Aman Kathpal v. Union of India & Anr.

4. AK claims that her father was unwell because of which she had to urgently travel to India on 09.06.2022 alongwith Ms.XXX. She claims to have informed PD of the same by way of an email dated 11.06.2022.

5. AK claims that in retaliation, PD again approached the Superior Court and by an order dated 13.07.2022, the order dated 06.05.2022 was modified with the following directions:

6. Aggrieved of the same, AK filed W.P.(Crl.) 2049/2022 praying for the following reliefs:

“A. ISSUE a Writ of Mandamus for an Order of protection for the Petitioner and her daughter against the Decision of the Superior Court of New Haven, Connecticut, United States of America dated 06.05.2022 and Order 414024 dated 13.07.2022 of the Superior Court of New Haven, Connecticut.”

7. This Court by an ad interim order dated 13.09.2022, stayed the operation of the order dated 13.07.2022 passed by the Superior Court.

8. Various applications were thereafter filed by the parties in the above writ petition, including Crl. M.A. No. 2007/2024 by PD seeking vacation of the ad interim order of stay. The said application was filed only on or about 13.01.2024.

9. A learned Single Judge of this Court disposed of the said application of PD, that is, Crl. M.A. No. 2007/2024, vide the Order dated 23.12.2024, inter alia observing as under:

10. Aggrieved by the same, PD filed a Special Leave Petition, being SLP (Crl.) No. 2831/2025, before the Supreme Court, which came to be disposed of by the Supreme Court vide its order dated 24.02.2025, observing that W.P.(Crl.) 2049/2022 be disposed of at the earliest.

11. During the pendency of W.P.(Crl.) 2049/2022, PD filed W.P. (Crl.) 3029/2024 on 26.09.2024, praying for passing of a Writ in the nature of Habeas Corpus directing the production of Ms.XXX from the custody of AK. We quote the prayer of the said petition as under: “a. Issue a writ in the nature of Habeas Corpus directing Respondent No. 1 to secure the release of ------ d/o the Petitioner forthwith from Respondents No.2 and transfer her physical custody to the Petitioner so that she can return to her country of citizenship and habitual residence, the United States of America; b. Issue a writ in the nature of mandamus and/or any other appropriate writ or order that all further issues in respect of custody of - ---- shall be adjudicated by the appropriate jurisdictional court in the United States of America; …”

12. From the above narration of facts, it would be evident that both the petitions are concerned with the custody of Ms.XXX and involve the effect of the order dated 13.07.2022 passed by the Superior Court. They were, therefore, taken up together for disposal.

SUBMISSIONS OF THE LEARNED COUNSEL FOR AK

13. Mr.Jai Anant Dehadrai, the learned counsel appearing for AK, submits that there are serious allegations of sexual assaults on Ms.XXX by PD, for which PD was even arrested in USA. He submits that such sexual assaults have had a psychological effect on Ms.XXX as would be evident from the report of Ms.Lauren F. Lavoie, LPC Holistic Psychotherapy. He submits that therefore, it is not in the welfare of the child to be taken back to USA.

14. He submits that in any case, the child has been in India now for almost four years and therefore, again it will not be in the interest of the child to be uprooted.

15. He submits that merely because PD has obtained a judgment from the Superior Court, the same cannot be a ground to ignore the welfare of the child, which should be the sole governing factor for this Court. In support of his submission, he places reliance on the judgments of the Supreme Court in Nithya Anand Raghavan v. State (NCT of Delhi )& Anr., (2017) 8 SCC 454, and Nirmala v. Kulwant Singh & Ors., (2024) 10 SCC 595.

