PRATEEK GUPTA versus SHILPY GUPTA & ORS.
[2017] 13 S.C.R. 230, Supreme Court of India, 2017
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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(2017] 13 S.C.R. 230 
PRATEEK GUPTA 
v. 
SHILPY GUPTA & ORS. 
(Criminal Appeal No. 968 of2017) 
DECEMBER 06, 2017 
[DIPAK MISRA, CJI AND AMITAVA ROY, J.] 
Child and Family Welfare: Custody of child - Principles of 
"comity of courts". "intimate contact"' and "'closest concern"' -
Invocation of - Held: Invocation of these principles/doctrines has 
to he judged on the touchstone of myriad attendant facts and 
circumstances of each case, the paramount concern being the 
welfare of the child - These doctrines are of persuasive relevance 
only when the child is uprooted from its native country and taken to 
a place to encounter alien environment. language. custom etc. with 
the portent of mutilative hearing on the process of its overall growth 
and grooming - It is thus imperative that unless. the continuance of 
child in the country to which it has been removed. is unquestionably 
harmful. when judged on the touchstone of overall perspectives. it 
ought not to be dislodged and extricated from the environment 
and setting to which it had got adjusted for its we/I-being -
Doctrines/Principles. 
Child and Family Welfare: 
Writ of habeas corpus - Writ 
petition file(i by respondent-mother seeking custody of child from 
appellant-father - The parties were residing in US with two sons -
In view of irreconcilable marital issues. parties started living 
separately since 2014 - The children were US citizens by birth -
The case of re,pondent-mother before the High
Court was that the 
child. who is the subject matter of the /is and custody. was barely 
20 years old when appellant took him to India and had been staying 
in India since then -- The child is a little over 5 years old now -
High Court directing appellant-father to hand over custody of child 
to respondtmt-mother - Challenge against - Held: The child has 
spent half of his life at this age, in India - His infant yem. · of stay 
in US was too little for his required integration with the social, 
physical, psychological, cultural and academic environmelll of US 
tu get totally upturned by his transition to India. so much so that 
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PRATEEK GUPTA v. SHILPI GUPTA & ORS. 
231 
unless he is immediately repatriated, his inherent potentials and A 
faculties would suffer an immeasurable set back - The respondent-
mother is also disinclined to restore her matrimonial home - The 
younger son is with her - There is no convincing material on record 
that the continuation of the child in the company and custody of the 
appellant in India would be irreparably prejudicial to him - The 
e-mails exchanged by the parties suggested that they had been in 
touch since the child was brought to India - In the e-mails, they 
have fondly and keenly referred to both the sons staying in each 
others company, expressing concern about their illness and general 
well-being as well - As has been claimed by the appellant, the child 
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is growing in a congenial environment in the loving company of his 
grand-parents and contrary to the nuclear family environment in 
US, he is exposed to a natural process of grooming in the association 
of his elders, friends, peers and playmates, which is irrefutably 
indispensable for comprehensive development of his mental and 
physical faculties - Immediate restoration of the child is called for 
only on an unmistakable discernment of the possibility of immediate 
and irremediable harm to it and not otherwise - High Court did 
not at all apply itself to examine the facts and circumstances and 
the other materials bearing on the issue of welfare of the child which 
are unmistakably of paramount
significance and instead seemed to 
have been impelled by the principle of comity of courts and the 
doctrines of "intimate contact" and "closest concern" de hors 
thereto - The appellant being the biological father, his custody of 
the child can by no means in law be construed as illegal or unlawful 
drawing the invocation of a superior Courts jurisdiction to issue a 
writ in the nature of habeas corpus. 
Allowing the appeal, the Court 
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HELD: 1. The gravamen of the judicial enunciation on the 
issue of repatriation of a child removed from its native country is 
clearly founded on the predominant imperative of its overall well-
being, the principle of comity of courts, and the doctrines of G 
"intimate contact and clo.sest concern" notwithstanding. Though 
the principle of comity of courts and the aforementioned doctrines 
qua a foreign court from the territory of which a child is removed 
are factors which deserve notice in deciding the issue of custody 
and repatriation of the child, it is no longer res integra that the 
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SUPRltME COURT REPORTS 
[2017] 13 S.C.R. 
ever overriding determinant would be the welfare and interest of 
the child. In other words, the invocation of these principles/ 
doctrines has to be judged on the touchstone of myriad attendant 
facts and circumstances of each case, the ultimate live concern 
being the welfare of the child, other factors being 
acknowledgeably subservient thereto. Though in the process of 
adjudication of the issue ofrepatriation, a court can elect to adopt 
a summary enquiry and order immediate restoration of the child 
to its native country, if the applicant/parent is prompt and alert in 
his/her initiative and the existing circumstances ex facie justify 
such course again in the overwhelming exigency of the welfare 
of the child, such a course could be approvable in law, if an 
effortless discernment of the relevant factors testify irreversible, 
adverse and prejudicial impact on its physical, mental, 
psychological, social, cultural existence, thus exposing it to 
visible, continuing and irreparable detrimental and nihilistic 
attentuations. On the other hand, if the applicant/parent is slack 
and there is a considerable time lag between the removal of the 
child from the native country and the steps taken for its 
repatriation thereto, the court would prefer an elaborate enquiry 
into all relevant aspects bearing on the child, as meanwhile with 
the passage of time, it expectedly had grown roots in the country 
and
its characteristic milieu, thus casting its influence on the 
process of it~ grooming in its fold. [Para 32] [264-E-H; 
[265-A-B) 
2. The doctrines of "intimate contact" and "closest 
concern" are of persuasive relevance, only when the child is 
uprooted from its native country and taken to a place to encounter 
alien environment, language, custom etc., with the portent of 
mutilative bearing on the process of its overall growth and 
grooming. [Para 33] [265-C) 
3. The parties are living separately since 2014 with one 
child each in their company and charge. The children are US 
citizens by birth. Noticeably, the child Aadvik, who is the subject 
matter of the lis and custody was barely 2% years old when he 
came over to India and had stayed here since then. Today, he is 
a little over 5 years old. In other words, he has spent half of his 
life at this age, in India. His infant years of stay in US is too little 
for the required integration of his with the social, physical,
PRATEEK Q{Jy lA v. SHILPl vu!' !A & ORS. 
233 
psychological, cultural and academic environment of US to get A 
totally upturned by his transition to this country, so much so that 
unless he is immediately repatriated, his inherent potentials and 
faculties would suffer an immeasurable set back. The respondent-
mother also is not favourably disposed to return to India, she 
being a working lady in US and is also disinclined to restore her B 
matrimonial home. The e-mails exchanged by the parties as have 
been placed on records do suggest that they had been in touch 
since the child was brought to India and even after the first order 
dated 28.05.1015 was passed by the court in US. In the said 
e-mails, they have fondly and keenly referred to both the sons 
staying in each other's company, expressing concern about their C 
illness and general well-being as well. As has been claime.d by 
the appellant, the child is growing in a congenial environment in 
the loving company of his grand-parents and other relatives. He 
has been admitted to a reputed school and contrary to the nuclear 
family environment in US, he is exposed to a natural process of D 
grooming in the association of his elders, friends, peers and 
playmates, which is irrefutably indispensable for comprehensive 
and conducive development of his mental and physical faculties. 
The issue with regard to the repatriation of a child, as the 
precedential explications would authenticate has to be addressed 
not on a
consideration of legal rights of the parties but on the 
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sole and preponderant criterion of the welfare of the minor. 
Immediate restoration of the child is called for only on an 
unmistakable discernment of the possibility of immediate and 
irremediable harm to it and not otherwise. As it is, a child of 
tender years, with malleable and impressionable mind and delicate 
and vulnerable physique would suffer serious set-back if subjected 
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to frequent and unnecessary translocation in its formative years. 
It is thus imperative that unless, the continuance of the child In 
the country to which it has been removed, is unquestionably 
harmful, when judged on the touchstone of overall perspectives, 
perceptions and practicabilities, it ought not to be dislodged and G 
extricated from the environment and setting to which it had got 
adjusted for its well-being. [Para 35] [265-E-H; 266-A-E] 
4. In view of order dated 03.05.2016 of this Court, the child 
has remained in the custody of the appellant-father. No matedal 
. 
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SUPREME COURT REPORTS 
[2017] 13 S.C.R. 
A was brought on record to take a view that immediate restoration 
of the custody of the child to the respondent-mother in the native 
country is obligatorily called for in its interest and welfare. The 
High Court did not at all apply itself to examine the facts and 
circumstances and the other materials on record bearing on the 
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issue of welfare of the child which are unmistakably of paramount 
significance and instead seems to have been impelled by the 
principle of comity of courts and the doctrines of "intimate 
contact" and "closest concern" de hors thereto. The appellant 
being the biological father, his custody of the child can by no means 
in law be construed as illegal or unlawful drawing the invocation 
of a superior Court's jurisdiction to issue a writ in the nature of 
habeas corpus. The dislodgment of the child as directed by the 
impugned decision would be harmful to it. Having regard to the 
nature of the proceedings before the US Court, the intervening 
developments thereafter and most importantly the prevailing 
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state of affairs, the child, till he attains majority, ought to continue 
in the custody, charge and care of the appellant, subject to any 
order to the contrary, if passed by a court of competent jurisdiction 
in an appropriate proceeding deciding the issue of its custody in 
accordance with law. The parties are however directed to 
participate in the pending proceedings relating to the custody
of 
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the child, if the same is pursued. [Paras 38, 39] [267-B-E, F-G] 
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Nithya Anand Raghavan v. State (NCT of Delhi) and 
another (2017) 8 sec 454 - relied on. 
Surya Vadanan v. State of Tamil Nadu & Ors. 
(2015) 5 SCC 450 : [2015] 4 SCR 903 ; Dhanwanti 
Joshi v. Madhav Unde (1998) 1 SCC 112 : [1997) 5 
Suppl. SCR 30 ; Sarita Sharma v. Sushi/ Sharma 
(2000) 3 sec 14 : [20001 1 SCR 915 ; Shi/pa 
Aggarwal v. Aviral Mittal and another (2010) 1 SCC 
591 : [2009] 16 SCR 287 ; V Ravi Chandran (Dr.) v. 
