In child custody matters, the welfare of the child is paramount, and custody arrangements by foreign courts must be respected despite opinions regarding jurisdiction.

JUDGMENT :

GAUTAM A. ANKHAD, J.

1. Rule. Rule is made returnable forthwith and the matter is heard finally with the consent of the parties.

2. The Petitioner is an Indian citizen. Respondent no.2 is his wife and a citizen of Germany, holding a German passport. The Petitioner has filed this Petition under Article 226 of the Constitution of India seeking a writ of Habeas Corpus for the production and custody of his six-year-old son, who is presently in Germany with Respondent no.2. The Petitioner seeks the following reliefs:

“a.The Hon’ble Court, by exercising powers under Article 226 of the Constitution of India, may be pleased to direct the Respondent No.2 to produce their son, i.e. the minor child XYZ before this Hon’ble Court; (name is masked)

b.The Hon’ble Court, by exercising powers under Article 226 of the Constitution of India, may be pleased to restore the custody of his son, i.e. the minor child - to the Petitioner.”

3. The relevant dates for the purpose of this Petition are as under:

a. The marriage between the Petitioner and Respondent no.2 was solemnized on 4^th March 2017 at Goa and a marriage certificate was issued under the Gujarat Registration of Marriage Act, 2006. Neither party has filed petition for divorce in any jurisdiction.

b. On 25^th May 2019, the couple was blessed with a son. The parties applied for and obtained an Indian passport (no. T9810309) for the minor, which was valid until 19^th November 2024.

c. On 29^th January 2020, Respondent no.2 travelled to Germany with the minor to visit her family residing there. Travel restrictions due to Covid-19 were imposed in March 2020. Respondent No.2 and the minor did not return to India. However, the Petitioner visited them in Germany once in March 2022, once the travel restrictions eased.

d. On 28^th March 2024, Respondent no.2 has initiated custody proceedings before the Würzburg District Court in Germany. Summons was issued to the Petitioner, but he did not participate in these proceedings. Respondent no.2 visited India between 26^th July 2024 and 27^th August 2024, along with the minor. Apart from this brief visit, Respondent no.2 and the minor have continued to reside in Germany.

e. The Würzburg Court by its order dated 18^th September 2024 initially appointed a procedural guardian, Mrs. Ulrike Hubmann, in accordance with German law. The scope of her duties involved representing the interests of the minor in the custody proceedings.

f. Around 21^st September 2024, the petitioner filed the present petition. On 11^th December 2024, this Court passed the following order:-

“1. In the Writ Petition filed for production of the Corpus, the minor child, who according to the Petitioner has been allegedly removed from his custody and taken to Germany by Respondent No.2, she has marked her appearance through the learned Counsel Mrs. Mrunalini Deshmukh, who has advanced arguments traversing the accusations in the Petition.

However she is desirous of filing Affidavit in Reply, which we permit to be filed, on or before 08/01/2025, with a copy to be served in advance upon the learned counsel for the Petitioner.

Upon the Affidavit being filed, Petitioner is at liberty to file Rejoinder,