Bombay High Court
Aditya Bakaya vs State Of Maharashtra Thr Station House … on 7 May, 2026
2026:BHC-GOA:1021-DB
2026:BHC-GOA:1021-DB
WPCR-141-2026-JR.doc
Esha/Shephali
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO. 141 OF 2026
MR. ADITYA BAKAYA, son of Late Shri
Kapil Kumar Bakaya, Age: 41 Yrs,
Occupation Service, Indian National,
Residing At: Salt Lake City, Utah, USA. ...Petitioner
~ versus ~
1. STATE OF GOA, Through Station House
Officer (SHO) Margao Town Police
Station, Goa (Notice to be served On
Public Prosecutor High Court, Goa).
2. MS. ANJALI ACHARYA, Daughter Of
Madhusudhan Achar, Age: 40 Yrs, Occ:
Unknown, Residing At: A-3, Ace
Residency, Vidyanagar, Aquem,
Margao, Goa, India 403 601.
3. XXX (MINOR), Age: 3 Years 3 Months,
Care of Ms. Anjali Acharya, Residing At:
A-3, Ace Residency, Vidyanagar,
Aquem, Margao, Goa, India 403 601. ...Respondents
A PPEARANCES
For the Petitioner Mr. Prabhjit Jauhar, with Ms. Vijeta
Poulekar, Ms. Rosemary Raju and Mr.
Chahat Raghav.
For Respondent No. 1 Mr. Pravin Faldessai, APP, with Ms.
Swizel Falcao.
For Respondent No. 2. Ms. A. Agni, Senior Advocate, with
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Ms. Gautami Kamat and Mr. Junaid
Shaikh Shirodkar & Ms. Samiksha
Vaigankar.
CORAM : SUMAN SHYAM &
AMIT S. JAMSANDEKAR, JJ
RESERVED ON : 25TH FEBRUARY 2026.
PRONOUNCED ON : 7TH MAY 2026.
JUDGMENT (Per Amit S Jamsandekar, J):
–
1. By the present Petition, the Petitioner (husband) is seeking
a Writ of Habeas Corpus by invoking the jurisdiction of this Court
under Article 226 of the Constitution of India. The Petitioner is
seeking repatriation of his daughter, who was 3 years and 3
months as of January 2026. According to the 2 nd Respondent
(wife), the daughter was admittedly being breastfed as of August
2025 and has been breastfed to date.
2. Rule. The notice is waived on behalf of the 2nd and 3rd
Respondents by Ms. Gautami Kamat. The 2 nd Respondent is the
wife of the Petitioner and the 3rd Respondent is their minor girl
child. The Notice is waived on behalf of the State by the learned
Additional Public Prosecutor, Mr. Pravin Faldessai. By consent of
the parties, the Rule is made returnable forthwith and heard
finally.
3. The Petitioner has made the following prayers:
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WPCR-141-2026-JR.doc“a. Direct that Respondent No. 2 hand over custody of
Respondent No. 3, the minor daughter, [—-] so that she may be
repatriated to Utah, USA in the custody of the Petitioner in
compliance with orders dated 28.10.2025, signed on
15.12.2025 by the Third Judicial District Court — Salt Lake
City in and for Salt Lake County, State of Utah or upon the
Respondent No. 2 failing to handover the custody of the minor
daughter, Respondent No. 3 in that event the Respondent No. 1
be directed to locate the Respondent No. 3 and handover the
custody of the Respondent No. 3 minor daughter in order to be
repatriated back to her native country, i.e., U.S.A;
b. Direct that Respondent No. 2 hand over custody of all
[—-]’s original documents, such as her US passport, her birth
certificate, her Indian Visa, and all other relevant documents, to
the Petitioner;
c. Any other and further reliefs which this Hon’ble Court
deems fit in the facts and circumstances of the case. (the
[name] of the child is redacted in the prayers).”
4. The submissions of Mr. Prabhjit Jauhar, the Learned
Counsel for the Petitioner, in brief, are as follows:
i) The Petitioner and the 2nd Respondent, prior to their
marriage, began living together in August 2009 in the
United States of America (U.S.) while pursuing their higher
studies. On 3rd September 2013, the Petitioner and the 2 nd
Respondent married in Los Angeles, California, and their
marriage was duly registered with the Los Angeles County.
On 14th September 2022, the 3rd Respondent girl (the child)
was born in New York City, NY, U.S. On 1 st August 2023,
the parties, along with the child, finally relocated from New
York City, NY, U.S., to Salt Lake City, Utah, U.S., due to
work commitments. On 7th October 2025, the Petitioner
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filed divorce and custody proceedings against the 2 nd
Respondent before the Third Judicial District Court – Salt
Lake City (U.S. Court), being Case No. 254905361. It is the
case of the Petitioner that, the U.S. Court also issued a
Domestic Relation Injunction (DRI) Order restraining the
2nd Respondent from travelling with the child without the
written consent of the Petitioner or without a Court order.
According to the Petitioner, the DRI came into effect the
moment it was served upon the 2nd Respondent. According
to the Petitioner, the DRI was served on the 2 nd Respondent
on 8th October 2025 at 2.55 p.m. It is alleged by the
Petitioner that the 2nd Respondent, after receiving the
served official summons and DRI Order, left the
Matrimonial Home in Utah, with the child, on the pretext of
going to the Local Police and stealthily booked the tickets at
5.24 p.m. on the same day, i.e., on 08 th October 2025, for
same-day travel to India for herself and the child on 08th
October 2025 and flew to India at around 9 p.m. US (MT)
time, on 08th October 2025. This was without the consent
and knowledge of the Petitioner. It is submitted that the
tickets were booked by the 2 nd Respondent only after the
service of the DRI and the Summons. The Petitioner
submitted that the proceedings initiated by the Petitioner in
the US Court have proceeded further. It is the case of the
Petitioner that on 27th October 2025, the U.S. Court orally
directed the 2nd Respondent to return the child to the U.S.
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by 16th November 2025. It is submitted that the 2 nd
Respondent has submitted to the jurisdiction of the Court in
the U.S. and has made a Counter Claim, sought divorce,
custody of the child and protective orders from the Court in
the U.S. The 2nd Respondent has appeared in the
proceedings, and the respective Counsels were heard by the
U.S. Court in the proceedings. The 2 nd Respondent has also
sought Spousal Support to the tune of US$ 1,275 per month
and Child Support to the tune of US$ 1,260 per month on
the grounds that the Petitioner was earning US$ 14,242 per
month. In this background, the case of the Petitioner is that
the 2nd Respondent has abducted the child and, in violation
of the orders passed by the US Court, has left the US and
travelled to India along with the child. Therefore, the
Petitioner has filed the present petition as early as possible,
on 6th January 2026.
ii) Mr. Jauhar heavily relied on the order passed by the
U.S. Court. The order is dated 08.10.2025 and is on page
110 of the Petition, which reads as follows:
“1 Findings: The Court finds there is reason to believe: it
has jurisdiction over the parties and this case, the Respondent
and Petitioner are cohabitants, the Respondent will be served
notice of his/her opportunity to be heard at the scheduled
hearing, and the Respondent has abused or committed domestic
violence against Petitioner, or that there is a substantial
likelihood that Respondent immediately threatens Petitioner’s
physical safety.
2 The petitioner is an intimate partner of the respondent.
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WPCR-141-2026-JR.docThe term intimate partner means, with respect to a
person, the spouse of the person, a former spouse of the person,
an individual who is a parent of a child of the person, and an
individual who cohabitates or has cohabited with the person. 18
USC Sec. 921 (a)(32).
3 The party to be protected is the child of an intimate
partner to the respondent.
4 The Court orders the Respondent to obey all orders
included on this form and to not abuse, or threaten to abuse,
anyone protected by this order.
5 You must not have contact with the Petitioner.
6 Warnings to the Respondent:
– This is a court order. No one except the court can change it.
You can tell your side when you go to court. If you do not obey
this order, you can be arrested, fined, and face other charges.
– This order is valid in all U.S. states and territories, the District
of Columbia, and tribal lands. If you go to another U.S. state,
territory or tribal land to violate this order, a federal judge can
send you to prison.
– No guns or firearms! (See item 5.)
To: ANJALI ACHARYA
Go to the court hearing on the date listed below. If you do not
go to the hearing, the judge can make orders without hearing
your side.
A hearing will be held on OCTOBER 27, 2025 with Judge
COMMISSIONER SAGERS at 10:00 A.M. in room W36 at 450
South State Street PO Box 1860 Salt Lake City UT 84114-1860.
This order lasts until the above hearing date; or later, if the
Court extends time for service.
Respondent must obey all orders marked below.
Criminal orders (you can be arrested for violating these)
If you (respondent) violate the criminal orders below, it is a
criminal Class A Misdemeanor, punishable by up to 364 days in
jail and a fine. A second or subsequent violation can result in
more severe penalties.
7 Personal Conduct Order Do not commit, try to commit
or threaten to commit any form of violence against thePage 6 of 50
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WPCR-141-2026-JR.docPetitioner or any person listed on this order. This includes
stalking, harassing, threatening, physically hurting, or causing
any other form of abuse that could cause bodily injury.
8 No Contact Order Do not contact, phone, mail, e-mail,
or communicate in any way with the Petitioner and the people
listed on this order either directly or indirectly except as
allowed by the parent-time provisions of this order.