Union of India and others (2010) 1 SCC 174 : [2009] 
15 SCR 960 ; Elizabeth Dinshaw v. Arvand M. 
Dinshaw & Anr (1987) 1 SCC 42 : [1987] 1 SCR 
175 ; Syed Saleemuddin v. Dr. Rukhsana & Ors. (2001)
PRATEEK GUPTA v. SHILPI GUPTA & ORS. 
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5 SCC 247 ; Arathi Randi v. Randi Jagadrakshaka Rao 
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and others (2013) 15 SCC 790 ; Ruchi M(Jjoo v. Sanjeev 
Majoo (2011) 6 SCC 479 : [ 2011] 7 SCR 674 -
referred to. 
Mark T. Mckee v. Evelyn Mckee (1951) AC 352 
(PC) ; L (minors) (Wardship: Jurisdiction). In. re 
(1974) 1 WLR 250 (CA) - referred to. 
Case Law Reference 
[2015] 4 SCR 903 
referred to 
Para 14 
[1997] 5 Suppl. SCR 30 referred to 
Para 16 
[2000] l SCR 915 
referred to 
Para 16 
(2017) 8 sec 454 
relied on 
Para 19 
[2009] 16 SCR 287 
referred to 
Para 20 
[2009] 15 SCR 960 
referred to 
Para 20 
[1987] l SCR 175 
referred to 
Para 20 
(2001) 5 sec 247 
referred to 
Para 22 
(2013) 15 sec 790 
referred to 
Para 25 
[2011] 7 SCR 674 
referred to 
Para 31 
CRIMIN >\L APPELLATE JURISDICTION : Criminal Appeal 
No. 968 of2017. 
From the Judgment and Order dated 29.04.2016 of the High Court 
of Delhi at New Delhi in W.P. (Crl.) No.1003 of2016. 
Ms. Binu Tamta, Dhruv Tamta, Advs. for the Appellant. 
N. S. Dalal, D. P. Singh, R. C. Kaushik, Advs. for the Respondents. 
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SUPRE~ COURT REPORTS 
[2017] 13 S.C.R. 
The Judgment of the Court was delivered by 
AMITAVA ROY, J. 1. By the impugned judgment and order 
dated29.04.2016 rendered by the High Court of Delhi, in a writ petition 
filed by the respondent No. I seeking a writ in the nature of habeas 
corpus, the appellant-father has been directed to hand over the custody 
of the child, Master Aadvik, aged about 5 years to respondent No. I -
mother. The appellant-father is in assailment of this determination and 
seeks the remedial intervention of this Court. By order dated 03.05.2016, 
the operation of the impugned verdict was stayed and as the said 
arrangement was continued thereafter from time to time, the custody of 
the child as on date has remained with the appellant. The orders passed 
by this Court though attest its earnest endeavour to secure a reconciliation 
through interactions with the parents and the child, the efforts having 
failed, the appeal is being disposed of on merits. 
2. We have heard Ms. Binu Tamta, learned counsel for the appellant 
and Mr. N.S. Dalal, learned counsel for the respondent No. 1 (hereafter 
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to be referred to as "respondent"). 
3. A skeletal outline of the factual backdrop is essential. The 
appellant and the respondent who married on 20.01.2010 in accordance 
with the Hindu rites at New Delhi had shifted to the United States of 
America (for short, hereafter referred to as 'U.S.'), as the appellant 
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was already residing and gainfully
employed there prior to the nuptial 
alliance. In due course, the couple was blessed with two sons, the elder 
being Aadvik born on 28.09.2012 and the younger, Samath born on 
10 .09.2014. As adverted to hereinabove, the present !is is with regard to 
the custody of Master Aadvik, stemming from an application under Article 
226 of the Constitution oflndia filed by the respondent alleging illegal 
'artd unlawful keeping of him by the appellant and that too in violation of 
the orders passed by the Juvenile and Domestic Relations Court of Fairfax 
County, passed on 28.05.2015 and 20.10.2015 directing him to return the 
child to the Commonwealth ofVirginia and to the custody and control of 
the respondent. 
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4. The pleaded facts reveal that the child resided with the parents 
from his birth till 07.11.2014 and thereafter from07.1 l.2014 till 06.03.2015 
with the respondent-mother in the United States. This is so, as in view of 
irreconcilable marital issues, as alleged by the respondent, particularly 
due to the volatile temperament and regular angry outbursts of the 
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appellant often in front of the child, the parties separated on or about
PRATEEK GUPTA v. SHILPI GUPTA & ORS. 
[AMITAVA ROY, J.) 
237 
15.11.2014. Prior thereto, the appellant had on 08.11.2014 left for India 
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leaving behind the respondent and her children in U.S. He returned on 
18.01.2015 to the U.S., but the parties continued to live separately, the 
respondent with her children. The appellant however, made short time 
visits in between and on one such occasion i.e. on 24.01.2015, he took 
along with himAadvik, representing that he would take him for a short 
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while to the Dulles Mall. According to the respondent, she did not suspect 
any foul play and pennitted the child to accompany his father, but to her 
dismay though assured, the appellant did not return with the child in spite 
of fervent insistences and implorations of the mother. As alleged by the 
respondent, the appellant thus separated the child from her from 
24.01.2015 to 07.03.2015 in a pretentious and cruel move, seemingly 
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acting on a nefarious strategy which surfaced when on 07.03.2015, the 
appellant left U.S. with the child to India without any prior infonnation 
or pennission or consent of hers. 
5. Situated thus, the respondent approached Juvenile and Domestic 
Relations Court Fairfax County, for its intervention and for that, on 
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15.05.2015, she filed "Emergency Motion For Return of Minor Child 
and Established Temporary Custody''. 
6. On the next date fixed i.e. 19.05.2015, after the service of the 
process on the appellant, his counsel made a "special
appearance" to 
contest the service. On the date thereafter i.e. 28.05.2015, he however 
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informed the court that he was not contesting the service upon the 
appellant, whereupon hearing the counsel for the parties at length and 
also noticing the plea on behalf of the appellant that he intended to return 
with the child in U.S. and that the delay was because of his mother's 
illness, the U.S. Court passed the following order: 
"IN THE JUVENILE & DOMESTIC RELATIONS DISTRICT 
COURT FOR FAIRFAX COUNTRY 
SHILPI GUPTA 
Petitioner 
Vs. 
Prateek Gupta 
Respondent 
IN re: Aadvik Gupta 
D.O.B. September 28, 2012 
Case No. JJ 431468-01-00 · 
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SUPREME COURT REPORTS 
(2017) 13 S.C.R. 
ORDER 
This cause came before this Court on the 19" May, 2015, upon 
the petitioner Shilpi Gupta's verified motion for return of minor 
child and to establish temporary custody; 
It appearing to the Court that this Court has proper jurisdiction 
over the parties to this action pursuant to the Uniform Child Custody 
Jurisdiction and Enforcement Act, more specifically 20-146.24 
and 20-146.32 of the Code of Virginia, 1950, as amended. 
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It further awearing to the Court that it is in the best interest of the 
child, Aadvik Gupta, (hereinafter "Aadvik"l born on September 
28, 2012, that he be immediately returned to the custody of the 
petitioner and to the Commonwealth ofVrrginia pending any further 
order of this Court and that good cause exists with which to require 
that the petitioner take immediate possession of the child by all 
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means necessary. It is therefore adjourned and ordered as follows: 
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I. Custody: The petitioner Shilpi Gupta, is hereby granted sole 
legal and physi~al custody of the minor child,Aadvik Gupta, pending 
further order qf this Court. 
2. Return of the Child: That the respondent, Prateek Gupta, is 
hereby ordered to inunediately returnAadvik to the Commonwealth 
of Virginia, and to the custody and control of the petitioner or her 
agents. Thereafter, the respondent shall not remove the child 
from the Commonwealth of Virginia under any circumstances 
without further order of the
Court. 
3. Enforcement: That the all law enforcement agencies and 
related agencies (including but not limited to Police Department(s), 
Sheriff's Deparnnent(s), U.S. State Department, Federal Bureau 
of Investigations) are hereby directed to assist and/or facilitate 
the transfer of Aadvik to the petitioner, if necessary, including 
taking the child into custody from anyone who has possession of 
him and placing him in the physical custody of the petitioner. 
4. Passport: That once the child has been returned to Virginia, 
any and all of Aadvik 's passports must be immediately surrendered 
to the petitioner where it will be held until further order of this 
Court.
PRATEEK GUPTA v. SHILPI GUPTA & ORS. 
[AMITAVA ROY, J.] 
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5. Removal from the Commonwealth ofVirginia: That all relevant 
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and/or local law enforcement agencies shall do whatever possible 
to prevent the removal of Aadvik Gupta, from the Commonwealth 
ofVirginia except at the direction of the petitioner, Shilpi Gupta. 
And this cause is continued. 
Entered this 28 day ofMay, 2015. 
Sci/-
Judge" 
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7. Thereby, the Court in U.S. being satisfied that it had the proper 
jurisdiction over the parties to the action before it and also being of the 
opinion that it was in the best interest of the child, that he be returned to 
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the custody of the respondent and to the Commonwealth of Virginia 
pending further orders, and that being convinced that good cause existed 
to require that the respondent-mother take_immediate possession of the 
child by all means necessary, granted sole legal and physical custody of 
the child to the respondent pending further orders of the Court. The 
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appellant was directed to immediately return the child to the 
Commonwealth of Virginia and to the custody and control of the 
respondent or her agents with a further restraint on him not to remove 
the child from the Commonwealth of Virginia under any circumstance 
without the furtherorderofthe Court. Thereby, all law enforcement and 
related agencies as mentioned in the order were directed to assist and/ 
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or facilitate the transfer of the child to the respondent, if necessary by 
taking the
child into custody from anyone who had his possession and by 
placing him in the physical custody of the respondent. 
