(per the Hon'ble Sri Justice P.SAM KOSHY) Heard Mr. Prabhjit Jauhar, learned counsel appearing on behalf of M/s.Anirudh & Associates for the petitioner, and Mr. Umesh Bhayaraju, party-in-person for respondent No.4.

2. The petitioner's minor son, Saatvik Gary Bhayaraju, born on 17.10.2019 is a US citizen and permanent resident since birth was illegally removed from the petitioner's custody and is currently in India with respondent No.4, the father. The petitioner is seeking the child's return to the USA citing orders dated 13.06.2023 and 23.04.2024 from the Circuit Court, Clark County, Wisconsin, USA, which directed the return of the minor child to US jurisdiction. Aggrieved by the same, the present writ petition is filed.

3. According to the petitioner, she got married to respondent No.4 on 26.06.2019 and blessed with a child named Saatvik Gray Bhayaraju on 17.10.2019 in USA, thereby, making him an American citizen by birth. During a brief visit to India both the petitioner and respondent No.4 renewed their martial vows in a Hindu ceremony on Page 4 of 49 PSK,J & NTR,J wp_21751_2024 09.03.2020. Due to differences in their relationship, the petitioner filed a divorce petition and also sought for custody of the minor child before the Clark County Family Court Commissioner State of Wisconsin Court, Circuit Court vide Case No. 22 FA 106 on 02.12.2022.

Subsequently, on 13.06.2023 the US Court granted joint legal custody to both the parties with petitioner being awarded primary placement in Wisconsin while the respondent No.4 received unsupervised placement on alternative weekends i.e. Friday 6:00 P.M. to Sunday 6:00 P.M. Further, US the Court order mandated the respondent No.4 to pay monthly child support of USD 1,552 based on his gross monthly income and restricted him from leaving Wisconsin. However, both the parties were prohibited from relocating the minor child unless the provisions of Wisconsin State moving the child's residence within or outside the State's statute has been complied with.

4. It was submitted by the learned counsel for the petitioner that during the ongoing divorce proceedings in the US Court, a significant development occurred with the appointment of Ms. Gail R. Prock as Guardian-Ad-Litem on 25.07.2023. The petitioner and the respondent No.4 actively participated in this process and Guardian-Ad-Litem conducted a thorough evaluation including interactions with the minor child. During this period in July, 2023, the minor child was diagnosed Page 5 of 49 PSK,J & NTR,J wp_21751_2024 with autism which led to temporary reconciliation between them and they collectively decided to relocate to Indiana, USA, with minor child on 27.02.2024.

5. It was further submitted that this reconciliation proved short-

lived as domestic issues resurfaced. On 11.03.2024 in front of minor child the petitioner was subjected to harassment and physical abuse by respondent No.4 which led to his arrest. A case was registered against the respondent No.4 in Hamilton Circuit Court where he was charged with multiple counts of felony and misdemeanour domestic abuse. The US Court imposed strict conditions including no contact with the petitioner and restrictions on leaving Indiana. Following this incident, the petitioner discovered that the father had taken possession of crucial documents including passports and birth certificates, forcing her and the minor child to seek refuge in a crisis shelter in Portage County.

6. Learned counsel for the petitioner submits that thereafter the situation become apparent through the Guardian-ad-Litem's report dated 04.04.2024 which was submitted to the Wisconsin Court. The report highlighted serious concerns about the respondent No.4's behaviour, noting his denial of the child's autism diagnosis and his attempt to blame the petitioner's parenting and mental health for the Page 6 of 49 PSK,J & NTR,J wp_21751_2024 child's condition. The respondent No.4 had repeatedly requested to take the child away from the petitioner for three weeks to conduct his own autism assessment raising red flags about his intentions. Due to domestic abuse and violence, the petitioner obtained an order of protection from the Circuit Court, State of Wisconsin, Portage County vide Case No. 2024CV000085, resulting in a restraining order against respondent No. 4 valid from 09.04.2024 to 09.04.2028.

7. According to the learned counsel for the petitioner, after a schedule child exchange at the Personal Development Centre in Marshfield, Wisconsin on 21.04.2024, the respondent No.4 unlawfully took the child to India, despite existing Court orders and injunctions.

