ORDER :

M.S. Karnik, J.

1. The present Writ Petition under Article 226 of the Constitution of India is preferred by the Petitioner-mother seeking production and restoration of permanent custody of the minor child aged about 4 years in her favour in terms of Section 6 of the Hindu Minority and Guardianship Act, 1956, wherein it is specified that ordinarily the mother should have the custody of the minor child, who is below the age of five years. It is the case of the Petitioner that her minor son is presently separated from her and that his best interest, lies in the care and custody of the mother. The Petitioner alleges that Respondent No.2 i.e. father of the minor child, has detained him in violation and contravention to the laws of India.

2. A custody Petition is pending trial before the Superior Court of California, County of Sonoma. The parties are presently within the jurisdiction of this Court. The Petitioner prays that in the interim, the custody be restored to her in accordance with laws in India and following the precedents laid down by the Hon'ble Supreme Court of India and those of this Court.

3. The Petitioner and Respondent No.2 are citizens of United States of America and holders of Overseas Citizen of India card (OCI, for short). The Petitioner married the Respondent No.2 on 17th July, 2017 at California, United States of America as per the local laws applicable in the State of California. The child was born on 19th February, 2019 in Paris. The Petitioner and the minor child reached Bangalore, during December, 2020 as the father of Respondent No.2, who was a Bangalore resident, had passed away in Brooklyn, New York, USA. Thereafter, the Petitioner and Respondent No.2 had planned for a vacation in Goa, India, in January, 2021. Due to the pandemic, the Petitioner had been working remotely.

4. It is the Petitioner's case that the Respondent No.2 has been inflicting violence upon her and her minor child since 2019 both physically and mentally. She says to have been treated with utmost cruelty at the hands of the Respondent No.2. On 16th July, 2022, the Petitioner along with her minor son had to flee to the United States of America for her safety and safety of her child as Respondent No.2 was violent and extremely abusive physically, sexually, verbally and emotionally. Due to the domestic violence and repeated physical assault, the Petitioner was constrained to file for a legal separation on 18th July, 2022, which is presently pending adjudication before the Superior Court of California, County of Sonoma. In the meantime, the Respondent No.2 had filed an application seeking custody of the minor son before the Superior Court of California, County of Sonoma on 26th August, 2022. The Petitioner filed an application seeking custody of the minor son before the same Court on 29th August, 2022. The matter is pending trial and the next date is listed as 3rd July, 2023.

5. It is then stated by the Petitioner that she was shocked to discover that the Respondent No.2 has with material concealment filed a Civil Miscellaneous Application No. 138 of 2022 on 12th August, 2022 titled “Anand Chandani vs. Ketaki Gokhale” before the Civil Judge, Junior Division Civil Court at Mapusa, Goa, seeking a declaration as a legal 'guardian' of the minor son under Section 7(1) read with Section 8(a) of the Guardians and Wards Act 1890 and permanent custody. The Petitioner filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) that the minor child was not an 'ordinary resident' of India. An objection was raised that at the time of institution of the Petition, as prescribed under Section 9 of the Guardians and Wards Act, 1890, the Petition is not maintainable and is liable to be dismissed. The same is pending adjudication.

6. The Superior Court of California vide Order dated 14th October, 2022, has granted temporary exparte custody of the minor child to the Respondent No.2. By Order dated 17th October, 2022, permission to