8. As the records laid before this Court would divulge, the appellant 
meanwhile on 26.05.2015 filed a petition for restitution of conjugal rights 
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under Section 9 of the Hindu Marriage Act, 1956 (as amended) and also 
a petition under Section 7(b) of the Guardian and Wards Act, 1890 in the 
court of the Principal Judge, Family Court, Rohini, Delhi seeking a decree 
for restitution of conjugal rights between the parties and for a declaration 
that he was the sole and permanent guardian of the child, respectively. 
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Subsequent thereto on 26.08.2015 he also instituted a suit in the High 
Court of Delhi at New Delhi praying for a decree inter alia to adjudge 
the proceedings initiated by the respondent in the court in U.S. to be 
false, malicious, vexatious, oppressive and nullis juris, being without 
jurisdiction and also to declare the order dated 28.05.2015 with regard to 
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[2017] 13 S.C.R. 
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the return of the child to the custody of the respondent-mother to be also 
null and void and not binding on him. A decree for permanent injunction 
against the respondent, her agents etc. from pursuing her proceedings 
before the court in U.S. was also sought for. The orders, if any, passed 
in these proceedings instituted by the appellant having a bearing on those 
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pursued by the respondent before the court in U.S. are however not on 
record and we therefore refrain from making any comment thereon. 
Suffice is to state that the lodging of the proceedings by the appellant in 
courts in India demonstrates in unambiguous terms, his knowledge about 
the /is in the Co\lfl in U.S. and the order dated 28.08.2015, interim though, 
directing him to return the custody of the child immediately to the 
respondent-mother and to the Commonwealth ofVtrginia, pending further 
orders. 
9. Be that as it may, the court in U.S. on 20.10.2015 noticing 
inter alia that the appellant had refused to return the child to the U.S. 
and to the custody of the respondent in direct violation ofits earlier order 
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dated 28.05.2015, ordered that the respondent be granted sole, legal 
and physical custody of the child and also declared that no visitation be 
granted to the appellant. It was further directed that if either party 
intended to relocate his or her residence, he/she would have to give 30 
days' advance written notice of any such intended
relocation and of any 
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intended change in address to the other party and the court. The 
proceedings concluded with the observation "This cause is final". For 
immediate reference the proceedings of 20.l 0.2015 is also extracted 
hereinbelow: 
"IN THE JUVENILE & DOMESTIC RELATIONS 
DISTRICT COURT FOR FAIRFAX COUNTY 
Shilpi Gupta 
Petitioner 
In re: Aadvik Gupta 
D.O.B. September 28, 2012 
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Case No. JJ431468-0l-00/02-00 
Vs. 
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Prateek Gupta 
Respondent
PRATEEK GUPTA v. SHILPI GUPTA & ORS. 
[AMITAVA ROY, J.] 
CUSTODY AND VISITATION ORDER 
This cause came before this Court on the 20th day of October, 
2015, upon the petitioner Shilpi Gupta's petitions for custody and 
visitation of Aadvik Gupta. 
It appearing to the Court that it has jurisdiction over the parties 
and the subject matter of the above-stvled matter; 
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It further appearing to the Court that the respondent, Prateek 
Gupta. unilaterally removed Aadvik Gupta to India without notice 
to or consent of the petitioner, and has further refused to return 
said child to the United States and into the custody of the petitioner 
in direct violation of this Court's order entered on May 28. 2015. 
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Having considered all of the factors of20-124.3 of the Code of 
Virginia, 1950, as amended, it is hereby: 
Adjudged and ordered that petitioner is granted sole legal and 
physical custody of Aadvik Gupta: it is further. 
Adjudged and ordered that no visitation is granted to the 
respondent at this time: and it is further: 
Adjudged and ordered that pursuant to 20-124.5 of the Code of 
Virginia, 1950 as amended, either party who intends to relocate 
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his or her residence shall give thirty-days advance written notice 
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of any such intended relocation and of any intended change of 
address, said notice being given to both the other party and to this 
Court. 
This cause is final 
Entered this 20'" day of October, 2015." 
10. Mentionably, before the order dated
20.10.2015 was passed, 
the respondent in the face of deliberate non-compliance of the order 
dated28.05.2015 of the court in U.S. had filed a contempt petition before 
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it and the copy thereof was served on the appellant asking him to show 
cause. It is also a matter ofrecord that the order dated 28.05.2015 of G 
the court in U.S. had been published in the daily "The Washington Times" 
on 03.09.2015, whereafter the order dated 20.10.2015 was passed in 
the presence of the counsel for the appellant after affording the 
respondent due hearing, whereupon the counsel of the appellant signed 
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[2017] 13 S.C.R. 
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the order with the following endorsement "objected to for returning the 
child to mother sole legal and physical custody". The proceedings of the 
order dated 20.10.2015 would also testify that he failed to appear even 
after personal service. That the notice of the proceedings in U.S. Court 
at both the stages had been served on the appellant is a minuted fact. It 
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was in this eventful backdrop, that the respondent invoked the writ 
jurisdiction of the High Court of Delhi seeking a writ of habeas corpus 
against the appellant for the custody of the child alleging its illegal and 
unlawful charge by him. 
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11. In reinforcement of her imputations, the respondent elaborated 
that the child was an American citizen by birth, Virginia being his home 
State and that in spite ofthe order(s) of a court of competent jurisdiction, 
the appellant had illegally detained him. Various correspondences made 
by her with different authorities seeking their intervention and assistance 
as the last resort before approaching the Writ Court were highlighted. 
12. In refutation, it was pleaded on behalf of the appellant that the 
petition for a writ in the nature of habeas corpus was misconceived in 
absence of any imminent danger of the life or physical or moral well-
being of the child. Referring to, amongst others the proceedings initiated 
by him under the Guardian and Wards Act, 1890 which was pending 
adjudication, it was
asserted on his behalf that as the same assured 
effective and efficacious remedy in law, the prayer in the writ petition 
ought to be declined. It was insisted as well that as the issue of the 
custody of the child was involved, a summary adjudication thereof was 
unmerited and that a proper trial was the imperative. Apart from referring 
to the reasons for the acrimonious orientation of the parties, the initiatives 
and efforts made by him and his family members to fruitlessly effect a 
resolution of the differences, were underlined. It was maintained on his 
behalf that the parties however, as an interim arrangement made on 
24.01.20 l 5 had agreed to live separately with each parent keeping one 
child in his/her custody and that in terms thereof Aadvik, the minor whose 
custody is in dispute, was given in charge of the appellant. Institution 
and pendency of the other proceedings before the Indian Courts were 
also cited to oppose the relief of the writ of habeas corpus. It was 
contended as well that the respondent being a single working woman, 
she would not, in any view of the matter, be capable of appropriately 
looking after both the children.
PRATEEK GUPTA v. SHILPI GUPTA & ORS. 
[AMITAVA ROY, J.] 
243 
13. In rejoinder, it was asserted on behalf of the respondent that 
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the proceedings instituted by the appellant were all subsequent to the 
one commenced by her in the court in U.S. on 15.05.2015 and in the 
face of the final order(s) passed, directing return of custody of the child 
to her and the Commonwealth of Virginia, the continuance of the child 
with the appellant was apparently illegal and unauthorized, warranting 
the grant of writ of habeas corpus. 
14. The High Court, as the impugned judgment would evince, after 
traversing the recorded facts, amongst others took note of the disinclination 
of the respondent-wife to join the company of her husband in India 
because of his alleged past conduct and the trauma and torture suffered 
by her, a plea duly endorsed by her father present in court, granted the 
writ as prayed for. While rejecting the contention of the appellant that no 
orders ought to be passed in the writ petition in view of the pendency of 
the three proceedings initiated by him in India, the High Court seemed to 
place a decisive reliance on the decision of this Court in Surya Vadanan 
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vs. State of Tamil Nadu & Ors.,1 and after subscribing to the principle 
D 
of "comity of courts" and the doctrines of "most intimate contact" and 
"closest concern" returned the finding, in the prevailing factual setting, 
that the domestic court had much less concern with the child as against 
the
foreign court which had passed the order prior in time. It observed 
further that no special or compelling reason had been urged to ignore the 
principle of comity of courts which predicated due deference to the 
orders passed by the U.S. Court, more particularly when the appellant 
was represented before it through his counsel and had submitted to its 
jurisdiction. It was held that as the child remained in the U.S. since birth 
upto March, 2015, it could be safely construed that he was accustomed 
to and had adapted himself to the social and cultural milieu different 
from that of India. It was observed that no plea had been raised on 
behalf of the appellant that the foreign court was either incompetent or 
incapable of exercising its jurisdiction or had not rendered a reasonable 
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or fair decision in the best interest of child and his best welfare. In the 
textual facts, the conclusion of the High Court was that the most intimate 
contact with the parties and their children was of the court in U.S. which 
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did have the closest concern for their well-being. 
15. Having determined thus, the High Court directed the appellant 
to produce the child in court on the date fixed for consequential handing 
over of his custody to the respondent. 
'(2015) 5 sec 450 
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16. In the process of impeachment of the impugned ruling of the 
High Court, the learned counsel for the appellant at the threshold has 
assiduously questioned the maintainability of the writ proceeding for 
habeas corpus. According to the learned counsel, in the attendant facts 
and ci:rcumstances, the custody of the child of the appellant who is the 
bioloi,>ical fatber can by no means be construed as illegal or unlawful and 
thus the writ proceeding is mi<conceived. Further the appellant being in-
charge of the child on the basis of an agreement between the parties, 
which also stands corroborated by various SMS and e-mails exchanged 
between them during the period from January, 2015 to 07.03.2015, the 
departure of the appellant with the child from the U.S. to India and its 
custody with him is authorized and approved in law. The learned counsel 
argued as well that during the interregnum, after the appellant had returned 
to India with the child, the couple had been in touch with each other with 
interactions about the well-being of the child and thus in law and on 
facts, there is no cause of action whatsoever for the writ of habeas 
corpus as prayed for. That in passing the impugned order, the High Court 
had visibly omitted to analyze the perspectives pertinent for evaluating 
the interest or welfare of the child has been underlined to urge that on 
that ground alone, the assailed ruling is liable
to be interfered with. The 
learned counsel dismissed any binding effect of the order of the U.S. 
