The Bombay High Court has found that the custody of a minor child with their biological mother is presumed to be lawful and cannot be rendered “illegal” solely by the existence of contrary orders from a foreign jurisdiction. A Division Bench comprising Justice Sarang V. Kotwal and Justice Sandesh D. Patil held that in cases of international parental disputes, the “best interest of the child” serves as the paramount consideration, overriding the “first strike” principle and the doctrine of comity of courts.
Background of the Case
The Petitioner (father) and Respondent No. 2 (mother), both US citizens, married in 2008 and relocated to the UK in 2019. Their son, ‘N’, was born in the USA in 2014. Following the breakdown of the marriage, the mother returned to India with the child in July 2023.
The Petitioner moved the High Court of Justice, Family Division, England, which declared the child a ward of the court and ordered his return to the UK. The Petitioner then approached the Bombay High Court through a Writ of Habeas Corpus, alleging the child was being held in illegal custody. Simultaneously, the mother initiated divorce and custody proceedings in the Family Court at Bandra, Mumbai.
Arguments of the Parties
For the Petitioner: Counsel Ms. Avani Bansal argued that the child was habitually resident in the UK and was “wrongfully removed” in violation of UK court orders. She emphasized that the child’s future prospects, including potential dual UK-US citizenship and access to better healthcare, would be best secured by his return to the UK.
For Respondent No. 2 (Mother): Counsel Mr. Wesley Menezes submitted that the mother was compelled to leave the UK after her visa was revoked—a consequence of the Petitioner informing the UK Home Office of their separation. He argued that the Petitioner’s refusal to provide an NOC for the renewal of the child’s US passport demonstrated a disregard for the child’s best interests, creating legal uncertainty for his stay in India.
Court’s Analysis and Observations
The Court interviewed the minor child in chambers and noted his clear desire to remain in India with his mother. The Bench relied on the legal framework established by the Supreme Court in Nithya Anand Raghavan v. State of NCT of Delhi.
- Presumption of Lawful Custody: The Court observed that in a Habeas Corpus petition, the threshold inquiry is whether the custody is lawful. The Bench stated: “the private Respondent was none other than the natural guardian of the minor being her biological mother… it can be presumed that the custody of the minor with his/her mother is lawful.”
- Status of Foreign Orders: Regarding the UK court orders, the Bench noted: “merely because the order is passed by the foreign Court, custody of the minor will not become unlawful per se.” The Court found that violating a direction to return a child to a foreign jurisdiction does not automatically render the mother’s custody “illegal” under Indian law.
- Rejection of ‘First Strike’ Principle: The Court explicitly disagreed with the weightage given to the “first strike” principle (who approaches a court first), affirming that Indian courts are governed by the welfare of the child under the Guardians and Wards Act, 1890.
- Practical Hurdles and Immigration: The Court highlighted that the Petitioner’s own actions led to the revocation of the mother’s UK visa. It observed that forcing a return to the UK would leave the mother “constantly at the mercy of the Petitioner” and potentially separate her from the child, causing “irreparable emotional loss.”
The Decision
The High Court dismissed the petition, concluding that the child’s stay in India with his mother is not unlawful. The Bench held that the father’s conduct, particularly his refusal to facilitate the child’s passport renewal, showed he was not acting in the child’s best interest. The Court ruled that the pending proceedings in the Bandra Family Court provided the appropriate forum for a full adjudication on the merits.
The Bench directed that the Family Court should decide the custody matter independently, without being influenced by the observations made in this judgment.
Case Details
- Case Title: Dr. Shreyas Dilip Mandre v. The State of Maharashtra & Anr.
- Case No.: Criminal Writ Petition No. 3950 of 2023
- Bench: Justice Sarang V. Kotwal & Justice Sandesh D. Patil
- Date of Judgment: April 29, 2026