This action prompted immediate legal response with the US Court issuing an emergency order on 23.04.2024 granting sole legal custody and exclusive physical placement to the petitioner. Subsequently, on 01.05.2024, the US Court (Wood County) issued a warrant for the arrest of respondent No.4 for breaching the custody order and leading to his placement on full extradition status.

8. Learned counsel for the petitioner contended that respondent No.4 filed a custody petition bearing GWOP.No.654 of 2024 on 03.05.2024 before the Family Court, Kalpataru Building under the Hindu Minority and Guardianship Act, 1956 for sole and permanent Page 7 of 49 PSK,J & NTR,J wp_21751_2024 custody of the minor child. Moreover, the respondent No.4 also filed a petition for sole custody of the minor child before US Court on 07.05.2024. However, the said petition was not declined from being entertained on 13.05.2024. Despite filing a custody petition in US, the respondent No.4 concealed the said fact and filed the custody petition in Family Court.

9. Learned counsel for the petitioner in support of his contentions relied upon the following decisions of the Hon'ble Supreme Court, viz.,

1) V. Ravi Chandran vs. Union of India 1

2) YashitaSahu vs. State of Rajasthan 2

3) Nilanjan Bhattacharya vs. State of Karnataka 3

4) Shilpa Aggarwal vs. Aviral Mittal 4

5) LahariSakhamuri vs. SobhanKodali5

6) Rajeswari Chandrasekhar Ganesh vs. State of Tamil Nadu and Ors. 6

7) Smt. Surinder Kaur Sandhu vs. Harban Singh Sandhu & Anr. 7

10. Per contra, the respondent No.4 contended that during 4½ months in India there is remarkable improvement in the welfare of the minor as compared to the previous 4½ years in USA. Further, the 1 (2010) 1 SCC 174 2 (2020) 3 SCC 67 3 (2020) SCC OnLine SC 928 4 (2010) 1 SCC 591 5 (2019) 7 SCC 311 6 2022 SCC OnLine SC 885 7 (1984) 3 SCC 698 Page 8 of 49 PSK,J & NTR,J wp_21751_2024 respondent No.4 stated that the minor initially diagnosed with autism and being non-verbal has shown significant progress in speech development and also forming 4-7 words english sentences and using contextual Telugu and Hindi words. This progress is attributed due to stable family environment, consistent therapeutic support and positive parenting available in India. Furthermore, the medical evaluations from multiple specialists at Rainbow Hospital have documented this improvement with their reports explicitly stating that any disruption to the current environment could be detrimental to the child's development. The minor's enrolment in an international school and ongoing ABA therapy further supports his developmental needs which demonstrate that India provides the optimal environment for the child's growth and progress.

11. Secondly, the respondent No.4 contended that there is substantial evidence regarding the petitioner's mental health history including documentation of pre-existing psychiatric issues and the use of anti-depression and anxiety medications predating the marriage.

Further, the respondent No.4 argued with regard to the petitioner's financial instability with multiple bank defaults between 2010 and 2018 and a pattern of unstable living conditions. Moreover, the petitioner's history of relocating the minor, twelve times in 4½ years Page 9 of 49 PSK,J & NTR,J wp_21751_2024 with approximately 30% of the time spent in shelter homes raises serious concerns about the child's stability.

12. The respondent No.4 further contended that repatriation to the USA would effectively mean returning the minor to shelter homes as the petitioner lacks a permanent residence and relies on state welfare funds. The respondent No.4 further argued that the petitioner's family has reportedly "ostracized" her, leaving her without the crucial support system necessary for raising a child with special needs. The respondent No.4 contended that these circumstances could potentially harm the welfare and development of the child.

13. Lastly, the respondent No.4 contended on the procedural and jurisdictional validity where he stated that this petition is not maintainable due to the existing parallel case under the Hindu Minority and Guardianship Act, 1956 pending before the Family Court.

14. The respondent No.4 in support of his contentions relied on the following recent precedents in which it was held that pursuing a Habeas Corpus petition while the guardianship proceedings are pending amounts to the abuse of Court process and the paramount consideration being given to the child's welfare.

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1) Kilaru Suman vs. The State of Telangana 8

2) Sri Narendra Dattathi vs. State of karnataka 9.