Court on the ground that the same had been obtained by the respondent 
by resorting lo fraud in withholding the relevant facts from it and 
deliberately projecting wrongly that the safety of the child was in danger 
in the custody of the appellant. The order of the court in U.S. having 
thus been obtained by resorting to fraud, it is non est in law, she urged. 
Even otherwise, India being not a signatory to the Hague Convention of 
"The Civil Aspects of International Child Abduction", the order of the 
U.S. Court was not per se enforceable qua the appellant and as in any 
view of the matter, the principle of comity of courts was subject to the 
paramount interest and welfare of the child, the High Court had fallen in 
error in relying on the rendition of this Court in Surya Vardanan 1 which 
in any event, was of no avail to the respondent in the singular facts of 
the case. According to the learned counsel, the parties arc Indian nationals 
and citizens having Indian passports and they are only residents ofU. S. 
on temporary work visa. It has been argued that the respondent is all 
alone in U.S. with the younger child on a temporary work visa which 
would expire in 2017 and her parents and other family members are all 
in India. It has been pleaded as well that when the child was brought to
PRATEEK GUPTA v. SHILPI GUPTA & ORS. 
[AMITAVA ROY, J.] 
India by the appellant, he was aged 2\1, years, by which age he could not 
be considered to have been accustomed and adapted to the lifestyle in 
U.S. for the application of the doctrines of"intimate contact" and "closest 
concern" by a court of that country. According to the learned counsel, 
the child after his return to India, has been admitted to a reputed school 
and has accustomed himself to a desired congenial family environment, 
informed with love and affection, amongst others of his grand-parents 
for which it would be extremely harsh to extricate him herefrom and 
lodge him in an alien setting, thus adversely impacting upon the process 
of his overall grooming. That the removal of the child by the appellant to 
India had not been in defiance of any order of the court in U.S. and that 
the issue, more particularly with regard to his custody as per the Indian 
law is presently pending in a validly instituted proceeding here has also 
been highlighted in endorsement of the challenge to the impugned judgment 
and order. The decisions of this Court in Dhanwanti Joshi vs. Madhav 
Unde1, Sarita Sharma vs. Sushi/ Sharma' and Surya Vadanan1 have 
been adverted to in·consolidation of the above arguments. 
245 
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17. In his contrasting response, the learned counsel for the 
respondent, while edifying the sanctified status of a mother and her 
revered role qua her child in its all round development, urged with
reference to the factual background in which the child had been removed 
from his native country, that his continuing custody with the appellant is 
patendy illegal and unauthorized besides being ruthless and inconsiderate 
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vis-a-vis the respondent-mother and his youni;er sibling. Heavily relying 
on the determination of this Court in Surya Vadanan 1, the learned counsel 
has insisted that the High Court had rightfy invoked the principle of comity 
of courts and the doctrines of"intimate contact" and "closest concern" 
and therefore, no interference is called for in the ultimate interest and 
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well-being of the child. It was urged that the orders passed by the court 
in U.S. directing the return of the child to the custody of the respondent 
and the Commonwealth of Virginia is perfectly legal and valid, the same 
having b,een rendered after affording due opportunity to the appellant -
and also on an adequate appreciation of the aspects bearing on the welfare 
of the child. The orders thus being binding on the appellant, the defiance 
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thereof is inexcusable in law and only displays a conduct unbecoming of 
a father to justify retention of the custody of the child in disobedience of 
the process oflaw. The High Court as well on a due consideration of the 
"1998) 1sec112 
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facts and the law involved had issued its writ for return of the custody of 
the child to the respondent after affording a full-fledged bearing to both 
the parties for which no interference is warranted, he urged. The learned 
counsel however denied that there was ever any agreement or 
understanding between the couple, under which they agreed that each 
parent would have the custody of one child as represented by the 
appellant. In the case in hand as a final order has been passed by the 
court in U.S. with regard to the custody of the child in favour of the 
respondent after discussing all relevant aspects, the impugned order of 
the High Court being in conformance with the letter and spirit thereof, 
no interference is merited, he urged. While placing heavy reliance on 
the decision of this Court in Surya Vadanan 1 , it was also insisted that 
the return of the elder child to the custody of the mother was indispensably 
essential also for the proper growth and grooming of the younger child in 
his company and association, sharing the common bond oflove, affection 
and concern. 
18. The recorded facts and the contentious assertions have received 
our due attention. A bricfrccapitulation of the state oflaw on the issue 
at the outset is the desideratum. 
19. A three Judge Bench of this Court in Nithya Anand Raghavan 
vs. State (NCT of Delhi) and another' did have the occasion to 
exhaustively nevisit the
legal postulations qua the repatriation of a minor 
child removed by one of the parents from the custody of the other parent 
from a foreign country to India and its retention in the face of an order 
of a competent foreign court directing its return to the place of abode 
from which it bad been displaced. The appeal before this Court arose 
from a decision of the High Court in a Writ Petition filed by the father 
alleging that the minor daughter of the parties had been illegally removed 
from his custody in United Kingdom (for short, hereafter referred to as 
"UK"), thus seeking a writ of habeas corpus for her production. By the 
verdict impugned, the High Court directed the appellant-mother therein 
to produce the minor child and to comply with an earlier order passed by 
the High Court of Justice, Family Division, Principal Registry, United 
Kingdom within three weeks or in the alternative to handover the custody 
of the daughter to the respondent-father therein within that time. The 
proceeding in which the Court in the UK had passed the order dated 
08.01.2016 had been initiated by the respondent/father after the appellant/ 
mother had returned to India with the minor. 
'(2017) s sec 454
PRATEEK GUPTA v. SHILPI GUPTA & ORS. 
[AMITAVA ROY, J.] 
247 
20. A brief outline of the factual details, would assist better the 
A 
comprehension of the issues addressed therein. The parties to start with, 
were Indian citizens and were married as per the Hindu rites and customs 
on 30.11.2006 which was registered before the SOM Court, Chennai, 
whereafter on the completion of the traditional formalities, they shifted 
to U .K. in early 2007 and set up their matrimonial home in Watford 
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(U.K.). Differences surfaced between them so much so that as alleged 
by the wife, she was subjected to physical and mental abuse. She having 
conceived in and around December, 2008, left U.K. for Delhi in June, 
2009 to be with her parents and eventually was blessed with a girl child, 
Nethra in Delhi. The husband soon joined the mother and the child in 
Delhi whereafter, they together left for U.K. in March, 2010. Skipping 
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over the intervening developments, suffice it to state that the mother 
with the child who had meanwhile been back on a visit to India, returned 
to London in December, 2011, whereafter the minor was admitted in a 
Nursery School in U.K. in January, 2012. In December, 2012, the 
daughter was granted citizenship of U.K. and subsequent thereto, the 
0 
husband also acquired the same. Meanwhile from late 2014 till early 
2015, the daughter was taken ill and was diagnosed to be suffering from 
cardiac disorder for which she was required to undergo periodical medical
reviews. As imputed by the wife, the father however, dis-played total 
indifference to the daughter's health condition. Finally on 02.07.2015, 
the appellant-mother returned to India along with the daughter because 
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ofalleged violent behavior of the respondent and also informed the school 
that the ward would not be returning to U.K. for her well-being and 
safety. 
The appellant thereafter filed a complaint on 16.12.2015 against 
the respondent with the Crime Against Women Cell, New Delhi, which 
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issued notice to the respondent and his parents to appear before it. 
According to the appellant, neither the respondent nor his parents did 
respond to the said notice and instead as a counter-blast, he filed a custody/ 
wardship petition on 08.01.2006 before the High Court of Justice, Family 
Division, U.K. praying for the restoration of his daughter to the jurisdiction 
of that Court. The Court in U.K. on 08.01.2016 passed an ex-parte 
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order inter alia directing the appellant to return the daughter to U.K. 
and to attend the hearing of the proceedings. Within a fortnight therefrom, 
the respondent also filed a writ petition before the High Court of Delhi 
against the appellant-wife seeking a writ of habeas corpus for production 
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of the minor before the Court. By the impugned Judgment and Order, 
the High Court directed the appellant to produce the daughter and comply 
with the orders passed by the U.K. Court or hand over the minor to the 
respondent-father within three weeks therefrom. 
Assailing this determination, it was urged on behalf of the appellant 
inter alia that the High Court had wrongly assigned emphasis on the 
principle of comi1Y of courts in complete disregard of the paramount 
interest and welfa¢ of the child, more particularly in view ofthe vicious 
environment at het matrimonial home in U.K. in which she (appellant) 
had been subjected to physical and verbal abuse and had even placed 
the child at risk with his behaviour. The fact that India not being a 
signatory to the Hague Convention intended to prevent parents from 
abducting children across the borders, the principle of comity of courts 
did not merit precedence over the welfare of the child, an aspect 
overlooked by the High Court, was underlined. It was asserted that the 
impugned order did also disregard the parens patriae jurisdiction of the 
Indian court within whose jurisdiction the child was located as well as 
the welfare of the child in question in mechanically applying the principle 
of comity of courts: That though the welfare of the child in situations of 
the like as well, is· of paramount consideration, this Court in Shilpa 
Aggarwal vs. Aviral
Mittal and another' and in Surya Vadanan' had 
deviated from this governing precept and had directed the child and 
mother to return to the jurisdiction of the foreign court by mis-interpreting 
the concept of 'intimate contact' of the child with the place of repatriation, 
was highlighted for reconsideration of the views expressed therein. It 
was urged that the decision in Surya Vadanan' had a chilling effect of 
assigning dominance to the principle of comity of courts over the welfare 
of a child, which mentionably undermined the perspective of the child, 
thus encouraging multiplicity of proceedings 
It was insistingly canvassed that the view adopted in Surya 
Vadanan' was in direct conflict with an earlier binding decision in V. 