9 Contact for Mediation You are allowed to have contact
with the Petitioner only during mediation sessions for your
divorce or custody case that are scheduled with a Court
Qualified Mediator.
10 Stay Away Order
Stay at least 200 FEET from the Petitioner.
11 Stay away from Petitioner’s home:
The Petitioner is not a Safe at Home Program participant.
Petitioners home address is: 7899 SOUTH DANISH PINE LANE,
COTTONWOOD HEIGHTS, UT 84121.
12 No Guns or Other Weapons The Court finds that your
use or possession of a weapon poses a serious threat of harm to
the Petitioner. You cannot possess, have, or buy a gun or
firearm or any of these weapons:
Warning! If a final protective order is issued against you after
the hearing, you will then become subject to the federal law
making it a crime to possess, transport, ship or receive any
firearm or ammunition, including a hunting weapon.
13 Property Orders Until the hearing, only the Petitioner
can use, control and possess the following property and things,
but cannot dispose of this property without court approval:
Home at: 7899 SOUTH DANISH PINE LANE, COTTONWOOD
HEIGHTS, UT 84121 Car, truck, or other property: Dark Green
Land Rover Range Rover Autobiography LWB, License plate
No.MADHAVA
14 Civil Orders(you can be held in contempt of court for
violating these)
If you (respondent) violate the orders below, you will be in
contempt of court and may be punished with jail time and fines.
15 Property OrdersPage 7 of 50
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WPCR-141-2026-JR.docYou cannot interfere with or change Petitioner’s phone, utility
or other services.
16 Child Custody and Parent-time Orders.
The Petitioner (the person asking for protection) will have
temporary custody of the minor children of the parties listed
below. The person with custody may give a copy of this order to
the principal or director of the childs school or daycare. If you
do not obey the custody and parent-time orders listed here, the
person with custody may ask for the courts help by filing a
motion to enforce the order:
ANAGHA BAKAYA
17 You will have parent-time as follows: Standard time
pursuant to Utah Code 81-9-304
18 No Travel with Children Do not take the children listed
above out of the state of Utah.
19 Law Enforcement to Assist A law enforcement officer
from Cottonwood Heights will enforce the orders below:
– Help the Petitioner gain and keep control over home, car or
other personal belongings.
– Help the Petitioner obtain custody of the children.
– Help the Respondent remove essential personal belongings
from the home.
Essential personal belongings means daily use items, such as
clothing, medications, jewelry, toiletries, financial or personal
records solely in one persons name, or items needed to work at
a job or go to school.
Warning to the Respondent: Do not go to the home or other
protected places without an officer. Law enforcement can evict
you or keep you away from protected places, if needed.
Notice to the Petitioner:
The court may amend or dismiss a protective order after one
year if it finds that the basis for the issuance of the protective
order no longer exists and the petitioner has repeatedly acted in
contravention of the protective order provisions to intentionally
or knowingly induce the respondent to violate the protective
order, demonstrating to the court that the petitioner no longer
has a reasonable fear of the respondent.(Utah Code 78B-7-
105(6)(c)).”
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5. Therefore, Mr. Jauhar, the Learned Counsel for the
Petitioner, submitted that the child ought to be repatriated to the
U.S. for the following reasons:
i) The child was born in the U.S. and is a U.S. citizen by
birth. The U.S. is the native country of the child. The parties
have stayed in the U.S. from August 2009 until 08th October
2025. They both have active U.S. green card applications in
process since 2016. The parties chose to marry in the U.S.
on 03rd September 2013, and the child was born in the U.S.
on 14th September 2022, with the sole intent to make her a
U.S. Citizen by birth, further underscoring the parties’ desire
to make the U.S. their permanent and habitual home. The
mother chose not to come back to India for the delivery of
the child and delivered the child in New York City, N.Y.,
U.S. on 14th September 2022. Since the U.S. recognises
citizenship according to the Jus Soli principle, the child is a
U.S. Citizen. Therefore, keeping in view the nationality of
the child and the fact that she has a passport of that country
while deciding the issue of custody, the same ought to be
taken into consideration by the Court. This submission is
made on behalf of the Petitioner on the basis of paragraph
28 of the judgment of the Hon’ble Supreme Court in Yashita
Sahu V. State of Rajasthan (2020) 3 SCC 67.
ii) On the basis Yashita Sahu (supra), it is submitted that
a child of tender years requires the love, affection, company,
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and protection of both parties, and the same was also stated
in paragraph 22 of the said Judgment that the Court should
be wary of what is said by either of the spouses (not just
one of them). Therefore, the welfare of the child demands
that the child be repatriated to the U.S. so that the child
also gets love, affection, company, and protection of the
Petitioner.
iii) Further, the child has spent more than 3 years in the
U.S. and only 4 months in India. The child has been well
accustomed to the social and cultural milieu of the U.S.
Since her birth, the child has not travelled to or lived in
India. The child’s stay in India has been only for the last
four months, and that too in total contravention and
violation of the Order dated 07th October 2025 passed by
the U.S. Court. The child has been accustomed to the
habitat of the U.S. since her birth, and therefore, it is in her
interest and welfare to be returned to the U.S., where she
shall have recourse to the company of both parents in an
environment that is most habitually familiar to her and
which affords her the lifestyle, care, affection, love, safety,
security, social and cultural milieu, etc. to which she has
become accustomed to since her conception as well as birth.
However, if the child is allowed to stay in India with only
the mother, then the child will not have recourse to the
company of her father in any meaningful manner, and he
will be legally arm-twisted to become a holiday father. In
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the absence of repatriation, the child will be (A) essentially
deprived of all the love, care, affection, safety, security, and
company of a dedicated, caring, affectionate, and dutiful
father, (B) expected to erase her well-established roots with
her nation of birth (and citizenship), and also (C) required
to dissolve her connections and profoundly established
familiarity with a certain lifestyle, social and cultural milieu,
social circles (friends, neighbours, etc.), etc., and those all
put together will undoubtedly constitute irreparable harm
to the child, especially in her formative years. Therefore, it
is in the best interest and welfare of the child to have the
company of both her parents, which can only be achieved if
the child is returned to the U.S. This submission is based on
paragraph 36 of the judgment of the Hon’ble Supreme Court
in Vasudha Sethi Vs Kiran V. Bhaskar (2023) 17 SCC 478.
Mr. Jauhar submitted that, in Vasudha Sethi (supra) the
decision of the 3-Bench in Nithya Anand Raghavan V. State
of NCT of Delhi (2017) 8 SCC 454 as well as Kanika Goel V.
State of Delhi (2018) 9 SCC 578 were considered and the
argument with regard to proviso (a) of Section 6 of the
Hindu Minority and Guardianship Act was also taken into
consideration and it was held that even if the age of the
minor is less than 5 years, even in those cases the custody
can be given to the father.
iv) Mr. Jauhar submitted that it is clear that the child has
not developed roots in India and therefore, it would be
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better for this Court to exercise its summary inquiry and
repatriate the child back to the U.S. and the issues regarding
the welfare, interest and to whom the custody should be
awarded should be left to the discretion of the U.S. Court,
which is the Court of Competent Jurisdiction in this matter.
The Court is to engage in an elaborate inquiry only if
considerable time has passed since the child was removed
from its Native Country or if the child has developed roots
in India. In support of this submission Mr. Jauhar cited
paragraphs 11, 12, 15, and 16 of the judgment of the
Hon’ble Supreme Court in Nilanjan Bhattacharya V. State of
Karnataka (2021) 12 SCC 376.
v) Mr. Jauhar submitted that in the present case, to date
(previously or even now), there is no material on record
produced by the 2nd Respondent to show that any physical,
sexual, psychological, or mental harm shall be caused to the
child if she is returned to the U.S. The 2 nd Respondent has
not filed any complaint or made any allegation following
the birth of the child from 14th September 2022 till 8th
October 2025, i.e. the date when the minor daughter was
wrongfully removed from the jurisdiction of the U.S. in
contravention of the Order dated 7th October 2025 passed
by the U.S. Court. The 2nd Respondent never made any kind
of allegation of the father having abused the child
physically, sexually, mentally, or in any manner, and all the
allegations now being made by the 2nd Respondent are a
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counterblast and in retaliation to the proceedings of divorce
and custody undertaken by the Petitioner before the U.S.
Court on 7th October 2025. Even the Police in Goa have
investigated the allegations levelled by the 2 nd Respondent
in the FIR registered under the POCSO Act and have filed a
Cancellation Report stating that they could not find any
kind of evidence qua the allegations made by the 2nd
Respondent. Moreover, all the allegations now being
levelled could have allegedly transpired only in the U.S.,
and it is only the U.S. Courts that shall have the jurisdiction
to decide and adjudicate upon the said allegations.
vi) It is further submitted by Mr. Jauhar that the 2nd
Respondent has not only prosecuted and filed a Reply to the
Divorce and Custody case filed by the Petitioner husband
but also has, on 10th October 2025, invoked jurisdiction of
the U.S. Court by filing her own Counter Claim for Divorce
and Custody before the U.S. Court through her own U.S.