3) V.Ravi Chandran vs. Union of India &Ors 10

4) Gaurav Nagpal vs.SumedhaNagpal 11

5) Dr.Veena Kapoor vs. Varinderkumar Kapoor 12

15. The respondent No.4 emphasized that the welfare of the minor must be of paramount consideration and necessitates an elaborate inquiry, rather than a summary disposal of the case. Thus this petition should be dismissed in favour of allowing the custody matter to be properly adjudicated in the pending civil proceedings.

16. Having heard the contentions put forth on either side and on perusal of records, the aforesaid facts would reveal that both the petitioner and respondent No.4 got married in Indianapolis, Indiana, USA on 26.06.2019 and they were blessed with a male child on 17.10.2019 by name of Saatvik Gary Bhayaraju and he is the resident of USA by birth. Thereafter, due to differences between the petitioner and the respondent No.4, the petitioner filed a petition seeking divorce and also a petition seeking for sole custody of the child. The Circuit 8 WP 13537 of 2024 9 WPHC 27 of 2024 10 (2010) 1 SCC 274 11 (2009) 1 SCC 42 12 (1981) 3 SCC 92 Page 11 of 49 PSK,J & NTR,J wp_21751_2024 Court of USA passed the order dated 13.06.2023 prescribing the following parenting schedule:

Therefore, it is illegal detention of the minor child.

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22. Thereafter, the petitioner has filed the instant Writ of Habeas Corpus petition seeking a direction to respondent No.4 to produce the minor child before this Court.

23. Based on the aforesaid facts, the questions of law to be decided in the instant petition are:-

MAINTAINABILITY OF WRIT OF HABEAS CORPUS

24. The Supreme Court in the case of Tejaswini Gaud vs. Jagdish Prasad Tewari 13 dealing with the maintainability of Writ of Habeas Corpus with respect to the child custody of a foreign national held at paragraph Nos. 14, 19 and 22 as under:

19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the Court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law.

22. In a number of judgments, the Supreme Court considered the conduct of a summary or elaborate enquiry on the question of custody by the court in the country to which the child has been removed. In number of decisions, the Supreme Court dealt with habeas corpus petition filed either before it under Article 32 of the Constitution of India or the correctness of the order passed by the Page 16 of 49 PSK,J & NTR,J wp_21751_2024 High Court in exercise of jurisdiction under Article 226 of the Constitution of India on the question of custody of the child who had been removed from the foreign countries and brought to India and the question of repatriation of the minor children to the country from where he/she may have been removed by a parent or other person. In number of cases, the Supreme Court has taken the view that the High Court may invoke the extraordinary jurisdiction to determine the validity of the detention. However, the Court has taken view that the order of the foreign court must yield to the welfare of the child. After referring to various judgments, in Ruchi Majoo [Ruchi Majoo v. Sanjeev Majoo , (2011) 6 SCC 479 : (2011) 3 SCC (Civ) 396 : (2011) 2 SCC (Cri) 1033] , it was held as under :

This Court in Kanu Sanyal v. District Magistrate , Darjeeling [Kanu Sanyal v. District Magistrate, Darjeeling , (1973) 2 SCC 674 : 1973 SCC (Cri) 980] , has held that habeas corpus was essentially a procedural writ dealing with machinery of justice. The object underlying the writ was to secure the release of a person who is illegally deprived of his liberty. The writ of habeas corpus is a command addressed to the person who is alleged to have another in unlawful custody, requiring him to produce the body of such person before the court. On production of the person before the court, the circumstances in which the custody of the person concerned has been detained can be inquired into by the court and upon due inquiry into the alleged unlawful restraint pass appropriate direction as may be deemed Page 18 of 49 PSK,J & NTR,J wp_21751_2024 just and proper. The High Court in such proceedings conducts an inquiry for immediate determination of the right of the person's freedom and his release when the detention is found to be unlawful.

45. In a petition for issuance of a writ of habeas corpus in relation to the custody of a minor child, this Court in Sayed Saleemuddin v. Rukhsana [Sayed Saleemuddin v. Rukhsana, (2001) 5 SCC 247 : 2001 SCC (Cri) 841] , has held that the principal duty of the court is to ascertain whether the custody of child is unlawful or illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person. While doing so, the paramount consideration must be about the welfare of the child. In Elizabeth [Elizabeth Dinshaw v. Arvand M. Dinshaw , (1987) 1 SCC 42 : 1987 SCC (Cri) 13] , it is held that in such cases the matter must be decided not by reference to the legal rights of the parties but on the sole and predominant criterion of what would best serve the interests and welfare of the minor. The role of the High Court in examining the cases of custody of a minor is on the touchstone of principle of parenspatriae jurisdiction, as the minor is within the jurisdiction of the Court [see Paul Mohinder Gahun v. State (NCT of Delhi) [Paul Mohinder Gahun v. State (NCT of Delhi), 2004 SCC OnLine Del 699 : (2004) 113 DLT 823] relied upon by the appellant]. It is not necessary to multiply the authorities on this proposition.