Ravi Chandran (Dr. I vs. Union of India and others' in which a three-
J 11rl~'.::' G:·:-;._·:. ;,;.~ t.,1;,-.~v:-!'.::iJ1y held that under no circullliitance can the 
:•n"c1ple of wdfare of the child be eroded and that a child can seek 
refuge under the parens patriae jurisdiction of the Court. While 
dismissing the initiative of the respondent before the UK Court to be one 
'<201oi 1sec591 
6(2010) 1sec174
PRATEEK GUPTA v. SHILPI GUPTA & ORS. 
[AMITAVA ROY, J.] 
249 
in retaliation of the appellant's allegation of abuse and violence and 
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noticeably after she had filed a complaint with the Crime Against Women 
Cell (CAWC), New Delhi, it was also urged that the U.K. Court had 
passed ex parte order without affording any opportunity to her to present 
her case. It was canvassed further that the writ petition filed by the 
respondent seeking a writ of habeas corpus which is envisaged for urgent 
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and immediate relief was also a designed stratagem of his bordering on 
the abuse of the process of the court and thus ought to have been 
discouraged by the High Court. It was underlined as well that the High 
Court in passing the impugned direction had also overlooked that the 
respondent had defaulted in the discharge of his parental duty towards 
the child, who was suffering from serious health problems, thus 
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compromising in all respects the supervening consideration of overall 
well-being of the child. 
In refutation, it was maintained on behalf of the respondent that 
the child was a British citizen and brought up in U .K. and as he had 
acquired its citizenship and the appellant was also a permanent resident 
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ofU.K., they had the abiding intention to permanently settle there along 
with the child and thus the U .K. Court had the closest concern and 
intimate contact with the child as regards her welfare and custody and 
thus indubitably had the jurisdiction in the
matter. It was urged on behalf 
of the respondent by referring amongst others to the rendering in Surya 
Vadanan' that the child had clearly adapted to the social and cultural 
E 
milieu of U.K. and thus it was in its best interest to be rehabilitated 
there. That there was no material to suggest that the return of the child 
to U .K. would result in psychological, physical or cultural harm to her or 
that the U .K. Court was incompetent to take a decision in the interest 
and welfare of the child, was underlined. It was insisted as well that 
there was no compelling reason for the High Court to ignore the principle 
of comity of court.; ;::Jd that as acknowledged by the High Court, better 
medical facilities were available in U.K. to treat the child. The steps 
taken by the respondent towards the child's boarding and travelling 
expenses together with the expenditure incurrable for the school and 
other incidental aspects and his undertaKing not to pursue any criminal 
proceeding against the appellant for kidnapping the child with the avowed 
desire of reinstating his home was highlighted to demonstrate his bona 
tides. That there was no delay on the part of the respondent in filing the 
writ petition, which he did immediately after coming to learn that the 
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appellant was disipclined to return the child to U.K., was stressed upon 
as well. 
In this disputatious orientation, this Court premised its adjudication 
on the necessity to comply with the direction issued by the foreign court 
against the appellant to produce the minor child before the U.K. Court 
where the issue regarding wardship was pending for consideration and 
also to ascertain as to which Court could adjudicate the same. 
While recalling that the concept of forum convenience has no 
place is wardship jurisdiction, this Court at the outset dwelt upon the 
efficacy of the principle of comity of courts as applicable to India in 
respect of child custody matters and for that purpose, exhaustively 
traversed the relevant decisions on the issue. It referred to the verdict 
in Dhanwanti Joshi1, which recorded the enunciation of the Privy 
Council in Mark T. Mckee vs. Evelyn Mckee', which in essence 
underlined the paramountcy of the consideration of welfare and happiness 
of the infant to be of decisive bearing in the matter of deciding its custody 
with the observation that comity of courts demanded not its enforcement 
but its grave consideration. In that case, a decree of divorce was passed 
in USA and custody of the child was given to the father and later varied 
in favour of the mother. At that stage, the father took away the child to 
Canada, whereafter in the habeas corpus proceedings by the
mother, 
though initially the decisions of the lower courts went against her, the 
Supreme Court of Canada gave her custody and the said Court held that 
the father could not have the question of custody retried in Canada once 
the question was adjudicated in favour of the mother in the U.S.A. earlier. 
The above observation was made by the Privy Council on appeal to it 
which held that in the proceedings relating to the custody before the 
Canadian Court, the welfare and happiness of the infant was of paramount 
consideration and the order of a foreign court in USA as to the custody 
can be given due weight in the circumstances of the case but such an 
order of a foreign court was only one of the factors which must be taken 
into consideration. The duty of the Canadian Court to form any 
independent judgment on tbe merits of the matter with regard to the 
welfare of the child was emphasized. It recorded as well that this view 
was sustained in L (minors) (Wardship: Jurisdiction), In. re•, which 
reiterated that the limited question which arose in the latter decisions 
"I95l)AC 352 (PC) 
'(1974) I WLR 250 iCA)
PRATEEK GUPTA v. SHILPI GUPTA & ORS. 
[AMITAVA ROY, J.] 
251 
was whether the court in the country in which the child was removed 
A 
could conduct (a) summary enquiry or (b) an elaborate enquiry in the 
question of custody. It was explicated that in case of (a) a summary 
enquiry, the court would return custody to the country from which the 
child was removed unless such return could be shown to be hannful to 
the child and in case of (b) an elaborate enquiry, the court could go into 
the merits to determine as to where the permanent welfare lay and 
ignore the order of the Foreign Court or treat the fact of removal of the 
child from another country as only one of the circumstances and the 
crucial question as to whether the court (in the country to which the 
child is removed) would exercise the summary or elaborate procedure is 
to be determined according to the child's welfare. It was indicated that 
the summary jurisdiction to return the child is invoked, for example, if 
the child had been removed from its native land to another country where, 
may be, his native language is not spoken, or the child gets divorced 
from the social customs and contacts to which he has been accustomed, 
or its education in his native land is interrupted and the child is being 
subjected to a foreign system of education, for these are all acts which 
could psychologically disturb the child. It was mentioned as well that 
the summary jurisdiction is exercised only if the court to which the
child 
has been removed is moved promptly and quickly, for in that event, the 
Judge may he well persuaded that it will be hetterforthe child that those 
facets be investigated in the court in his native country on the expectation 
that an early decision in the native country could be in the interest of the 
child before it would develop roots in the country to which he had been 
removed. It was expounded in the alternative, that the Court might as 
well think of conducting an elaborate enquiry on merits and have regard 
to the other facts of the case and the time that has elapsed after the 
removal of the child and consider, if it would be in the interest of the 
child not to have it returned from the country to which it had been 
removed, so much so that in such an eventuality, the unauthorized removal 
of the child from the native country would not come in the way of the 
court in the country to which the child has been removed, to ignore the 
removal and independently consider whether the sending back of the 
child to its native country would be in the paramount interest of the child. 
This Court recalled its mandate in Elizabeth Dinshaw vs. Arvand 
M. Dinshaw & Anr. 9, directing the father of the child therein, who had 
'(1987) 1 sec 42 
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removed it from USA contrary to the custody orders of U.S. Court, to 
repatriate it to USA to the mother not only because of the principle of 
comity but also b~cause on facts, which on independent consideration 
merited such restoration of the child to its native State, in its interest. 
The following observations in Dhanwanti Joshi' qua the state oflaw 
vis-a-vis the countries who are not the signatories of the Hague 
Convention are of formidable significance and as noticed in NithyaAnand 
Raghavan', are eictracted hereinbelow: 
"33. So far as non-Convention countries are concerned. or where 
the removal related to a period before adopting the Convention, 
the law is that the court in the countrv to which the child is removed 
will consider the question on merits bearing the welfare of the 
child as of paramount importance and consider the order of the 
foreign court as only a factor to be taken into consideration as 
stated in McKee v. McKee unless the Court thinks it fit to exercise 
summarv jurisdiction in the interests of the child and its prompt 
return is for its welfare, as explained in Re [L. (Minors) (Wardship 
: Jurisdiction). As recently as 1996-1997, it has been held in P. (A 
minor) (Child Abduction: Non-Convention Country), Re: by Ward 
, L.J. [1996 Current Law Year Book, pp. 165-166] that in deciding 
whether to order the return of a child who has been abducted 
from his or her country of
habitual residence--which was not a 
party to the Hague Convention, 1980-the courts' overriding 
consideration must be the child's welfare. There is no need for 
the Judge to attempt to apply the provisions of Article 13 of the 
Convention by ordering the child's return unles~ a grave risk of 
harm was established. See also A. (A Minor) (Abduction: Non-
Convention Country) [Re, The Times, 3-7-1997 by Ward, L.J. 
(CA) (quoted in Current Law, August 1997, p. 13]. This answers 
the contention relating to removal of the child from USA." 
Here again the court in the country to which the child is removed 
was required to consider the question on merits bearing on its welfare as 
of paramount significance and take note of the order of the foreign court 
as only a factor to be taken into consideration as propounded in Mckee', 
unless the court thought itfit to exercise the summary jurisdiction of the 
child and its prompt return to its native country for its welfare. In 
elaboration of the above exposition, this Court in Nithya Anand 
Raghavan' propounded thus:
PRATEEK GUPTA v. SHILPI GUPTA & ORS. 
[AMITAVA ROY, J.] 
· "40. The Court has noted that India is not yet a signatory to the 
Hague Convention of 1980 on "Civil Aspects oflntemational Child 
Abduction". As regards the non-Convention countries. the law is 
that the court in the countrv 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 
253 
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of the child and its prompt return is for its welfare. In exercise of 
summary jurisdiction. the court must be satisfied and of the opinion 
that the proceeding instituted before it was in close proximitv and 
filed promptly after the child was removed from his/her native 
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state and brought within its territorial jurisdiction, the child has not 
gained roots here and further that it will be in the child's welfare 
to return to his native state because of the difference in language 
spoken or social customs and contacts to which he/she has been 
accustomed or such other tangible reasons. In such a case the 
court need not resort to an elaborate inquiry into the merits of the 
paramount welfare of the child but leave that inquiry to the foreign 
court by directing return of the child. Be it noted that in exceptional 
cases the court can still refuse to issue direction to return
the 
child to the native state and more particularly in spite of a pre-
existing order of the foreign court in that behalf, if it is satisfied 
that the child's return may expose him to a grave risk of harm. 