SUBMISSIONS OF THE LEARNED SENIOR COUNSEL FOR PD

16. On the other hand, Mr. Shadan Farasat, the learned senior counsel appearing for PD, submits that the Superior Court, on consideration of the evidence led by the parties before it, had found no merit in the allegations of sexual assaults made by AK against PD. In fact, it found that AK had been tutoring the minor child against PD. The Superior Court, on holistic consideration of the evidence, had directed a joint parenting plan which was subject to further modifications with the passage of time. He submits that AK, instead of complying with the same, on a false pretext, illegally removed the child, Ms.XXX from the jurisdiction of the Competent Court at Connecticut and brought her to India without the permission of the Court or PD. It was in these circumstances that PD was forced to move an application before the Superior Court seeking an emergency order of custody of Ms.XXX. Again, after considering the entire facts and substantial change in circumstances, the Superior Court was pleased to pass the order dated 13.07.2022. He submits that in these facts, the petition filed by AK is liable to be dismissed while that filed by PD is entitled to be allowed.

17. Without prejudice to his submissions, he contends that PD is, even now, willing to abide by the order dated 06.05.2022 passed by the Superior Court and with any other directions that this Court may pass in exercise of its jurisdiction under Article 226 of the Constitution of India.

18. In support of his submission that the child having been wrongfully removed from the jurisdiction of the competent court which has passed orders for custody of the minor, a Writ of Habeas Corpus directing the child to be taken back from where she was unlawfully removed is maintainable, he places reliance on the judgment of the Supreme Court in Elizabeth Dinshaw (Mrs.) v. Arvand M. Dinshaw & Anr., (1987) 1 SCC 42, and of this Court in Sunaina Rao Kommineni v. Abhiram Balusu, 2025:DHC:4483-DB, as upheld by the Supreme Court vide order dated 22.09.2025 passed in SLP(Crl.) No. 8800/2025, titled Sunaina Rao Kommineni v. Abhiram Balusu.

ANALYSIS AND FINDINGS

19. We have considered the submissions made by the learned counsels for the parties.

20. Way back, in the year 1987, the Supreme Court in Elizabeth Dinshaw (supra) had highlighted the complexities that arise when one of the warring parents unauthorisedly removes the child from one country to another. Since then, the Supreme Court has considered this issue on a numerous occasions.

21. In Tejaswini Gaud & Ors. v. Shekhar Jagdish Prasad Tewari & Ors., (2019) 7 SCC 42, examining the maintainability of a petition seeking a Writ of Habeas Corpus in such facts, the Supreme Court summarized the law as under:

22. The Supreme Court, when faced with similar issues, in Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311, placing reliance on its earlier Judgments in Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu & Anr., (1984) 3 SCC 698; Elizabeth Dinshaw (supra); Surya Vadanan v. State of Tamil Nadu & Ors., (2015) 5 SCC 450; and in Nithya Anand Raghavan (supra), observed that the crucial factors which have to be kept in mind by the Court for determining the welfare of the child are, inter alia, maturity and judgment, mental stability, ability to provide access to schools, moral character, ability to provide continuing involvement in the community, financial sufficiency, and the relationship of the warring parents with the child. In cases, such as the present, the doctrine of comity of Courts, intimate connection, orders passed by Foreign Courts having jurisdiction in the matter regarding custody of the minor child, and the citizenship of the parents and the child, etc., can override the consideration of the best interest and the welfare of the child. However, the Court must ensure that any direction to return the child to a foreign jurisdiction does not result in any physical, mental, psychological, or other harm to the child. A holistic consideration of the entire case must be undertaken.

23. In Yashita Sahu v. State of Rajasthan & Ors., (2020) 3 SCC 67, the Court held that a Writ of Habeas Corpus is maintainable even if the child is in the custody of another parent. It held that when a child is removed by one parent from one country to another, especially in violation of the orders passed by a Court, the country to which the child is removed, must consider the question of custody and decide whether the Court should conduct an elaborate inquiry on the question of the child’s custody or deal with the matter summarily, ordering the parent to return the custody of the child to the jurisdiction from which the child was removed and all aspects relating to the child’s welfare be investigated in a Court in his/her own country. The Court reiterated that in such matters of custody of a child, the primary and paramount consideration is the welfare of the child. While deciding the welfare of the child, it is not the view of one spouse alone which has to be taken into consideration; the Court must decide the welfare of the child keeping in view a host of circumstances, like the age of the child, the nationality of the child, the facilities of education, social security, and other welfare indicators.