Attorney. The 2nd Respondent has sought sole custody of the
child from the U.S. Court and also has sought Spousal and
Child Support from the U.S. Court etc. Therefore, a person
who invokes the jurisdiction of a competent Court by
claiming the reliefs of custody and divorce, cannot now
refuse to abide by the orders of the said Court by refusing to
disregard the said proceedings, once an adverse order is
passed against 2nd Respondent by the said Court after the
Court has followed an extensive, impartial, and
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comprehensive due process over several months to arrive at
its conclusions and the said Order. In support of this
submission Mr. Jauhar relied upon paragraphs 47 and 48 of
the judgment of the Hon’ble Supreme Court in Lahari
Sakhamuri V. Sobhan Kodali (2019) 7 SCC 311.
vii) It is the submission of the Petitioner that no Indian
Court under the Guardians and Wards Act, 1890, will have
the jurisdiction to decide upon the Custody of a U.S.
National. The Custody Petition filed by the 2nd Respondent
in Civil Court, Goa, India, was filed on 2nd February 2026,
i.e. much after the filing of the present Habeas Corpus
proceedings before this Court. However, the said Petition is
also not maintainable under Section 9 of the Guardians and
Wards Act as the child, who is a U.S. Citizen, and has
practically lived her entire life in the U.S., is not an
Ordinary Resident of India or Goa. This submission is made
on the basis of paragraphs 30 and 31 of the Judgment of the
Hon’ble Supreme Court in Lahari Sakhamuri (supra) and Dr.
Abhilasha Sharma V. Vayu Kishore 2025:JHHC:36692-DB.
viii) On the basis of the judgment of the Hon’ble Supreme
Court in Rajeswari Chandrasekar Ganesh V. State of Tamil
Nadu (2023) 12 SCC 472 in para 99, Mr. Jauhar submitted
that the invocation of Writ of Habeas Corpus is an Inherent
Jurisdiction and it ought to be exercised in the interest of
the child and for the welfare of the child.
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ix) Mr. Jauhar submitted that the Petitioner has a valid
Visa until 16th November 2028, and the 2nd Respondent also
has a valid visa till 11th June 2026. The child has a valid
U.S. passport, being a U.S. citizen by birth. Therefore, there
is no impediment for the return of the child to the U.S., and
the mother can also safely travel back to the U.S.
Additionally, the Petitioner husband has a stable job and is
working fully remotely (as he has been since July 2022,
even before the birth of the child), like most of the
employees of his firm. Therefore, it is submitted that the
Petitioner has sufficient time and dedication to look after
the child and take responsible care of her, as he has been
doing since before the child’s birth. Apart from that, the
paternal grandmother of the child is also residing in the
U.S., who shall readily take care of the well-being and
interest of the child in case she is repatriated to the U.S. and
the 2nd Respondent chooses to stay back in India or is unable
to return to the U.S., for any reason.
x) Mr. Jauhar submitted that the comity of Courts is a
healthy doctrine. The Courts in India have consistently
frowned upon the removal of children by one parent from
one country to another in violation of the orders passed by
another competent Court. The 2nd Respondent has taken
custody of the child and travelled to India with the child
without the Petitioner’s consent. He relied upon paragraphs
14 and 19 of the judgment of the Supreme Court of Yashita
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Sahu (supra). The 2nd Respondent has illegally travelled to
India with the child and has violated the order passed by
the U.S. Court. Therefore, it is submitted that this is a fit
case for the grant of the relief as sought. He further
submitted that all the proceedings adopted by the 2 nd
Respondent, including the proceedings under the POSCO
Act, are false and frivolous. The proceedings are initiated by
the 2nd Respondent only as a counterblast to the pending
U.S. proceedings and the present writ petition. The Goa
Police have investigated the complaint made by the 2 nd
Respondent and have filed ‘A Summary’ report and have
closed the proceedings. The complaint, making allegations
of sexual harassment of the child by the Petitioner, is false
on the face of it because no such complaints were ever
made by the 2nd Respondent when she was residing in the
U.S. with the child. The custody matter cannot be decided
by the Courts in India in view of the fact that the
proceedings are already pending before the Court in the
U.S. and the 2nd Respondent has submitted to the
jurisdiction of the U.S. Court.
xi) Mr. Jauhar, on instructions, submitted that the
Petitioner is willing and happy to submit an Affidavit of
Undertaking incorporating all the facilities, such as house,
maintenance, etc., to be provided to the 2 nd Respondent in
case there is a direction for the 2nd Respondent to go back to
the U.S. with the child. He further submitted that the
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Petitioner is also ready and willing to give in an undertaking
that the Petitioner shall not initiate any coercive
proceedings for willful disobedience of the Orders of the
U.S. Court by the 2nd Respondent.
xii) Therefore, Mr. Jauhar submitted that the Writ Petition
is liable to be allowed and the child be repatriated to the
U.S., keeping in mind the interest and welfare of the child.
xiii) Mr. Jauhar has relied upon various judgments in
support of his submissions, which include, Jeewanti Pandey
Vs. Kishan Chandra Pandey, 1981 (4) SCC 517, Smt.
Surindar Kaur Sandhu Vs. Harbax Singh Sandhu & Another ,
1984 (3) SCC 698, Mrs. Elizabeth Dinshaw Vs. Arvand M.
Dinshaw & Another, 1987 (1) SCC 42, Mr. Paul Mohinder
Gahun Vs. Mrs. Selina Gahun, 2006 (130) DLT 524, Aviral
Mittal Vs. The State & Another, 2009 (112) DRJ 635, Shilpa
Aggarwal Vs. Aviral Mittal & Another , 2010 (1) SCC 591,
Dr. V. Ravi Chandran Vs. Union of India, 2010 (1) SCC 174,
Sondur Gopal Vs. Sondur Rajini, (2013) 7 SCC 426, Arathi
Bandi Vs. Bandi Jagadrakshaka Rao & Others, (2013) 15
SCC 790, Surya Vadanan Vs. State of Tamil Nadu & Others,
(2015) 5 SCC 450, Nithya Anand Raghavan Vs. State of
NCT of Delhi, (2017) 8 SCC 454, Tippa Srihari Vs. State of
A.P, 2018 SCC Online Hyd 123, Ganamukkala Sirisha Vs.
Tippa Srihari, MANU/SCOR/23943/2019, Lahari
Sakhamuri Vs. Sobhan Kodali, (2019) 7 SCC 311, Varun
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Verma Vs. State of Rajasthan, 2019 SCC Online Raj 5430,
Yashita Sahu Vs. State of Rajasthan & Others, (2020) 3 SCC
67, Tejaswini Gaud Vs. Shekhar Jagdish Prasad Tewari,
(2019) 7 SCC 42, Nilanjan Bhattacharya Vs. The State of
Karnataka, 2020 SCC Online SC 928, Ghadian
Harshavardhan Reddy Vs. State of Telangana & Others,
MANU/TL/1033/202, Vasudha Sethi Vs. Kiran V. Bhaskar,
2022 SCC Online SC 43, Rohith Thammana Gowda Vs.
State of Karnataka & Others, 2022 SCC OnLine SC 937,
Rajeswari Chandrasekar Ganesh Vs. State of Tamil Nadu,
2022 SCC OnLine SC 885, Abhinav Gyan Vs. State of
Maharashtra & Another, Crl. W.P. No. 693/2021, Abhay Vs.
Neha Joshi & Another, 2023 SCC OnLine Bom 1943, Neha
Joshi Vs. State of Maharashtra & Another , SPL (Crl) No.
12866/2023, Anupriya Vs. Abhinav Gyan, SLP (Crl) No.
10381/2022, Sunanina Rao Kommineni Vs. Abhiram
Balusu, 2025 SCC OnLine Del 4176, Sunanina Rao
Kommineni Vs. Abhiram Balusu, SLP (Crl) No. 8800/2025.
xiv) According to Mr. Jauhar the present case is covered
by the judgments cited by him and therefore, all the issues
raised by the 2nd Respondent to oppose the petition are
closed by these judgments.
6. On the other hand, Mrs. Agni, the Learned Senior Counsel
on behalf of the 2nd Respondent, opposed the reliefs on the
following grounds:
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i) There is gross suppression of material and vital facts
in the petition. Therefore, the petition ought to be dismissed
solely on this ground. The Petitioner has, inter alia,
suppressed the fact that the 2nd Respondent has travelled to
India with the child with the consent of the Petitioner. The
Petitioner has no stable job, and the visa was obtained by
the Petitioner by misrepresenting the immigration
authorities. He was terminated from the services and was
without a job for a considerable time. The couple has
changed residences from time to time. No medical
insurance, no permanent residence, and total uncertainty
about the job and visa status of the Petitioner were the
crucial facts that the Petitioner has suppressed in the
petition.
ii) It is the case of the 2nd Respondent that they lived as a
nuclear family in the U.S. with no support system. The 2 nd
Respondent, in spite of her high qualifications, had been
relegated to being a homemaker and has always been the
primary caregiver to the child, who did not stay for a single
day without the mother. Admittedly, the child was breastfed
as of August 2025. She submitted that the child is still being
breastfed.
iii) Habeas Corpus is a prerogative writ which is an
extraordinary remedy recourse which ought not to be
permitted unless an ordinary remedy provided by law isPage 19 of 50
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WPCR-141-2026-JR.docunavailable or ineffective and in child custody matters, the
powers of the Court are qualified only in cases where
detention of a minor is by a person who is not entitled to
her/his legal Custody. In this case, the Hindu Minority and
Guardianship Act or the Guardian and Ward Act applies,
and therefore, the custody of the child can only be decided
in accordance with the provisions of these Acts. The 2nd
Respondent is the biological mother of the child, and
therefore, she is the natural guardian of the child, who is
admittedly less than five years old.
iv) She further submitted that the Orders which cannot
withstand the tests laid down in Section 13 of the Code of
Civil Procedure, 1908, shall not receive recognition of
Courts in India. The orders passed by the U.S. Court are ex
parte orders and therefore cannot be in conformity with the
provisions of Section 13 of the Code of Civil Procedure,
1908. In any case, the Petitioner is unable to demonstrate
that any of the Orders passed by the U.S. Court declares the
custody of the child with 2nd Respondent unlawful. Further,
the temporary orders passed against the 2nd Respondent
were not served on the 2nd Respondent. She came to know
of the orders only when she reached India. Further, the
orders passed by the U.S. Court cannot be the sole factor to
decide the custody of the child and repatriate the child who
is less than five years old.
