Aarav Case

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Page 1 Wednesday, October 18, 2023

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2023 SCC OnLine All 174 : (2023) 159 ALR 362 : (2023) 2 DMC
723
In the High Court of Allahabad

(BEFORE RAM MANOHAR NARAYAN MISHRA, J.)
Aarav Shukla and Another … Petitioner;

Versus
State of U.P. and Others … Respondent.
Habeas Corpus Writ Petition No. - 43 of 2020
Decided on May 18, 2023, [Judgment reserved on 31.1.2023]
Advocates who appeared in this case:
Counsel for Petitioner : - Upendra Singh, Nitin Chopra, Prakhar Saran
Srivastava, Suvarna Singh, Tarun Agrawal
Counsel for Respondent : - G.A., Azad Khan
The Order of the Court was delivered by
RAM MANOHAR NARAYAN MISHRA, J.:— Heard Ms. Rosemarry Raju,
learned counsel for the petitioners, Mr. Ashish Deep Verma, learned
counsel for the private respondent, learned A.G.A. for the State and
perused the material on record.
2. Instant habeas corpus petition under Article 226 of the
Constitution of India has been filed by petitioner no. 2 Abhishek Shukla
on behalf of the corpus Arav Shukla, who is his minor son, against state
respondent and respondent no. 3 (the mother of the corpus and wife of
petitioner no. 2) with following prayers:—
(i) Issue a writ order or direction in the nature of habeas corpus
commanding the respondent no. 3 to produce the petitioner no. 1
in the Hon'ble Court and thereafter the Hon'ble Court may be
pleased to give the custody of the petitioner no. 1 to the
petitioner no. 2.
(ii) Issue a writ, order or direction in the nature of mandamus
commanding the respondents not to interfere in petitioner no. 2
right to meet his son.
(iii) Issue a writ, order or direction which this Hon'ble Court may
deem fit and proper in the facts and circumstances of the case.
(iv) To allow the writ petition and award the cost in favour of the
petitioner.
3. During pendency of present writ petition, an amendment
application has been moved by petitioner no. 2 with prayer to add the
prayer in writ petition at Sr. No. i-(a) in prayer clause of writ petition
i.e. i-(a) issue an appropriate writ, order or direction directing the
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Authorities to produce the minor child namely Arav Shukla, a U.S.

Citizen and direct the repatriation of the minor child back to U.S. in
compliance of orders dated 24.12.2020 passed by the Superior Court of
Washington, King County, U.S. being Case No. 20-3-04720-5-SEA-and
also to deposit the passport of the minor child and other documents of
the minor child which ought to be delivered to the petitioner no. 2 to
enable the petitioner no. 2 to take minor child back to U.S.
4. At the time of final hearing of writ petition, learned counsel for the
parties could not brought the attention of this Court towards
amendment application which was filed on 21.9.2021, as no objection
has been filed on this amendment application and proposed
amendment appears to have been filed with a view to clarify the prayer
made in writ petition in view of subsequent developments which took
place after filing of writ petition, therefore, the amendment sought in
amendment application will be treated as included in writ petition.
5. Factual matrix of the case are that present petition under Article
226 of the Constitution of India has been filed by the petitioner no. 2
with averment that he is permanent resident of District Kanpur Nagar
(U.P.) and works as Software Engineer in U.S.A. at present. Petitioner
no. 2 was married with respondent no. 3 Esha Pathak at G.B. Nagar on
6.3.2011 according to Hindu rites and rituals and said marriage was
registered under Marriage Registration Rules, 1973 at Kanpur Nagar on
20.12.2013, a copy of marriage certificate has been filed along with
writ petition. The parents of petitioner no. 2 are residing at Kanpur
Nagar. His academic qualification is B.Tech and M.S., whereas
respondent no. 3, his wife, is M.B.A. The petitioner nos. 2 and
respondent no. 3 after multiple discussions decided to go to America.
Petitioner no. 2 even suggested the respondent no. 3 that if she wishes
then she could stay in India for now and continue her career and
thereafter both of them could reevaluate their situation and take a
decision that best suited the interest of the family, however,
respondent no. 3 did not concede to the proposal and forced petitioner
no. 2 to take her to U.S.A. They reached there on 7.2.20215 but after
arrival in U.S.A., respondent no. 3 got upset due to change in life style
in U.S. She also did not adjust herself in U.S., being away from her
parents. The son was born on 7th of December 2017 from the wedlock of
petitioner no. 2 and respondent no. 3 at Kirkland, King Country
Washington in the hospital namely Evergreen Health Medical Center
and birth certificate was issued by State of Washington, Department of
Health, wherein their son name has been christened as Master Aarav
Shukla dated 12.12.2017. The petitioner no. 2 also registered for child's
stem cell and cord blood cell preservation with Cord Blood Registry in
U.S.A. to cope with future health issues arising to the child if any. The
respondent no. 3 used to blame the parents of petitioner no. 2 who had
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arrived after birth of child to visit him. The respondent no. 3 and
petitioner no. 2 came with the child in India on 2nd of June, 2018 with
their son Master Aarav. Respondent no. 3 has been very demanding for
money from petitioner no. 2 and for that she used to threaten him. The
petitioner no. 2 had made an U.S. credit card available to respondent
no. 3 so that she could cater to her educational and other needs but
she would decline to provide any information about the expenses
incurred through credit card. Even before respondent no. 3 came to
U.S., petitioner no. 2 tried to apply for a work permit for respondent no.
3 through Microsoft, but the petitioner no. 2 was advised that it could
only be done when she is in U.S. but she was not interested in working.
Respondent no. 3 told the petitioner no. 2 that she has booked her
tickets for the U.S. The petitioner started baby-proofing the house. He
installed cameras for the safety and security of the child as well. When
she came back to U.S. on 19th February, 2019 she was very aggressive.
She was blaming and threatening the petitioner no. 2 to get everything
done her away. Even her mother was provoking her to agitate and
stress out the petitioner no. 2. The respondent no. 3 and her family
members used to take objection if he was engaged in conversation with
his parents. The petitioner no. 2 and respondent no. 3 were looking for
a daycare of the child and in the meanwhile respondent no. 3 was
having driving lessons which was scheduled at noon everyday in spite
of the requests of petitioner no. 2 that this should be planned after 5 :
00 pm so that he could come back from work to watch his son while
she takes driving lesson but she did not oblige and got a driving lesson
in the noon and asked the petitioner no. 2 to visit the home in lunch
hours to take care of the child and when he stated that it was not
possible for him, she became agitated and began threatening him. The
petitioner no. 2 had planned snowboarding after work on that day to
which respondent no. 3 became very angry and at 10 : 00 pm she sent
a message to him that she was not feeling well and he immediately
started hitting back from the location. He could reach home at 11 : 30
pm due to distance of the location from his home, however, she did not
accompany him to the hospital and went there in a Taxi. The petitioner
no. 2 left behind to take care of his son at home. Respondent no. 3
finalized a daycare for the child which was 13 km away from their place
of residence and this was not acceptable to petitioner no. 2 but she was
adamant that he signed the cheques immediately so that the money
could be deposited in daycare. When he did not succumb to his
pressure, she became furious. She called police in U.S. with complaint
of domestic violence. The Redmond Police of U.S. came to their place
within few months and after thorough investigation they concluded that
no case of domestic violence was made out and filed a final report on
15.3.2019. In the midst of these sequence of events the petitioner no.
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2 got frightened and troubled due to unusual behaviour of respondent

