The welfare of a minor child is of paramount importance, and custody should generally remain with the mother unless proven harmful, reaffirming the 'tender years rule.'

JUDGMENT :

A.Y. KOGJE, J.

1. RULE. Learned Additional Public Prosecutor waives service of rule on behalf of the respondent No.1-state and learned Advocate Mr.Mihir Joshi, Senior Counsel with learned Advocate Mr.Shashvata U. Shukla waives service of rule on behalf of the respondent Nos.2 and 3.

2. This petition under Article 226 of the Constitution of India is filed with following reliefs:

“(A) Under the facts and circumstances explained above, it is prayed that this Hon’ble Court may be pleased to issue a writ or order or direction more particularly one in the nature of Writ of Habeas Corpus directing the Respondent No. 1 Police Authorities to produce the minor daughter Souumya (DOB 28.01.2020) of the Petitioner, who is a permanent resident and a citizen of the USA by birth before this Hon’ble Court, who is at presently in the unlawful detention of Respondent No. 2, and cause return of the said minor daughter Souumya to the jurisdiction of the US Court in compliance with the Orders dated 23.06.2023 and 19.07.2023 passed by the District Court, 4th District, State of Minnesota, County of Hennepin to enable the minor daughter to go back to US and if they fail to do so within a fixed time period, Respondent No.1 be directed to immediately handover the custody of the said minor child to the Petitioner to enable him to take the minor child back to the jurisdiction of US Court; and pass such other order or orders as this Hon'ble Court may deem fit and proper in the interest of justice.

(B) Your Lordships may be pleased to pass any other appropriate Order that this Hoh'ble Court deems fit, in the interest of justice.”

3. Learned Advocate for the petitioner submitted that the Petitioner is filing the present Writ of Habeas Corpus seeking repatriation of the minor daughter Souumya, who is a US Citizen back to the US pursuant to the Orders dated 29.06.2023 and 19.07.2023 passed by the District Court, 4th Judicial District, Family Court Division, State of Minnesota, County of Hennepin, US. The Petitioner submits that it is in the welfare and in the interest of the minor child to be repatriated to US since the minor child from the inception of her birth i.e. 28.01.2020 till 10.02.2023 has stayed in the US.

3.1 It is a case where the Petitioner herein, who is an Indian citizen, shifted to USA in August, 2009 and was initially staying in Boston, USA and thereafter, shifted to New Jersey in the year 2011. The Petitioner has a Masters in Pharmaceutical Sciences and is currently working as a Senior Scientist with Upsher Smith Labs at Minnesota, USA. It is the second marriage of both the parties. The Petitioner met the Respondent No.2 through common friends in March, 2018 and the Respondent No.2 prior to the marriage came to US only with the intent to interact with the Petitioner in the month of May, 2018. The Respondent No.2 even prior to the solemnization of the marriage, which was solemnized in the US, stayed with the Petitioner at their Matrimonial Home in the US for approximately four months prior to their marriage. It is submitted that respondent No.2 and her parents knew the fact that respondent No.2 had to settle in the US because of the work of the Petitioner and that is the reason that the Respondent No.2 stayed in a live-in relationship with the Petitioner approximately four months prior to the marriage and therefore, there was always the intention of the Respondent No.2 to settle permanently in the US.

4. That the parties got engaged at the respondent No.2’s aunt house in Florida on 29-05-2018. Finally, the Responde