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v) There are pleadings about sexual abuse concerning
the child on the part of the Petitioner and there is a
complaint filed and an FIR is registered. Though there is ‘A
Summary’ closure report filed, the POSCO Court has not
issued notice to the 2nd Respondent and has not passed
orders permitting closure. Summary report of closure A
signifies that the incident is true when the accused is
known, but there is insufficient material to go to trial.
Further, there are serious allegations of harassment against
the Petitioner. The 2nd Respondent and the child were not
safe in the U.S. with the Petitioner and the 2nd Respondent
was justified in coming to India with the child. Mrs. Agni
submitted that the e-mail sent by the Petitioner to the 2 nd
Respondent’s relative on 5th June 2025 speaks for itself and
justifies the acts of the 2nd Respondent and the
apprehension about the safety and security of the 2 nd
Respondent and the child.
vi) Father does not give any maintenance to the child or
the mother. The child lives in a settled house with her
grandparents and mother and is admitted to Manovikas
School in Goa, India. The language of the child is Marathi,
and the child is in a natural, comfortable and safe
environment.
vii) While deciding the Habeas Corpus Petition and the
matter pertaining to custody of the child and the focal point
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is what is in the paramount interest and welfare of the
child, this Court would have to consider the total absence of
documents showing a stable and safe environment for the
child in U.S.
viii) There were no funds available with the 2nd
Respondent to maintain herself and the child. All the
monies were withdrawn by the Petitioner from the account
of the 2nd Respondent.
ix) Mrs. Agni submitted that the judgments cited on
behalf of the Petitioner are distinguishable and each case
ought to be decided on its own merits after considering the
facts and circumstances of each case.
x) The Court, being parens patriae, would examine the
order passed by a foreign court and what is in the
paramount interest and welfare of the child to decide
whether there should be a summary or detailed inquiry in
the matter. It is the submission of the 2 nd Respondent that
there are many disputed facts which cannot be decided by
this Court and ought to be decided in a custody matter filed
by the 2nd Respondent before the Court in India.
xi) Mrs. Agni submitted that, looking at the overall
scenario, the facts on record and the applicable law this is
not a fit case to repatriate the child to the U.S.
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xii) In support of her submission Mrs. Agni cited many
judgments including: Ruchi Majoo Vs. Sanjeev Majoo,
(2011) 6 SCC 479, Nithya Anand Raghavan Vs. State (NCT
of Delhi) & Another, (2017) 8 SCC 454, Kanika Goel Vs.
State of Delhi, (2018) 9 SCC 578, Prateek Gupta Vs. Shilpi
Gupta & Others, (2018) 2 SCC 309, Sarita Sharma Vs.
Sushil Sharma, (2000) 3 SCC 14, Dhanwanti Joshi Vs.
Madhav Unde, (1998) 1 SCC 112, Sharmila Velamur Vs. V.
Sanjay & Others, Contempt Petition (c) No. 9/2025 in SLP
(Crl) No. 17281/2024 decided on 03.03.2025, Lahari
Sakhamuri Vs. Sobhan Kodali, (2019) 7 SCC 311, Vivek
Singh Vs. Romani Singh, (2017) 3 SCC 231, Rosy Jacob Vs.
Jacob A. Chakramakkal, (1973) 1 SCC 840, Tejaswini Gaud
& Others Vs. Shekhar Jagdish Prasad Tewari & Others ,
(2019) 7 SCC 42, Vasudha Sethi & Others Vs. Kiran V.
Bhaskar & Another, Criminal Appeal No. 82/2022 arising
out of SLP (Crl) No. 7129/2021 decided on 12.01.2022,
Nirmal Vs. Kulwant Singh & Others, (2024) 10 SCC 595,
Gangadhar Janardan Mhatre Vs. State of Maharashtra &
Others, (2004) 7 SCC 768, Arnab Manoranjan Goswami Vs.
State of Maharashtra & Others, Criminal Appeal No. 743 of
2020 arising out of SLP (Crl) No. 5599 of 2020 decided on
27.11.2020, Neethu B. @ Neethu Baby Mathew Vs. Rajesh
Kumar, R.P. (C) Nos. 2273-2274/2024 in Civil Appeal Nos.
5395-5396 of 2024 decided on 15.07.2025, Shravan
Baburao Dinkar Vs. N.B. Hirve, Criminal Writ Petition Nos.
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301, 302 of 1996 decided on 25.09.1996, xxx Vs. State of
Maharashtra & Others, Criminal Writ Petition No. 512 of
2023 decided on 06.12.2023 (High Court of Judicature at
Bombay).
7. We have heard Mr. Jauhar and Mrs. Agni at length and have
considered the pleadings, documents and the written submissions
placed on record by the parties. We have also carefully considered
all the judgments cited by the Learned Counsel on behalf of the
Petitioner and the 2nd Respondent.
8. Initially, we made an attempt and suggested that the parties
amicably settle the disputes. However, we were informed that
there is no possibility of an amicable settlement of the disputes.
The 2nd Respondent has also made it very clear that she will not go
back to the U.S. The reasons given by the 2 nd Respondent are that
she cannot compromise on her safety and security and that of her
child. Also, according to her, she may not be entitled to get a visa
to travel, and even if she gets a visa, her status based on such
VISA would be vulnerable in the future. The most important
reason given by the 2nd Respondent is that there have been
incidents of sexual abuse of the child by the Petitioner. In view
thereof, we have to consider the prayer of the Petitioner to
repatriate the child without the 2nd Respondent.
9. To begin with, Mr. Jauhar and Mrs. Agni have fairly
submitted that the parens patriae jurisdiction of the Court to issue
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a writ of Habeas Corpus is a relief in equity and is solely for the
welfare of a child and that should be of paramount consideration
while deciding the matter.
10. The Hon’ble Supreme Court in Rajeswari Chandrasekar
Ganesh (Supra), has held in paragraph 99 as follows:
“99. Thus, it is well established that in issuing the writ of Habeas
Corpus in the case of minors, the jurisdiction which the Court
exercises is an inherent jurisdiction as distinct from a statutory
jurisdiction conferred by any particular provision in any special
statute. In other words, the employment of the writ of Habeas
Corpus in child custody cases is not pursuant to, but independent
of any statute. The jurisdiction exercised by the court rests in
such cases on its inherent equitable powers and exerts the force
of the State, as parens patriae, for the protection of its minor
ward, and the very nature and scope of the inquiry and the result
sought to be accomplished call for the exercise of the jurisdiction
of a court of equity. The primary object of a petition, as applied
to minor children, is to determine in whose custody the best
interests of the child will probably be advanced. In a Habeas
Corpus proceeding brought by one parent against the other for
the custody of their child, the court has before it the question of
the rights of the parties as between themselves, and also has
before it, if presented by the pleadings and the evidence, the
question of the interest which the State, as parens patriae, has in
promoting the best interests of the child.”
(emphasis supplied)
11. In Nithya Anand Raghavan (supra) the Hon’ble Supreme
Court has held that:
“47. In a habeas corpus petition as aforesaid, the High Court
must examine at the threshold whether the minor is in lawful
or unlawful custody of another person (private respondent
named in the writ petition). For considering that issue, in a
case such as the present one, it is enough to note that the
private respondent was none other than the natural guardian of
the minor being her biological mother. Once that fact is
ascertained, it can be presumed that the custody of the minor
with his/her mother is lawful. In such a case, only inPage 25 of 50
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WPCR-141-2026-JR.docexceptionable situation, the custody of the minor (girl child)
may be ordered to be taken away from her mother for being
given to any other person including the husband (father of the
child), in exercise of writ jurisdiction. Instead, the other parent
can be asked to resort to a substantive prescribed remedy for
getting custody of the child.
48. The next question to be considered by the High Court
would be whether an order passed by the foreign court,
directing the mother to produce the child before it, would
render the custody of the minor unlawful ? Indubitably, merely
because such an order is passed by the foreign court, the
custody of the minor would not become unlawful per se.
