay in UK. Specifically
for that reason, the Respondent No.2 was served with the notice by
the UK Home Office to leave the country. She was left with no
choice but to leave UK. At that time, the son was residing with her
and, therefore, it is understandable that the Respondent No.2 had
no choice but to take her son to India. The Petitioner’s son was in
USA for his first five years and then for about four years he was in
UK. Since 2023, the son is in India. We already interacted with him
and he has expressed his strong desire to stay in India with his
mother. He reluctantly agreed to have conversation with the
petitioner.
31. 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
25 of 28 901-WP-3950-23
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.
32. It must also be noted that the Respondent No.2 has
demonstrated as to how the Petitioner is not acting in the best
interest of the child. It was submitted on behalf of the Respondent
No.2 that the Petitioner was not giving NOC for renewal of ‘N’s
USA passport. Without a valid passport, there were legal hurdles in
getting OCI Card for the son. Thus, the Petitioner’s son’s stay in
India could be affected. In other words, by his action, the
Petitioner has raised serious apprehension that the Petitioner is not
acting in the best interest of the child. The petitioner’s conduct
shows that he is trying to close all the options for the Respondent
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No.2 and making her life extremely difficult. This is another reason
why we are not inclined to allow this petition. We find justifiable
reasons made out by the Respondent No.2 to entertain the
apprehension against the petitioner’s conduct.
33. The facts in this case are very peculiar and are very
different from all the Judgments cited before us. In all these
judgments, the prayer was for returning the child to one country
when it was possible for both the parents to stay in that country;
either separately or with each other. But in the present case, USA is
the country where the petitioner and the child have their
citizenship, but the son is not to be taken to USA; instead the
Petitioner wants the son in his custody in UK.
34. The circumstances show that, in UK itself the
Respondent No.2 and the child were staying separately from the
petitioner. Therefore, it would be even more difficult for the son to
get adjusted living with his father to the exclusion of his mother
who would be living far away in India.
35. Learned counsel for the Respondent No.2 expressed
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another apprehension regarding the health issues of the petitioner.
It is also an admitted fact that, in the past, the petitioner had
suffered from the health issue related to the heart. The Petitioner
does not have close relatives in UK. Therefore, in case of any
unforeseen emergency, the son would be totally helpless.
36. The Respondent No.2 has already filed a petition for
divorce, maintenance and custody of the child in the Family Court
at Bandra. The father-petitioner can participate in those
proceedings. The said Court shall decide the petition before it in
accordance with law, without being influenced by the observations
made in this order. In our opinion, the remedy availed by the
Respondent No.2 in approaching the Family Court for those reliefs
is a proper remedy where both the parties get equal chance to
prove their case by leading evidence. In this view of the matter, we
are not inclined to allow this petition.
37. The question of access, interim access and/or interim
custody, temporary access are the questions which can be
effectively and expeditiously considered and decided by the Family
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Court in the said petition, in accordance with law.
38. With these observations, the petition is dismissed.
(SANDESH D. PATIL, J.) (SARANG V. KOTWAL, J.)
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