This means that the courts in India, within whose jurisdiction the 
minor has been brought must "ordinarily" consider the question 
on merits. bearing in mind the welfare of the child as of paramount 
importance whilst reckoning the pre-existing order of the foreign 
court ifany as only one of the factors and not get fixated therewith. 
In either situation-be it a summary inquiry or an elaborate 
inquiry-the welfare of the child is of paramount consideration. 
Thus, while examining the issue the courts in India are free to 
decline the relief of return of the child brought within its jurisdiction, 
ifit is satisfied that the child is now settled in its new environment 
or ifit would expose the child to physical or psychological harm or 
otherwise place the child in an intolerable position or ifthe child is 
quite mature and objects to its return. We are in respectful 
agreement with the aforementioned exposition." 
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The above excerpt would in no uncertain terms underscore the 
predication that the courts in India, within whose jurisdiction the minor 
has been brought "ordinarily" while examining the question on merits, 
would bear in mind the welfare of the child as of paramount and 
predominant importance while noting the preexisting order of the foreign 
court, if any, as omly one of the factors and not get fixated therewith and 
that in either situation, be it a summary enquiry or elaborate enquiry, the 
welfare of the child is of preeminent and preponderant consideration, so 
much so that in undertaking this exercise, the courts in India are free to 
decline the relief of repatriation of the child brought within its jurisdiction, 
if it is satisfied that it had settled in its new environment or that it would 
be exposed thereby to physical harm or otherwise, if it is placed in an 
intolerable or unbearable situation or environment or if the child in a 
given case, if matured, objects to its return. 
Sustenance of this view was sought to be drawn from the verdict 
of another three.Judge Bench of this Court in V. Ravichandran6, as 
expressed in paragraphs 27 to 30 in the following terms: 
"27 .... However, in view of the fact that the child had lived with 
his mother in India for nearly twelve years, this Court held that it 
would not exercise a summary jurisdiction to return the child to 
the United States of
America on the ground that its removal from 
USA in 1984 was contrary to the orders of US courts. It was also 
held that whenever a question arises before a court pertaining to 
the custody of a minor child, the matter is to be decided not on 
considerations of the legal rights of the parties but on the sole and 
predominant criterion of what would best serve the interest of the 
minor." 
(emphasis supplied) 
Again in paras 29 and 30, the three-Judge Bench observed thus: 
(SCC pp. 195-96) 
"29. While dealing with a case of custody ofa child removed by a 
parent from one country to another in contravention of the orders 
of the court where the parties had set up their matrimonial home, 
the court in the country to which the child has been removed must 
first consider the question whether the court could conduct an 
elaborate enquiry on the question of custody or by dealing with 
the matter summarily order a parent to return custody of the child
PRATEEK GUPTA v. SHILPI GUPTA & ORS. 
[AMITAVA ROY, J.] 
to the country from which the child was removed and all aspects 
relating to the child's welfare be investigated in a court in his own 
country. Should the court take a view that an elaborate enquiry is 
necessary, obviously the court is bound to consider the welfare 
and happiness of the child as the paramount consideration and go 
into all relevant aspects of welfare of the child including stabilitv 
and securitv, loving and understanding care and guidance and full 
development of the child's character, personality and talents. While 
doing so, the order of a foreign court as to his custody may be 
given due weight; the weight and persuasive effect of a foreign 
judgment must depend on the circumstances of each case. 
30. However, in a case where the court decides to exercise its 
jurisdiction summarily to return the child to his own country, 
keeping in view the jurisdiction of the court in the native country 
which has the closest concern and the most intimate contact with 
the issues arising in the case, the court may leave the aspects 
relating to the welfare of the child to be investigated by the court 
in his own native country as that could be in the best interests of 
the child. The indication given in McKee v. McKee that there 
may be cases in which it is proper for a court in one jurisdiction to 
make an order directing that a child be returned to a foreign 
jurisdiction without investigating the merits of
the dispute relating 
to the care of the child on the ground that such an order is in the 
best interests of the child has been explained in L. (Minors), In 
re [L. (Minors) (Wardship : Jurisdiction), (1974) I WLR 250 
(CA)} and the said view has been approved by this Court in 
Dhanwanti Joshi [Dhanwanti Joshi. Similar view taken by 
the Court of Appeal in H. (Infants) (1966) 1 WLR 381 has 
been approved by this Court in Elizabeth Dinshaw." 
(emphasis supplied) 
The quintessence of the legal exposition on the issue was succinctly 
synopsised in the following terms: 
"42. The consistent view of this Court is that ifthe child has been 
brought within India, the courts in India may conduct: (a) summary 
inquiry; or (b) an elaborate inquiry on the question of custody. In 
the case of a summary inquiry, the court !llay deem it fit to order 
return of the child to the country from where he/she was removed 
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unless such return is shown to·be harmful to the child. In other 
words, even in the matter of a summary inquiry, it is open to the 
court to decline the reliefofreturn of the child to the country from 
where he/she was removed irrespective of a pre-existing order 
of return of the child by a foreign court. In an elaborate inquir), 
the court is obliged to examine the merits as to where the paramount 
interests and welfare of the child lay and reckon the fact of a pre-
existing order of the foreign court for return of the child as only 
one of the circumstances. In either case, the crucial question to 
be considered by the court (in the country to which the child is 
removed) is to answer the issue according to the child's welfare. 
That has to be done bearing in mind the totality of facts and 
circumstances of each case independently. Even on close scrutiny 
of the several decisions pressed before us, we do not find any 
contra view in this behalf. To put it differently, the principle of 
comity of courts cannot be given primacy or more weightage for 
deciding the matter of custody or for return of the child to the 
native State." 
21. Thus the state of law as approved in Nithya Anand 
Raghavan' is that if a child is brought from a foreign country, being its 
native country to India, the court in India may conduct (a) summary 
enquiry, or (b) an elaborate enquiry on the question of custody, if called
for. ln the case of a summary enquiry, the court may deem it fit to order 
the return of the child to the country from where he/she has been removed 
unless such return is shown to be harmful to the child. Axiomatically 
thus, even in case of a summary enquiry, it is open to the court to decline 
the relief of return of the child to the country from where he/she has 
been removed hTespective of a pre-existing order of return of a child by 
a foreign court, in case it transpires that its repatriation would be harmful 
to it. On the other hand, in an elaborate enquiry, the court is obligated to 
examine the merits as to where the paramount interest and welfare of 
the child lay and take note of the pre-existing order of the foreign court 
for the return of the child as only one of the circumstances. As a 
corollary, in both the eventualities whether the enquiry is summary or 
elaborate, the court would be guided by the pre-dominant consideration 
of welfare of the child assuredly on an overall consideration on all 
attendant facts and circumstances. In other words, the principle of comity 
of courts is not to be accorded a yielding primacy or dominance over the
PRATEEK GUPTA v. SHILPI GUPTA & ORS. 
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257 
welfare and well-being of the child which unmistakeably is of paramount A 
and decisive bearing. 
22. This Court in Nithya Anand Raghavan4 also had to examine 
as to whether a writ of habeas corpus was available to the father qua 
the child which wa5 in the custody of the mother, more particularly in the 
face of ex-parte order of the court in U.K. against her and directing her 
B 
for its return to its native country by declaring it to remain as a ward of 
that court during its minority or until further orders. This Court noted 
that this order had remained not only unchallenged by the appellant mother 
but also no application had been made by her before the foreign court 
for its modification. This Court however was firstly of the view that this 
order per se did not declare the custody of the minor with the appellant 
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mother to be unlawful or that till it returned to England, its custody with 
the mother had become or would be treated as unlawful inter alia for 
the purposes of considering a petition for issuance of writ of Hebeas 
Corpus. In this regard, the decision of this Court, amongst others in 
Syed Saleemuddin vs. Dr. Rukhsana & Ors.'°, was adverted to, 
D 
wherein it had been proclaimed that the principal duty of the court moved 
for the issuance of writ of habeas corpus in relation to the custody of a 
minor child is to ascertain whether such custody is unlawful or illegal 
and whether the welfare
of the child requires, that his present custody 
should be changed and the child ought to be handed over to the care and 
custody of any person. It was once again emphasized that while doing 
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so, the paramount consideration must be, the welfare of the child. 
The observation in Elizabeth Dinshaw' that in such matters, 
the custody must be decided not by reference to the legal rights of the 
parties but on the sole and predominant criterion as to what would best 
serve the interest and welfare of the minor and thaf to that extent, the 
High Court would exercise its parens patriae jurisdiction, as the minor 
is within its jurisdiction was reminisced. In the facts of the case also, 
noting the supervening fact that the appellant was the biological mother 
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and natural guardian of the minor child, the remedy of writ of habeas 
corpus invoked for enforcement of the directions of the foreign court 
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was declined, however leaving the respondent/father to take recourse 
to such other remedy as would be available in law for the enforcement 
of the order passed by the foreign court for securing the custody of the 
child. It was held that the appellant being the biological mother and natural 
10 (2001) s sec 241 
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guardian of the child, it could be presumed that its custody with her was 
lawful. 