50. The High Court in such a situation may then examine
whether the return of the minor to his/her native state would
be in the interests of the minor or would be harmful. While
doing so, the High Court would be well within its jurisdiction if
satisfied, that having regard to the totality of the facts and
circumstances, it would be in the interests and welfare of the
minor child to decline return of the child to the country from
where he/she had been removed; then such an order must be
passed without being fixated with the factum of an order of the
foreign Court directing return of the child within the stipulated
time, since the order of the foreign Court must yield to the
welfare of the child. For answering this issue, there can be no
strait jacket formulae or mathematical exactitude. Nor can the
fact that the other parent had already approached the foreign
court or was successful in getting an order from the foreign
court for production of the child, be a decisive factor. Similarly,
the parent having custody of the minor has not resorted to any
substantive proceeding for custody of the child, cannot whittle
down the overarching principle of the best interests and welfare
of the child to be considered by the Court. That ought to be the
paramount consideration.
51. For considering the factum of interests of the child, the
court must take into account all the attending circumstances
and totality of the situation. That will have to be decided on
case to case basis. …
53. …Being a girl child, the guardianship of the mother is of
utmost significance. Ordinarily, the custody of a “girl” child
who is around seven years of age, must ideally be with her
mother unless there are circumstances to indicate that it would
be harmful to the girl child to remain in custody of her mother
[see Sarita Sharma Vs. Sushil Sharma, (2000) 3 SCC 14, para
6]. No such material or evidence is forthcoming in the present
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case except the fact that the appellant (mother) has violated
the order of the U.K. Court directing her to return the child to
the U.K. before the stipulated date.
59. …It does not whittle down the principle expounded in
Dhanwanti Joshi Vs. Madhav Unde, (1998) 1 SCC 112, the duty
of the Court to consider the overarching welfare of the child. Be
it noted, the predominant criterion of the best interests and
welfare of the minor outweighs or offsets the principle of
comity of courts. …
66. The invocation of first strike principle as a decisive factor,
in our opinion, would undermine and whittle down the
wholesome principle of the duty of the Court having
jurisdiction to consider the best interests and welfare of the
child, which is of paramount importance. If the Court is
convinced in that regard, the fact that there is already an order
passed by a foreign Court in existence may not be so significant
as it must yield to the welfare of the child. That is only one of
the factors to be taken into consideration. The interests and
welfare of the child are of paramount consideration. The
principle of comity of courts as observed in Dhanwanti Joshi’s
case (supra), in relation to non-convention countries is that the
Court in the country to which the child is removed will consider
the question on merits bearing the welfare of the child as of
paramount importance and consider the order of the foreign
Court as only a factor to be taken into consideration. While
considering that aspect, the Court may reckon the fact that the
child was abducted from his or her country of habitual
residence but the Court’s overriding consideration must be the
child’s welfare.
67. The facts in all the four cases primarily relied upon by the
respondent no.2, in our opinion, necessitated the Court to issue
direction to return the child to the native state. That does not
mean that in deserving cases the Courts in India are denuded
from declining the relief to return the child to the native state
merely because of a pre-existing order of the foreign Court of
competent jurisdiction. That, however, will have to be
considered on case to case basis-be it in a summary inquiry or
an elaborate inquiry. We do not wish to dilate on other
reported judgments, as it would result in repetition of similar
position and only burden this judgment.
69. We once again reiterate that the exposition in the case of
Dhanwanti Joshi (supra) is a good law and has been quoted
with approval by a three-judge bench of this Court in V. Ravi
Chandran (supra). We approve the view taken in Dhanwanti
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Joshi (supra), inter alia in paragraph 33 that so far as non-
convention countries are concerned, the law is that the Court in
the country to which the child is removed while considering the
question must bear in mind the welfare of the child as of
paramount importance and consider the order of the foreign
Court as only a factor to be taken into consideration. The
summary jurisdiction to return the child be exercised in cases
where the child had been removed from its native land and
removed to another country where, may be, his native language
is not spoken, or the child gets divorced from the social
customs and contacts to which he has been accustomed, or if its
education in his native land is interrupted and the child is being
subjected to a foreign system of education, for these are all acts
which could psychologically disturb the child. Again the
summary jurisdiction be exercised only if the court to which the
child has been removed is moved promptly and quickly. The
overriding consideration must be the interests and welfare of
the child.”
(emphasis supplied)
12. In Kanika Goel (supra), the Hon’ble Supreme Court has
taken a view that:
“32. After these decisions, it is not open to contend that the
custody of the female minor child with her biological mother
would be unlawful, for there is presumption to the contrary.
In such a case, the High Court whilst exercising jurisdiction
under Article 226 for issuance of a writ of habeas corpus need
not make any further enquiry but if it is called upon to
consider the prayer for return of the minor female child to the
native country, it has the option to resort to a summary
inquiry or an elaborate inquiry, as may be necessary in the fact
situation of the given case. In the present case, the High Court
noted that it was not inclined to undertake a detailed inquiry.
The question is, having said that whether the High Court took
into account irrelevant matters for recording its conclusion
that the minor female child, who was in custody of her
biological mother, should be returned to her native country. As
observed in Nithya Anand Raghavan Vs. State, (2017) 8 SCC
454, the Court must take into account the totality of the facts
and circumstances whilst ensuring the best interest of the
minor child. In Prateek Gupta Vs. Shilipi, (2018) 2 SCC 309
case, the Court noted that the adjudicative mission is the
obligation to secure the unreserved welfare of the child as the
paramount consideration. Further, the doctrine of “intimatePage 28 of 50
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WPCR-141-2026-JR.docand closest concern” are of persuasive relevance, only when
the child is uprooted from its native country and taken to a
place to encounter alien environment, language, custom etc.
with the portent of mutilative bearing on the process of its
overall growth and grooming.”
(emphasis supplied)
13. In Tejaswini Gaud (supra), the Hon’ble Supreme Court has
held that:
“19. Habeas corpus proceedings is not to justify or examine the
legality of the custody. Habeas corpus proceedings is a
medium through which the custody of the child is addressed to
the discretion of the court. Habeas corpus is a prerogative writ
which is an extraordinary remedy and the writ is issued where
in the circumstances of the particular case, ordinary remedy
provided by the law is either not available or is ineffective;
otherwise a writ will not be issued. In child custody matters,
the power of the High Court in granting the writ is qualified
only in cases where the detention of a minor by a person who
is not entitled to his legal custody. In view of the
pronouncement on the issue in question by the Supreme Court
and the High Courts, in our view, in child custody matters, the
writ of habeas corpus is maintainable where it is proved that
the detention of a minor child by a parent or others was illegal
and without any authority of law.
20. In child custody matters, the ordinary remedy lies only
under the Hindu Minority and Guardianship Act or the
Guardians and Wards Act as the case may be. In cases arising
out of the proceedings under the Guardians and Wards Act,
the jurisdiction of the court is determined by whether the
minor ordinarily resides within the area on which the court
exercises such jurisdiction. There are significant differences
between the enquiry under the Guardians and Wards Act and
the exercise of powers by a writ court which is of summary in
nature. What is important is the welfare of the child. In the
writ court, rights are determined only on the basis of
affidavits. Where the court is of the view that a detailed
enquiry is required, the court may decline to exercise the
extraordinary jurisdiction and direct the parties to approach
the civil court. It is only in exceptional cases, the rights of the
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WPCR-141-2026-JR.docexercise of extraordinary jurisdiction on a petition for habeas
corpus.”
(emphasis supplied)
14. The above-quoted paragraphs from the judgments of the
Hon’ble Supreme Court elucidate the settled principle of law that:
The Court exercises its inherent jurisdiction in equity to
determine in whose custody the best interests of the child will
probably be advanced. The Court must examine at the
threshold whether the minor is in lawful or unlawful custody of
another person (the private Respondent). For considering that
issue, it is enough to note that the private Respondent was
none other than the natural guardian of the minor, being
her/his biological mother. Once that fact is ascertained, it can
be presumed that the custody of the minor with his/her mother
is lawful. Only in an exceptional situation, the custody of a
minor (especially a girl child) may be ordered to be taken away
from her mother for being given to any other person, including
the husband (father of the child), in exercise of writ
jurisdiction. When it comes to a girl child, the guardianship of
the mother is of utmost significance. Ordinarily, the custody of
a “girl” child who is around seven years of age, must ideally be
with her mother unless there are circumstances to indicate that
it would be harmful to the girl child to remain in the custody of
her mother. It is the duty of the Court to consider the
overarching welfare of the child. Therefore, the predominant
criterion of the best interests and welfare of the minor
outweighs or offsets the principle of comity of courts. In
deserving cases, the Courts in India may decline to repatriate
the child irrespective of the order of a foreign court. Merely
because there is an order passed by a foreign court against the
mother of the child to produce the child before it, the custody
of the child with the mother would not become unlawful per se.
The Court must be satisfied about the totality of the facts and
circumstances, that it would be in the interests and welfare of
the minor child to either allow or decline the return of the child
to the country from where he/she had been removed. The
overriding consideration must be the interests and welfare of
the child. In child custody matters, the ordinary remedy lies
only under the Hindu Minority and Guardianship Act or the
Guardians and Wards Act as the case may be. It is only in
exceptional cases that the rights of the parties to the custody ofPage 30 of 50
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WPCR-141-2026-JR.docthe minor will be determined in exercise of extraordinary
jurisdiction on a petition for Habeas Corpus.”
15. We have to decide the matter in accordance with the above
principles of law. The decision in each case will depend on the
facts and circumstances of the case. Depending on the facts and
circumstances of each case, the Court will have to consider all the
relevant factors to decide the matter. However, utmost important
factor that the Court must consider is the welfare of the child.
