JUDGMENT : BHARATI DANGRE, J. 1. “The way we talk to our children, becomes their inner voice.” 2. The Petition presented before us by Prasenjit, the father of Rhea, today aged 13 years and 9 months, once again brings forth the issue of the child’s welfare being of paramount importance in the marital discord between the parents. The Petition filed in the year 2021 by Prasenjit sought issuance of writ of Habeas Corpus and direction to Respondent No.2 Aruna, mother of Rhea, for her production alongwith her passport before the Court. Prasenjit also sought direction to Aruna to visit United Kingdom (UK) alongwith the daughter for attending the pending proceedings before the Family Court, UK. It is also prayed that Aruna be held guilty for abducting Rhea and illegally removing her from the jurisdiction of UK Court, in utter ignorance of the orders passed by it and appropriate action be initiated against her for violating the said orders. 3. In support of the Petition with the aforesaid reliefs, in the backdrop of certain orders being passed by the Court of foreign jurisdiction, we have heard the learned senior counsel Ms.Seema Sarnaik for the Petitioner. Respondent No.2 Aruna, mother of Rhea, who at the relevant time was aged 8, is represented by the learned counsel Ms. Jai Kanade. The Petition being filed in the year 2021, with several orders being passed in the proceedings from time to time, as the Parties expressed their desire to hear the Petition finally considering that Rhea is now attaining the age of understanding, by consent of Parties, we issue ‘Rule’, by making the same returnable forthwith. 4. Before we pronounce upon the reliefs sought in the Petition, we must briefly refer to the facts in which Prasenjit and Aruna find themselves, who once shared a bond of love, but have now fallen apart and amongst them lies their daughter Rhea, who is presently with her mother in India. Prasenjit, a citizen of India is residing in United Kingdom since September 2008 and he hold a PR status in UK since 2019. Aruna is born Mauritian national and she enjoyed permanent residency status in UK since 2017 and is also conferred with British Citizenship. Two of them met in India and on account of the affinity developed, they moved to Mauritius and performed marriage on 22/12/2005. Aruna is born Mauritian national and she enjoyed permanent residency status in UK since 2017 and is also conferred with British Citizenship. Two of them met in India and on account of the affinity developed, they moved to Mauritius and performed marriage on 22/12/2005. In September 2008 both of them made a choice to shift to UK. Prasenjit got himself engaged as self employed IT Consultant, whereas, Aruna, on completing her graduation took up the job of Logistic Manager. Rhea was born in UK on 24/03/2012 and acquired citizenship by birth. According to Prasenjit, he was a primary caretaker of Rhea till she was 3 years old as the work undertaken by Aruna compelled her to leave house early due to long working hours. Though as per Prasenjit all was well and the family shared holidays but upon their return from Turkey in April 2015, Aruna expressed her desire to seek divorce, which he refused. According to Prasenjit, false allegations were levelled against him as regards she being subjected to domestic violence. The relationship between the couple was in trouble and it became more strained, as though they continued to live under the same roof, they were physically and mentally estranged from each other. 5. As per Prasenjit, when Aruna disappeared alonwith Rhea without informing him, he approached the Court by praying for Prohibitory steps order to prevent her from removing Rhea from the jurisdiction of UK Court and on 25/01/2016, the Family Court at Barnet, prohibited Aruna from removing Rhea from its jurisdiction (England and Wales). It is the allegation of Prasenjit that in April 2016 Aruna alongwith Rhea left matrimonial home and Prasenjit being frustrated, as he could not see his daughter, applied for child arrangement order before the Family Court in UK, which prompted the Court to issue direction to the local Authority to report it on the issue whether the child arrangement order would be necessary in the best interest of Rhea. The report submitted on 04/04/2016, however, opined that Rhea should stay full time with Aruna, while having a high level of regular contact with her father. 6. On 28/10/2016 a child arrangement order was passed by the Family Court, which recorded that Rhea was living with her mother and attending primary school and she spent time with her father every weekend from Saturday morning until Sunday evening. 