23. This Court in Nithya Anand Raghavan' next turned to the 
contextual facts to record that the parents of the child were of Indian 
origin and that the minor was an Indian citizen by birth as she was born 
in Delhi and that she had not given up her Indian citizenship though she 
was granted UK citizenship subsequent thereto. That the child was 
admitted to a prlmary school in UK in September 2013 and that she had 
studied there in July 2015 was noted. It was mentioned as well that till 
she accompanied her mother on 02.07.2015 to India, no proceeding of 
any kind had been filed in the UK Court, either in relation to any 
matrimonial dispute between the parents or for her custody. In India, the 
child had been living with her grand-parents and other family members 
and relations unlike in U .K., where she lived in a nuclear family of three 
with no other relatives. That she had been studying in India for last over 
one year and had spent equal time in both the countries up to the first six 
years of her life was taken note of as well. This Court also expressed 
that the child would be more comfortable and secured to live with her 
mother here in India, who can provide her with motherly love, care, 
guidance and the required upbringing for her desired grooming of 
personality, character and faculties. That being a girl child, the
custody, 
company and guardianship of the mother was of utmost significance 
was felt. It was also recorded that being a girl child of the age of about 
seven years, she ought to be ideally in the company of her mother in 
absence of circumstances that such association would be harmful to 
her. That there was no restraint order passed by any court or aulh01ity 
in U.K. before the child had travelled with her mother to India was 
F 
accounted for as well. This Court noticed most importantly, that the 
child was suffering from cardiac disorder, which warranted periodical 
medical reviews and appropriate care and attention, which it felt could 
be provided only by the mother as the respondent/father being employed 
would not be in a position to extend complete and full attention to his 
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daughter. That the appellant/mother had neither any intention to return 
to UK nor according to her ifthe child returns to UK, she would be able 
to secure the desired access to her to the child to provide care and 
attention was noted in express terms. On an evaluation of the overall 
facts and circumstances, this Court thus was of the unhesitant opinion 
that it would be in the interest of the child to remain in the custody of her 
H
PRATEEK GUPTA v. SHILPI GUPTA & ORS. 
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259 
mother and that her return to UK would prove harmful to her. While 
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concluding thus, it was stated that this arrangement notwithstanding the 
appellant/mother ought to participate in the proceedings before the UK · 
Court so long as it had the jurisdiction to adjudicate the matter before it. 
It was observed as well that, as the scrutiny involved with regard to the 
custody had arisen from a writ petition filed by the respondent/father for 
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issuance of writ of a habeas corpus and not to decide the issue of grant 
or otherwise of the custody of the minor, all relevant aspects would have 
to be considered on their own merit in case a substantive proceeding for 
custody is made before any court of competent jurisdiction, including in 
India, independent of any observation made in the judgment. 
To complete the narrative, the analysis of the other relevant 
pronouncements rendered on the issue would be adverted to in seriatim. 
In V. Ravi Chandra116, a writ of habeas corpus for production of minor 
c 
son from the custody of his mother was sought for by his father. The 
child was born in US and was an American citizen and was about eight 
years of age when he was removed by the mother from U.S., in spite of D 
her consent order on the issue of custody and guardianship of the minor 
passed by the competent U.S. Court. The minor was given in the joint 
custody to the parents and a restraint order was operating
against the 
mother when it was removed from USA to India. Prior to his removal, 
the minor had spent few years in U.S .. All these factors weighed against 
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the mother as is discernible from the decision, whereupon this Court 
elected to exercise the summary jurisdiction in the interest of the child, 
whereupon the mother was directed to return the child to USA within a 
stipulated time. 
24. In Shi/pa Aggarwal', the minor girl child involved was born 
F 
in England having British citizenship and was only 3\1, years of age at 
the relevant time. The parents had also acquired the status of permanent 
residents ofU.K. In the facts and circumstances of the case, this Court 
expressed its satisfaction that in the interest of the minor child, it would 
be proper to return her to U.K. by applying the principle of comity of G 
courts. The Court was also of the opinion thatthe issue regarding custody 
of the child should be decided by the foreign court from whose jurisdiction 
the child was removed and brought to India. A summary enquiry was 
resorted to in the facts of the case. 
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25. In Arathi Randi vs. Randi Jagadrakshaka Rao and 
others11 the minor involved was a male child who was born in USA and 
had acquired the citizenship of that country by birth. The child was 
removed from USA by the mother in spite of a restraint order and a red 
corner notice operating against her had been issued by a court of 
competent jurisdiction in USA. This Court therefore held that the facts 
involved were identical to those in V. Ravi Chandran' and further noticed 
that the mother of the child also had expressed her intention to return to 
USA and live with her husband though the latter was not prepared to 
cohabit with her. 
26. In Surya Vadanan1, the two minor girls aged IO years 6 years 
respectively were British citizens by birth. Following intense matrimonial 
discords, the mother had left UK and had come to India with her two 
daughters. She also instituted a proceeding in the Family Court at 
Coimbatore seeking dissolution of marriage. The husband, finding the 
wife to be unrelenting and disinclined to return to U.K. with her daughters. 
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petitioned the High Court of Justice in U.K. for making the children as 
the wards of the Court, which passed an order granting the prayer and 
required the mother to return the children to its jurisdiction. This order 
was passed even before any formal order could be passed on the petition 
filed by the wife seeking divorce. This order was followed by another 
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orderofthe U.K. Court giving peremptory direction to the wife to produce 
the two daughters before the U.K. Court and was supplemented by a 
penal notice to her. It was thereafter that the husband moved the Madras 
High Court for a writ of habeas corpus on the ground that the wife had 
illegal custody of the two daughters. On the following considerations as 
extracted hereinbelow, relief as prayed for by the husband was granted: 
"56. However. ifthere is a pre-existing order ofa foreign court of 
competent jurisdiction and the domestic court decides to conduct 
an elaborate inquiry (as against a summary inquiry), it must have 
special reasons to do so. An elaborate inquiry should not be ordered 
as a matter of course. While deciding whether a summary or an 
elaborate inquiry should be conducted, the domestic court must 
take into consideration: 
(a) The nature and effect of the interim or interlocutory order 
passed by the foreign court. 
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PRATEEK GUPTA v. SHILPI GUPTA & ORS. 
[AMITAVA ROY, J.] 
261 
(b) The existence of special reasons for repatriating or not 
A · 
repatriating the child to the jurisdiction of the foreign court. 
( c) The repatriation of the child does not cause any moral or 
physical or social or cultural or psychological harm to the child, 
nor should it cause any legal harm to the parent with whom the 
child is in India. There are instances where the order of the 
B 
foreign court may result in the arrest of the parent on his or 
her return to the foreign country. In such cases, the domestic 
court is also obliged to ensure the physical safety of the parent. 
( d) The alacrity with which the parent moves the foreign court 
concerned or the domestic court concerned, is also relevant. 
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If the time gap is unusually large and is not reasonably 
explainable and the child has developed firm roots in India, the 
domestic court may be well advised to conduct an elaborate 
inquiry." 
27. Vis-a-visthe renditions in V. Ravi Chandran 6, Shi/pa 
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Aggarwal' and Arathi Bandi11 , this Court in Nithya Anand Raghavan4 
distinguished the facts involved therein from the one under its scrutiny. 
While underlining that the considerations which impelled the court to 
adopt its summary approach/jurisdiction in directing the return of the 
child to its native country, did not in any way discount or undermine the 
predominant criterion of welfare and interest of the child even to outweigh 
neuter or offset the
principle of comity of courts, it disapproved the 
primacy sought to be accorded to the order of the foreign court on the 
issue of custQdy of minor in Surya Vadanan' though negated earlier in 
Dhanwanti Joshi2 and reiterated that whether it was a case of summary 
enquiry or an elaborate enquiry, the paramount consideration was the 
interest and welfare of the child so much so that the preexisting order of 
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a foreign court could be taken note of only as one of the factors. The 
alacrity or the expedition with which the applicant/parent moves the 
foreign court or the domestic court concerned, for custody as a relevant 
factor was also not accepted to be of any definitive bearing. This notion 
of "first strike principle" was not subscribed to and further the 
extrapolation of that principle to the courts in India as predicated in Surya 
Vadanan1 was also held to be in-apposite by adverting inter alia to 
Section 14 of the Guardians and Wards Act, 1890 and Section 10 of the 
Civil Procedure Code. 
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28. The following passage from Nithya Anand Raghavan4 
discarding the invocation of"first strike" principle as a definitive factor 
in furtherance of the applicability of the principle of comity of courts is 
quoted as hereunder: 
"66. The invocation of first strike principle as a decisive factor. in 
our opinion. would undermine and whittle down the wholesome 
principle of the dutv of the court having jurisdiction to consider 
the best interests and welfare of the child, which is ofoaramount 
importance. If the Court is convinced in that regard, the fact that 
there is already an order passed by a foreign court in existence 
may not be so significant as it must yield to the welfare of the 
child. That is only one of the factors to be taken into consideration. 
The interests and welfare of the child are of paramount 
consideration. The principle of comity of courts as observed in 
Dhanwanti Joshi case in relation to non-Convention countries is 
that the court in the country to which the child is removed will 
consider the question on merits bearing the welfare of the child as 
of paramount importance and consider the order of the foreign 
court as only a factor to be taken into consideration. While 
considering that aspect, the court may reckon the fact that the 
child was abducted from his or her country of habitual residence 
but the court's overriding consideration must be the child's 
welfare." 
In
conclusion, qua the decisions relied upon by the respondent-
father, the facts contained therein were held to be distinguishable and it 
was observed that though the factual backdrop as obtained therein 
necessitated the court to issue direction to return the child to the native 
State, it did not follow that in deserving cases, the Courts in India were 
denuded of their powers to decline the relief to relocate the child to the 
native State merely because of a pre-existing order of foreign court of 
competent jurisdiction. The law laid down in Dhanwanti Joshi' and 
approved by a three Judge Bench of this Court in V. Ravi Chandran• 
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was enounced to be the good law, thus reiterating that so far as non-
convention countries are concerned, the court in the country in which 
the child is removed while examining the issue of its repatriation to its 
native country, would essentially bear in mind that the welfare of the 
child was of paramount importance and that the existing order of foreign 
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court was only a factor to be taken note of. It was reiterated that the
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[AMlTAVA ROY, J.] 
summary jurisdiction to return the child could be exercised in cases where 
the child had been removed from his native land to another country 
where his native language is not spoken or the child gets divorced from 
social customs and contacts to which he is accustomed or if his education 
in his native land is interrupted and the child is subjected to foreign system 
of education, thus adversely impacting upon his psychological state and 
overall process of growth. Though a prompt and expeditious move on 
the part of the applicant parent for the repatriation of the child in a court 
in the country to which it had been removed may be a relevant factor, 
the overwhelming and determinative consideration unfailingly has to be 
in the interest and welfare of the child. It was observed that in the facts 
263 
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of the case, the minor child after attaining majority would be free to 
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exercise her choice to go to U.K and stay with her father but till that 
eventuality, she should stay in the custody of mother unless the court of 
competent jurisdiction trying the issue ofcustody of the child did order to 
the contrary. Visitation right to the respondent-father however was 
granted and directions were issued so as to facilitate the participation of D 
the appellant- mother in the pending proceedings before the U .K. Court, 
inter alia by requiring the respondent-husband to bear the necessary 
costs to meet the
expenditure towards all relevant aspects related thereto. 
