The welfare of the child is of paramount importance in determining custody. The court must consider all the attending circumstances and the totality of the situation on a case-by-case basis. Ex-parte orders from foreign courts may be considered but are not binding if they do not align with the child's best interests.

ORDER :

This writ petition by the mother of a minor, Master Advik Pradhan, aged 9 years is presented with following prayers:

a) Issue a writ in the nature of Habeas Corpus directing respondent nos. 6 and 7 to secure the release of Advik Pradhan and transfer his physical custody to the petitioner to enable the petitioner to act in the best and paramount interest of the child including to regulate his school education matters.

b) Issue any appropriate Writ Order/ Direction whereby Respondent no. 6 is directed to ensure safe return of Advik Pradhan to Germany.

c) Issue any other appropriate Writ. Order or Direction to ensure the compliance of the German Family Court, Essen order dated 28.07.2023 Annexure (G) which is passed in the best interest and welfare of Advik Pradhan.

d) Direct respondent No. 1 to 5 to provide all necessary aid, assistance and effective implementation of the directions of this Hon'ble Court in securing the presence of Respondent nos. 6 & 7 before this Hon'ble Court.

e) Pass any other order which this Hon'ble Court may deem fit and proper in the facts and circumstances of this case.

2. Heard Smt. Susheela, learned Senior Advocate for the petitioner and Shri. Karthik Kiran learned Advocate for respondents No.6 and 7.

3. Brief facts of the case are, petitioner-Archana and respondent No.6-Rajendra Kumar Pradhan[‘Rajendra’ for short] got married on 08.04.2010 in Orissa. Advik was born on 11.12.2013. Both husband and wife are IT professionals. In June 2016, they moved to Bangkok and both were employed there. In 2022, Archana and Rajendra decided to move to Germany for their better career prospects.

4. On 19.07.2023, on the pretext of taking Advik to a park, Rajendra boarded a flight to Dubai en route India. Rajendra did not receive Archana’s phone calls. Archana informed the local authorities in Germany, but due to the tedious process there was no timely response.

5. On 24.07.2023, Archana sent an e-mail to the Commissioner of Police, Bengaluru complaining inter alia that on 19.07.2023, Rajendra had boarded a flight with Advik and rendered himself for action under IPC as well as Hague Convention on Child Abduction; and requested to register an FIR. She also approached the Karnataka Human Rights Commission and Commission for Protection of Child Rights.

6. Archana got issued a legal notice dated 22.07.2023 calling upon Rajendra to return to Germany forthwith along with Advik and to restore child’s custody to her.

7. On 28.07.2023, Archana approached the Family Court in Germany and obtained an ex-parte interim order with regard to place of child’s residence and the school. Subsequently, on 10.08.2023, she has presented this Writ Petition.

8. Smt. Susheela, for the petitioner, contended that:

in a case of this nature Courts will have to protect child’s interest and welfare. The child was studying in a school in Germany and he has been removed illegally by the husband. The child has its intimate contact with the environment in Germany;

before shifting to Germany, Advik was studying in Bangkok. Both husband and wife had taken a conscious decision to move to Germany for their career prospects and better education of Advik as education standards in Germany are far superior when compared with Thailand;

Advik is aged 9 years and requires the care, love and affection of both parents. Rajendra has stealthily removed Advik from Germany. The jurisdictional Court in Germany has ruled that the right to determine child’s place of residence and school was transferred to mother.

As per the settled law, the Child has to be returned to the country of his ‘habitual residence’ on the principle of ‘Comity of Courts’ for the determination of child’s best interest; petitioner is the natural guardian and therefore, Advik should be handed over to her as per Section 6 of Hindu Minority and Guardianship Act, 1956.

after the Writ Petition was filed, Rajendra had moved to Bangkok along with the child.

9. With the above submissions and placing reliance on the aut