Therefore, although all the judgments cited by the Learned
Counsel for the parties were of great assistance to us, those would
be relevant only to the extent they are applicable to the facts of
this case.
16. First of all, the jurisdiction of this Court under Article 226 of
the Constitution of India is extraordinary, and when it comes to a
Habeas Corpus writ in a child custody matter, it is an equitable
relief which the Court may grant, if the facts of the case so
justifies. Therefore, when the Petitioner approached the Court
seeking relief in equity, it is the established principle in law that
the party must approach the Court with clean hands. The party
must disclose all the related and incidental facts and documents.
In the present case, the Petition proceeds mainly on the basis of
the allegations against the 2nd Respondent that the she has
abducted the child and left the U.S. without the consent of the
Petitioner and in gross violation of the protective order passed by
the Court in U.S. on 8th October 2025.
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17. All the grounds for seeking a writ of Habeas Corpus and
repatriation of the child are interwoven leading to the allegation
regarding the abduction of the child by the 2nd Respondent by
violating the order passed in the pending proceedings before the
U.S. Court.
18. Mr. Jauhar has also made a submission in respect of the
principles of comity of Courts to contend that in view of the orders
passed by the US Court, the child ought to be repatriated. The
entire thrust of the statements made in the petition and the
submission of Mr. Jauhar is on the proceedings pending in the US
Court and the orders passed therein. However, it is to be noted
herein that the Court, while exercising jurisdiction under Article
226 of the Constitution of India does not exercise jurisdiction to
execute a foreign decree or an order passed by a foreign court.
The Petitioner in the present case is virtually seeking the relief to
execute the orders passed by the US Court. Though the comity of
court is a healthy principle in law, yet, by invoking it, this Court
cannot execute the order passed by the US Court, and that cannot
be a criterion to issue a writ of Habeas Corpus, unless it is
cogently established that such an order will be in the best interest
of the child.
19. We agree with the submission of Mrs. Agni that the
principles of Section 13 of the Code of Civil Procedure, 1908, will
apply if at all we have to decide the matter on the basis of orders
passed by a foreign court.
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20. Further we have noted that the Petitioner has made a
statement in paragraph 4 of the Petition, which reads thus:
“Further, in order to celebrate with their families and
friends, the Petitioner and the Respondent No. 2 also
indulged in Hindu rites and ceremonies as a
celebration-in Goa, India on 20.02.2024.”
21. The Petitioner has clearly made a guarded statement so as
to avoid the applicability of special law governing the legal rights
of the couple. In view of this fact, the 2nd Respondent has
produced a copy of the certificate of the couple’s marriage
registration which was solemnized on 21 st February 2014 in Goa.
The certificate issued by the Civil Registrar of Salcete at Margao,
Goa, bearing registration No. 6100/2014 clearly establishes that
the marriage of the couple was also solemnized in the State of
Goa. That being the case, the Portuguese Civil Code, 1867 and
Portuguese Civil Procedure Code, 1939 will apply to the rights of
the couple. In view thereof, any decree of dissolution of marriage
of the couple will have to be confirmed and ratified by the High
Court at Goa under Article 1102 of the Portuguese Civil Procedure
Code, 1939. This is another factor which we consider to be
relevant in the facts and circumstances of the present case and in
view of the allegations of the Petitioner that the custody of the
child shall be solely governed by the proceedings initiated by the
Petitioner in the U.S. Even if any decree of dissolution is passed
and consequently, the custody of the child is decided by the U.S.
Court, even then, the same will have to be ratified and confirmed
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by the High Court at Goa, in an appropriate proceeding.
Therefore, we reject the argument of Mr. Jauhar that the orders
passed by the U.S. Court i.e. the ex-parte order dated 08 th October
2025 passed by the U.S. Court would be binding on the 2 nd
Respondent and therefore, ought to be considered by this Court as
one of the crucial factor.
22. We also reject the above argument of the Petitioner for one
more reason i.e. the Petitioner has initially made a false statement
in the Petition. He has suppressed the fact that the marriage of the
couple solemnized in Goa on 21st February 2014. To the
Petitioner’s knowledge if the marriage was solemnized in the State
of Goa, then the Petitioner ought to have disclosed the said fact in
the Petition and should have enclosed a copy of the marriage
registration certificate issued by the Civil Registrar. The Petitioner,
for his convenience, has however, chosen to suppress this fact. The
same came to light only when the 2 nd Respondent filed her second
reply. Mere denial of the fact that the marriage of the couple was
solemnized in the State of Goa would not suffice in view of the
actual certificate produced on record by the 2nd Respondent.
23. Further, in the present case, the order dated 8 th October
2025 was passed by the U.S. Court ex parte. The 2nd Respondent
has appeared in the proceedings before the U.S. Court and has
also filed proceeding in India. In writ jurisdiction, we do not wish
to comment on the competency of the courts in the U.S. and India.
The respective courts shall decide the issue of jurisdiction.
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24. Further, there is a dispute about the service and knowledge
of the order passed by the U.S. Court on 8th October 2025.
According to the 2nd Respondent, she only read the order when
she reached India on 10th October 2025. We will deal with this
aspect separately; however, this is one disputed fact which will
call for proper determination without which, we would not be
inclined to place much reliance in this case on the principle of
comity of court. Additionally, considering the fact that the child is
merely 3 years and 6 months old now and is being breastfed
having regard to the plea raised by the 2 nd Respondent, we are of
the view that this is not a fit case to be decided solely on the
principle of comity of courts. Therefore, we reject the submissions
of Mr. Jauhar made on the basis of the principles of comity of
court.
25. We also do not agree with the submission of Mr. Jauhar that
the 2nd Respondent has abducted the child and travelled to India
on 08.10.2025 for the following reasons.
26. The proceedings initiated by the Petitioner before the U.S.
Court resulted in an order dated 08.10.2025. According to the
Petitioner, the order was served by the Petitioner on the 2 nd
Respondent on 08.10.2025 at 02:55 p.m. Therefore, when the 2 nd
Respondent booked her air tickets at 05:24 p.m. on 08.10.2025,
she was well aware of the order passed by the U.S. Court. The 2 nd
Respondent has explained in her affidavit the circumstances under
which she had to leave her matrimonial home and booked her air
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tickets at 5:24 p.m. She noticed the messages received by her only
after her arrival in India. These statements of the 2 nd Respondent
are obviously denied by the Petitioner. However, what is
important to note herein is that the Petitioner has failed to provide
a clear picture of the sequence of events that occurred on
08.10.2025 and the communications exchanged between the
Petitioner and the 2nd Respondent. We find that the statements
made in the Petition are aimed at covering of the true facts
regarding the communications made between the Petitioner and
the 2nd Respondent on the afternoon of 08.10.2025. Admittedly,
there were several messages sent by the Petitioner to the 2 nd
Respondent on that evening. One message which the Petitioner
had sent to the 2nd Respondent reads as follows:-
“Please go wherever you wish to go, just drive safely and put
Anagha in car seat. Make sure she is safe and secure, rest you
do as you see fit. No restrictions or issues from my side.”
27. Based on the circumstances explained by the 2 nd Respondent
in her affidavit, it is possible that she understood the message as
consent from the Petitioner for her and the child to travel to India.
We are convinced that the 2nd Respondent possibly thought it was
the Petitioner’s consent because there was already a plan for the
2nd Respondent’s travel to India with the child. The statements in
the Petition are also carefully drafted to conceal the true and
correct facts regarding this aspect. The Petitioner has also
suppressed the fact in the Petition that the 2 nd Respondent and the
child were supposed to travel to India on 17.10.2025. The tickets
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for this trip were booked by the Petitioner. Importantly, the
required forms for sending the minor child were also executed and
given so that the same could be submitted to the concerned
Authorities. Therefore, travel to India by the 2 nd Respondent with
her child, it is not an isolated incident as portrayed in the Petition.
The Petitioner has initially suppressed this fact and has made
allegations of abduction of the child by the 2 nd Respondent. It is
clear that the Petitioner had to suppress this fact in the Petition
since disclosure thereof would have been inconsistent with the
allegations of abduction made against the 2 nd Respondent.
Further, the Petitioner has also suppressed the fact that he had
cancelled the air tickets of the 2 nd Respondent and then, only after
3:00 p.m. on 08.10.2025, he messaged the 2nd Respondent, which
coincides with the time and the date on which the 2 nd Respondent
had left the matrimonial home. There is nothing on record to
establish that the 2nd Respondent was aware of the cancellation of
the air tickets by the Petitioner. Therefore, the statement made by
the 2nd Respondent to the effect that when she realised that the
Petitioner had cancelled the tickets booked by the Petitioner, she
had to book fresh tickets is found to be credible enough.
Therefore, we are also inclined to accept the statement of the 2 nd
Respondent that, considering the overall past events and conduct
of the Petitioner, the 2nd Respondent had a reasonable
apprehension as regards the safety, security and mental health etc.
of herself and the child. The Petitioner has dealt with these
important facts and communication in his rejoinder only when the
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2nd Respondent had made a statement in her reply that she did not
abduct the child. In our view, the explanation given by the
Petitioner in the rejoinder lacks bona fide because if the Petitioner
was so sure about the interpretation of his communication and if
there was no consent given by the Petitioner to the 2 nd Respondent
to travel to India, then in that event, there was no reason for him
to suppress these relevant, important and crucial facts in the
petition.