The impugned judgment of the High Court issuing the writ of habeas 
corpus in favour of the respondent-husband was thus set aside. 
29. The dialectics and determinations in Nithya Anand 
Raghavan4 have been alluded to in pervasive details as the adjudication 
therein by a Bench of larger coram has forensically analyzed all the 
comprehensible facets of the issue, to which we deferentially subscribe. 
30. The decisions cited at the Bar and heretofore, traversed present 
fact situations with fringe variations, the common and core issue being 
the justifiability or otherwise factually and/or legally, of the relocation of 
a child removed from its native country to India on the basis of the 
principle of comity of courts and doctrines of "intimate contact" and 
''closest conce1n". 
31. The following observations in Ruchi Majoo vs. Sanjeev 
Majoo11 bearing on the parens patriae jurisdiction of Indian courts in 
cases involving custody of minor children are apt as well: 
"(2011) 6 sec 479 
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"Recognition of decrees and orders passed by foreign courts 
remains an eternal dilemma inasmuch as whenever called upon 
to do so, courts in this country are bound to determine the validity 
of such decrees and orders keeping in view the provisions of 
Section 13 of the Code ofCivil Procedure, 1908, as amended by 
the Amendment Acts of 1999 and 2002. The dutv of a court 
exercising its parens patriae jurisdiction as in cases involving 
custody of minor children is all the more onerous. Welfare of the 
minor in such cases being the paramount consideration: the court 
has to approach the issue regarding the validity and enforcement 
of a foreign decree or order carefully. Simply because a foreign 
court has taken a particular view on any aspect concerning the 
welfare of the minor is not enough forthe courts in this country to 
shut out an independent consideration of the matter. Objectivitv 
and not abject surrender is the mantra in such cases. That does 
not, however, mean that the order passed by a foreign court is 
not even a factory to be kept in view. But it is one thing to 
consider the foreign judgment to be conclusive and another to 
treat it as a factor or consideration that would go into the making 
of a final decision." 
32. The gravamen of the judicial enunciation on the issue of 
repatriation of a child removed from its native country is clearly founded 
on the predominant imperative of its overall
well-being, the principle of 
comity of courts, and the doctrines of "intimate contact and closest 
concern" notwithstanding. Though the principle of comity of courts and 
the aforementioned doctrines qua a foreign court from the territory of 
which a child is removed are factors which deserve notice in deciding 
the issue of custody and repatriation of the child, it is no longer res 
integra that the ever overriding determinant would be the welfare and 
interest of the child. In other words, the invocation of these principles/ 
doctrines has to be judged on the touchstone of myriad attendant facts 
and circumstances of each case, the ultimate live concern being the 
welfare of the child, other factors being acknowledgeably subservient 
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thereto. Though in the process ofadjudication of the issue ofrepatriation, 
a court can elect to adopt a summary enquiry and order immediate 
restoration of the child to its native country, if the applicant/parent is 
prompt and alert in his/her initiative and the existing circumstances ex 
facie justify such course again in the overwhelming exigency of the 
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welfare of the child, such a course could be approvable in law, if an
PRATEEK GUPTA v. SHILPJ GUPTA & ORS. 
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effortless discernment of the relevant factors testify irreversible, adverse 
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and prejudicial impact on its physical, mental, psychological, social, cultural 
existence, thus exposiog it to visible, contiouiog and irreparable detrimental 
and nihilistic attentuations. On the other hand, ifthe applicant/parent is 
slack and there is a considerable time lag between the removal of the 
child from the native country and the steps taken for its repatriation 
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thereto, the court would prefer an elaborate enquiry into all relevant 
aspects bearing on the child, as meanwhile with the passage of time, it 
expectedly had grown roots in the country and its characteristic milieu, 
thus casting its influence on the process ofits grooming in its fold. 
33. The doctrines of "intimate contact" and "closest concern" 
are of persuasive relevance, only when the child is uprooted from its 
native country and taken to a place to encounter alien environment, 
language, custom etc., with the portent of mutilative bearing on the 
process of its overall growth and grooming. 
34. It has been consistently held that there is no forum convenience 
in wardship jurisdiction and the peremptory mandate that underlines the 
adjudicative mission is the obligation to secure the unreserved welfare 
of the child as the paramount consideration. 
35. Reverting to the present facts, the materials as available, do 
substantiate lingering dissensions
between the parties. They are living 
separately since 2014 with one child each in their company and charge. 
The children are US citizens by birth. Noticeably, the child Aadvik, who 
is the subject matter of the !is and custody was barely 2Y, years old 
when he came over to India and had stayed here since then. Today, he 
is a little over 5 years old. In other words, he has spent half of his life at 
this age, in India. Considering his infant years of stay in US, we construe 
it to be too little for the required integration ofhis with the social, physical, 
psychological, cu:>:iral and academic environment of US to get totally 
upturned by his transition to this country, so much so that unless he is 
immediately repatriated, his inherent potentials and faculties would suffer 
an immeasurable set back. The respondent-mother also is not favourably 
disposed to return to India, she being a working lady in US and is also 
disinclined to restore her matrimonial home. The younger son is with 
her. There is no conviocing material on record that the continuation of 
the child in the company and custody of the appellant in India would be 
irreparably prejudicial to him. The e-mails exchanged by the parties as· 
have been placed on records do suggest that they had been in touch 
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since the child was brought to India and even after the first order dated 
28.05.2015 was passed by the court in US. In the said e-mails, they 
have fondly and keenly referred to both the sons staying in each other's 
company, expressing concern about their illness and general well-being 
as well. As has been claimed by the appellant, the child is growing in a 
congenial environment in the loving company of his grand-parents and 
other relatives. He has been admitted to a reputed school and contrary 
to the nuclear family environment in US, he is exposed to a natural 
process of grooming in the association of his elders, friends, peers and 
playmates, which is irrefutably indispensable for comprehensive and 
conducive development of his mental and physical faculties. The issue 
with regard to the repatriation of a child, as the precedential explications 
would authenticate has to be addressed not on a consideration of legal 
rights of the parties but on the sole and preponderant criterion of the 
welfare of the minor. As aforementioned, immediate restoration of the 
child is called for only on an unmistakable discernment of the possibility 
of immediate and irremediable harm to it and not otherwise. As it is, a 
child of tender years, with malleable and impressionable mind and 
delicate and vulnerable physique would suffer serious set-back if 
subjected to frequent and unnecessary translocation in its formative
years. It is thus imperative that unless, the continuance of the child in 
the country to which it has been removed, is unquestionably harmful, 
when judged on the touchstone of overall perspectives, perceptions and 
practicabilities, it ought not to be dislodged and extricated from the 
environment and setting to which it had got adjusted for its well-being. 
36. Noticeably, a proceeding by the appellant seeking custody of 
the child under the Guardian and Wards Act, 1890 has been instituted, 
F 
which is pending in the court of the Principal Judge, Family Court, Rohini, 
Delhi. This we mention, as the present adjudication pertains to a challenge 
to the determination made in a writ petition for habeas corpus and not 
one to decide on the entitlement in law for the custody of the child. 
3 7. In Nithya Anand Raghavan' as well, this Court while 
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maintaining the custody of the child in favour of the mother in preference 
to the applicant-father had required the mother to participate in the 
proceeding before the foreign court initiated by the respondent-father 
therein. It was observed that the custody of the child would remain with 
the respondent-mother till it attained majority, leaving it at liberty then to 
choose its parent to reside with. The arrangement approved by this Court 
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was also made subject to the decision with regard to its custody, if made 
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by a competent Court. 
38. In the overwhelming facts and circumstances, we see no reason 
to take a different view or course. In view of order dated 03.05.2016 of 
this Court, the child has remained in the custody of the appellant-father. 
To reiterate, no material has been brought on record, persuasive and 
conv.incing enough, to take a view that immediate restoration of the custody 
of the child to the respondent-mother in the native country is obligatorily 
called for in its interest and welfare. The High Court, as the impugned 
judgment and order would demonstrate, did not at all apply itself to examine 
the facts and circumstances and the other materials on record bearing 
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on the issue of welfare of the child which are umnistakably of paramount 
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significance and instead seems to have been impelled by the principle of 
comity of courts and the doctrines of "intimate contact" and "closest 
concern" de hors thereto. The appellant being the biological father of 
Aadvik, his custody of the child can by no means in law be construed as 
illegal or unlawful drawing the invocation ofa superior Court's jurisdiction D 
to issue a writ in the nature of habeas corpus. We are, in the textual 
facts and on an in-depth analysis of the attendant circumstances, thus of 
the view that the dislodgment of the child as directed by the impugned
decision would be harmful to it. Having regard to the nature of the 
proceedings before the US Court, the intervening developments thereafter 
and most importantly the prevailing state ofaffairs, we are of the opinion 
that the child, till he attains majority, ought to continue in the custody, 
charge and care of the appellant, subject to any order to the contrary, if 
passed by a court of competent jurisdiction in an appropriate proceeding 
deciding the issue of its custody in accordance with law. The High Court 
thus, in our estimate, erred in law and on facts in passing the impugned 
verdict. 
39. The impugned judgment and order is thus set aside. We 
however direct that the parties would participate in the pending 
proceedings relating to the custody of the child, if the same is pursued 
and the court below, before which the same is pending, would decide the 
same in accordance with law expeditiously without being influenced in 
any way, by the observations and findings recorded in this detennination. 
40. The appeal is thus allowed. 
Devika Gujral 
Appeal allowed. 
E 
F 
G