6. On 28/10/2016 a child arrangement order was passed by the Family Court, which recorded that Rhea was living with her mother and attending primary school and she spent time with her father every weekend from Saturday morning until Sunday evening. Since the parties agreed before the Court that they should actively involve in Rhea’s upbringing and have been managing the child’s arrangement on that basis, the Court deemed it appropriate not to proceed with evidence in the matter and ordered that the child shall live with mother. The Court also passed a final order on 28/04/2017 to determine whether prohibitory steps passed deserve an extension to prevent the mother from taking Rhea on Holiday with her to visit maternal grandmother and other members of the extended family, the Court ordered that it is in Rhea’s best interest that she is able to go on holiday with her mother and particularly to visit her grandmother and as the Court was satisfied that the mother shall return to UK at the end of Holiday. The father’s application to extend the prohibited steps order was dismissed and the mother was granted leave to remove Rhea from the jurisdiction of the Court for the purposes of holiday from May 2017 to June 2017. According to Prasenjit, Aruna refused to comply the child arrangement order and avoided granting access to Prasenjit. This constrained him to approach the Court in UK for enforcement of the order which was countered by an application filed by Aruna for issuance of specific order to remove Rhea to Mauritius permanently. This resulted into a child arrangement order based on the report of Cafcass who interacted with the child as well as her parents and it was observed that Rhea was getting influenced by the discussion. This was followed by the child arrangement order issued on 08/11/2018 declaring that it may be a criminal offence under the Child Abduction Act, 1984, to remove the child from UK without leave of the Court and it will be imperative to comply with the provisions of the child arrangement order or else the party was liable for Contempt of Court. 7. By order dated 29/012019, divorce was granted by Family Court, UK and the Petition is full of allegations as to how Aruna continue to flout the child arrangement order. 7. By order dated 29/012019, divorce was granted by Family Court, UK and the Petition is full of allegations as to how Aruna continue to flout the child arrangement order. It is on 04/07/2019, Aruna sought permission to relocate Rhea permanently to India as she got married with an Indian on 14/06/2019 and the Application filed by Prasenjit for full custody was tagged alongwith Aruna’s application to shift Rhea to India and while this was pending for adjudication before the Family Court in Watford UK, it is the allegation of Prasenjit that Aruna, without permission of the UK Court abducted Rhea and came to India to live with her second husband on 13/03/2020 and she recorded her supplementary statement before the Family Court in UK. 8. In the sequence of events, it is also to be noted that Aruna filed a Custody Petition No.109/2020 before the Sessions and District Judge, Thane in which Prasenjit filed application for dismissal on the ground of lack of jurisdiction and the Custody Petition was dismissed on 4/12/2020. The grievance made by Prasenjit is, despite a specific order passed by the Family Court, UK on 10/06/2020, permitting him to establish indirect contact with Rhea per week for 30 minutes at a time, on whichever video platform Prasenjit chooses, Aruna created obstructions in establishing the contact and at times deliberately disconnected the calls. 9. In the aforesaid circumstances, the learned senior counsel Ms.Sarnaik urged before us that the act of Aruna of removing Rhea from the jurisdiction of UK Court and detaining her and not allowing Prasenjit to meet her is illegal and against her welfare. Submitting that Prasenjit being a natural guardian and father of Rhea has full rights to know about her health and whereabouts and particularly when Aruna is now married for the second time, it is the father who would be in a better position to care for her, Ms.Sarnaik has insisted that Rhea holds a British Citizenship and UK is the place where she is supposed to be. She would also assertively submit that Aruna has flouted all the orders passed by the competent court in UK and removed Rhea from UK despite her application seeking permission to remove her permanently from UK, is pending. She would also assertively submit that Aruna has flouted all the orders passed by the competent court in UK and removed Rhea from UK despite her application seeking permission to remove her permanently from UK, is pending. It is, therefore, her submission that this act of Aruna of removing Rhea from the jurisdiction of the UK Court despite various orders being in existence passed by the competent Court, amounts to contempt of court orders passed by UK Court and she is also liable for prosecution as she has abducted the child and has thus committed an offence under the Child Abduction Act, 1984 by removing the child without leave of the Court. 