The Bombay High Court has dismissed a father’s habeas corpus plea, ruling that custody disputes cannot be addressed under habeas corpus unless the child is in illegal detention. The Court emphasized the child’s welfare and settled life in Germany.
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MUMBAI: The Bombay High Court has dismissed a writ petition seeking a writ of Habeas Corpus for the production and custody of a six-year-old boy currently residing in Germany with his mother. The Court held that the child’s custody with his mother was neither unlawful nor illegal, and that his best interests lie in continuing his life in Germany, where he has lived since infancy.
The Division Bench comprising Justice Ravindra V. Ghuge and Justice Gautam A. Ankhad ruled that habeas corpus jurisdiction cannot be invoked in custody disputes unless the child is in illegal or unlawful detention.
Background of the Case
The Petitioner, an Indian citizen, married Respondent No. 2, a German citizen, on March 4, 2017, in Goa. Their son was born on May 25, 2019. In January 2020, the mother travelled to Germany with the child to visit her family. Due to the outbreak of the COVID-19 pandemic and global travel restrictions, they could not return to India.
The father visited the child only once, in March 2022, in Germany. Subsequently, in March 2024, the mother initiated custody proceedings before the District Court at Würzburg, Germany. Although the father was served with summons, he chose not to participate in those proceedings.
The mother and child briefly returned to India between July 26, 2024, and August 27, 2024, after which they went back to Germany. Soon thereafter, the father filed the present writ petition before the Bombay High Court in September 2024, alleging illegal removal of the child from India.
Meanwhile, the Würzburg Court passed an interim custody order on December 16, 2024, followed by a final order dated August 18, 2025, granting sole custody of the minor to the mother.
Arguments Before the Court
Petitioner’s Arguments
Appearing for the Petitioner, Senior Advocate Mr. Aman Hingorani argued that:
- The child was originally an Indian citizen and a permanent resident of Gondal, Gujarat
- The mother allegedly fraudulently obtained a German passport for the child by declaring herself “single” and surrendering the Indian passport
- The child was illegally removed from India on August 27, 2024
- German courts lacked jurisdiction as the marriage was solemnized under Hindu law in India
Relying on Elizabeth Dinshaw v. Arvand Dinshaw and Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, the Petitioner sought restoration of status quo ante, i.e., return of the child to India.
Respondent’s Submissions
Opposing the petition, Advocate Mr. Vikramaditya Deshmukh contended that:
- The child has been residing in Germany since he was eight months old, making it his natural and settled environment
- The German passport was validly issued since the mother is a German citizen by birth
- The Petitioner failed to challenge the German custody orders or initiate proceedings under the Guardians and Wards Act, 1890, or the Hindu Minority and Guardianship Act, 1956
He relied on Supreme Court judgments in Nithya Anand Raghavan v. State (NCT of Delhi) and Jose Toral v. State of West Bengal, arguing that habeas corpus is not maintainable where the child’s custody is lawful and whereabouts are known.
Court’s Analysis and Observations
The Bombay High Court reiterated that in child custody matters, the paramount consideration is the welfare and best interests of the child.
On the scope of habeas corpus, the Bench observed:
“The scope of a petition seeking a writ of habeas corpus is limited to tracing out an individual who is alleged to be missing or securing the release of a person from unlawful restraint… There is nothing on record to indicate that Respondent No. 2 is exercising unlawful custody over the minor.”
The Court noted that the minor has been residing continuously in Germany since January 2020 and is now a German national. It held that the custody order passed by the Würzburg Court, granting sole custody to the mother, could not be ignored or brushed aside by the Indian court.
The Bench further observed that allegations relating to the fraudulent procurement of the German passport could not be examined within the limited scope of habeas corpus jurisdiction. The Court also took note of the interaction between the child and the German judge, during which the minor expressed reluctance to visit or stay with the father.
The Court held that the principle of status quo ante was inapplicable, as the mother had not acted illegally.
Dismissing the Criminal Writ Petition, the Bombay High Court held:
“The custody of the minor is with the mother, who is also the natural guardian. The Würzburg Court also permits it and hence the custody cannot be characterized as illegal.”
However, the Court directed that:
“Respondent No. 2 shall continue to facilitate video calls for the Petitioner and his family members.”
The Bench clarified that its observations were limited to deciding the maintainability of the habeas corpus petition and would not prevent competent courts from adjudicating custody disputes in the future under appropriate laws.
Case Title:
Jyotirmaysinhji Upendrasinhji Jadeja vs. The State of Maharashtra And Anr.
Criminal Writ Petition No. 2540 of 2025
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