46. The High Court while dealing with the petition for issuance of a writ of habeas corpus concerning a minor child, in a given case, may direct return of the child or decline to change the custody of the child keeping in mind all the attending facts and circumstances including the settled legal position referred to Page 19 of 49 PSK,J & NTR,J wp_21751_2024 above. Once again, we may hasten to add that the decision of the court, in each case, must depend on the totality of the facts and circumstances of the case brought before it whilst considering the welfare of the child which is of paramount consideration. The order of the foreign court must yield to the welfare of the child. Further, the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court. Indubitably, the writ petitioner can take recourse to such other remedy as may be permissible in law for enforcement of the order passed by the foreign court or to resort to any other proceedings as may be permissible in law before the Indian Court for the custody of the child, if so advised."

26. In the case of Rajeswari Chandrasekhar Ganesh (supra) the Hon'ble Supreme Court on the point of maintainability of a Writ of Habeas Corpus held as follows:

27. Similarly, the Hon'ble Supreme Court in Yashita Sahu (supra) made the following observations, viz., "It is too late in the day to urge that a writ of habeas corpus is not maintainable if the child is in the custody of another parent. The law in this regard has developed a lot over a period of time but now it is a settled position that the court can invoke its extraordinary writ jurisdiction for the best interest of the child. In the present case, since the wife brought the minor to India in violation of the orders of the jurisdictional court in the USA, her custody of the child cannot be said to be strictly legal. However, the High Court could not have directed the appellant wife to go to the USA. The wife is an adult and no court can force her to stay at a place where she does not want to stay. Custody of a child is a different issue, but even while deciding the issue of custody of a child, no direction can be issued to the adult spouse to go and live with the other strained spouse in writ jurisdiction.

PSK,J & NTR,J wp_21751_2024 PRINCIPLE OF THE CHILD'S BEST INTEREST

28. This Court placed significant weight on the principle of Comity of Courts and recognizes that the US Courts specifically the Circuit Court, Clark County, Wisconsin, has the most intimate contact with the matter at hand. The minor child was born in the USA and is a US citizen who spent the majority of his life there until he was moved to India. The US Court has already passed orders dated 13.06.2023 and 23.04.2024 directing the return of the child to its jurisdiction.

29. The Hon'ble Supreme Court in the case of Smt. Surinder Kaur Sandhu (supra) held as under:

30. In the case of Dhanwanti Joshi vs. Madhavunde 14 the Supreme Court held as under in paragraph No. 28, 30, 32 and 33 as follows:

(See Khamis v. Khamis [(1978) 4 Fam LR 410 (Full Court) (Aus)] .)

30. We may here state that this Court in Elizabeth Dinshaw v. Arvand M. Dinshaw [(1987) 1 SCC 42 : 1987 SCC (Cri) 13] while dealing with a child removed by the father from USA contrary to the custody orders of the US Court directed that the child be sent back to USA to the mother not only because of the principle of comity but also because, on facts, -- which were independently considered -- it was in the interests of the child to be sent back to the native State. There the removal of the child by the father and the mother's application in India were within six months. In that context, this Court referred to H. (infants), Re [(1966) 1 All ER 886 : (1966) 1 WLR 381, CA] which case, as pointed out by us above has been explained in L. Re [(1974) 1 All ER 913, CA] as a case where the Court thought it fit to exercise its summary jurisdiction in the interests of the child. Be that as it Page 24 of 49 PSK,J & NTR,J wp_21751_2024 may, the general principles laid down in McKee v. McKee [1951 AC 352 : ( 1951) 1 All ER 942] and J v. C [1970 AC 668 : (1969) 1 All ER 788 : (1969) 2 WLR 540] and the distinction between summary and elaborate inquiries as stated in L. (infants), Re [(1974) 1 All ER 913, CA] are today well settled in UK, Canada, Australia and the USA. The same principles apply in our country. Therefore nothing precludes the Indian courts from considering the question on merits, having regard to the delay from 1984 -- even assuming that the earlier orders passed in India do not operate as constructive res judicata.