10. Ms.Sarnaik has invited our attention to various orders passed by the Court from time to time and in specific she has invited our attention to the defiant attitude adopted by the mother, when in the order dated 24/02/2021, the Family Court at Watford while considering passing of a child arrangement order, recorded that the mother informed the Court during her evidence that even if she is ordered to return the child by the English Courts she will not comply with such order. The Court in its finding record that the mother has an unhealthy disregard for the father’s share parental responsibility over Rhea and she has deliberately sought to prevent the father from maintaining relationship with her since 2016 and has failed to comply with the prior child arrangement orders, which had the effect of alienating Rhea against the father. Another order to which Ms.Sarnaik has invited our attention is the one passed by the High Court of Justice Family Division which has issued warning to Aruna that if she disobey the order she will be held to be in contempt of court and may be imprisoned, fined or have her assets seized. According to Ms.Sarnaik, the Court had specifically recorded that Rhea shall remain a Ward of the Court until her return to England and Wales and only upon confirmation that she has returned, she shall be discharged as a Ward of this Court. Ms. Sarnaik has assertively submitted before us that Rhea is a UK citizen as she is born in UK and she belongs to UK. Ms. Sarnaik has assertively submitted before us that Rhea is a UK citizen as she is born in UK and she belongs to UK. According to her, she has no roots in India and now when her mother is already remarried, the biological father must be given custody of Rhea as he would be in a better position to care for her. Ms. Sarnaik make a serious allegation that the child is brought to India in violation or orders of UK Court and she is retained by the mother illegally and with the passage of time she is brain-washed and her mind has been completely conquered by the mother and that is the reason why the daughter has lost touch with the father, which is not at all in her interest. 11. In response to the aforesaid submission, we have heard Ms.Kanade who would place reliance upon the Affidavit in Reply filed on behalf of Respondent Nos.2 and 3. It is her specific contention that Aruna alongwith Rhea came to India in peculiar circumstances. According to her, Rhea was always with Aruna and Prasenjit was only granted limited access rights and arrangement was confirmed by UK Courts by passing child arrangement order from time to time while they were in UK. According to her, Prasenjit repeatedly asked for custody of Rhea, but the same was denied to him. According to Ms.Kanade, the professionals attached to UK Courts demonstrated inability of the father to look after Rhea. She would submit that Prasenjit has no permanent or stable job and apart from this, since his behaviour with Aruna was abusive, Rhea was conscious of this position. Ms.Kanade would submit that the divorce is granted on the ground of cruelty and that though the Habeas Corpus Petition was filed in the year 2021, which is filed after a delay of almost one year when Rhea had been alleged to be removed from UK, Prasenjit has not bothered to secure any access and during all this period he only visited ones to India and briefly met Rhea. It is her submission that Aruna and Rhea came to India on the onset of Covid and since then Rhea is happily staying with Aruna and her husband which showered her with all the necessary love and affection. 12. Ms. It is her submission that Aruna and Rhea came to India on the onset of Covid and since then Rhea is happily staying with Aruna and her husband which showered her with all the necessary love and affection. 12. Ms. Kanade would invite my attention to the order passed by the Division Bench on 22/10/2021 on the Petition filed by Prasenjit , where the Court recorded thus :- “Prima facie, looking at the welfare of the child, for the prayer for sending the child to United Kingdom to reside with her father, according to us the father should have interaction with the child when she is in India. We have to consider the emotional impact of the Petitioner’s prayer on the child and the sudden dislocation. The stand taken by the Petitioner or that no settlement is possible and child must be sent to United Kingdom and that he will not come to India, is indeed unfortunate.” While adjourning the proceedings, the Court made it clear that if the Petitioner desire to meet the child in India before the next date assigned, it is open for him to do so and Aruna told the Court that she has no objection for the same. However, Ms Kanade would submit that this opportunity was never availed by Prasenjit. 