The Madhya Pradesh High Court has dismissed a habeas corpus petition filed by a U.S.-based father seeking custody of his 10-year-old son currently residing in India with his mother, ruling that the welfare of the child is of paramount consideration and cannot be overridden merely by the order of a foreign court.
A Division Bench of Justice Anand Pathak and Justice Rajendra Kumar Vani passed the order in a writ petition seeking the return of the child to the United States.
Advocates Shri Prashant Sharma and Shri Rudraksh Gupta appeared for the petitioner. Shri Saket Udainiya, Government Advocate, represented the State. Shri V.D. Sharma and Shri Harshit Sharma appeared for the private respondent.
Background
The petitioner had married in 2013 and settled in the U.S. with his spouse. Their son, born in 2015, is a U.S. citizen. Following matrimonial discord, the child was brought to India in 2018 by the mother, who has since been residing in Madhya Pradesh.
A U.S. court—the Superior Court of New Jersey, Chancery Division—granted divorce on April 4, 2023, and awarded “sole physical and legal custody” of the child to the petitioner. Alleging non-compliance, the petitioner filed a habeas corpus petition before the Madhya Pradesh High Court seeking repatriation of the child.
Arguments
The petitioner submitted that the minor, being a foreign national, was “being forcibly kept in India without any authority” and “is being deprived of all rights and remedies available to Indian citizen.” Invoking the principle of comity of courts, the petitioner relied upon Supreme Court precedents including Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67, Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42, and Rohith Thammana Gowda v. State of Karnataka, AIR 2022 SC 3511.
It was urged that the order of the foreign court must be enforced and custody be handed over or, at minimum, visitation rights be granted.
The private respondent opposed the petition as not maintainable. It was argued that the petition amounted to “execution and enforcement of US Court order dated 04-04-2023 while invoking prerogative writ of Habeas Corpus,” and that an alternative remedy existed under Indian law. The respondent also alleged that she returned to India due to the petitioner’s conduct and had attempted reconciliation.
Heavy reliance was placed on the Supreme Court’s three-judge bench judgment in Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454, which addresses the limited scope of habeas corpus in child custody disputes, especially when one parent is a natural guardian.
Court’s Observations
The Court noted at the outset:
“This is a petition under Article 226 of the Constitution in the nature of Habeas Corpus. As per allegation, corpus (son of petitioner) is in illegal custody of respondent No.2 who happens to be the mother of corpus.”
Discussing the principle from Nithya Anand Raghavan, the Court reiterated:
“The principal duty of the Court is to ascertain whether the custody of child is unlawful or illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person.”
It emphasized:
“The order of the foreign Court must yield to the welfare of the child.”
And further clarified:
“The writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court… and convert that jurisdiction into that of an executing court.”
On the issue of lawful custody, the Court observed:
“Once that fact is ascertained, it can be presumed that the custody of the minor with his/her mother is lawful.”
The Court found that the decision in Yashita Sahu v. State of Rajasthan, (2020) 3 SCC 67, relied upon by the petitioner, was rendered by a two-judge bench and did not consider the three-judge bench rulings in Nithya Anand Raghavan, Kanika Goel, and Prateek Gupta, which were binding precedents. Therefore, Yashita Sahu was held to be distinguishable on facts and not controlling in this case.
Additionally, the Court pointed out that the petitioner has alternative remedies under Section 44A and Sections 13 and 14 of the Code of Civil Procedure, as well as under the Guardians and Wards Act, 1890, noting:
“Petitioner has alternative remedy as per different provisions of CPC… and if law permits, may proceed under Guardians and Wards Act, 1890.”
Decision
Concluding that the petitioner had not established any illegality in the present custody arrangement, the Court held:
“In the conspectus of facts and circumstances of the case, despite the fact that petitioner is making efforts to meet his child, legal provisions and judgments as referred above do not come to his rescue. Thus, the petition fails.”
While dismissing the petition, the Court added:
“Petitioner being a father, may request respondent No.2 to meet his son and if she feels so, it is her discretion to permit for meeting personally or on video call. That is an expectation raised by the Court and not issuing any command to comply.”
Accordingly, the petition was disposed of.
