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

The Karnataka Supreme Court has dismissed a habeas corpus request from a German man who accused his estranged wife of illegally detaining their six-and-a-half-year-old son in Bengaluru.

The couple married in Bengaluru in October 2013 and their son was born in Germany on October 21, 2016. While the wife left Germany on May 6, 2017 after a marital dispute, the husband filed an application with a German court on May 17, 2017. Although the German court awarded him custody of the child, the wife had already reached India with the child.

After litigation in the Bengaluru Family Court and the court in Germany, the husband filed visitation requests in a Bengaluru court from November 2017 to January 2019.

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He filed a habeas corpus motion in the Supreme Court in May 2022, arguing that the minor child should be returned to Germany under United Nations human rights conventions. The wife argued that the child was in her temporary custody based on a June 2017 order of the Bengaluru Family Court.

A departmental bench headed by Judge Alok Aradhe said the detention review appeal cannot be used to enforce an ex parte order issued by a German court.

“The claim that the child should return to Germany under the UN Convention and human rights is unfounded as a restraining order dated June 8, 2017 gave custody of the son to his wife and prohibited the petitioner from attending the To approach wife and underage son to 500 meters. The aforementioned interim order is still in force. Therefore, the detention cannot be described as unlawful.

“The appeal of habeas corpus cannot be used to enforce an ex parte order issued by the German court that did not exist at the time the son left Germany,” the court said.

The court said that the petitioner’s minor son should be allowed to stay with his mother in India pending the determination of the custody issue in a Guardian and Wards Act proceeding.

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