Mumbai: The Bombay high court on Wednesday dismissed a petition filed by a UK-based father to return his minor child, who was allegedly illegally brought to India by the estranged mother and continues to remain in India, in violation of the 2023 order of a Family Court in England to bring the child back.The HC division bench of Justices Sarang Kotwal and Sandesh Patil, who pronounced the judgment on April 29, said the child was brought to India in 2023, aged 9, and has expressed a desire to remain in India with the mother. The HC also said if the dad is permitted to take his child to UK and if the child’s mother’s stay in UK is not assured with reasonable certainty as the husband had withdrawn his consent for her stay there, then there is a real possibility that the child may not see her for a very long time which would not be in the child’s best interest and an “irreparable emotional loss to the child.”The HC said it considered the best interest of the child as paramount, and the practical difficulty faced by the child’s mother in returning on her own. The child was getting a good education in India, and the child’s stay or custody with the mother could not be held to be unlawful, the HC ruled. The father can always visit India and meet the child, the HC held. The couple married in 2008 and shifted to the US, where in 2014 their child was born, and in 2019, the father, upon getting a job in the UK, shifted with the family. In 2021, differences arose between the parents and the father alleged that the wife took away their child to India without his knowledge or consent.The mother filed for divorce in the Bandra family court and applied to restrain the father from taking away the child.The father’s plea, argued by advocate Avani Bansal, sought a writ of habeas corpus against the State government (to produce a person from illegal custody), to produce his minor child before the HC, and to have the mother return the child to the UK. The mother, represented by advocate Wesley Menezes, said the circumstances in which she had left the UK must be considered, as her visa was revoked and the UK Home Office asked her to leave the country in July 2023.The HC, after interacting alone with the child on April 8, expressed a desire to stay in India and said the child would try to have a dialogue with the father. The HC observed, “Considering the issues between the parties, there is real apprehension that she (the mother)would always be at the mercy of the Petitioner in UK for her valid stay” and also said another reason to dismiss the father’s plea is the mother’s contention that the father was not giving the consent necessary for the renewing the child’s US passport, making things difficult for both. Since the child was in the UK, Courts of England and Wales had primary jurisdiction in the matters of parental responsibility over the children under the 1996 Hague Child Protection Convention, was the father’s case. The mother in turn said the dad lived alone in the UK and is not keen to facilitated her getting a valid UK visa for her to stay their.