32. In this connection, it is necessary to refer to the Hague Convention of 1980 on "Civil Aspects of International Child Abduction". As of today, about 45 countries are parties to this Convention. India is not yet a signatory. Under the Convention, any child below 16 years who had been "wrongfully" removed or retained in another contracting State, could be returned back to the country from which the child had been removed, by application to a central authority. Under Article 16 of the Convention, if in the process, the issue goes before a court, the Convention prohibits the court from going into the merits of the welfare of the child. Article 12 requires the child to be sent back, but if a period of more than one year has lapsed from the date of removal to the date of commencement of the proceedings before the court, the child would still be returned unless it is demonstrated that the child is now settled in its new environment. Article 12 is subject to Article 13 and a return could be refused if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return. In England, these aspects are covered by the Child Abduction and Custody Act, 1985.

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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 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 as stated in McKee v. McKee [1951 AC 352 : (1951) 1 All ER 942] unless the Court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its welfare, as explained in L., Re [(1974) 1 All ER 913, CA] . As recently as 1996-1997, it has been held in P (A minor) (Child Abduction: Non- Convention Country), Re [(1996) 3 FCR 233, CA] : 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 unless a grave risk of harm was established. See also A (A minor) (Abduction: Non- Convention Country) [Re, The Times 3-7-97 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.

31. A three Judge bench of the Hon'ble Supreme Court in Nithya Anand Raghavan vs. State of NCT of Delhi 15 considering the principles laid down in Dhanwanti Joshi (supra) held in paragraph Nos.40, 42, 47, 48 and 51 as under:

42. The consistent view of this Court is that if the 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 may deem it fit to order return of the child to the country from where he/she was removed 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 relief of return of the child to the country from where he/she was removed irrespective of a pre- existing order of return of the child by a foreign court. In an elaborate inquiry, 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.

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46. The High Court while dealing with the petition for issuance of a writ of habeas corpus concerning a minor child, in a given case, may direct return of the child or decline to change the custody of the child keeping in mind all the attending facts and circumstances including the settled legal position referred to above. Once again, we may hasten to add that the decision of the court, in each case, must depend on the totality of the facts and circumstances of the case brought before it whilst considering the welfare of the child which is of paramount consideration. The order of the foreign court must yield to the welfare of the child. Further, the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court. Indubitably, the writ petitioner can take recourse to such other remedy as may be permissible in law for enforcement of the order passed by the foreign court or to resort to any other proceedings as may be permissible in law before the Indian Court for the custody of the child, if so advised.

47. In a habeas corpus petition as aforesaid, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person (private respondent named in the writ petition). For considering that issue, in a case such as the present one, it is enough to note that the private respondent was none other than the natural guardian of the minor being her biological mother. Once that fact is ascertained, it can be presumed that the custody of the minor with his/her mother is lawful. In such a case, only in exceptionable situation, the custody of the minor (girl child) may be ordered to be taken away from her mother for being given to any other person including the husband (father of the child), in exercise of writ jurisdiction.

PSK,J & NTR,J wp_21751_2024 Instead, the other parent can be asked to resort to a substantive prescribed remedy for getting custody of the child.

48. The next question to be considered by the High Court would be whether an order passed by the foreign court, directing the mother to produce the child before it, would render the custody of the minor unlawful? Indubitably, merely because such an order is passed by the foreign court, the custody of the minor would not become unlawful per se. As in the present case, the order passed by the High Court of Justice, Family Division, London on 8-1- 2016 for obtaining a wardship order, reads thus :

2009) AFTER HEARING Counsel Paul Hepher, on behalf of the applicant father.

AFTER consideration of the documents lodged by the applicant.

IMPORTANT WARNING TO NITHYA ANAND RAGHAVAN If you NITHYA ANAND RAGHAVAN disobey this order you may be held to be in contempt of court and may be imprisoned, fined or have your assets seized.