28. Further, considering the events as narrated by the parties on
record, we find that the apprehension expressed by the 2 nd Re-
spondent, particularly in view of the order dated 8 th October 2025
passed by the U.S. Court, was justified, assuming that she was
aware of the order dated 8th October 2025 when she left the U.S.
As per the order dated 8th October 2025, the 2nd Respondent did
not have the custody of the breastfed child and she was not sup-
posed to be within 200 feet of the Petitioner. Additionally, when
she realised that the tickets which were booked for their travel to
India were cancelled by the Petitioner. Therefore, we find that
these events must have resulted in a panic situation for the 2 nd Re-
spondent. In any case, the 2nd Respondent is a natural guardian of
the child, being the biological mother, and therefore, custody of
the child with the 2nd Respondent cannot be termed as illegal.
Therefore, we reject the submissions made on behalf of the Peti-
tioner that the 2nd Respondent has abducted the child.
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29. The 2nd Respondent is the biological mother of the child.
According to the 2nd Respondent, the child is breastfed even now.
Admittedly, the child was breastfed at least till August 2025, as
per the deposition of the Petitioner recorded on 22.10.2025 in the
U.S. Court, which reads as follows:
“In September 2022, the child and Petitioner were asleep.
Respondent woke both the child and Petitioner with her
shouting. The child cried, wanting to be fed. Respondent
ignored the child to slap and berate Petitioner. Petitioner
started to leave to get baby formula. Respondent slammed the
child onto the bed before starting to breastfeed the child.”
30. In fact, there are allegations made by the Petitioner that the
2nd Respondent used to get frustrated because the child required
more than her usual feed of 30 minutes. The said allegation in the
Petition before the U.S. Court reads as follows:
“14. On August 19, 2025, Anjali got frustrated with our three-
year-old child, who had requested to be breastfed more than
her usual feed of 30 minutes prior to sleeping in the night. As
a punishment, Anjali forcefully slammed her onto the bed
from two to three feet above. The incident caused our child to
have a cut on her lip. See Exhibit 7, Cut on Minor Child’s Lip.
This was the fourth time Anjali did so since Anagha’s birth, the
earliest incident of which occurred when Anagha was barely
five to seven days old.”
31. Therefore, there is a reason to believe that the 2nd Respon-
dent used to breastfed the child even till August 2025. As such, if
the child is being breastfed even till today, then the child would
naturally have a strong emotional and physical attachment to the
biological mother. If that is so, the custody of a girl child ought to
be with the biological mother. Even on this aspect, we are con-
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vinced that the Petitioner has suppressed the true and correct facts
in the present proceedings. If the Petition is based on the settled
principles of law that the welfare of the child is a paramount con-
sideration while granting custody, then the petitioner ought to
have made a clear statement in the Petition that the child is being
breastfed. This is also another suppression and mischievous at-
tempt on the part of the Petitioner to suppress all the material
facts.
32. We are not impressed by the argument of Mr. Jauhar that
the child is a native of the U.S., and that merely because the child
was born in the U.S. and remained there until 08.10.2025, the
child has become accustomed to the society, living standards, and
other aspects in U.S. While making this claim, the Petitioner has
suppressed the fact that the 2nd Respondent was a full time home-
maker. She is the one who was with the child at home and was
the child’s primary caretaker. There is no mention in the Petition
about the language that the child is speaking. The child speaks
Marathi (i.e., the mother tongue), and that has come on record
only in the reply of the 2 nd Respondent. There are no details in the
Petition or on the record about the society in which the couple
was living. There are no details of their friend circle or their pro-
fessional colleagues or even that of their neighbours, etc., who
would have influenced the child about the social aspect of the
U.S., to which, according to the Petitioner, the child was used to.
There is nothing on record to establish any of the allegations made
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by the Petitioner. On the contrary, the 2nd Respondent, being a bi-
ological mother of the child and she being a full-time home-
maker, was with the child and the child speaks Marathi. We,
therefore, do not agree with the submission of Mr. Jauhar that the
child is accustomed to life in the U.S. only because the she was
born in U.S. and holds U.S. citizenship.
33. There is another important fact which has invited our no-
tice. The Petitioner has not given any particulars about his job,
visa status, or details about his family in the U.S. or the details
and particulars of the society around the residences, where the
couple lived. These details and particulars are very important, es-
pecially when the Petitioner has stated that the child is used to the
living conditions in the U.S. These factors become relevant and
crucial when the 2nd Respondent has made allegations against the
Petitioner in respect of these issues. In the Petition, the Petitioner
has merely stated that the Petitioner started living at Salt Lake,
Utah, U.S. since 01.08.2023. The allegation of the 2nd Respondent
is that the couple has changed their residences during their stay in
the U.S. and it is an admitted position of fact that the child was
born in New York and thereafter, they shifted to Utah, U.S. There-
fore, it is not that the child is not used to living in changed circum-
stances. As such, the argument of Mr. Jauhar that the change of
place from the U.S. to India is not in the interest and welfare of
the child, cannot be accepted.
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34. As noted above, the Petitioner did not give a clear picture
in respect of his visa status. It was portrayed by the Petitioner that
the visa status of the Petitioner is stable and therefore, the child
would be secured in the U.S. In the reply, when it is disputed that
he has a limited duration of work visa, only then, the Petitioner
has produced an H-1B visa, which is valid up to 16.11.2028. How-
ever, it is important to note that after the allegation that the Peti-
tioner had a vulnerable visa status and had to manipulate many
things to maintain his visa even after termination of his service, it
was necessary for the Petitioner to deal with these allegations and
produce the complete record in respect of his stable visa status.
The Petitioner has chosen merely to deny the allegations of the 2 nd
Respondent. If the Petitioner was very sure of his visa status, then
there was no reason not to produce the relevant documents before
the Court. Admittedly, the couple has made an Application for a
‘Green Card’, and the application has been pending since 2016.
However, that cannot be a ground to allow the prayer made in the
Writ Petition since the visa of the Petitioner is valid only till No-
vember 2028. We cannot presume that his visa would be extended
beyond November 2028 and/or the Petitioner will be granted a
Green Card by the Authorities in the U.S. Therefore, merely be-
cause the child is a U.S. citizen, we cannot base our decision to
repatriate the child to the U.S. solely on that fact. If the visa status
of the Petitioner is not stable, then it would be highly risky to
repatriate the child to the U.S. Additionally, the 2nd Respondent
has filed a complaint with the U.S. Immigration against the Peti-
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tioner, which is pending investigation. It is the 2 nd Respondent’s
allegation that the Petitioner has manipulated facts and docu-
ments to obtain the visa. We are not getting into the veracity of
these allegations. However, we are of the opinion that, in this fac-
tual background, sending the child to the U.S. and giving custody
to the Petitioner will not be in the interest and welfare of the
child.
35. During the course of arguments, Mr. Jauhar has submitted
that even if the 2nd Respondent is not ready and willing to come
back to the U.S., the Petitioner is working remotely and therefore,
he can take care of the child. Additionally, it was submitted that
the Petitioner’s mother can also help the Petitioner to take care of
the child. We cannot accept this argument because of the fact that
the Petitioner may be working remotely today, but if, for any rea-
son, his working arrangements are changed, then there would be
no other option but to put the child in a day care centre. That cer-
tainly will not be in the best interest and welfare of the child. The
option suggested by the Petitioner that his mother could help the
Petitioner is an untenable submission because there is nothing on
record before us to show that the mother of the Petitioner is physi-
cally fit to take care of the child and she has a valid visa to remain
in the U.S., or if the visa is for a longer duration etc. Therefore, we
reject the submission of Mr. Jauhar on such count as well.
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36. Another most important fact which needs to be taken note
of is that the 2nd Respondent, after coming back to India, has filed
a complaint before the Goa Police under the POCSO Act. The alle-
gations in the complaint are very serious, which include that the
Petitioner has sexually abused the child. The Petitioner has stated
that this complaint is frivolous and made solely as a counterblast
to the Matrimonial Petition filed in the U.S. The Petitioner has
only stated that the 2nd Respondent has not made a single allega-
tion during their stay in the U.S. We cannot take these allegations
lightly even though the Goa Police has filed ‘A’ Summary report
before the POCSO Court. Admittedly, the POCSO Court has not is-
sued notice to the Petitioner on the ‘A’ Summary report filed by
the Goa Police. Therefore, the ‘A’ Summary report has not been
accepted by the POCSO Court as yet. We are not inclined to deal
with the other submissions of Ms. Agni against the ‘A’ Summary
report, as the matter is still pending before the POCSO Court.
However, the allegations are serious and the same were made by
the 2nd Respondent before the U.S. authority as well. The proceed-
ings in respect of these allegations are still pending in the U.S.
