Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Online)(Guj) 8439

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
N. S. Sanjay Gowda, D. M. Vyas, JJ
Tillana Shripal Shah – Appellant
Versus
State Of Gujarat – Respondent
R/SPECIAL CRIMINAL APPLICATION (HABEAS CORPUS) NO. 17368 of 2025|CRIMINAL MISC.APPLICATION (DIRECTION) NO. 1 of 2026 In R/SPECIAL CRIMINAL APPLICATION NO. 17368 of 2025

Advocates:
For the Appellants/Petitioners: D. C. Dave, Harsh N. Parekh
For the Respondents: Manan K. Paneri, Monali Bhatt, Anil Malhotra

In habeas corpus petitions for child custody, the welfare of the minor, considering their habitual residence, psychological stability, and physical well-being, is the paramount concern, overriding any claim of legal guardianship by a parent during unauthorized removal of the child.

Headnote:(A) Writ of Habeas Corpus - Custody of minor child - Principle of best interests of the child - Habitual residence - Writ petition is maintainable when a child of tender age is removed from their habitual residence by one parent without the other’s consent during ongoing custody proceedings, with the child's welfare as the paramount consideration, overriding technical/legalistic arguments. (Paras 67, 69, 70, 78)

(B) Custody - Unlawful removal - If a child is habitually resident in a specific jurisdiction and is removed therefrom by a parent without the consent of the other, such custody is considered unlawful, and the court may pass orders for the return of the child to ensure continuity in the child's upbringing, stability, and development. (Paras 61, 62, 72)

Facts of the case:
The parents, involved in matrimonial discord in their country of residence, were litigating custody. The father, without the mother's consent, took their minor child from their habitual residence to another country during the pendency of these proceedings. The mother sought a writ of habeas corpus directing the return of the child to her custody, contending that she was the primary caregiver and that the unauthorized removal was detrimental to the child's welfare.

Findings of Court:
The court observed that the removal was unauthorized and against the child's established environment. Being in the mother’s sole custody for a significant period following the separation, the sudden displacement to a foreign environment would cause psychological trauma and negatively impact the child's upbringing and stability.

Issues: The main issues were whether the removal of the minor from their habitual residence without the other parent's consent rendered the custody unlawful, and whether the best interests of the minor necessitated an immediate return to the prior jurisdiction.

Ratio Decidendi: The principle of the welfare of the child is paramount in custody matters, transcending the legal status or rights of either parent under personal law. Unauthorized removal of a child from their habitual residence during ongoing litigation necessitates restoration of the status quo to protect the child from trauma and ensure their overall development.

Result: Petition allowed. The custody of the child is held to be unlawful, and the father is directed to immediately restore the child to the custody of the mother.

Table of Content
1. establishing factual background and undisputed custody history. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8)
2. analysis of events and court orders in ontario regarding habituality and child removal. (Para 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34)
3. procedural history of the petition before the high court. (Para 35 , 36 , 37 , 38 , 39 , 40 , 41)
4. summary of rival contentions regarding jurisdiction and child welfare. (Para 42 , 44)
5. determining unlawful custody based on voluntary abandonment and foreign court orders. (Para 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60 , 61 , 62)
6. legal framework and precedents regarding custody and child welfare. (Para 65 , 66 , 67 , 68 , 69)
7. applying best interest of the child to determine necessity of repatriation. (Para 70 , 71 , 72 , 73 , 74 , 75 , 76 , 77 , 78 , 79)
8. final order directing return of the child to the mother. (Para 80 , 81)

CAV JUDGMENT

(PER : HONOURABLE MR.JUSTICE N.S.SANJAY GOWDA)

INDEX

Sr. No.	Section	Page No.
I.	INTRODUCTION	3-4
II.	CHRONOLOGY OF EVENTS UPTO THE INITIATION OF PROCEEDINGS BEFORE THE CANADIAN COURTS	4-10
III.	CHRONOLOGY OF EVENTS AFTER THE INITIATION OF LEGAL PROCEEDINGS IN THE ONTARIO COURTS	11-24
IV.	CHRONOLOGY OF EVENTS BEFORE THIS COURT	24-26
V.	CONTENTIONS ADVANCED BY THE MOTHER	24-29
VI.	CONTENTIONS ADVANCED BY THE FATHER:	29-31
VII.	QUESTIONS WHICH ARISE FOR CONSIDERATION IN THIS PETITION	31
VIII.	Re: QUESTION (A):	31-43
IX.	Re: QUESTION [B]:	43-44
X.	POSITION OF LAW REGARDING CUSTODY MATTERS OF MINOR CHILDREN WHO ARE RESIDENTS OF A FOREIGN COUNTRY	-64
XI.	APPLICATION OF THE PROPOSITION OF LAW TO THE FACTS OF THIS CASE:	64-69
XII.	CONCLUSION	69-70

I. INTRODUCTION

1. Tillana Shripal Shah (hereinafter referred to as ‘the mother’) has filed this petition against her husband Shrippal Shreyaskumar Shah (hereinafter referred to as ‘the father’) and has sought for issuance of a writ of habeas corpus and for a direction to be issued to the State and to the father to produce Shriyan Shripal Shah (hereinafter referred to as ‘the son’) and to set him at liberty.

2. She has also prayed that the father be directed to hand over the passport of the son to her and for handing over the custody of her minor son to her, since she is the legal custodian of the son as per the orders of the Ontario court of Justice.

3. The facts, as gathered from the pleadings and from the arguments that were advanced, which are not in serious dispute, are stated in a chronological manner, as follows:

II. CHRONOLOGY OF EVENTS UPTO THE INITIATION OF PROCEEDINGS BEFORE THE CANADIAN COURTS

a) On 21.09.2018, the father and mother got married at Toronto, which is situated in the province of Ontario in Canada. A record of the solemnization of marriage has been produced. In fact, it is admitted in paragraph 3.1 of the petition that the marriage was solemnized on 21.09.2018 as per the civil law in Canada.

b) On 11.05.2020, the son was born in Canada, and by virtue of being born in Canada, he is, admittedly, a naturalized citizen of Canada by birth.

c) In 2021, the son was issued with an Overseas Citizen of India Card (OCI card), as a result of which, he has a lifelong visa to enter India.

d) In May, 2022, the mother along with the son came and stayed in India till September, 2022 and in September 2022, the father also came down to India and all of them stayed in India till November, 2022 and all of them thereafter returned to Canada.

e) In March, 2023, the mother came down to India and stayed here for a month i.e., till April, 2023 and thereafter returned to Canada.

f) It appears thereafter that marital discord set in between the couple and this ultimately resulted in an e-mail being sent by the father to the mother on 23.03.2024 (which is produced as Annexure-A1 with the affidavit-in-rejoinder). It would be useful to extract the entire conten

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2026 Supreme(Online)(Guj) 8439

In habeas corpus petitions for child custody, the welfare of the minor, considering their habitual residence, psychological stability, and physical well-being, is the paramount concern, overriding any claim of legal guardianship by a parent during unauthorized removal of the child.

Cases Referred (1)