no. 3 and he started living outside the home to avoid any future
problem created by respondent no. 3, but she did not express any
concern for his well being. She filed a complaint of domestic violence
against petitioner no. 2 through her Twitter Account wherein she
tweeted at 11 : 00 am on 15th March 2019 to C.E.O's of his Microsoft
Office Mr. Satya Nadella Mr. Bill Gates and Indian External Affairs
Minister Sushma Swaraj and Indian Ambassador to U.S., Mr. Harsh
Shringla, and even to President of United States of America, Mr. Donald
Trump, copies have been filed as annexures to the affidavit. The
petitioner no. 2 met his lawyer on 19.3.2019 and after consulting him
he went to his apartment and found that his wife and child were not
there. He came to know that respondent no. 3 had left for India on
17.3.2019 along with the son and did not let him know that she was
leaving country and illegally took his child without his permission and
knowledge. He sent a notice to respondent no. 3 on 26.3.2019 through
the attorney at law in U.S.A., Mr. Patrick Shearer, with regard to take
his son without the consent of the petitioner and behind his back, he
threatened him to implicate in some dowry related criminal cases and
filed written complaint to National Commission for Women against
petitioner no. 2 with allegation of maltreatment with false allegations.
6. Feeling perturbed by conduct of respondent no. 3, petitioner no. 2
had filed a divorce petition to dissolve his marriage with respondent no.
3 in the court of Principal Judge, Family Court, G.B. Nagar, numbered
as Matrimonial Petition No. 709 of 2019 (Abhishek Shukla v. Esha
Shukla) in which notice was issued to respondent no. 3.
7. Petitioner no. 2 regularly paid the expenses of respondent no. 3
without any break even that the parents of respondent no. 3 did not
allow him to meet his son when he was in India in July, 2019, August
2019 and December, 2019. Even he approached the police officials but
they directly refused to intervene in the matter. The corpus is a minor
child who was aged about two years when he was abducted by
respondent no. 3 from U.S. to India without consent and permit of his
father. Petitioner no. 2 is legal guardian and custodian of petitioner no.
1. The custody of petitioner no. 1, who is a U.S. citizen, is not safe in
the hands of respondent no. 3, therefore, custody of child be given to
petitioner no. 2, who is his father and natural guardian.
8. Rule nisi was issued to respondent no. 3 by this Court to produce
the corpus Master Aarav Shukla on 17.1.2020 and petitioner no. 2
deposited Rs. 20,000/- as charges for production of the child in registry
which is payable to petitioner no. 1, on his appearance before the court,
however, respondent no. 3 did not produce the child before the court
and filed a SLP before Hon'ble Apex Court against rule nisi issued vide
order dated 17.1.2020 which was decided by Hon'ble Apex Court vide
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order dated 11.3.2022 with observation that “notice was issued in this
SLP only to explore possibility of settlement between the parties. The
matter was referred to mediation centre. We are informed by the
Mediation Centre that the parties could not arrive at a settlement. There
is no reason to interfere with the order passed by High Court issuing
notice. Special Leave Petition is accordingly, disposed of. Pending
application(s), if any, shall stand disposed of. We make it clear that we
have not expressed any opinion on the merits of the case. We are
informed that the High Court did not hear the habeas corpus petition in
view of the pendency of this Special Leave Petition before this Court.
The High Court is requested to dispose of the habeas corpus petition
expeditiously.”
9. From perusal of record it appears that after disposal of SLP filed
by respondent no. 3, the corpus was not produced by respondent no. 3
before this Court. The respondent no. 3 appeared in present petition on
22.4.2022 through counsel Sri. Azad Khan and counter affidavit was
filed by her on 30.5.2022. A rejoinder affidavit was filed by the
petitioner no. 2 with a view to counter the averments made in counter
affidavit, thus, the pleadings have been duly exchanged between the
parties.
10. Learned counsel for the petitioners based his submissions on the
basis of pleadings made in the writ petition. He further submitted on
the basis of averments made in rejoinder affidavit filed that the entire
agenda of respondent no. 3 is to alienate the minor child from the
petitioner no. 2 and indulge in parental alienation in the same way that
she has indulged in intercontinental parental abduction of petitioner no.
1. The allegations made against petitioner no. 2 in counter affidavit
filed on behalf of respondent no. 3 are scandalous and shocking. The
respondent no. 3 has entangled petitioner no. 2 in many cases with
false and concocted allegations. Petitioner no. 2 has filed a divorce
petition in the court of Principal Judge, Family Court, G.B. Nagar and
subsequently filed a divorce suit in U.S. Court. Learned Family Judge in
India has not passed any order in ante suit injunction restraining
petitioner no. 2 from pursuing the petitioner's case in U.S. Court and
pending divorce petition in the Family Court, G.B. Nagar. Petitioner no.
2 went out of his way to pay for the air tickets of respondent no. 3 to
travel to U.S.A. to meet the petitioners and copy thereof has been filed
as Annexure P-3 with rejoinder affidavit. The counter affidavit has been
filed by the respondent no. 3 is based of unfounded facts and concocted
allegations. The minor child Aarav Shukla ought to be repatriated back
in compliance of the order dated 24.12.2020 passed by Superior Court
of Washington, King County, U.S.A.. Respondent no. 3 had filed a suit
seeking ante suit injunction against petitioner no. 2 in Noida District
Court, U.P. for pursuing the divorce and custody proceedings filed by
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the petitioner no. 2 in U.S. by concealing various documents and

important facts from the court and got an order dated 16.4.2022
passed therein by suppressing material facts.
11. In the present case minor child has been removed from his
native country, U.S. to India and therefore it would be in the interest
and welfare of the minor to return its native country as the child has
not developed roots in India and no harm would be caused to the minor
child on his return. Petitioner no. 2 has been a caring from the very
beginning and some photographs are filed showing petitioners in the
company of each other to fortify this claim.
12. Per contra, learned counsel for the respondent no. 3 vehemently
opposed the prayer made in present habeas corpus petition and
submitted that the respondent no. 3 is a victim of domestic violence
and matrimonial cruelty to which she was subjected by the petitioner
no. 2 and his family members. She visited U.S. to live with petitioner
no. 2 and a child was born to them in U.S., however, due to non
cooperating attitude, high handedness, carelessness and ill-treatment
meted out to her, she was forced to leave the place of petitioner no. 2
in U.S. along with her minor child. Respondent no. 3 along with his
minor child, being mother and natural guardian of minor child who was
around two years of age, left U.S.A. along and presently her minor child
is aged around 5-6 years and cannot be given to custody of petitioner
no. 2, his father. Petitioner no. 2 cannot claim that welfare and interest
of the child will be more safe and secure in his custody by removing
him from custody of his mother. The petitioner no. 2 is not fulfilling his
obligations with regard to his wife as well as his son. Respondent no. 3
had lodged an F.I.R. on 14.4.2021 under Sections 498-A, 323, 506,
406, 342, 313, 351 IPC and Section 3/4 of D.P. Act, against petitioner
no. 2 and his parents at Greater Noida, District G.B. Nagar in which
necessary facts and stand of respondent no. 3 are enumerated. She had
also filed complaint under Section Domestic of Violence Act against
petitioner no. 2. Petitioner no. 2 and his family members filed separate
writ petitions with prayer to quash the said first information report
lodged against them by respondent no. 3 but same was dismissed vide
order dated 10.6.2022 passed by the Division Bench of this Court.
Respondent no. 3, with prior consent of petitioner no. 2 opt to join the
college in U.S. where they moved together in February, 2015, on
dependent visa. Petitioner no. 2 persuaded to resign from the company
in which she was working to visit U.S.A. with a view to pursue her
higher studies in M.S. Degree course to enhance her skills and
employability. She secured admission in Pepperdine University with
50% scholarship in the U.S.A., however, contrary to his assurances and
undertaking the petitioner no. 2 did not bear the financial burden of her
higher studies in U.S.A. and she had to depend on her parents for her
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financial assistance who subsequently transferred Rs. 10,0000/- for her