If any other person who knows of this order and does anything which helps or permits you NITHYA ANAND RAGHAVAN to breach the terms of this order they may Page 30 of 49 PSK,J & NTR,J wp_21751_2024 be held to be in contempt of court and may be imprisoned, fined or have their assets seized. You have the following legal rights:

The parties

1. The applicant is ANANDRAGHAVAN represented by Dawson Cornwell, Solicitor. The respondent is NITHYA ANAND RAGHAVAN.

2. This order was made at a hearing without notice to the respondent. The reason why the order was made Page 31 of 49 PSK,J & NTR,J wp_21751_2024 without notice to the respondent is because she left England and Wales on or about 2-7-2015 and notice may lead her to take steps to defeat the purpose of the application and fail to return the child.

3. The Judge read the following documents:

4. The court was satisfied on a provisional basis of the evidence filed that

a) NETHRAANAND (a girl born on 7-8-2009) was on 2-7- 2015 habitually resident in the jurisdiction of England and Wales.

b) NETHRA ANAND (a girl born on 7-8-2009) was wrongfully removed from England on 2-7-2015 and been wrongfully retained in India since.

c) The courts of England and Wales have jurisdiction in matters of parental responsibility over the child pursuant to Articles 8 and 10 of BIIR.

5. The father has agreed to pay for the cost of the flights for the mother and child in returning from India to England. He will either purchase the tickets for the mother and child himself, or put her in funds, or invite her to purchase the tickets on his credit card, as she may wish, in order for her to purchase the tickets herself.

Undertakings to the court by the solicitor for the applicant

6. The solicitors for the applicant undertake:

2009) IT IS ORDERED THAT:

Dated this 8 January 2016."

51. For considering the factum of interests of the child, the court must take into account all the attending circumstances and totality of the situation. That will have to be decided on case to case basis. In the present case, we find that the father as well as mother of the child are of Indian origin. They were married in Chennai in India according to Hindu rites and customs. The father, an Indian citizen, had gone to the UK as a student in 2003 and was working there since 2005. After the marriage, the couple shifted to the UK in early 2007 and stayed in Watford. The mother did get an employment in London in 2008, but had to come to her parents' house in Delhi in June 2009, where she Page 34 of 49 PSK,J & NTR,J wp_21751_2024 gave birth to Nethra. Thus, Nethra is an Indian citizen by birth. She has not given up her Indian citizenship. Indeed, the mother, along with Nethra, returned to the UK in March 2010. But from August 2010 till December 2011, because of matrimonial issues between the appellant and Respondent 2, the appellant and her daughter remained in India. It is only after the intervention of and mediation by the family members, the appellant and her daughter Nethra went back to England in December 2011, more than a year after they had come to India. After returning to the UK, Nethrawas admitted to a nursery school in January 2012.

32. The Hon'ble Supreme Court further in the case of Tejaswini Gaud (supra) held in paragraph Nos.26 to 28 as under:

Sumedha Nagpal, (2009) 1 SCC 42: (2009) 1 SCC (Civ) 1], where the Supreme Court held as under: (SCC pp. 52 & 57, paras 32 & 50-51) "32. In McGrath (Infants), In re [McGrath (Infants), In re, (1893) 1 Ch 143 (CA)] , Lindley, L.J. observed : (Ch p. 148) '... The dominant matter for the consideration of the court is the welfare of the child. But the welfare of the child is not to be measured by money only nor merely physical comfort. The word "welfare" must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well being. Nor can the tie of affection be disregarded.'

50. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the Page 38 of 49 PSK,J & NTR,J wp_21751_2024 parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mausami Moitra Ganguli case [ Mausami Moitra Ganguli v. Jayant Ganguli , (2008) 7 SCC 673] , the court has to give due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others.

51. The word "welfare" used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases.

33. Similarly, the learned counsel for the petitioner relied on the judgment in the case of Yashita Sahu (supra) wherein in paragraph Nos.14 and 19 it was held as under:

Though the interest of the child is extremely important and is, in Page 39 of 49 PSK,J & NTR,J wp_21751_2024 fact, of paramount importance, the courts of one jurisdiction should respect the orders of a court of competent jurisdiction even if it is beyond its territories. When a child is removed by one parent from one country to another, especially in violation of the orders passed by a court, the country to which the child is removed must consider the question of custody and decide whether the court should conduct an elaborate enquiry on the question of child's custody or deal with the matter summarily, ordering the parent to return the custody of the child to the jurisdiction from which the child was removed, and all aspects relating to the child's welfare be investigated in a court in his/her own country.