13. Relying upon the Affidavit in Reply which comprises of specific incidents, when Aruna was subjected to physical, financial and mental cruelty, it is the submission of Ms.Kanade that in 2015, apprehending physical assaults in future, she had to apply for non molestation order, which was passed against Prasenjit and it was to remain in force for one year. According to her, due to parental conflict, the child was put in “child in need” and child protection programme. Out attention is also invited to the report of independent Domestic Violence Agency and to the Multi Agency Risk Assessment Conference (MARAC), which identified her alongwith her minor child to be at very high risk of being a ‘repeat victim of abuse and violence from the father’. It is the specific stand adopted by her that exposure to continuous parental conflict adversely affected the minor child and, therefore, she sought a separate accommodation for herself and her child. It is the specific stand adopted by her that exposure to continuous parental conflict adversely affected the minor child and, therefore, she sought a separate accommodation for herself and her child. As regards the child arrangement order, it is submitted before us on behalf of Aruna that she always encouraged contact between Prasenjit and Rhea, however, he failed to develop any kind of bond and self alienated himself from Rhea. According to her, he has no interest in child’s life and chose not to be a part of parents evening, sports day etc. and he showed little concern for her feelings and wishes and forced her to engage in activities at his whims and fancies. Several such instances are annexed with reply affidavit, but we do not intend to get into the further details. 14. In short, the submission of Ms.Kanade is that the interest of child lies in she continue to reside in India with Aruna, where she is well settled and thrive in all aspects of child welfare including her physical and educational well being, apart from family support and emotional well being, and also cultural integration. According to Aruna, she alongwith Rhea is financially well settled in India due to support given by her husband who has a well established business and is financially well off and they live in a separate apartment with all attention being focused on the child. According to Aruna, moving Rhea to UK will be prejudicial to her interest at this age when she is well adjusted in the country with her mother and has accepted the husband of Aruna as her father. In short, Ms.Kanade would request that ultimately the welfare of the child should be of paramount importance as the orders passed by the foreign court only have persuasive value and shall be one of the factor to be considered when it comes to issue of settlement of a child by uprooting him/her from the zone of her comfort, which can only prove detrimental to the interest of the child. 15. We have heard the respective counsel for the Parties and after hearing Ms.Kanade representing Aruna and even Rhea, we intended to hear her voice, which we felt to have been lost in the legal noise. We, therefore, directed Aruna to secure presence of Rhea before us in the Chamber as we intended to interact with her. 15. We have heard the respective counsel for the Parties and after hearing Ms.Kanade representing Aruna and even Rhea, we intended to hear her voice, which we felt to have been lost in the legal noise. We, therefore, directed Aruna to secure presence of Rhea before us in the Chamber as we intended to interact with her. Accordingly, as per our direction she was presented before us and on interacting with her, we found Rhea to be mature ,who had very easily determined the path for her. In no uncertain terms she expressed that she desire to be in the company of her mother and has no intention to return back to her father. We found her to be totally dis-alienated from her father and though we hinted to her that she can spend some time with father, she flatly refused by saying that she already has a father in form of Mr.Dixit who take good care of her. We put questions to her about her safety, about the financial stability and her future prospects but with all clarity in her mind, she responded to our queries and at the end of interaction with her, we are convinced that Rhea has matured in all these years and no decision can be forced upon her. She is now a young woman, who has painted the future for herself in India with the love and affection showered upon her by Aruna and her husband, whom she has accepted as her father and with dreams in her eyes, she look forward for a future in India, with no intention to return back to her father. We found that Rhea is well settled in India and all these years when she came to India, barring one occasion she did not meet Prasenjit and expressed no desire to establish any contact with him either physically or virtually. At present, we find that Rhea is leading a secured life and choice is to be left to her as we found that she has attained sufficient understanding of human relationship and also about ‘her well being, her needs, her desires and ultimately her dreams’. 16. Ms.Sarnaik has placed reliance upon various authoritative pronouncements to submit that Rhea is a UK citizen and she must return to her own country. 