tuition fees, however, she could not continue her studies on account of
pregnancy and she decided to take break from the study for a year with
consent of petitioner no. 2 and thus, she put her studies on hold. On
September, 2017, petitioner no. 2 moved to Seattle from Las Angeles
because of the news of offer to respondent no. 3 in Microsoft and on
17.12.2017 she gave birth to a male child at Evergreen Health Medical
Centre, Kirkland, Washington. The stay of respondent no. 3 in U.S.
became verbatim due to high handedness and hostile attitude of
petitioner no. 2. At one point of time she was not having any money
with her. Her credit card was blocked by petitioner no. 2 and he was
not extending any financial support to her. He further submits that
Section 6(A) of Hindu Minority and Guardianship Act provides that the
mother is natural guardian after the father and in addition to that
proviso to Section 6-A provides that custody of minor child who has not
completed age of five years shall ordinarily be with the mother. He
lastly concluded that corpus or petitioner no. 1 lies with respondent no.
3 who is no other than biological mother for petitioner no. 1 and
custody of minor with his mother cannot be permitted as illegal. The
claim of petitioner no. 2 that petitioner no. 1 is supposed to be with
petitioner no. 2 is wrong and not legally tenable, rather his uncaring
and irresponsible conduct towards the petitioner no. 1 demonstrates his
absenteeism and neglect which under law will occasion the the
guardianship of the mother therefore writ petition is liable to be
dismissed in total.
13. He further submitted that petitioner no. 2 is engaged in
practicing forum shopping which is deprecated by Hon'ble Apex Court.
Petitioner no. 2 has filed a petition for divorce before Family Court, G.B.
Nagar and thereafter filed a suit for divorce after returning to U.S.A. in
U.S. court also, thus he approached two different courts in two National
Jurisdiction for litigating the same subject matter. Hon'ble Apex Court
in Union of India v. Cipla Ltd., (2017) 5 SCC 262, held that court is
required to adopt a functional test vis-a-vis the litigation and the
litigant. What has to be seen is whether there is any functional
similarity in the proceedings between one court and another or whether
there is some sort of subterfuge on the part of the litigant. It is this
functional test that will determine whether a litigant is indulging in
forum shopping or not. Prior to switching over to U.S., respondent no. 3
was qualified MBA and was working with Yamaha Motors as Sr. HR
Executive, however, on persuation of petitioner no. 2 she resigned the
company on 30.1.2015 and ultimately left her employment at Delhi and
thereafter both spouse moved to U.S.A. on 7.2.2015 on dependent visa.
Petitioner no. 1 was faced with abandonment and empowerment owing
to which she could not her ends meet in alien country and therefore
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was left with no option but to return back to India where she could live
wit her parents who could provide her and infant basic amenities of life
and above all love and affair which was denied to her by the petitioner
no. 2. The petitioner no. 2 had met corpus in presence of respondent
no. 3 at Greater Noida at the instance of Family Court on 14.12.2019
but he has deliberately concealed this material fact in present habeas
corpus petition. In any manner the custody of petitioner no. 1 with his
mother cannot be presumed or treated as unlawful and therefore,
custody of corpus may not be changed in favour of petitioner no. 2.
14. Hon'ble Apex Court in three Judges Bench judgment in Tejaswini
Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42, held that
writ of habeas corpus is a prerogative process for securing the liberty of
the subject by affording an effective means of immediate release from
an illegal or improper detention. when the guardian of a minor is
wrongly deprived of the custody of the child, a writ can be sought to be
issued. When a minor is detained by someone who does not have the
legal custody of the child, which will be considered as illegal detention
for applying the writ, in such a situation the restoration of custody is to
be done from a person who is not a legal or natural guardian of the
child, the writ can be applied. The Hon'ble Apex Court in paragraph
nos. 21, 22, 26 and 27, observed as under:—
“21. Custody of the child - removed from foreign countries and
brought to India:—
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
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 Majoo6, it was held as under:—
“58. Proceedings in the nature of habeas corpus are
summary in nature, where the legality of the detention of the
alleged detenu is examined on the basis of affidavits placed by
the parties. Even so, nothing prevents the High Court from
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embarking upon a detailed enquiry in cases where the welfare

of a minor is in question, which is the paramount consideration
for the Court while exercising its parens patriae jurisdiction. A
High Court may, therefore, invoke its extraordinary jurisdiction
to determine the validity of the detention, in cases that fall
within its jurisdiction and may also issue orders as to custody
of the minor depending upon how the Court views the rival
claims, if any, to such custody. 59. The Court may also direct
repatriation of the minor child to the country from where
he/she may have been removed by a parent or other person;
as was directed by this Court in Ravi Chandran (2010) 1 SCC
174 and Shilpa Aggarwal (2010) 1 SCC 591 cases or refuse to
do so as was the position in Sarita Sharma case (2000) 3 SCC
14. What is important is that so long as the alleged detenu is
within the jurisdiction of the High Court no question of its
competence to pass appropriate orders arises. The writ court's
jurisdiction to make appropriate orders regarding custody
arises no sooner it is found that the alleged detenu is within its
territorial jurisdiction.”
22. After referring to various judgments and considering the
principles for issuance of writ of habeas corpus concerning the minor
child brought to India in violation of the order of the foreign court, in
Nithya Anand, it was held as under:—
Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479 7 Nithya
Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454:
“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
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advised.”
26. After referring to number of judgments and observing that
while dealing with child custody cases, the paramount consideration
should be the welfare of the child and due weight should be given to
child's ordinary comfort, contentment, health, Lahari Sakhamuri v.
Sobhan Kodali, (2019) 7 SCC 311 : (2019) 5 Scale 97 education,
intellectual development and favourable surroundings, in Nil Ratan
Kundu, it was held as under:—
“49. In Goverdhan Lal v. Gajendra Kumar, AIR 2002 Raj 148
the High Court observed that it is true that the father is a natural
guardian of a minor child and therefore has a preferential right to
claim the custody of his son, but in matters concerning the
custody of a minor child, the paramount consideration is the
welfare of the minor and not the legal right of a particular party.
Section 6 of the 1956 Act cannot supersede the dominant
consideration as to what is conducive to the welfare of the minor
child. It was also observed that keeping in mind the welfare of the
child as the sole consideration, it would be proper to find out the
wishes of the child as to with whom he or she wants to live.
50. Again, in M.K. Hari Govindan v. A.R. Rajaram, AIR 2003
Mad 315 the Court held that custody cases cannot be decided on
documents, oral evidence or precedents without reference to
“human touch”. The human touch is the primary one for the
welfare of the minor since the other materials may be created
either by the parties themselves or on the advice of counsel to
suit their convenience.
51. In Kamla Devi v. State of H.P., AIR 1987 HP 34 the Court
observed:
“13. … the Court while deciding child custody cases in its
inherent and general jurisdiction is not bound by the mere
legal right of the parent or guardian. 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 giving due weight to
the circumstances such as a child's ordinary comfort,
contentment, intellectual, moral and physical development, his
health, education and general maintenance and the favourable
surroundings. These cases have to be decided ultimately on the
Court's view of the best interests of the child whose welfare
requires that he be in custody of one parent or the other.” 9 Nil
Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413
52. In our judgment, the law relating to custody of a child is
fairly well settled and it is this:
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in deciding a difficult and complex question as to the custody of a

