The Bombay High Court has dismissed a petition seeking a writ of Habeas Corpus for the production and custody of a six-year-old boy currently residing in Germany with his mother. The Division Bench, comprising Justice Ravindra V. Ghuge and Justice Gautam A. Ankhad, ruled that the writ of Habeas Corpus was not maintainable as the child’s custody with his mother was not unlawful, noting that the minor has been residing in Germany since January 2020 and his welfare is best served in his current environment.
Background of the Case
The Petitioner, an Indian citizen, and Respondent No. 2, a German citizen, were married on March 4, 2017, in Goa. They have a son born on May 25, 2019. On January 29, 2020, the mother traveled to Germany with the minor to visit her family. Due to the onset of the Covid-19 pandemic and subsequent travel restrictions, they did not return to India. The Petitioner visited them in Germany once in March 2022.
Respondent No. 2 initiated custody proceedings before the District Court in Würzburg, Germany, on March 28, 2024. The Petitioner was served summons but did not participate in those proceedings. The mother and child briefly visited India between July 26, 2024, and August 27, 2024, before returning to Germany.
The Petitioner filed the present Writ Petition around September 21, 2024, alleging that the mother had unlawfully removed the child from his custody. Meanwhile, the Würzburg Court passed an interim order on December 16, 2024, and a final order on August 18, 2025, granting sole custody of the minor to the mother.
Arguments of the Parties
Mr. Aman Hingorani, learned Senior Advocate for the Petitioner, argued that the minor was originally an Indian citizen and a permanent resident of Gondal, Gujarat. He submitted that during the family’s holiday in Goa in 2024, the Petitioner discovered that the mother had allegedly procured a German passport for the minor by falsely declaring her marital status as “single” and surrendering the child’s Indian passport.
Mr. Hingorani contended that the mother unlawfully removed the minor from India on August 27, 2024, and that the German Court lacked jurisdiction as the parties were married under Hindu law in India. He relied on the Supreme Court’s decisions in Elizabeth Dinshaw vs. Arvand Dinshaw and Tejaswini Gaud vs. Shekhar Jagdish Prasad Tewari to argue for the restoration of the status quo ante.
Mr. Vikramaditya Deshmukh, learned counsel for Respondent No. 2, opposed the petition, stating that the minor has been residing in Germany since he was eight months old and it is his “natural habitat.” He submitted that the marriage was never consummated and the child was conceived through donor eggs.
Mr. Deshmukh argued that the German passport was issued as the mother is a German citizen by birth. He relied on the custody orders passed by the Würzburg Court, which are binding, and pointed out that the Petitioner failed to challenge them or initiate any custody proceedings in India under the Guardians and Wards Act. He cited Nithya Anand Raghavan vs. State of NCT of Delhi and Jose Toral vs. State of West Bengal, arguing that the petition was not maintainable as the child’s whereabouts were known and he was not in illegal detention.
Court’s Analysis and Observations
The Court emphasized that in matters concerning child custody, the “paramount consideration is always the welfare and best interests of the child.”
Referring to the scope of Habeas Corpus, the Bench observed:
“The scope of a petition seeking a writ of habeas corpus is limited to tracing out an individual who is alleged to be missing or securing the release of a person from unlawful restraint… In the present case, there is nothing on record to indicate that Respondent no.2 is exercising unlawful custody over the minor or is incapable of providing proper care to her son.”
The Court noted that the minor has been continuously residing in Germany for five years and is now a German national. The Bench refused to adjudicate on the allegations regarding the fraudulent procurement of the German passport in these proceedings.
The Court took cognizance of the Würzburg Court’s order dated August 18, 2025, which granted sole custody to the mother. The German court had observed that the father had “no genuine relationship with his son” and that the child was “developing well” in Germany. The High Court also noted the transcript of the child’s interview with the German judge, where the minor expressed reluctance to visit the father.
Distinguishing the cases relied upon by the Petitioner, the Court held that the principle of “status quo ante” was not applicable as the mother had not acted illegally. The Court observed:
“The custody of the minor is with the mother, who is also the natural guardian. The Würzburg Court also permits it and hence the custody cannot be characterized as illegal… In our view, his best interest would be served in his existing environment at Germany where he has been since January 2020.”
The Bench criticized the Petitioner for failing to seek legal remedies in India under the Guardians and Wards Act, 1890, or the Hindu Minority and Guardianship Act, 1956.
Decision
The Bombay High Court dismissed the Criminal Writ Petition, ruling that no case was made out for the issuance of a writ of Habeas Corpus.
The Court directed:
“We however make it clear that Respondent No.2 shall continue to facilitate video calls for the Petitioner and his family members.”
The Bench clarified that its observations regarding the child’s welfare were limited to deciding the present petition and that competent courts in the future remain free to decide on custody matters in accordance with the law.
Case Details:
- Case Title: Jyotirmaysinhji Upendrasinhji Jadeja vs. The State of Maharashtra And Anr.
- Case No.: Criminal Writ Petition No. 2540 of 2025
- Coram: Justice Ravindra V. Ghuge & Justice Gautam A. Ankhad
- Counsel for Petitioner: Mr. Aman Hingorani, Senior Advocate, with Ms. Sushmita Sherigar and Ms. Krishna Barot
- Counsel for Respondent No. 2: Mr. Vikramaditya Deshmukh with Ms. Priya Chaubey, i/by Ms. Sapana Rachure