19. We are of the considered view that the doctrine of comity of courts is a very healthy doctrine. If courts in different jurisdictions do not respect the orders passed by each other it will lead to contradictory orders being passed in different jurisdictions. No hard-and-fast guidelines can be laid down in this regard and each case has to be decided on its own facts. We may, however, again reiterate that the welfare of the child will always remain the paramount consideration.

34. Further, a three Judge bench of Supreme Court in V. Ravi Chandran (supra) held in paragraph Nos.29 and 30 as follows:

35. In Nilanjan Bhattacharya (supra), the Hon'ble Supreme Court held in paragraph Nos.10 and 16 as under:

16. The Court has come to the conclusion that the welfare of the child would best be served by his accompanying the appellant to the US. The child was born in the US and is a citizen of the US by birth. The appellant has taken the responsibility for shared parenting while the child was in the US. The respondent left US shores for a brief sojourn but has unilaterally resolved not to return. Both the appellant and the respondent are qualified professionals who have been employed in the US and the Page 42 of 49 PSK,J & NTR,J wp_21751_2024 appellant continues to be employed there. Faced with the departure of his spouse and child, the appellant moved the court of jurisdiction in New Jersey for orders of temporary custody. He has followed their tracks to India and invoked judicial remedies here. The child has remained here for a short period and it would not be contrary to his interest to allow the appellant to take him back. Hence, independent of the desire communicated by the respondent to the Amicus Curiae that she does not wish to contest the proceedings, the Court has concluded that the direction of the High Court to allow the child to return to the US is in the interest of his welfare. We have enquired into this aspect though the special leave petition by the petitioner is only as regards the conditions for return imposed by the High Court. This Court has an overarching duty to ensure and preserve the welfare of a minor child within its jurisdiction.

36. This very High Court in the case of Tarannum Naaz vs. State of Telangana 16 dealing with a similar situation held in paragraph Nos.49 to 54 as under:

2023 SCC OnLine TS 2712 Page 43 of 49 PSK,J & NTR,J wp_21751_2024

50. In Nilanjan Bhattacharya (supra), considering the age of the minor child is 4 years and the wife has not shown any particular inclination to retain the child with her in India, the appellant has provided extensive details of his association with the child and the steps which he has taken since the birth of the child to be associated with the upbringing of the child. The husband would share on the video conferencing platform, the videos which the appellant has of his association with numerous activities of the child. On consolation of the said aspects, the Apex Court also considered where a child has been removed from their native country to India, it has held that it would be in the best interests of the child to return to their native country if the child has not developed roots in India and no harm would be caused to the child on such return.

Principle of Comity:--

51. The sum and substance of the aforesaid judgments is as follows:--

52. Habeas Corpus proceedings is not to justify or examine the legality of the custody. The Habeas corpus proceedings is a medium through which custody of child is addressed to the discretion of the Court. Habeas Corpus is a prerogative writ which is an extra ordinary remedy and the writ is issued where in the circumstances of a particular case ordinary remedy provided by the law is either invaluable or is ineffective, Page 45 of 49 PSK,J & NTR,J wp_21751_2024 otherwise a writ will not be issued in a child custody matters. The power of High Court in granting writ is qualified only in cases where the detention of minor is to a person who is not entitled to his legal custody. In view of the pronouncement issue in question in Supreme Court and High Courts, the child custody matters, writ of Habeas Corpus is maintainable where it is approved that the detention of a minor child or parents and others is illegal without any authority of law.

53. In the aforesaid cases, the Apex Court has taken a view that the High Court may invoke extra ordinary jurisdiction to determine the legality of the detention, however, the Court has taken a view that the order of foreign Court must yield to the welfare of the child. The High Court has to decide the Habeas Corpus petition by conducting summary proceedings basing on the affidavits filed by the parties. The High Court has to examine each case basing on its own facts and circumstances and case to case basis. Finally High Court has to decide whether the custody is lawful or not.

54. As stated supra, writ of Habeas Corpus is prerogative writ and is an extraordinary remedy. It is a writ of right not a writ of course and may be granted only when the reasonable or probable cause has been shown.