minor, a court of law should keep in mind the relevant statutes and the
rights flowing therefrom. But such cases cannot be decided solely by
interpreting legal provisions. It is a human problem and is required to
be solved with human touch. A court while dealing with custody cases,
is neither bound by statutes nor by strict rules of evidence or procedure
nor by precedents. In selecting proper guardian of a minor, the
paramount consideration should be the welfare and well-being of the
child. In selecting a guardian, the court is exercising parens patriae
jurisdiction and is expected, nay bound, to give due weight to a child's
ordinary comfort, contentment, health, education, intellectual
development and favourable surroundings. But over and above physical
comforts, moral and ethical values cannot be ignored. They are equally,
or we may say, even more important, essential and indispensable
considerations. If the minor is old enough to form an intelligent
preference or judgment, the court must consider such preference as
well, though the final decision should rest with the court as to what is
conducive to the welfare of the minor.” 27. Reliance was placed upon
Gaurav Nagpal, where the Supreme Court held as under:—
“32. In McGrath, [1893] 1 Ch. 143, 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.”
(emphasis supplied) ………
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 10 Gaurav Nagpal v. Sumedha
Nagpal, (2009) 1 SCC 42 on what the 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 (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
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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.”
15. Learned counsel for the petitioner has drawn attention of this
Court towards the supplementary affidavit filed on 25.3.2021 wherein it
is stated that the corpus is a citizen of U.S.A., by virtue of his birth in
that country and in accordance with laws prevalent in that country and
the respondent no. 3 has illegally detained him without any provision of
law and it defines his right. Petitioner no. 2 filed a Declaration about
Child Custody Jurisdiction (UCCJEA) along with application seeking
parenting plan before Superior Court of Washington, County of King,
U.S.A., in the month of September, 2020 and a copy of Declaration
about Child Custody Jurisdiction has been annexed as Annexure SA-3
to the supplementary affidavit. Summons were duly received by
respondent no. 3 issued by Superior Court of Washington, County of
King, USA but she did not pay to the summon of court concerned. Well-
Child Visits for Infant and Young Children in U.S.A. is to be followed by
all the parents failing which they will be liable to be punished in respect
of child till he attains the age of five years.
16. Learned counsel for the petitioner cited various judgments of
Hon'ble Apex Court and High Courts in support of his/her submissions
in Jeewanti Pandey v. Kishan Chandra Pandey, (1981) 4 SCC 517,
Surindar Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698,
Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42, Paul
Mohinder Gahun v. Selina Gahun, (2006) 130 DLT 524, Aviral Mittal v.
State, (2009) 112 DRJ 635, Shilpa Aggarwal v. Aviral Mittal, (2010) 1
SCC 591, Dr. V. Ravi Chandran v. Union of India, (2010) 1 SCC 174,
Sondur Gopal v. Sondur Rajini, (2013) 7 SCC 426, Arathi Bandi v.
Bandi Jagadrakshaka Rao, (2013) 15 SCC 790, Surya Vadanam v. State
of Tamilnadu, (2015) 5 SCC 450, Nithya Anand Raghavan v. State of
NCT of Delhi, (2017) 8 SCC 454, Tippa Srihari v. State of A.P., 2018
SCC OnLine Hyd 123, Ganamukkala Sirisha v. Tippa Srihari, Lahari
Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311, Varun Verma v. State
of Rajasthan, 2019 SCC OnLine Raj 5430, Yashita Sahu v. State of
Rajasthan, (2020) 3 SCC 67, Tejaswini Gaud v. Shekhar Jagdish Prasad
Tewari, (2019) 7 SCC 42, Nilanjan Bhattacharya v. The State of
Karnataka, 2020 SCC OnLine SC 928, Ghadian Harshavardhan Reddy v.
State of Telangana, Vasudha Sethi v. Kiran V. Bhaskar, 2022 SCC
OnLine SC 43, Rohith Thammana Gowda v. State of Karnataka, 2022
SCC OnLine SC 937, Rajeswari Chandrasekar Ganesh v. State of Tamil
Nadu, 2022 SCC OnLine SC 885 and Abhinav Gyan v. State of
Maharashtra, Crl. Writ Petition No. 693 of 2021. Their main thrust was
on decision of Apex Court in Yashita Sahu's case (supra) as this case
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was also related to custody of minor child who was born in U.S.A. and
wife of the petitioner brought the child in India in violation of orders of
jurisdictional court in U.S.A. Yashita Sahu (the appellant) and Varun
Verma (respondent) got married on 30.5.2016 in India. Husband was
already working in U.S.A. The wife accompanied the husband to U.S.A.
on 17.7.2016. A daughter named Kiyara Verma was born to the couple
on 3.5.2017. She is citizen of U.S.A. Relationship between husband and
wife got strained and they make various allegations and counter
allegations against each other. Wife applied for an emergency
protection order on 25.8.2018 to the Norfolk Juvenile and Domestic
Relations District Court praying for her protection and an ex-parte
preliminary protection order was passed against the husband.
Thereafter on 29.8.2018, the wife instituted a petition in the same
Court seeking sole custody of the minor child. She also filed a petition
praying that husband be directed to give monitory support to her and
the minor child. An order was passed by the court on 26.9.2018 in
terms of agreement reached between the parties. The wife along with
child left USA and came to India on 30.9.2018 after few days of passing
of order dated 26.9.2018. The husband on coming to know that wife
along with their child had left the USA for India, filed a motion for
emergency relief before Norfolk Court on 2.10.2019. The ex-parte order
was passed in favour of the husband whereby Norfolk Court granted
sole legal and physical custody of the child to the husband and directed
the wife to return to USA along with their child but she did not comply
the order of Norfolk Court and a warrant was also issued against her for
violation of order dated 26.9.2018 of Norfolk Court. The husband filed a
petition for writ of habeas corpus before Rajasthan High Court for
production of a minor child. High Court on 1.7.2019 directed the wife to
return to USA along with her minor daughter within a period of six
weeks to enable jurisdictional court in USA to pass further orders in this
regard in the proceedings already pending. Aggrieved by the order of
Rajasthan High Court, wife has filed present appeal before Hon'ble Apex
Court. Hon'ble Apex Court held that we reject contention of the
appellant wife that the writ petition before the High Court of Rajasthan
was 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
jurisdiction for the best interest of the child. Hon'ble Apex Court quoted
judmgment of the court in Elizaeth Dinshaw v. Arvand M. Dinshaw,
(1987) 1 SCC 42, Nithya Anand Raghavan v. State (NCT of Delhi),
(2017) 8 SCC 454 and Lahari Sakhamuri v. Sobhan Kodali, (2019) 7
SCC 311. Hon'ble Apex Court in the case of Yashita Sahu (supra) in
paragraph no. 13, 16, 17, 18, 19 and 20, 21, 25, 31 and 32 of the said
judgment observed as under:—
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“Comity of Courts
17. In the fast shrinking world where adults marry and shift from
one jurisdiction to another there are increasing issues of jurisdiction as
to which country's courts will have jurisdiction. In many cases the
jurisdiction may vest in two countries. The issue is important and needs
to be dealt with care and sensitivity. Though the interest of the child is
extremely important and is, in 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.
18. Reference in this regard may be made to the judgment in
Elizabeth Dinshaw (supra) wherein this Court was dealing with a case
where the wife was an American citizen whereas the husband was a
citizen of India. They got married in America and a child was born to
them in the year 1978. In 1980, differences arose between the couple
and the wife filed a petition for divorce. The jurisdictional court in
America had dissolved the marriage by a decree of divorce on
23.04.1982 and by the same decree it was directed that the wife would
have the care, custody and control of the child till he reaches the age of
18 years. The husband was given visitation rights. Taking advantage of
the weekend visitation rights, the husband picked up the child from
school on 11.01.1986 and brought him to India. The wife filed a
petition under Article 32 of the Constitution of India before this Court.
Not only was the petition entertained, but the same was allowed and
we would like to refer to certain important observations of this Court in
Para 8:
“8. 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 parties but on the sole and
predominant criterion of what would best serve the interest and
welfare of the minor. We have twice interviewed Dustan in our
chambers and talked with him. We found him to be too tender in age
and totally immature to be able to form any independent opinion of
his own as to which parent he should stay with. The child is an
American citizen. Excepting for the last few months that have
elapsed since his being brought to India by the process of illegal
abduction by the father, he has spent the rest of his life in the
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United States of America and he was doing well in school there.

19. In our considered opinion it will be in the best interests and
welfare of Dustan that he should go back to the United States of
America and continue his education there under the custody and
guardianship of the mother to whom such custody and guardianship
have been entrusted by a competent court in that country. We are also
satisfied that the petitioner who is the mother, is full of genuine love
and affection for the child and she can be safely trusted to look after
him, educate him and attend in every possible way to his proper
upbringing. The child has not taken root in this country and he is still
accustomed and acclimatized to the conditions and environments
obtaining in the place of his origin in the United States of America. The
child's presence in India is the result of an illegal act of abduction and
the father who is guilty of the said act cannot claim any advantage by
stating that he has already put the child in some school in Pune. The
conduct of the father has not been such as to inspire confidence in us
that he is a fit and suitable person to be entrusted with the custody and
guardianship of the child for the present.” In V. Ravi Chandran (Dr.) (2)
v. Union of India (UOI) 5 it was held as follows:
“29. While dealing with a case of custody of a 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 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 to the
country from which the child was removed and all aspects relating to
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 child including stability and security, 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 interest of the
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child….” 5 (2010) 1 SCC 174

20. In Nithya Anand Raghavan (supra), this Court took the following
view:
“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.
21. 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 preexisting 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 preexisting 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.” Thereafter, another bench
of this Court in Lahari Sakhamuri (supra), while interpreting the
judgment in Nithya Anand Raghavan (supra) held as follows:
“41…the doctrines of comity of courts, intimate connect, orders
passed by foreign courts having jurisdiction in the matter regarding
custody of the minor child, citizenship of the parents and the child
etc., cannot override the consideration of the best interest and the
welfare of the child and the direction to return the child to the
foreign jurisdiction must not result in any physical, mental,
psychological, or other harm to the child.”
22. 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.
Welfare of the child - the paramount consideration
23. It is well settled law by a catena of judgments that while
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deciding matters of custody of a child, primary and paramount

consideration is welfare of the child. If welfare of the child so demands
then technical objections cannot come in the way. However, while
deciding the welfare of the child it is not the view of one spouse alone
which has to be taken into consideration. The courts should decide the
issue of custody only on the basis of what is in the best interest of the
child.
24. The child is the victim in custody battles. In this fight of egos
and increasing acrimonious battles and litigations between two
spouses, our experience shows that more often than not, the parents
who otherwise love their child, present a picture as if the other spouse
is a villain and he or she alone is entitled to the custody of the child.
The court must therefore be very vary of what is said by each of the
spouses.
25. A child, especially a child of tender years requires the love,
affection, company, protection of both parents. This is not only the
requirement of the child but is his/her basic human right. Just because
the parents are at war with each other, does not mean that the child
should be denied the care, affection, love or protection of any one of the
two parents. A child is not an inanimate object which can be tossed
from one parent to the other. Every separation, every reunion may have
a traumatic and psychosomatic impact on the child. Therefore, it is to
be ensured that the court weighs each and every circumstance very
carefully before deciding how and in what manner the custody of the
child should be shared between both the parents. Even if the custody is
given to one parent the other parent must have sufficient visitation
rights to ensure that the child keeps in touch with the other parent and
does not lose social, physical and psychological contact with any one of
the two parents. It is only in extreme circumstances that one parent
should be denied contact with the child. Reasons must be assigned if
one parent is to be denied any visitation rights or contact with the
child. Courts dealing with the custody matters must while deciding
issues of custody clearly define the nature, manner and specifics of the
visitation rights.
26. The concept of visitation rights is not fully developed in India.
Most courts while granting custody to one spouse do not pass any
orders granting visitation rights to the other spouse. As observed
earlier, a child has a human right to have the love and affection of both
the parents and courts must pass orders ensuring that the child is not
totally deprived of the love, affection and company of one of her/his
parents.
27. Normally, if the parents are living in the same town or area, the
spouse who has not been granted custody is given visitation rights over
weekends only. In case the spouses are living at a distance from each
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other, it may not be feasible or in the interest of the child to create