16. Ms.Sarnaik has placed reliance upon various authoritative pronouncements to submit that Rhea is a UK citizen and she must return to her own country. She would place reliance upon the decision of the Apex Court in case of Yashita Sahu vs. State of Rajasthan and Ors., (2020) 3 SCC 67 , Shilpa Aggarwal vs. Aviral Mittal & Anr., (2010) 1 SCC 591 and Rohith Thammana Gowda vs. State of Karnataka & Ors., 2022 SCC OnLine SC 937 in support of her submission that the child must return where he/she belong. She would also rely upon the pronouncements to support her submission that the principle of comity of nations must be given due weightage, because if the child is moved from the country of his/her origin, he/she feels de-alienated and, therefore, his/her restoration to the country where he/she belongs must be expeditiously assured. Relying upon the pronouncements, she would submit that in a Habeas Corpus Petition, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person and in the present case since Rhea was abducted from UK, according to Ms.Sarnaik, her continuous presence in India to the exclusion of her father, shall not be encouraged. 17. Per contra, Ms.Kanade has also placed reliance upon various authoritative pronouncements viz. i Nithya Anand Raghavan vs. State (NCT of Delhi) & Anr., (2017) 8 SCC 454 ii Prateek Gupta vs. Shilpi Gupta & Ors., (2018) 2 SCC 309 iii Kanika Goel vs. State of Delhi & Anr., (2018) 9 SCC 578 iv Tejaswini Gaud & Ors. vs. Shekhar Jagdish Rasad Tewari & Ors., (2019) 7 SCC 42 The law laid down through the authoritative pronouncements is to be viewed by keeping in mind the most important aspect being, India is not yet a signatory to the Hague Convention of 1980 on “Civil aspects of International child abduction”. vs. Shekhar Jagdish Rasad Tewari & Ors., (2019) 7 SCC 42 The law laid down through the authoritative pronouncements is to be viewed by keeping in mind the most important aspect being, India is not yet a signatory to the Hague Convention of 1980 on “Civil aspects of International child abduction”. In Nithya Anand Raghavan (supra) it is held thus :- “As regards the nonConvention countries, the law is that the court in the country to which the child has been removed must consider the question on merits bearing the welfare of the child as of paramount importance and reckon the order of the foreign court as only a factor to be taken into consideration, unless the court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its welfare”. It is being the consistent view of the courts, that when the child is brought within India, the courts in India may conduct summary inquiry and in such cases the Court may deem it fit to return the child to country from where he/she was removed unless such return is shown harmful to the child. Thus, even in such matters, it is open for the Court to decline the relief of return of the child to the country from where he/she was removed irrespective of a pre-existing order of return of the child by the foreign Court. 18. As against this, in our elaborative enquiry the Court shall examine the merits as to where the paramount interest and welfare of the child lie and reckon the fact of a preexisting order of the foreign court for return of the child as only one of the circumstances. In both the scenarios, the crucial question to be considered by the Court is to keep in mind the child’s welfare and this can be determined only keeping in mind the totality of facts and circumstances of each case independently. The order of the foreign court even if any, must yield to the welfare of the child. 19. In both the scenarios, the crucial question to be considered by the Court is to keep in mind the child’s welfare and this can be determined only keeping in mind the totality of facts and circumstances of each case independently. The order of the foreign court even if any, must yield to the welfare of the child. 19. It is a well settled position that remedy of Habeas Corpus cannot be used for mere enforcement of the directions given by a foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court, and, therefore, it is open for Prasenjit to seek execution of the orders passed by the foreign court, instead of approaching the Court by invoking the writ jurisdiction and seeking production of the child though it is actually a battle of custody which has been fought. In any case, the custody of Rhea with the biological mother can in no way be termed as illegal and in any case the purpose of Habeas Corpus proceedings is not to justify or examine the legality of the custody, but it is a prerogative writ and an extra ordinary remedy and writ will be issued only in the circumstances of a particular case when either the ordinary remedy provided by law is not available or is ineffective. There cannot be any disagreement on the aspect that a writ of Habeas Corpus is maintainable, but the necessary ingredient for its issuance is that the detention of the minor child by either of the parent must be shown to be illegal and without authority of law. Reliance placed upon the orders passed by UK Court can only have a persuasive value before us and ultimately even while entertaining a Writ Petition seeking issuance of writ of Habeas Corpus, the Court is duty bound to take into consideration the totality of the facts and circumstances with the welfare of the child being of paramount consideration and the order of the foreign court must yield to the welfare of the child. Since in all the authoritative pronouncements cited before us on behalf of Prasenjit as well as Aruna , it is categorically held that