37. In the present case, the Writ of Habeas Corpus is maintainable as per the principles laid down by the Hon'ble Supreme Court in the above referred various judgments. The minor child Saatvik Gary Bhayaraju, being a US citizen and permanent resident was illegally and unlawfully removed from the custody of the petitioner. The said action was also in violation of the orders dated 13.06.2023 and Page 46 of 49 PSK,J & NTR,J wp_21751_2024 23.04.2024 passed by the Circuit Court, Clark Country, Wisconsin, US. The detention of the minor by respondent No. 4 who was temporarily denied of his legal custody as per the US Court orders is equivalent to illegal detention warranting the issuance of the Writ of Habeas Corpus. Since the minor child is presently within the territorial jurisdiction of this Hon'ble Court, it has the competence to pass appropriate orders regarding custody while exercising its parenspatriae jurisdiction, keeping the welfare of the child as paramount consideration.

38. Following the principles laid down in Nithya Anand Raghavan (supra) case, this Bench is of the firm view that the petitioner is entitled for a direction of the return of the child to USA considering that the minor child has his roots there since birth and his welfare would be best served under the jurisdiction of the US Courts which has the most intimate contact with the issues arising in this case.

Further, in addressing the complex interplay between foreign Court orders and domestic jurisdiction, this Court emphasizes that while the principle of Comity of Courts is significant, it cannot override the paramount consideration of the child's welfare. This Court asserted its authority to conduct an independent assessment of what best serves the child's interests, rather than merely enforcing foreign Court orders.

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39. This approach is particularly relevant in cases where the child has been brought to India in violation of foreign Court orders, as the Court must balance the respect for international judicial decisions with its fundamental duty to protect the child's best interests. The Court's power to make appropriate orders regarding custody stems from its inherent jurisdiction and is not limited by foreign Court directives.

40. As an outcome of the discussions made in the preceding paragraphs, this Bench has got no hesitation in reaching to the conclusion that the two questions of law framed by this Bench is to be answered in the affirmative. Accordingly, with the aforesaid direction, the instant Habeas Corpus petition stands allowed.

41. Additionally, this Bench notes with particular concern of the respondent No.4 in the matter of medical treatment for autism. We are of the considered opinion that the United States healthcare system offers significantly advanced and comprehensive treatment options for autism spectrum disorders, including early intervention programs, specialized behavioural therapies and access to cutting-edge research when compared to India which would serve the minor child's specific medical needs. The presence of well-regulated healthcare standards and the availability of specialized educational programs in the USA Page 48 of 49 PSK,J & NTR,J wp_21751_2024 further reinforces that the child's interests would be better served by repatriation to the USA.

42. In the result, the Habeas Corpus petition is allowed and for the return to status quo ante, the respondent No.4 is directed to handover the custody and all relevant documents, such as Passport and medical record of the detenu/Minor to the writ petitioner by 14.12.2024 in the presence of Station House Officer (for short 'SHO'), Malakpet / respondent No.3. In addition, the respondent No. 4 shall also bear the travel expenses of the petitioner and the detenu/Minor for their immediate return/repatriation to USA.

In the meantime, the SHO, Malakpet / respondent No.3 shall be watchful and if the respondent No. 4 fails to voluntarily comply the order of handing over the custody along with the documents of the detenu/Minor, the SHO, Malakpet / respondent No.3 shall take the custody of the detenu/minor along the relevant documents from the respondent No. 4 in the presence of two mediators and record the proceedings in a report. Whereafter the detenu/Minor and the relevant documents shall be handed-over to the writ petitioner under acknowledgement before the Member Secretary, State Legal Services Authority by 15.12.2024. In the event of the respondent No.4 not meeting the expenses granted in this writ petition, apart from keeping Page 49 of 49 PSK,J & NTR,J wp_21751_2024 open other remedies as well, liberty is granted to the writ petitioner to file an execution petition before the competent civil Court.

In either case, the SHO, Malakpet / respondent No.3 is directed to file a detailed report of compliance of the order of the Writ petition before the Registrar Judicial by 24.12. 2024.

43. As a sequel, miscellaneous petitions pending if any, shall stand closed. No order as to costs.

__________________ P.SAM KOSHY, J __________________ N.TUKARAMJI, J Date: 13.12.2024 Note: 1) LR Copy to be marked.

2) Issue C.C. by today.