Child custody: HC rules against habeas corpus petition by Germany-based man

The High Court of Karnataka has rejected a habeas corpus petition filed by a Germany-based man who accused his estranged wife of illegally detaining their six-and-a-half-year-old son in Bengaluru.

The couple got married in October 2013 in Bengaluru and their son was born on October 21, 2016 in Germany. While the wife left Germany on May 6, 2017 following a matrimonial dispute, the husband moved a petition before a German court on May 17, 2017. Though the German court granted him custody of the child, the wife had already reached India with the child.

After rounds of litigation before the family court in Bengaluru and at the court in Germany, the husband filed petitions from November 2017 until January 2019 in a Bengaluru court seeking visitation rights.

Also Read | Identify shifted voters and deceased in Shivajinagar, Shantinagar, Karnataka HC directs election body

He filed a habeas corpus petition before the high court in May 2022, arguing that as per the United Nations Conventions on Human Rights, the minor child should return to Germany. The wife argued that the child is in her interim custody by way of an order passed by the family court in Bengaluru in June 2017.

A division bench headed by Justice Alok Aradhe said that the remedy of writ of habeas corpus cannot be used for enforcement of an ex-parte order passed by a German court.

“The contention that under the United Nations Convention and Human Rights, the child should return to Germany, is concerned, the same does not deserve acceptance as by an interim order dated June 8, 2017, the custody of the son has been given to the wife and the petitioner has been restrained from coming within 500 meters of the wife and the minor son. The aforesaid interim order is still in force. Therefore, the custody cannot be said to be illegal.

“The remedy of writ of habeas corpus cannot be used for enforcement of an ex-parte order passed by the German court, which was not in existence at the time when the son left Germany,” the court said.

The court said that the minor son of the petitioner should be allowed to stay with his mother in India until the issue pertaining to custody is adjudicated in a proceeding under the Guardian and Wards Act.