Custody With Biological Mother Presumed Lawful; Writ Of Habeas Corpus Not A Remedy To Enforce Foreign Court’s Return Orders: Bombay High Court

"Merely because an order is passed by a foreign Court, custody of the minor will not become unlawful per se... the custody of the minor with the biological mother will have to be presumed to be lawful", Bombay High Court, in a significant ruling dated April 29, 2026, held that a writ of habeas corpus cannot be issued to transfer the custody of a minor child from the mother to the father solely based on a foreign court's return order.

A bench of Justice Sarang V. Kotwal and Justice Sandesh D. Patil observed that when a child is in the care of a biological mother, such custody is presumed to be lawful, and a writ of habeas corpus will lie only in exceptional circumstances.

The petitioner-father and respondent-mother, both US citizens, moved to the United Kingdom in 2019. Following marital discord, the father informed the UK Home Office of their separation, leading to the revocation of the mother’s visa and forcing her to return to India with their minor son in July 2023. The father subsequently obtained orders from the High Court of Justice, Family Division, England, which declared the child a ward of that court and directed his immediate return to the UK.

The primary question before the court was whether the child’s stay in India with his mother constituted "illegal custody" in light of the UK court’s return orders. The court was also called upon to determine if the best interest of the child necessitated his return to a country where the mother had no assured legal right of residence.

Custody With Biological Mother Presumed Lawful

The Court emphasized that in habeas corpus proceedings involving minors, the threshold inquiry is whether the custody is truly "unlawful." Relying on the Supreme Court precedent in Nithya Anand Raghavan v. State of NCT of Delhi, the bench noted that once it is established that the respondent is the biological mother and a natural guardian, her custody is presumed legal.

The bench observed that only in exceptional situations can a mother be deprived of custody through a writ jurisdiction. The Court clarified that the father’s remedy lies in pursuing a substantive petition for custody under personal laws rather than seeking a high prerogative writ.

"Once that fact is ascertained, it can be presumed that the custody of the minor with his/her mother is lawful."

Foreign Court Orders Do Not Automatically Render Custody Illegal

The High Court held that the existence of return orders from the High Court of Justice in England did not automatically render the mother’s custody "unlawful." The judges reasoned that while the mother might have violated a direction to return the child, such a violation does not equate to the illegal detention of the minor.

The Court noted that the Indian judiciary is governed by the welfare of the child as the paramount consideration, rather than the "first strike" principle or the mere comity of courts. The bench expressed that the doctrine of comity cannot override the practical best interests and the psychological well-being of the child.

"Merely because the order is passed by the foreign Court, custody of the minor will not become unlawful per se."

Practical Difficulty Of Residing In The United Kingdom

The bench highlighted a crucial factual distinction from other precedents where children were ordered to return to their country of citizenship. In this case, although the child is a US citizen, the father sought his return to the UK. The Court noted that the mother’s visa had been revoked due to the father’s own actions in informing the Home Office of their separation.

The Court observed that if the child were sent to the UK, the mother would be at the "mercy of the petitioner" for her stay and survival. The bench found it would not be in the child's best interest to be placed in a situation where he might be separated from his mother for an indefinite period due to immigration hurdles.

"If the Respondent No. 2 were to go to UK, she would be constantly at the mercy of the Petitioner."

Father’s Conduct Regarding Passport Renewal Noted

The Court took a dim view of the father’s refusal to provide a No Objection Certificate (NOC) for the renewal of the child's US passport. This non-cooperation created legal hurdles for the child to obtain an OCI card and regularize his stay in India. The bench held that such conduct demonstrated that the father was not acting in the best interest of the child.

The judges noted that by attempting to close all legal options for the mother in India, the father was causing potential prejudice to the child's legal status. This conduct was cited as a significant reason for declining the discretionary relief of a writ.

Child’s Preference Ascertained Through Chamber Interaction

Following the principles laid down in Rohith Thammana Gowda, the Court interviewed the minor child in chambers. The bench found the child to be intelligent and capable of understanding the situation. The child expressed a strong desire to continue staying in India with his mother and was only reluctantly open to communication with the father.

The Court held that while the "Parental Alienation Syndrome" mentioned in Vivek Singh must be considered, the practical realities and the child's own comfort in his current environment could not be ignored. The bench concluded that the child was well-adjusted to his schooling in India.

Family Court Is The Appropriate Forum For Custody Disputes

The Court noted that the respondent-mother has already initiated proceedings for divorce, maintenance, and custody before the Family Court at Bandra, Mumbai. The bench held that the Family Court is the proper forum where both parties can lead evidence and cross-examine witnesses to determine long-term custody and visitation rights.

The High Court clarified that the father is free to participate in those proceedings to seek access or interim custody. It directed the Family Court to decide these issues independently, without being influenced by the observations made in the habeas corpus dismissal.

The petition was dismissed on the grounds that the mother’s custody was not illegal and the child's welfare was better served by remaining in India given the parents' precarious immigration status in the UK. The Court emphasized that the father can maintain contact through video calls and visits to India.

Date of Decision: 29 April 2026