Bombay HC Rejects Mother's Habeas Corpus Plea After 10-Year-Old Son Expresses Desire To Stay With Father

Mumbai: In a sensitive custody dispute involving a 10-year-old boy caught between estranged parents, the Bombay High Court has refused to hand over the child’s custody to his mother, noting that the boy clearly expressed his desire to stay with his father.

“He specifically told us that he wishes to reside with his father and not with the petitioner (mother),” the court observed after personally interacting with the child.

The court also noted the boy’s apprehension that “he is always under a constant fear that the Petitioner may take him away from his father and that he may not be able to meet his father again.”

A division bench of Justices Sarang Kotwal and SM Modak, on April 28, dismissed the habeas corpus (produce person in court) petition by the mother. She alleged that her son had been taken away deceitfully and kept away from her by her husband, with whom she has been in a strained relationship.

The couple married in 2012 and moved to Goa, where the man’s family has hotel business. Their son was born in the United States in 2015. The mother later shifted back to Mumbai, citing better educational opportunities for the child.

Her advocate Vikram Deshmukh submitted that the father unilaterally ended the lease of their residence and eventually removed the child from her custody in April 2024, without her consent. She also accused him of brainwashing the boy and creating a hostile environment.

The father’s lawyers, senior advocate Maheash Jethmalani and advocate Gunjan Mangala, denied the allegations and stated that the child was undergoing counselling for anxiety. He also stressed the family’s shared aspiration for the boy to eventually study in the United States. Jethmalani submitted that under the Hindu Minority and Guardianship Act, the father is the natural guardian of a minor boy.

Agreeing with this argument, the court said, “Section 6 clearly states that, in case of a minor boy, the father is the natural guardian.” The judges also cited Section 13 of the Act, which says that the welfare of the child must be the paramount consideration in custody matters.

After speaking to the boy in chambers, the court found him to be articulate and aware of his preferences. “He was giving proper answers politely. Even at this age, he was sure about what education he wanted to pursue,” the court said.

While acknowledging that prolonged stay with one parent could influence a child’s mind, the judges said such questions could not be addressed in a habeas corpus petition. They advised the mother to approach the appropriate court for full custody proceedings, where detailed evidence and counselling could be considered.

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