the Court cannot take a pedantic approach, but must determine where the welfare of the child lie. 20. Since in all the authoritative pronouncements cited before us on behalf of Prasenjit as well as Aruna , it is categorically held that the Court cannot take a pedantic approach, but must determine where the welfare of the child lie. 20. It is surprising to see that Prasenjit blames Aruna for de- alienating Rhea, but in all the years when he alleged that she was illegally removed from his custody, he has not bothered to establish any bond with her and this ultimately is the cause for her de-alienation. Ms.Sarnaik has vehemently submitted before us that pendency of the proceedings from the year 2021 shall not be an excuse for not considering the reliefs prayed in the Petition. We must note that when Prasenjit appeared before us on 24/06/2024, we observed thus :- “2. More than two years have lapsed since passing of this order, but it is informed that the Petitioner has failed to visit India and meet his daughter. When we specifically asked Ms. Sarnaik the reason for the same, she has instructions to make a statement that the father was busy. We rather feel little astonished by the reason offered, as here is a father who has filed Heabous Corpus Petition seeking production of the Petitioner’s daughter before the Court and for her custody to be handed over to him, but has failed to avail the opportunity to visit his daughter and feel satisfied only by meeting her online i.e. virtually. The child is now 12 years old and we will have to appreciate the contentions in the Petition alleging breach of the orders passed in the Court in United Kingdom, in the factual background considering that almost four years have lapsed, since the child is in custody of mother, residing in India, alongwith her step father and specifically when her counsel argued that she is now well settled in India. 3. It is in this background we deem it appropriate to direct Ms. 3. It is in this background we deem it appropriate to direct Ms. Sarnaik to obtain necessary instructions as far as the compliance of the order dated 22.10.2021 and we must make it clear that the offer is still open for the Petitioner to come and visit the daughter, but we deem it appropriate that after the visit the Petitioner should stay back and this Court would like to resolve the issue in presence of the Petitioner, the Respondent No.2 and the child.” Pursuant to this order being passed, on 12/07/2024 we were informed that Prasenjit is likely to visit India in the month of October and he can avail the access during the said period and we granted him permission to avail access on 19/10/2024, 20/10/2024 and also on 21/10/2024. However, on 21/10/2024 with lot of disappointment we noted thus : “1 We have interacted with the child Rhea in our chamber. We have had an interaction with her parents. The father, the petitioner has flown to India, as directed, with an intention to avail access for two days, but we are informed that since he was taken ill, he could avail access only for one day. We are also informed that today he is flying to Kolkatta and will be leaving the country. On interacting with the girl, we have taken note of the fact that though the access was availed, no bond could be established between the father and child. Though we are adjourning the proceedings to January 2025, we leave it open to the petitioner to visit the child during Christmas Vacation, if he so desires, and if he has any plans to do so, it will be open for the father to address a communication 15 days in advance and avail the access in Mumbai. It is open for the father to avail the access strictly as per the wishes of the child which may include longer durations/night access, but we make it clear that it will be solely dependent upon the child, Rhea.” After this order was passed by us, we are informed that more than one year has lapsed, but the Petitioner has not made any attempt to come to India and visit the child. We could see the lack of warmth in the relationship as we have an opportunity to meet the child as well as had an opportunity to interact with Prasenjit and Rhea in chamber, when we found her approach to be totally indifferent. 21. Bonds of love cannot be severed merely because of the distance, but it is the lack of warmth that separate the relationship and this is what we precisely observed in the present case. As we have already concluded that Rhea is a matured girl and has made her choice not to accompany her father, but continue her stay with her mother in India, we cannot compel her and restore her custody to the Petitioner who according to us has failed to discharge his obligations as a father and, therefore, we cannot, but disallow the prayer sought by him. Ultimately as and when Rhea grows and if in future some bond is established by Prasenjit with her and we can only hope that this bond is established, so that Rhea can at least recognize the Petitioner as her biological father. 22. With this observation, finding no merit and substance, we dismiss the Writ Petition. No order as to cost.