impediments in the education of the child by frequent breaks and, in
such cases the visitation rights must be given over long weekends,
breaks, and holidays. In cases like the present one where the parents
are in two different continents effort should be made to give maximum
visitation rights to the parent who is denied custody. 25. Nationality of
the child The child is a citizen of USA by birth. Her father was already
working in the USA when he got married. We are told that the mother
had visited the USA once before marriage and when she got married it
was done with the knowledge that she may have to settle down there.
The child was born in a hospital in the USA and the mother did not
come back to India for delivery which indicates that at that time the
parents wanted the child to be a citizen of USA. Since the child is a
citizen of USA by birth and holds a passport of that country, while
deciding the issue of custody we have to take this factor into
consideration.
28. There are various factors to be taken into consideration while
deciding what is best in the interest of the child. No hard and fast rules
can be laid down and each case has to be decided on its own merits.
We are also not oblivious of the fact that when two parents are at war
with each other it is impossible to provide a completely peaceful
environment to the child. The court has to decide what is in the best
interest of the child after weighing all the pros and cons of both the
respective parents who claim custody of the child. Obviously, any such
order of custody cannot give a perfect environment to the child because
that perfect environment would only be available if both the parents
put the interest of the child above their own differences. Even if parents
separate, they may reach an arrangement where the child can live in an
environment which is reasonably conducive to her/his development. As
far as the present case is concerned other than the age of the child
nothing is in favour of the mother. She herself approached the
jurisdictional court in Norfolk. She entered into an agreement on the
basis of which a consent order was passed. She has violated that order
with impunity and come back to India and, this is a factor which we
have to hold against her.
29. In view of the above discussion, we are clearly of the view that it
is in the best interest of the child to have parental care of both the
parents, if not joint then at least separate. We are clearly of the view
that if the wife is willing to go back to USA then all orders with regard
to custody, maintenance etc., must be looked into by the jurisdictional
court in USA. A writ court in India cannot, in proceedings like this direct
that an adult spouse should go to America. We are, therefore, issuing
directions in two parts. The first part will apply if the appellant wife is
willing to go to USA on terms and conditions offered by the husband in
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his affidavit. The second part would apply if she is not willing to go to
USA, how should the husband be granted custody of the child.”
30. Hon'ble Apex Court ultimately taking into consideration and
undertaking of the husband held that we feel it would be in the interest
of the child if the mother herself accompanies the child to the USA. The
appellant's wife may like to live in USA or not, and this is personal
choice of the appellant's wife. However, if she goes back to USA along
with child then she must comply with the orders of Norfolk Court.
Obviously, she can apply for modification/vacation of the order, if so
advised. In case, the wife goes back to USA it shall be responsibility of
the husband to pay reasonable expenses for her entire travel and stay.
If she expressed her willingness to go to USA along with child, husband
shall purchase tickets for travel of the wife and minor child to the USA
which journey will be performed on or before 20.2.2020 and it is wife's
responsibility to obtain requisite travel document required by her to
travel to USA by the said date. In case the wife does not inform the
counsel for the husband within a week from the order that she is willing
to go back to USA then it shall be presumed that she has no intention
to go to USA along with child and in that event the wife shall hand over
custody of minor child to the husband, if he travels to India otherwise
the custody may be handed over to mother of the husband before
Registrar General of High Court on a fixed date. Thereafter the husband
shall make necessary arrangements for taking the child to USA
accompanied by at least one of the husband parents. Husband shall
ensure that child talks to his mother from video calling facilities such as
whatsapp, skype etc. every day on a fixed time. Some other visitation
rights were also granted to mother of the child.
31. Learned counsel for the respondent placed reliance on Prateek
Gupta v. Shilpi Gupta, (2018) 2 SCC 309, Vivek Singh v. Romani
Singh, (2017) 3 SCC 231, Ritika Sharan v. Sujoy Ghosh, 2020 SCC
OnLine SC 878, Nithya Anand Raghavan v. State (NCT of Delhi), (2017)
8 SCC 454, Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42,
Smriti Madan Kansagra v. Perry Kansagra, 2020 SCC OnLine SC 887
and Kanika Goel v. State of Delhi Through Station House Officer, (2018)
9 SCC 578.
32. In Kanika Goel's (supra) case first marriage between the parties
was performed in New Delhi as per Sikh rites i.e. Anand Karaj
ceremony, and Hindu Vedik rites, whereas, the civil marriage ceremony
was performed at Circuit Court of Cook Country, Illinois, U.S.A. to
complete the formalities. The appellant mother after coming to India,
filed a petition for divorce under Section 13(1) of Hindi Marriage Act,
1955 ground of cruelty along with an application seeking a restrain
order against husband/respondent for taking the minor child away from
jurisdiction of Indian Courts. The husband (respondent no. 2) also filed
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a petition before Circuit Court, Illinois (U.S.) which court directed that
the child was to be immediately returned to residence located in Cook
Country, Illinois. Since the appellant's wife did not comply with the
order of Circuit Court, respondent husband filed a writ petition before
the High Court to issue a writ or habeas corpus and directed the
appellant to produce the minor child and cause her return to the
jurisdiction of the court in U.S. The High Court by speaking judgment
and order dated 16.11.2017 in favour of respondent no. 2, husband of
appellant, after recording a finding that the paramount interest of the
minor child was to return to USA, so that she could be in her natural
environment. To facilitate the parties to have a working arrangement
and to minimize inconvenience, the Division Bench of High Court issued
certain directions like the return of respondent no. 2 (present
appellant) with the minor child should be at the expense of the
petitioner; their initial stage shicago, U.S.A. sholuld also be entirely
funded and taken care of by the petitioner by providing a separate
furnished accommodation from basic amentities coupled with internet
connection etc. for the two of them in the vicinity of matrimonial home
of the parties, wherein they have lived till December, 2016. In terms of
direction contained in judgment dated 16.11.2017 petitioner Karan
Goyal had filed the affidavit on 20.11.2017 wherein he undertook and
consented to abide by all the conditions imposed upon him so that
respondent no. 2 could return to USA with the minor child. Again on
6.12.2017 another order was passed by High Court finally disposed of,
on certain specified terms.
33. However, being aggrieved by the judgment of High Court, the
appellant being mother of the minor child has approached Apex Court
by way of Special Leave under Article 236 of the Constitution. The
appellant being mother of the child has assailed the decision of the
High Court for having overlooked rudimentary princples governing issue
of invoking jurisdiction to issue a writ of habeas corpus in respect of a
minor child who was in lawful custody of her mother. According to
appellant, High Court has completely glossed over or to put it
differently, misconstrued and mis applied the principles of paramount
interest of the minor girl child of tender age of about four years.
Similarly the High Court has glassed doctrine of choice and dignity of
the mother of a minor girl child keeping in mind the exposition in K.S.
Puttaswami v. Union of India, (2017) 10 SCC 1. Hon'ble Apex Court had
given a through and meticulous consideration of the impugned order
passed by High Court including reasons given therein and noticed that
High Court has taken note of all the relevant decisions including latest
three Bench decisions in Nithyanand (Supra) which had occasion to
exhaustively analyse the earlier decision on the subject matter under
consideration. The exposition in the earlier decisions has been again
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reinstated and reaffirmed in the subsequent decision of this Court in

Prateek v. Shilpi, (2018) 2 SCC 309. In Nithya Raghvan's case (supra)
this Court observed as under:—
“40. The Court has noted that India is not yet a signatory to the
Hague Convention of 1980 on “Civil Aspects of International Child
Abduction”. As regards the non-Convention countries, the law is that
the court in the country 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 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 proximity and filed
promptly after the child was removed from his/her native 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
preexisting order of the foreign court if any 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, if it is satisfied that the child is now settled in
its new environment or 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. We
are in respectful agreement with the aforementioned exposition.”
(emphasis supplied)
34. Again in paragraph 42, the Court observed thus:
“42. The consistent view of this Court is that if the child has been
brought within India, the courts in India may conduct:
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(a) summary inquiry; or