24. In Nirmala (supra), the Supreme Court reiterated that there can be no hard and fast rule laid down insofar as the maintainability of a Habeas Corpus petition in matters of custody of minor child is concerned. The Court should exercise its extra ordinary jurisdiction under Article 226 of the Constitution of India or refuse to exercise the same depending upon the facts of each case.

25. Therefore, from the above, it is evident that the jurisdiction of the Court under Article 226 of the Constitution of India being discretionary, the exercise of the same or refusal to exercise the same is guided by the well-settled principles, wherein the Court while giving adequate importance, acknowledgment and respect to the orders passed by the Courts of competent jurisdiction albeit of a foreign country, at the same time, gives paramountcy to the welfare of the child. In this regard, the Court also considers whether the custody of the child with the person having it, can be termed as illegal. The jurisdiction being summary in nature, where complex question of facts need to be determined or addressed on the basis of evidence, the Court is generally restricted in entertaining a Writ Petition and is more open to leave the parties to avail of their remedies under the general law.

26. Applying the above standard to the facts of the present case, we find that act of AK bringing Ms.XXX to India having suffered the order dated 06.05.2022 passed by the Superior Court cannot be termed as bona fide. The order passed by the Superior Court is on appreciation of the evidence led before it. If AK had any grievance against the same, she should have availed of her remedies thereagainst. The Writ Petition challenging the judgment of a foreign court may even othewise not be maintainable.

27. In normal circumstances, therefore, we would have dismissed the Writ Petition filed by AK as being not maintainable, while allowing the Writ Petition filed by PD, however, for the reason that we shall hereinafter discuss, we refrain to do so.

28. As noted hereinabove, on the Writ Petition filed by AK, this Court had passed ad interim order dated 13.09.2022 staying the operation of the order dated 13.07.2022 passed by the Superior Court. It is only on or about 13.01.2024 that PD filed the application seeking vacation of the said order by way of Crl.M.A.2007/2024. Furthermore, W.P. (Crl.) 3029/2024 praying for a writ of Habeas Corpus was filed by PD only on 26.09.2024. In the meantime, the child has remained in India, undertaking her education here. She is now about 11 years old.

29. We are also informed that both parents, that is, AK and PD are Indian Citizens and have not yet acquired American citizenship. While PD has permission to work in USA, AK does not have such permission. Therefore, directing the girl child to be taken back to USA will also mean forcing AK to travel back to USA along with the child, without having any assurance as to how long she can stay there.

30. Though the Superior Court has not found merit in the allegations of sexual assault made by AK against PD, the said order can only have a persuasive effect. As far as the allegations of domestic violence by PD against AK are concerned, even the Superior Court had found against PD on this account.

31. These are only some of the circumstances which the competent Court would have to take into consideration while determining the welfare of the child.

32. Merely because the child by birth is a citizen of USA or had stayed there for a few years as her parents were there, cannot alone be the determinative factor for determining the welfare of the child. Similarly, the order of the Superior Court, though entitled to all due respect, cannot be the sole determinative factor for determining the welfare of the child, especially when a long period has since passed and the child has gained roots in India.

33. One option open to this Court would have been to determine the welfare of the child on its own by interacting with the child or taking such other inquiry as may be warranted, however, we are of the opinion that this would require a detailed examination, may be of evidence from the parties. In exercise of our extraordinary, discretionary and summary jurisdiction, we do not deem it appropriate to undertake this exercise, and would rather leave it open to the parties, that is, AK and PD, to avail of their alternate efficacious remedies in this regard.

34. For the reasons stated hereinabove, both the petitions are dismissed, leaving it open to the parties to avail of their legal remedies for the guardianship and custody of the child-Ms.XXX in accordance with the law. The pending applications are disposed of.

35. We make it clear that observations made in the present judgment are only for the purpose of determining the maintainability of the present petitions and in no manner shall influence the competent Court, if approached by either of the parties, to determine these issues in accordance with the law.

36. The parties shall bear their own costs.

NAVIN CHAWLA, J. RAVINDER DUDEJA, J. APRIL 1, 2026/Arya/ik