“He Shall Not Be Forced to Live by a Decision Taken by Somebody Else”: Bombay High Court Allows 15-Year-Old to Stay with Father, Denies Habeas Corpus Relief to Mother
Sanchayita Lahkar
The High Court of Bombay at Goa Division Bench of Justice Bharati Dangre and Justice Nivedita P. Mehta disposed of a writ petition seeking a writ of habeas corpus in relation to the custody of a 15-year-old minor. The Court declined to direct restoration of custody to the petitioner and permitted the minor to continue residing with his father, noting that he had expressed a clear decision to remain in his father's company.
The petitioner mother residing in Canada, filed the petition under Section 528 of the Bharatiya Nyaya Suraksha Sanhita, 2023, alleging that her son was unlawfully removed from her custody by his father, respondent no. 4, who resides in Goa. The petition named state police authorities as respondents 1 to 3.
Following the mutual divorce of the parties in 2019, a parenting agreement was recorded in a decree of divorce from the Panaji court, which stated that both children from the marriage would remain under the legal custody and guardianship of the mother. The father was entitled to eight weeks of custody each year. The mother moved to Canada with the children, where they have resided since 2019. The child was studying in Grade 10 in Ontario at the time of the petition.
The petitioner alleged that the father had previously filed contempt proceedings due to disagreements regarding summer vacation arrangements, which were resolved through a settlement order dated 01.07.2024. On 22.07.2024, the father took custody of the child in Canada with the promise to return him on 30.08.2024. Upon the child's return, the mother discovered that his passport was missing and later found that the father had allegedly procured a new passport using false information.
On 05.03.2025, the father reportedly communicated his intention to take the child to India for a short vacation. Despite the mother's objection, the father took the child to India. The petitioner claimed this act amounted to premeditated abduction, violating court-ordered custody arrangements.
The petitioner's counsel, Senior Advocate Ms. Arundhati Katju, argued that the case involved "parental alienation" and that the child had been performing well in Canada. She contended that removing the child from this environment was detrimental to his welfare.
In contrast, Respondent no. 4’s counsel, Senior Advocate Mrs. A. A. Agni, argued that the child had willingly accompanied his father and expressed a clear preference to remain in India. She submitted documentation from Ontario Virtual School, affirming that the curriculum offered would allow the child to continue his Grade 10 studies online without disruption to his academic progress.
The court considered whether a writ of habeas corpus was maintainable when a biological parent retains custody, especially in the absence of immediate threat to the child’s welfare. The Bench stated, "Since it is the case of the Petitioner that the child has been removed from her custody and brought in India, while exercising our writ jurisdiction... we must be guided by predominant consideration, that, the decision must be in the best interest of the child."
The court observed that the child, nearing 16 years of age, was mature and capable of making informed decisions. "In our interaction with him, we found him to be firm in his view that he wanted to be with his father and we were repeatedly told by him that he had accompanied his father on his own will and he shall not be forced to return back to Canada and be in the company of the mother."
The judges noted that adolescence is a phase marked by the need for autonomy and self-determination: "Adolescence is a time for exploring one’s identity, values, beliefs and often leading to a search of independence and autonomy." The court also referenced multiple messages from the child expressing displeasure with his mother's actions and asserting his preference to stay with his father.
The court considered prior decisions from the Supreme Court including Prateek Gupta vs. Shilpi Gupta, Yashita Sahu v. State of Rajasthan, Nilanjan Bhattacharya vs. State of Karnataka, and Kanika Goel v. State of Delhi, reiterating that the child's welfare is of paramount importance in determining custody.
The Bench recorded, "We do not intend to put him in a situation, which would cause him any physical, emotional or psychological harm and it would not be definitely in his interest." The court acknowledged that while the mother's concern for education was valid, "we permit the said pursuit to be followed in continuing his studies though he is ten weeks away of completing his tenth grade" via Ontario Virtual School.
The court refused to grant the relief sought by the petitioner to return custody of the child but maintained the original custodial agreement. It stated: "While we refuse the relief in favour of the Petitioner in restoring the custody of the child to her... he shall still continue to be under her legal custody and guardianship till he attains the age of majority as per the consent decree passed by the Court at Panaji in the Matrimonial Petition."
The court also directed that the child shall complete his Grade 10 studies through Ontario Virtual School. The petitioner was instructed to cooperate in facilitating the transfer: "The Petitioner shall render her cooperation which may include signing necessary papers permitting him to shift from Port Credit Secondary School to the virtual school."
Further, the court directed respondent no. 4 to facilitate regular meetings between the child and his mother: "He shall be in the company of his mother either in Goa or as agreed as and when occasion arises, at any place mutually agreed amongst themselves."
Advocates Representing the Parties
For the Petitioner: Senior Advocate Ms. Arundhati Katju, with Ms. Caroline Collasso
For Respondents: Senior Advocate Mrs. A. A. Agni, with Ms. A. Harihar. Additional Public Prosecutor Mr. Pravin Faldessai
Case Title: XXXX v. State of Goa & Ors.
Neutral Citation: 2025: BHC-GOA:708-DB
Case Number: Criminal Writ Petition No. 268 of 2025 (F)
Bench: Justice Bharati Dangre and Justice Nivedita P. Mehta
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