(b) an elaborate inquiry on the question of custody.
35. 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.”
(emphasis supplied),
“67. The facts in all the four cases primarily relied upon by
Respondent 2, in our opinion, necessitated the Court to issue
direction to return the child to the native state. That does not mean
that in deserving cases the courts in India are denuded from
declining the relief to return the child to the native state merely
because of a pre-existing order of the foreign court of competent
jurisdiction. That, however, will have to be considered on case to
case basis - be it in a summary inquiry or an elaborate inquiry. We
do not wish to dilate on other reported judgments, as it would result
in repetition of similar position and only burden this judgment. xxx
xxx xxx
69. . ………….. The summary jurisdiction to return the child be
exercised in cases where the child had been removed from its native
land and removed 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 if 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. Again the summary
jurisdiction be exercised only if the court to which the child has been
removed is moved promptly and quickly. The overriding
consideration must be the interests and welfare of the child.”
(emphasis supplied)
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36. At this stage, we deem it apposite to reproduce paragraphs 70

and 71 of the reported judgment, which may have some bearing on the
final order to be passed in this case. The same read thus:
“70. Needless to observe that after the minor child (Nethra)
attains the age of majority, she would be free to exercise her choice
to go to the UK and stay with her father. But until she attains
majority, she should remain in the custody of her mother unless the
court of competent jurisdiction trying the issue of custody of the
child orders to the contrary. However, the father must be given
visitation rights, whenever he visits India. He can do so by giving
notice of at least two weeks in advance intimating in writing to the
appellant and if such request is received, the appellant must
positively respond in writing to grant visitation rights to Respondent
2 Mr. Anand Raghavan (father) for two hours per day twice a week at
the mentioned venue in Delhi or as may be agreed by the appellant,
where the appellant or her representatives are necessarily present at
or near the venue. Respondent 2 shall not be entitled to, nor make
any attempt to take the child (Nethra) out from the said venue. The
appellant shall take all such steps to comply with the visitation
rights of Respondent 2, in its letter and spirit. Besides, the appellant
will permit Respondent 2 Mr. Anand Raghavan to interact with
Nethra on telephone/mobile or video conferencing, on school
holidays between 5 p.m. to 7.30 p.m. IST.
37. 21 In Prateek Gupta v. Shilpi Gupta (supra), Hon'ble Apex Court
in paragraph nos. 49 to 51, has observed as under:—
“49. 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 thereto. Though in the
process of adjudication of the issue of repatriation, 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 attenuations. 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 its grooming in its fold.
50. 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.
51. 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.”
38. Hon'ble Apex Court finally observed in paragraph nos. 33 and 34
as under:—
“33. The High Court in the present case focused primarily on the
grievances of the appellant and while rejecting those grievances,
went on to grant relief to respondent No. 2 by directing return of the
minor girl child to her native country. On the totality of the facts and
circumstances of the present case, in our opinion, there is nothing to
indicate that the native language (English) is not spoken or the child
has been divorced from the social customs to which she has been
accustomed. Similarly, the minor child had just entered preschool in
the USA before she came to New Delhi along with her mother. In
that sense, there was no disruption of her education or being
subjected to a foreign system of education likely to psychologically
disturb her. On the other hand, the minor child M is under the due
care of her mother and maternal grandparents and other relatives
since her arrival in New Delhi. If she returns to US as per the relief
claimed by the respondent No. 2, she would inevitably be under the
care of a Nanny as the respondent No. 2 will be away during the day
time for work and no one else from the family would be there at
home to look after her. Placing her under a trained Nanny may not
be harmful as such but it is certainly avoidable. For, there is
likelihood of the minor child being psychologically disturbed after her
separation from her mother, who is the primary care giver to her. In
-----------------------------------------------------------------------------------------------------------------------------------------------------------
other words, there is no compelling reason to direct return of the

minor child M to the US as prayed by the respondent No. 2 nor is her
stay in the company of her mother, along with maternal
grandparents and extended family at New Delhi, prejudicial to her in
any manner, warranting her return to the US.
34. As expounded in the recent decisions of this Court, the issue
ought not to be decided on the basis of rights of the parties claiming
custody of the minor child but the focus should constantly remain on
whether the factum of best interest of the minor child is to return to
the native country or otherwise. The fact that the minor child will
have better prospects upon return to his/her native country, may be
a relevant aspect in a substantive proceedings for grant of custody of
the minor child but not decisive to examine the threshold issues in a
habeas corpus petition. For the purpose of habeas corpus petition,
the Court ought to focus on the obtaining circumstances of the minor
child having been removed from the native country and taken to a
place to encounter alien environment, language, custom etc.
interfering with his/her overall growth and grooming and whether
continuance there will be harmful. This has been the consistent view
of this Court as restated in the recent three Judge Bench decision in
Nithya Anand Raghavan (supra), and the two Judge Bench decision
in Prateek Gupta (supra). It is unnecessary to multiply other
decisions on the same aspect.
39. With above observations, the Hon'ble Apex Court set aside the
impugned order passed by the High Court and disposed of the writ
petition in the light of observations made in the judgment.
40. This was a three Judge Bench judgment in which reliance was
placed on Nithya Anand Raghavan (supra), Prateek Gupta (supra) and
Shilpa Aggarwal v. Aviral Mittal, (2010) 1 SCC 591 and V. Ravi
Chandran v. Union of India, (2010) 1 SCC 174. In this judgment,
Hon'ble Apex Court in paragraph no. 23 held as below:—
“23. In a case such as the present one, we are satisfied that
return of minor Adithya to United States of America, for the time
being, from where he has been removed and brought here would be
in the best interest of the child and also such order is justified in
view of the assurances given by the petitioner that he would bear all
the traveling expenses and make living arrangements for respondent
no. 6 in the United Sates of America till the necessary orders are
passed by the competent court; that the petitioner would comply
with the custody/parenting rights as per consent order dated June
18, 2007 till such time as the competent court in United States of
America takes a further decision; that the petitioner will request that
the warrants against respondent no. 6 be dropped; that the
petitioner will not file or pursue any criminal charges for violation by
-----------------------------------------------------------------------------------------------------------------------------------------------------------
respondent no. 6 of the consent order in the United States of

America and that if any application is filed by respondent no. 6 in
the competent court in United States of America, the petitioner shall
cooperate in expeditious hearing of such application. The petitioner
has also stated that he has obtained confirmation from Martha Hunt
Elementary School, Murphy, Texas, 75094, that minor son Adithya
will be admitted to school forthwith.
41. Hon'ble Apex Court finally concluded that there was no
compelling reasons to direct return of the minor girl child who was lying
in custody of her mother to U.S. nor his stay in company of her mother
or other family members was prejudicial in any manner warranting to
her return to USA. as expounded in recent decisions was not applicable
in facts of the case. As observed in Nitya Anand (supra) the court must
take into account totality of the facts and circumstances while ensuring
the best interest of the minor child. Further the doctrine of intimate and
cogent concern are of persuasive relevance only when the child is
uprooted from its native country and taken to place to uncounter alien
environment, any custom etc. with the portent of mutuality bearing in
process of its over all growth and moving. The minor child had just
enter pre-school in the USA before she came to New Delhi along with
her mother. She was at that time of three years of age. There was no
disciption of her education or being subjected to a foreign system of
education likely to psycholigically distrubed her. On the other hand,
minor child is under due care of her mother and maternal grand parents
and other relatives seeks her arrival in New Delhi. If she returns to
U.S., as per, the relief claimed by the respondent no. 2, she would
inevitably be under the care of a nani as the respondent no. 2 will be
away during the time for work and no one else from the family would
be there at home to look after her. Placing her under a trained Nani
may not be harmful as such but its is certainly avoidable. For, there is
likelihood of the minor child being psychologically disturbed after her
separation from her mother, who is the primary care given to her.
42. Learned counsel for the petitioner placed reliance on three Judge
Bench Judgment in Dr. V. Ravi Chandran (supra), wherein Hon'ble Apex
Court held that 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 matter summarily order a parents to return the custody of the
child to the country from which the child was removed and all aspects
relating to child 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 to go into all relevant
aspects of welfare of the child including stability and security, loving
-----------------------------------------------------------------------------------------------------------------------------------------------------------
and understanding, care and guidance and full development of the

