ORAL ORDER

(PER : HONOURABLE MR. JUSTICE RAJENDRA M. SARREN)

1. This petition is filed under Article 226 of the Constitution of India, wherein the petitioners have prayed to issue a writ of Habeas Corpus directing respondent No.2 to produce corpus – Prayag Gaurangbhai Patel being respondent No.6 from the custody of respondent Nos. 3 to 5 before this Court and hand over the custody to the petitioners being legal guardians.

2. Heard learned Senior Counsel Mr. Asim Pandya with learned advocate Mr. Vicky B. Mehta for the petitioners, learned advocate Mr. Chirag B. Upadhyay for respondent Nos. 3 to 5 and learned advocate Mr. Hardik Soni for respondent Nos. 1 and 2.

3. On 02.05.2022, this Court has passed following order;

“Today, the Corpus is present with the grandparents and respondent-mother is also present with her family members. It has been clarified that holidays at Manali with paternal aunt is not feasible. Child has also shown willingness to be with mother from 2.5.2022 to 15.5.022. Afterwards, he shows inclination to go to the grandparents and he is clear about studying further with the grandparents. However, we have also at the request of mother, for a longer holidays with her, asked the child if he is keen to spend some more time from 16th May, 2022, it shall be intimated to the grandparents by the Corpus himself and at the best the same can be extended till 26.5.2022.

This shall be exclusively the volition of the child and no one shall be compelling him to extend this period. In the meantime, we have proposed the mediation to both the parties noticing that the elder members of the families and the child are the suffers because of the disputes. Let this be worked out where the father of the Corpus also shall remain present from Australia through video conference by referring the matter to High Court Mediation Centre during the holidays. The Officer, Incharge of Mediation Centre shall ascertain the convenience of both the parties and accordingly he shall fix the date for this. While the child is with the mother, on regular basis he shall contact the grandparents for his well being. He is also permitted to establish his contacts with his father through his ipad.

Today his personal belongings can be collected from the grandparents residence.

Let the report from Mediation Centre reach this Court on 13.6.2022.

Matter is now posted on 13.6.2022”

4. It is the case of the petitioners that their Son and respondent No.3 are husband and wife, and corpus was born on 24.05.2010 out of said wedlock. At that time son of the petitioners and respondent No.3 were residing in joint family with the petitioners. Minor corpus was admitted in ASIA English School. As per the case of the petitioners, at the instance of respondent No.3, the son of the petitioners informed them that they want settle in Australia.

4.1 On 27.11.2015, son of the petitioners and respondent No.3 along with minor corpus travelled to Australia. After residing there for 8 months, respondent No.3 along with the corpus came back to India and informed the petitioners that on account of job, they are not able to take proper care of corpus and corpus was handed over to the petitioners. Thereby, from 07.08.2015, corpus was with his Grand parents being present petitioners. He was admitted in I D Patel School and after passage of time, corpus was more comfortable staying in India with his Grand parents rather than Australia. The corpus along with the petitioners also visited the Australia in the year 2019. 4.2 It is also submitted that on account of fact that respondent No.3 was living materialistic life, the dispute arose between son of the petitioners and respondent No.3. In 2021, respondent No.3 left home leaving behind the corpus and her husband alone. From 15.02.2021 till 03.03.2021, minor corpus and his father stayed alone but respondent No.3 denied to join them due to dispute between husband and wife. As a result of which, corpus along with his father travelled back to the India and