Case Name: DR. SHREYAS DILIP MANDRE v. THE STATE OF MAHARASHTRA AND ANOTHER
Petition Number: CRIMINAL WRIT PETITION NO. 3950 OF 2023
Date of Judgment: 29.04.2026
Coram:  HON’BLE MR. JUSTICE SARANG V KOTWAL & HON’BLE MR. JUSTICE SANDESH D PATIL
Relevant Provisions: Article 226 of the Constitution of India, Article 5 of the 1996 Hague Child Protection Convention and Article 7 of the 1996 Hague Child Protection Convention.

INTRODUCTION

The primary question before the Court was whether a foreign court’s order directing the return of a child automatically rendered the child’s custody unlawful, or whether Indian courts could still examine the child’s welfare before deciding custody. The Court held that mere violation of a foreign court’s return order does not automatically make the custody unlawful, particularly when the child is with a natural guardian, unless exceptional circumstances are shown. The Court observed that the welfare of the child was paramount in any custody inquiry, and that all decisions concerning custody must ultimately be guided by the child’s best interests.

FACTS

The petitioner and Respondent No. 2 married in Mumbai on 16 June 2008 and later shifted to the United States, where both became US citizens in 2014. Their son, ‘N’, born on 24 December 2014 in the USA, also acquired US citizenship by birth. In 2019, the family moved to the United Kingdom after the petitioner secured employment there and began residing in Coventry. Subsequently, matrimonial disputes arose, leading the petitioner to move to a separate residence in Cambridge, UK.

According to the petitioner, the child expressed fear of travelling to India, prompting him to seek child care arrangements and interim custody orders before the Family Court in England, including restrictions on international travel. However, Respondent No. 2 allegedly brought the child to India without the petitioner’s consent or knowledge. The petitioner thereafter approached the High Court of Justice, Family Division, England. Meanwhile, Respondent No. 2 instituted divorce and custody proceedings before the Family Court at Bandra, Mumbai, leading to the present habeas corpus petition seeking production and return of the child to the United Kingdom.

ISSUE

Whether a foreign court’s child custody order, by itself, can be determinative of the legality of custody of a minor child?

ARGUMENTS OF THE PARTIES

The Petitioner contended that Respondent No. 2 illegally removed the minor child ‘N’ from the United Kingdom to India without his consent and in violation of multiple orders passed by the High Court of Justice, Family Division, England and Wales. It was submitted that the UK Court had already declared the child habitually resident in England and Wales, while assuming primary jurisdiction under the Hague Child Protection Convention, and had repeatedly directed Respondent No. 2 to return the child. In light of the orders of the English Court, the Petitioner argued that the continued custody of the child with Respondent No. 2 was unlawful and contrary to the child’s welfare. The petitioner also stressed the existence of the child’s educational, healthcare, and residency rights in the UK, and asserted that returning ‘N’ to the UK would best serve his future interests and prevent forum shopping by Respondent No. 2.

On the other hand, the Respondent contended that she was compelled to leave the United Kingdom after her visa was revoked following the Petitioner’s communication to the UK Home Office stating that the parties were no longer cohabiting. Since the minor child was in her custody, she had no option but to travel to India with him. The respondent also placed reliance on numerous documents to showcase the child’s reluctance to meet the father and allegations of domestic violence. Lastly, the respondents argued that the Petitioner had failed to facilitate passport renewal and visa arrangements, while the child’s welfare and stability were best secured in the mother’s custody in India.

JUDGMENT AND ANALYSIS

The Court relied on the principles laid down by the Supreme Court in Nithya Anand Raghavan v. State of NCT of Delhi [(2017) 8 SCC 454] and held that in habeas corpus proceedings, custody of a minor with the biological mother is presumed lawful unless exceptional circumstances justify removal of the child from her care. The Court observed that the mere violation of foreign court orders directing the return of the child does not automatically render the custody unlawful. Applying the ratio of the judgment, the Court held that Respondent No. 2’s custody of the child could not be termed illegal merely because the UK Court had directed the child’s return.

The court distinguished the present case from other cases like Lahari Sakhamuri v. Sobhan Kodali [(2019) 7 SCC 311], where a direction to return the child was made, noting the peculiar nature of the facts of the present case. In the present case, although the child was a US citizen, neither parent was in a position to relocate to the USA. The Petitioner sought to take the child to the UK, where Respondent No. 2’s immigration status was uncertain and entirely dependent upon the Petitioner’s support. The Court found that compelling the child’s return to the UK could result in prolonged separation from the mother, causing irreparable emotional harm.

The Bench also considered the child’s interaction with the Court, where he expressed a strong desire to remain in India with his mother and showed reluctance to communicate with the father. The Court further noted concerns regarding the Petitioner’s conduct, including his refusal to provide consent for renewal of the child’s US passport, thereby affecting the child’s legal status in India. The court held that the welfare and best interests of the child were paramount, and declined to issue a writ of habeas corpus and observed that questions relating to custody, visitation, and access could be appropriately adjudicated by the Family Court at Bandra in pending matrimonial proceedings.

CONCLUSION

The Court held that the mere existence of an order passed by the English Court was insufficient to declare the custody of a child with a natural guardian unlawful. Exceptional circumstances were required to justify such a conclusion and, in their absence, the paramount consideration remained the welfare and best interests of the child. Considering the child’s unequivocal desire to continue residing with his mother in India, the Court declined to issue a writ of habeas corpus seeking his return to the United Kingdom.