child's character, personality and talents, while doing so the order of
foreign court as to which custody may be given due weight; the weight
and persuasive effect of foreign judgment must depend on
circumstances of each case, 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 must intimate contact with
the issues arisen in the case, court may leave the aspects relating to
welfare of the child to be investigated by the court in his own native
country as that could be in the best interest of the child. The child is an
American citizen born and brought up in U.S.A., spent his initial years.
Keeping in view the child welfare and happiness and in his best
interest, parties have obtained a series of consent orders concerning his
custody/parenting rights, maintenance etc. from the court of competent
jurisdiction in America. Return of minor child to the U.S., for the time
being, from where he has been removed and brought to India, would
be in the child best interest.
43. In above case child was born on 1.7.2022 in U.S.A. Habeas
corpus petition was filed by father of the child for the production of his
minor son Aditya and for handing over the custody and his passport to
him. On 28.8.2009, Hon'ble Apex Court passed an order requesting
Director, CBI to produce him before the court due to fact that despite
best efforts made by police officers of different states, child and his
mother could not be traced and their whereabouts could not be found
for more than two yeas since the notice was issued by the Apex Court.
C.B.I. issued look out notices on all India basis through the heads of
India police and ultimately child and mother were traced on Chennai on
24.10.2009 and they were produced at the residential office of one of
Hon'ble Judges of the Apex Court hearing the matter on 25.10.2009.
The petitioner was permitted to meet child for one hour. Pleadings were
exchanged. During course of hearing it was found that petitioner and
respondent no. 6 were got married on 14.12.2008 at Andhra Pradesh.
On 1.7.2022 a child was born in U.S. In month of July, 2023,
respondent no. 6, mother approached New York Supreme Court for
divorce and dissolution of marriage. The consent order governing the
issues of custody and guardianship of minor was passed by the Hon'ble
New York Supreme Court on 18.4.2005. The court granted joint custody
of the child to the petitioner and respondent no. 6 and it was stipulated
in the order that to keep the other party informed about the
whereabouts of the child. On 28.7.2005 a separation agreement was
entered between the spouse for distribution of marital property, spouse
maintenance and child support. As regards the custody of the minor
son and parenting time, the petitioner and respondent no. 6 consented
-----------------------------------------------------------------------------------------------------------------------------------------------------------
to order dated 18.4.2005. On 8.9.2005 the marriage between petitioner

and respondent no. 6 were dissolved by the New York Supreme Court
and child custody order dated 18.4.2005 was incorporated in that
order. The Family Court of State of New York on 18.6.2007 ordered that
the parties shall share joint legal and physical custody of the minor
child and the child shall reside in Allen, Texas. The parties shall
alternate share physical custody on a weekly basis with the exchange
being on Friday at the end of the school day or at that time when
school would ordinarily let out in the event that there is no school on
Friday, therefore from perusal of facts of Dr. V. Ravi Chandran's case
(supra) it is crystal clear that there were number of consent orders
passed by competent court in U.S. in presence of the spouse prior to
28.6.2007 when respondent no. 6 brought minor to India informing the
petitioner that she would be residing with her parents in Chennai,
whereas in present case there was no order regarding custody of the
child, joint parenting plan before the alleged parental abduction of child
by his mother, respondent no. 3, therefore, ratio of V. Ravi Chandran's
case is not likely to extend benefit to present petitioner in facts and
circumstances of the present case.
44. In Yashita Sahu (supra) case, the guiding force behind the
reasoning of Hon'ble Apex Court was that in that case since the wife
brought the minor to India in violation of the orders of jurisdictional
court in USA, her custody of the child cannot be said to be strictly legal
and the girld child Kiyara Verma was born to couple Yashita Verma and
Varun Verma on 3.5.2017 in U.S. She was citizen of U.S.A. The wife
had filed a petition before Norfolk Court praying for her protection and
an ex-parte primary protection order was passed against the
respondents thereafter she had instituted a petition in same court
seeking sole custody of the minor child. Wife, along with the child left
USA and came to India on 30.9.2018 and after knowing this fact
husband filed a motion for emergency relief before Norfolk Court on
2.10.2019 and an ex-parte order was passed in favour of the husband
whereby Norfolk Court granted sole legal and physical custody of the
minor child to the husband and directed the wife to return to USA along
with the child. A warrant was also issued against wife for violating the
order dated 26.9.2018 of the Norfolk Court in terms of the agreement
reached between the parties which was made part of the order wherein
it was provided that joint legal custody and shared physical custody of
the child was given to the parents, with each parent being given
individual parenting time, whereas in present case when the
Respondent No. 3 left U.S.A. along with child Aarav Shukla, there was
no binding order of U.S. Court was in existence. Only allegations
against her is that she had taken the child along with her from U.S.A.
to India at her parental place without consent or knowledge of the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
petitioner no. 2, her husband. In habeas corpus petition, there is no

description of any U.S. Court order with regard to custody of the child
except the legal notice issued by Patrick F. Shearer, Attorney of Law, in
USA to the respondent no. 3 dated 26.3.2019 wherein he has
addressed the respondent no. 3 Ms. Esha Shukla and asked her not to
contact Mr. Abhishek Shukla with harassing disparaging remarks and
allegations. He has also asked her to cease any contact with Mr. Shukla,
both directly or indirectly, however, in Rejoinder affidavit he has stated
that pursuant to filing of the writ petition before this Court petitioner
no. 2 filed a petition before the Superior Court of Washington, County
King, U.S.A. seeking dissolution of marriage along with custody of the
minor son, who is a U.S. citizen, U.S. Court issued summon to
respondent no. 3, wife of the petitioner no. 2. On 24.10.2020
respondent no. 3 was served with summons of divorce and custody
petition and in this regard petitioner no. 2 filed a proof of service being
effected upon respondent no. 3(wife) in India, however, pursuant to
receipt of notice by her, she issued a notice through her counsel dated
18.11.2020 calling upon petitioner no. 2 husband to withdraw the
divorce and custody case filed in U.S. Court and informed that she had
also filed an anti suit injunction before Noida District Court. Since
respondent no. 3 failed to appear after being affected service upon her,
the U.S. Court vide order dated 24.12.2020 granted the motion in
favour of petitioner no. 2 and proceeded in the case without notice to
the respondent no. 3. U.S. Court vide another order dated 24.12.2020
directed that respondent no. 3 (mother) shall return the child to the
U.S., native State of the minor child i.e. State of Washington within 30
days of the passing of the said order and the petitioner no. 1 i.e. child
shall live with his father i.e. petitioner no. 2 and the mother shall
exercise appropriate visitation rights with the minor child in the State
of Washington, up to ten days as she provides three weeks' notice and
does not remove the child from the State of Washington. The U.S. Court
also passed an order dated 24.12.2020 directing that respondent no. 3,
mother, shall not remove the child from State of Washington but for
summer visitation or by agreement of the parties. According to the
petitioner U.S. Court is the Court of competent jurisdiction and having
the closest concern with the issue of custody and welfare of the minor
child and, therefore, this Court has to exercise its summary jurisdiction
and repatriate the minor child back to U.S. Court where U.S. Court
would finally determine as to what would be the best interest and
welfare of the minor child.
45. The petitioner no. 2's stand is that admittedly the minor child is
a U.S. citizen and should not be deprived of his status and available as
well as the facilities such as social security available to a minor child
being a U.S. citizen. The parties had intended to give birth to the minor
-----------------------------------------------------------------------------------------------------------------------------------------------------------
child in U.S. and therefore it is only the U.S. Court which had to
determine as to what is in the best interest and welfare of the minor
child. He has filed copy of personal service of notice of divorce and
custody petition filed by the petitioner no. 2 on respondent no. 3, dated
26.2.2021, at her residential address in Greater Noida, U.P. He has also
filed a copy of parenting plan filed before Superior Court of Washington,
King County, U.S.A. dated 18.12.2020 which is unilaterally signed by
petitioner no. 2 and it is nowhere appearing signature of the mother of
child namely Easha Shukla, the respondent no. 3. He has also filed a
Declaration about Child Custody Jurisdiction before Superior Court of
Washington, County of King, dated 18.12.2020 at Seatel City,
Washington State, which is also signed by petitioner no. 2 with regard
to custody of child Aarav Shukla, born on 12.7.2017 and this is
admitted fact that prior to this, the child was taken away by his mother
to India on 17.3.2019 and thereafter petitioner no. 2 has filed the
divorce petition before Principal Judge, Family Court, G.B. Nagar. This
version of petitioner no. 2 has been refuted by respondent no. 3 in
counter affidavit that after alleged abduction of child by respondent no.
3, who is mother, petitioner no. 2 was not permitted to meet his son
while he was in India in July and August, 2019 and December, 2019. In
paragraph no. 12 of the counter affidavit it is specifically stated that
petitioner no. 2 met petitioner no. 1 at very Small Greater Noida on
24.12.2019 in presence of respondent no. 3 prior to filing of present
habeas corpus petition. In annexure no. 4 to the supplementary
affidavit dated 25.3.2021, the parenting plan dated 18.12.2020 has
been filed together with King County Superior Court, Judicial Electronic
Signature Page, Case No. 20-3-04720-5, Case Title Shukla v. Shukla,
document title-Parenting Plan (final order), signed by Leonid
Ponomarchuk dated December 24, 2020, the Commissioner, therefore,
it appears that court concerned in U.S. has not passed any separate
order regarding custody of child on 24.12.2020, however, the court has
approved parenting plan filed by petitioner no. 2 on 18.12.2020 in
which it is stated inter alia that mother shall not remove the child from
Washington State but for summer visitation or by agreement of the
parties, neither parents shall disparage the other, nor discuss any legal
matters in front of the child. Mother shall return the child to U.S. with
whom State of Washington within 30 days, entry of this order. This
Court in order dated 26.7.2021 observed that “petitioner no. 2 submits
that there is an order passed by Superior Court of Washington, King
County dated 24.12.2020, but is not in a position to answer query of
this Court that, when this order itself provides for disputes resolution
and names and arbitrator or agency to carry out arbitration/mediation
for dispute resolution and proceedings are according to learned counsel
and proceedings are according to learned counsel for the petitioners are
-----------------------------------------------------------------------------------------------------------------------------------------------------------
already under way before the concerned arbitrator, though he submits