37. Another allegation of the 2nd Respondent, which the Peti-
tioner has merely denied, is that the Petitioner had threatened the
2nd Respondent that he would file divorce proceedings unless the
2nd Respondent signed a document containing 37 unilateral condi-
tions as preconditions for continuation of their marriage. Accord-
ing to the 2nd Respondent, this document was shared by the Peti-
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tioner through his email ID, [email protected] to her
cousin, viz., Mr. Prashant Kulkarni in his email ID, Pkkulka-
[email protected] on 05.06.2025 at 22:33 hours. The Petitioner
has merely denied this allegation. However, the contents of the at-
tachment to the email are important, part of which reads as fol-
lows:-
“1. Authority: I will be the final, absolute, undisputed
authority on any and all matters concerning our family and
household (**Barring fatal flaws or harm). I might choose to
grant you authority on a certain topic(s), but at no point is it
your dominion or nor the allowanced authority permanent or
irrevocable. So do not live under the delusion of shared
authority. I claim it all, forever. You may provide “counsel” as
and when needed, but authority is mine and mine alone. So
you comply, else goodbye.
2. Wife: you will actively strive to be a traditional
Dharmic/Hindu wife, to enable me to strive to be a traditional
Dharmic/Hindu husband. If you need text to guide you, buy
primary source text and absorb it. We are NOT gf/bf anymore,
nor will we EVER again be that. So do not hold unnecessary or
rose-tinted expectations that are going to also spoil our
daughter slowly (but surely!). Also, you are NO LONGER
Acharya or Puranic or any mix of it. Accept it and eliminate it
from all instances, including mentally, in writing, passport (we
will take care of it later), etc. To make it amply clear, you are
and will be: Anjali Aditya Bakaya, and that is it, unless we
divorce.
3. Principles: the overarching principles of my house will
be Dharmic. One shall totally comply, else goodbye. If we are
ever in confusion, we will resort to #1, until we can secure full
and final clarity from a Dharmic authority figure (w/
Adhikara).
5. My Daughter: ALL my decisions regarding her will be
final. Her upbringing, end to end, will be based primarily on
my choosing/my sampradaya. She is NOT your sister. ( **
Barring fatal flaws or harm) I am not her friend neither should
you be, we are her parents. Our Dharmic duty is to raise THE
next “Anagha” (one who is or at least aims to be sinless;
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will be very happy if she can truly emulate The Anagha. She
will neither be happy nor Anagha if she is raised purely
“gently”. That does not mean we have to be rude or harsh as a
default, but there is a pecking order on how to raise her and
gentleness is low on it in certain cases. Also, she will not be
Anagha Acharya Bakaya. That is a joke!
6. My son: irrespective of your desire to have a second
child, I have always wanted to have a son because (a) I need to
ensure my family lineage carries on, that I can shape and
mentor, and (b) dharmically only a son ought to light the pyre
of the father (rather parents), and absent that the aatman
cannot fully release from the karma-bhandhana of this janama.
I doubt I can have sex with you again in this lifetime. So I am
not sure what we (rather I) should do: adopt, have you do
artificial insemination using my semen, have it with another
brahmin woman, etc. If you have a clue, please share prior to
signing (assuming NO to usual sex).
8. Your parents+bro+SIL: you will always maintain a safe
distance from them, especially when it comes to Anagha. They
can have a healthy, personal relationship with her – she can see
and be with them, and vice-versa, etc. – no issues with that
ever. Just that they will not be allowed to have a “life-
influence” on her of ANY kind (we should, we ought, we think,
is meant to be, etc.). I don’t mind if your Hyderabad Masi
(Praful?) has an influence on her or Shruti’s mom has an
influence on her, but NOT your first family. Please!
9. Feminism: you will not introduce even a sliver of your
covert feminist mentality/ideology into my house or my family.
Patriarchy that abides by Dharma is the ONLY norm of my
family.
15. Temperament: always mellow for you (**Barring harm)
and mostly mellow for me, with exceptions where I might
become a bit hot, once in a long while. Please understand I am
a testosterone-driven entity. That said, it will NOT give me a
free pass ever to cross a line, but at least you don’t chop off my
testicles and adrenal glands every passing day. I want a wife
who is a woman/lady, not a man caged in a woman’s body who
wants to be treated like a lady for her own convenience and
benefits (only) and otherwise behaves like a man.
26. Mode of communication and frequency: you will
communicate to people only in English, Hindi, or Kashmiri.
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WPCR-141-2026-JR.docpick one of three I will allow you to use. If in the future I am
comfortable with you speaking in Kannada, Marathi, Konkani,
French, Portuguese, or sign-language. I will let you know. You
will not speak with your family more than once a week, for no
more than 15 mins. With non-family (except healers), you
cannot speak more than once in two weeks for a total
aggregate of 30 mins. If in the future I am comfortable with
you speaking with them or anyone else for a longer duration or
more frequently. I will let you know. FOCUS on your family,
MY FAMILY, first then deal with others.
27. Household stuff: this is your responsibility, not mine.
Period. 1 might choose to get involved in it as and when
needed (need to lift stuff, move stuff, bring/procure stuff, cook
during periods or illness, feed anagha when you are tied up,
mow lawn, fix car, shovel snow, trip garden, etc. – my list could
be endless) Irrespective of my full time, generally exhausting
job. You shall keep the house in proper order, end to end,
without slacking all the time and DO NOT blame it on your
poor daughter. You have messed up since 2018. It is despicable
of a mother to use their newborn/kid as a scapegoat for their
own lack of discipline, order, and all shortcomings !!
28. Food: cook at least four meals per week constituting
what I like (ask me if you are unsure). Salt as well as spices in
proper measure in meals (generally speaking). Each meal made
with haldi makes it come across as if we are all unhealthy and
in need of a quick recovery from the week-long hospital visit.
And you will make all the items the way they are meant to be
made. Not the way someone makes it on YouTube or your twist
on it (tea). If you have doubts – ask me and I will provide
clarity. Also adding one or 18 vegetables to a daal does not
enhance it in most cases. The lumpy end-product it creates is
off-putting and unappetizing.
33. Sex: we will likely have none, ever. I won’t have it with
someone else nor will you.
37. Final say: on all matters reaching a binary end-point
between your wish versus my wish, will be MINE. Period! ( **
Barring fatal flaws or harm). If there is still any confusion, look
at items #1 and #2.”
38. This email is merely denied by the Petitioner. However, if it
was in fact sent by the Petitioner, then considering the contents of
the email, we are of the opinion that it would not be in the
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welfare and best interest of the child to repatriate the child to the
U.S. and give custody to the Petitioner. This allegation requires a
deep investigation and we cannot do that in a writ jurisdiction.
39. The child is in Goa and has already been admitted to
Monovikas School. The child is living with her biological mother
and her grandparents. There is no issue of the accommodation of
the 2nd Respondent and the child. The child, being only 3½ years
old, must already have adapted to the living conditions and
standards at her grandparents’ place in a safe, secure and
nurturing environment. There is nothing contrary on record to
establish that the welfare of the child is not taken care of.
Therefore, we do not agree with the submissions of Mr. Jauhar
that only the environment of the U.S. is most habitually familiar to
the child and which affords the child, lifestyle, care, affection,
love, safety, security, social and cultural milieu, etc. and the child
has solely become accustomed to it. The child is merely 3 years
and 6 months old and can easily adapt to any environment when
the biological mother is with the child. In India, apart from the
child’s biological mother, the child is also with her grandparents.
This is another factor in the interest of the child. There is no
material on record produced by the Petitioner to show that any
physical, sexual, psychological, or mental harm can be caused to
the child by the 2nd Respondent in India.
40. In view thereof, we are of the opinion that there is no case
made out by the Petitioner for issuance of writ of Habeas Corpus
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in exercise of the extraordinary jurisdiction of this Court. There is
no adequate material on record so as to enable this Court to draw
the conclusion that the welfare of the child can be taken care of
only in the U.S. and only in the custody of the Petitioner. There is
also no material on record to convince this Court that the child
ought to be removed from the custody of her biological mother
and be repatriated to the U.S. to remain in the sole custody of her
father. We strongly believe that the welfare of the child,
particularly one who is being breastfed, can only be ensured with
the mother. Any exceptional circumstance, so as to take a contrary
view in the matter, are not present in this Case.
41. We have also noted that the 2nd Respondent has adopted
proceedings before the Court of Civil Judge Senior Division at
Margao, Goa, seeking custody of the child. The Petitioner has
questioned the jurisdiction of the Court to entertain the said
proceedings. We are not called upon to decide on the question of
maintainability of the civil proceeding. However, considering the
fact that the 2nd Respondent has invoked statutory remedy in child
custody matter, if the relief, as prayed for in this Writ Petition, is
granted to the Petitioner, then the proceedings initiated by the 2 nd
Respondent before the Court of Civil Judge Senior Division at
Margao, Goa, would be rendered infructuous. For this reason also
we are not inclined to exercise our discretionary jurisdiction in the
matter.
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42. For the reasons stated above, we are of the view that no
case is made out by the Petitioner for the issuance of a writ of
Habeas Corpus to repatriate the child. The prayer is accordingly
rejected and the Writ Petition is dismissed.
43. We clarify that our findings and observations made in the
present judgment are only for the limited purpose of deciding the
prayer made in the Writ Petition and the same shall not have any
bearing in the other pending proceedings by and in between the
parties. All other issues and contentions of the parties are kept
open for decision in the appropriate proceedings pending before
the Court of competent jurisdiction and in accordance with law.
44. The Rule is discharged.
45. No order as to costs.
(AMIT S. JAMSANDEKAR, J.) (SUMAN SHYAM, J.)
{
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