JUDGMENT

J.B. Pardiwala, J.

This writ petition under Article 32 of the Constitution of India involves a contest over the custody of children born out of the wedlock between the petitioner-mother and the respondent no.2-father. The respondents nos.4 and 5 respectively are the brother and father of the respondent no.2.

2. The petitioner-mother has prayed for the following reliefs :

“(a) Issue an appropriate writ, order or direction in the nature Habeas Corpus to the Respondent No.1 to immediately trace and produce the minor children Lakshaya Ganesh and Bhavin Sai Ganesh before this Honble Court and deliver their custody to the Petitioner Mother so as to repatriated them to the U.S. in compliance with the Order passed by the U.S. Court dated 30.07.2021.

(b) issue a direction to the Respondent No.3/Director of CBI to trace the minor children Lakshaya Ganesh and Bhavin Sai Ganesh and to produce them before this Honble Court, since the Respondent No.2 is not traceable.

(c) issue an appropriate writ, order or direction in the nature Habeas Corpus to Respondent No.2 to cooperate with anyone appointed by the Petitioner Ex-Wife to transport the minor children Lakshaya Ganesh and Bhavin Sai Ganesh to the United States within a time frame;

(d) Pass such other order or further orders and directions as this Honble Court may deem fit and proper in the facts and circumstances of the case and in the interest of justice.”

3. The case put up by the petitioner-mother may be summarised as under :

4. The marriage between the petitioner and the respondent no.2 was solemnized on 31st October 2008 as per the Hindu rites and rituals at Chennai, India. Within one month from the date of the marriage, the parties migrated to the Bear, Delaware, USA.

5. The respondent no.2, at the relevant point of time, was working with the Satyam Computers. Sometime in May 2009, the parties were constrained to return to Chennai, India, as the project that the respondent no.2 had been working on with the Satyam Computers got terminated on account of some internal issues in the company.

6. On 7th October 2009, the parties were blessed with a daughter named Lakshaya Ganesh. It appears from the materials on record that sometime in January 2012, the respondent no.2 was able to secure a job in Kansas, USA. Since 2012, the parties have been residing in the USA.

7. It further appears that between April 2012 and November 2012, the respondent no.2 lost several jobs, and in such circumstances, the parties had to shift from Kansas, USA, to Boston, Massachusetts, USA. Sometime later, they shifted to Findlay, Ohio, USA. In January 2012, the minor daughter Lakshaya Ganesh started her preschool at the Owens Day Care, Findlay, Ohio, and thereafter, was admitted to a kindergarten at the Lincoln Elementary School, Findlay, Ohio. While the minor daughter Lakshaya was studying in the kindergarten, the teachers over there noticed that Lakshaya was a gifted child, i.e. a child with a remarkable IQ level. The parties were blessed thereafter with a son named Bhavin Sai Ganesh on 20th July 2013 at the Blanchard Valley Hospital, Findlay, Ohio. The minor son Bhavin Sai Ganesh is a U.S. citizen by naturalization and holds an American passport.

8. In March 2016, the petitioner cleared her GRE and TOEFL and secured admission in the Cleveland State University Ohio, USA. The respondent no.2, on the other hand, lost yet another job.

9. It is the case of the petitioner that she started living in a room with eight other girls and her minor children. She attended the university and had to take up two jobs to feed and take care of herself and her minor children.

10. By December 2016, both the children started going to school. It is her case that she used to take care of her children in all respects. Sometime in August 2016, the respondent no.2 moved for yet another job to Milwaukee, Wisconsin, and in such circumstances, the petitioner had to stay all alone with the minor children and take care of them.

11. In May 2018, t