that respondent no. 3 is not appearing before the said arbitrator, how
this petition is maintainable. List this case on 29.7.2021.” However, the
query made by this Court in order dated 26.7.2021 has not been
replied by the petitioner no. 2 on subsequent dates of listing.
46. In present case every legal action was taken by the petitioner
no. 2 before U.S. Court after departure of respondent no. 3 along with
petitioner no. 1 from U.S.A. to India and that too after filing of present
habeas corpus petition and all these proceedings are the ex-parte qua
respondent no. 3. She has neither signed the joint parenting plan nor
the Declaration as stated which has been approved by court's order
dated 24.12.2020.
47. Dictum of Hon'ble Apex Court in Kanika Goel's case (supra), is
more proximate to the facts and circumstances of the present case as
in that case also the minor child is an U.S. citizen by birth and and
grown up in her native country for over three years before she was
brought to New Delhi by his biological mother. Father and mother of
the child are of Indian origin but the father is domiciled in U.S.A. after
marriage.
48. The mother in instant case had visited U.S. for studies in M.S.
course and came back to India along with child after the relations
between spouse became strained after birth of the child there. As the
child was withdrawn from the country of his birth at tender age of one
and 1/3 years, on totality of the facts and circumstances of the present
case there is nothing to indicate that the child has been divorced from
the social customs to which he has been accustomed. There is no
statement of either of the petitioner that the child has received any sort
of education in U.S. It appears that immediate cause of marital discord
was on the issue of keeping the child in child care and non signing of a
cheque to meet out the expenses of daycare by petitioner no. 2,
therefore, there is no question of disruption of his education from his
movement from U.S. to India. However, this thing is obvious that on
being directed to be transferred from India to U.S. and from custody of
his mother to father, the child will be taken care of either by a naini or
by a daycare institution as the according to material on record father is
presently residing alone in Washington, U.S. whereas the respondent
no. 3 is residing with her parents where the child is being nurtured in
maternal and maternal grand parental care. He might be aged around
five years at present, therefore, it would be pertinent to observe that
his roots have been developed in India rather than in U.S., in more
unobstructed manner and for long time than in U.S., despite the fact
that being born in U.S., he will be treated as U.S. citizen.
49. Keeping in view the totality of facts and circumstances of the
case at anvil of binding judicial Authorities of Hon'ble Apex Court, it is
-----------------------------------------------------------------------------------------------------------------------------------------------------------
not open to contend that custody of male minor child with his biological
mother would be unlawful only due to the fact that mother had taken
child from U.S.A., from the place of his father to her native place in
India without intimate to or seeking consent of father. The child was
only at around 1 and 1/3rd years of age at that time and he was
supposed to reside in safe custody of his mother and the custody of
minor child with mother is continuing from very inception, this court is
not inclined to undertook detail and elaborate enquiry into the matter.
Doctrine of intimate and closest concern are of persuasive relevance
only when the child has uprooted from its native country and taking to
a place to encounter alien environment, language, customs and
surroundings etc., which may have substantial bearing on the process
of his over all growth and grooming. As the child was very tender age it
cannot be supposed that he was segregated from social customs
prevalent to U.S.A. to which he has been accustomed. He did not
receive any schooling, education or care of any daycare institution in
U.S. On the contrary minor child is under due care of his mother and
maternal grand parents and other relatives of maternal side since his
arrival in Noida (India). There is no consent order with regard to
custody of child by U.S court or any competent authority in U.S. even
after alleged order dated 24.12.2020 which was passed by U.S. court
with regard to custody of child long after his departure from U.S. In this
factual scenario this Court finds no compelling reason to direct return of
minor child to U.S., as prayed by petitioner no. 2 nor his stay in the
company of his mother along with maternal grand parents at Greater
Noida is prejudicial to his interest in any manner warranting his return
to U.S. As the legal position is settled on the basis of catena of
decisions of Hon'ble Apex Court that issue of custody of child in such
type of cases ought not to be on the basis of rights of parties claiming
custody of minor child but to focuss should stand on whether the
factum of best interest of the minor child is to return to U.S. or
otherwise. It cannot be said that continuance of custody of minor child
with his mother in Iindia is in any manner prejudicial to his over all
growth, nurturing or grooming of the child or in other words his
continue custody with his mother in this country will be harmful to his
over all interest. Petitioner no. 2, father of the child, has already filed a
petition of dissolution of marriage before U.S. Court having jurisdiction
in that behalf.
50. Be that as it may, in any manner whatsoever custody of minor
child with his mother in present case cannot be held to be unlawful. It
would be in fitness of things that custody of minor male child remain
with his mother who is presently living at her native place in India until
he attains the age of majority, or the court of competent jurisdiction in
U.S. or India, as the case may be, trying the custody of minor child
-----------------------------------------------------------------------------------------------------------------------------------------------------------
orders to the contrary. However, visitation rights to father are

admissible so that he may have access to minor child whenever he
would visit India. If the U.S. court summons the respondent no. 3 with
regard to any legal issue of custody of child, she is expected to appear
before the court as the child is U.S. citizen by birth, however expenses
of visit of respondent no. 3 along with the child and her stay in U.S. for
appearing in legal proceedings will be born by petitioner no. 2 along
with travel expenses incurred by her. The visitation right is being
granted to petitioner no. 2, father of the child, as follows:—
(i) whenever petitioner no. 2, Abhishek Shukla, is available in India,
he shall respondent no. 3 by E-mail, or telephonically so that she
can make the child available for meeting with the father at a
mutual agreed and comfortable place for meeting between father
and son, either in Greater Noida or in Delhi between 11 : 00 am to
5 : 00 pm on holidays when his school is closed, or between 5 :
30 pm to 7 : 30 pm on week days.
(ii) when father will be meeting child, they shall meet without any
supervision. They shall meet and mother or her family members
may appear there but will have sufficient distance from them so
that they may not be able to over hear the conversation between
father and son and any interference by respondent no. 3 or her
family members will not be created. (iii) When petitioner no. 2 in
India, he may have communication/interaction with his minor son
through video call, skype or whatsapp with the child at about 7 :
30 pm (IST) or any other mode online.
51. While granting aforesaid visitation right to father i.e. petitioner
no. 2 is conducive to paramount interest of the child as interaction with
the child by both parents is necessary and desirable for emotional and
intellectual growth and grooming of the child. The respondent no. 3 will
extend all cooperation to petitioner no. 2 so that visitation right granted
to him in respect of the child are duly realised and complied with.
52. Accordingly, present habeas corpus petition stands dismissed
with above observations and directions.
———
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Page 1 Wednesday, October 18, 2023

In the High Court of Allahabad

Aarav Shukla and Another … Petitioner;

Authorities to produce the minor child namely Arav Shukla, a U.S.

2 got frightened and troubled due to unusual behaviour of respondent

the petitioner no. 2 in U.S. by concealing various documents and

financial assistance who subsequently transferred Rs. 10,0000/- for her

embarking upon a detailed enquiry in cases where the welfare

in deciding a difficult and complex question as to the custody of a

the special statutes which govern the rights of the parents or

United States of America and he was doing well in school there.

child….” 5 (2010) 1 SCC 174

deciding matters of custody of a child, primary and paramount

other, it may not be feasible or in the interest of the child to create

reinstated and reaffirmed in the subsequent decision of this Court in

(a) summary inquiry; or

36. At this stage, we deem it apposite to reproduce paragraphs 70

child, such a course could be approvable in law, if an effortless

other words, there is no compelling reason to direct return of the

respondent no. 6 of the consent order in the United States of

and understanding, care and guidance and full development of the

to order dated 18.4.2005. On 8.9.2005 the marriage between petitioner

petitioner no. 2, her husband. In habeas corpus petition, there is no

already under way before the concerned arbitrator, though he submits

orders to the contrary. However, visitation rights to father are

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