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 child continues to reside in India, contrary to a 2023 order from a Family Court in England that directed the child's return.
Court's Ruling and Reasoning
The division bench of Justices Sarang Kotwal and Sandesh Patil, which pronounced the judgment on April 29, noted that the child was brought to India in 2023 at the age of nine and has expressed a desire to remain in India with the mother. The court emphasized that if the father were permitted to take the child to the UK, and if the mother's stay in the UK is not assured with reasonable certainty—given that the husband had withdrawn his consent for her stay—there is a real possibility that the child may not see her for a very long time. This, the court held, would not be in the child's best interest and would cause irreparable emotional loss.
Best Interest of the Child
The High Court stated that it considered the best interest of the child as paramount. It noted the practical difficulties faced by the mother in returning to the UK on her own. The child is receiving a good education in India, and the court ruled that the child's stay or custody with the mother could not be deemed unlawful. The father can always visit India and meet the child, the court added.
Background of the Case
The couple married in 2008 and moved to the United States, where their child was born in 2014. In 2019, the father obtained a job in the UK and the family relocated there. Differences arose between the parents in 2021, and the father alleged that the wife took the child to India without his knowledge or consent. The mother subsequently filed for divorce in the Bandra family court and sought to restrain the father from taking the child away.
Legal Arguments
The father's plea, argued by advocate Avani Bansal, sought a writ of habeas corpus against the State government to produce the child from alleged illegal custody and to have the mother return the child to the UK. The mother, represented by advocate Wesley Menezes, argued that the circumstances under which she left the UK must be considered, as her visa was revoked and the UK Home Office asked her to leave the country in July 2023.
Court's Interaction with the Child
The High Court interacted alone with the child on April 8. The child expressed a desire to stay in India and indicated a willingness to try to have a dialogue with the father. The court observed that considering the issues between the parties, there is a real apprehension that the mother would always be at the mercy of the petitioner in the UK for her valid stay. Another reason for dismissing the father's plea was the mother's contention that the father was not providing the necessary consent to renew the child's US passport, creating difficulties for both.
Jurisdictional Claims
The father argued that since the child was in the UK, the courts of England and Wales had primary jurisdiction in matters of parental responsibility under the 1996 Hague Child Protection Convention. In response, the mother stated that the father lives alone in the UK and is not keen to facilitate her obtaining a valid UK visa to stay there.
