Madhya Pradesh High Court
Saurabh Malpani S/O Shri Shyam Malpani … vs The State Of Madhya Pradesh Through Its … on 20 April, 2026
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
NEUTRAL CITATION NO. 2026:MPHC-IND:10638
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
&
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
WRIT PETITION No. 22416 of 2024
SAURABH MALPANI S/O SHRI SHYAM MALPANI THROUGH
SHYAM MALPANI
Versus
THE STATE OF MADHYA PRADESH THROUGH ITS PRINCIPAL
SECRETARY AND OTHERS
Appearance:
Shri Prabhijeet Jauhar - Advocate with Ms. Rosemary Raju and
Firoza Daruwala - Advocates for the petitioner.
Shri A.S. Garg - Senior Advocate with Shri Archit Jayakar with Shri
Raunak Choukse - Advocate for the respondents No.4 & 5.
Shri Sudeep Bhargava - Dy. Advocate General for the respondents /
State.
Reserved on : 17.04.2026
Pronounced on : 20.04.2026.
ORDER
Per: Justice Vijay Kumar Shukla
The present petition is filed under Article 226 of the Constitution
of India praying following reliefs:
7.1. Direct that Respondent No. 4 hand over custody of
Respondent No. 5, the minor daughter, Miraya to the Petitioner so
that she may be repatriated to Canada in the custody of the
Petitioner in compliance with orders dated 13.07.2022,
07.10.2022, 03.03.2023, 16.02.2024, and 18.03.2024 passed by
the Superior Court of Justice, Family Court, Ontario in the
Petitioner’s urgent motion being Court File No. FS-22-00030079-
0000;
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7.2. Direct that Respondent No. 4 hand over custody of all of
Miraya’s original documents such as her USA passport, her birth
certificate, her OCI Card, and all other relevant documents;
7.3. Such other and further reliefs which this Hon’ble Court deems
fit in the facts and circumstances of the case.
02. Initially, the respondents raised an objection regarding the
maintainability of a writ of habeas corpus for the custody of minor
children on the ground that a Co-ordinate Bench at Gwalior in the case
of Vishnu Gupta V/s State of M.P. & Ors. (Writ Petition No.10746 of
2024, decided on 16.06.2025) held that a writ of habeas corpus in the
matter of custody of a minor child is not maintainable.
03. Per contra, learned counsel for the petitioner argued that the writ
of habeas corpus for custody of a minor child is maintainable. In
support of his submission, he had placed reliance on the following
judgments:
Jeewanti Pandey Vs. Kishan Chandra Pandey, (1981) 4
SCC 517.
Smt. Surindar Kaur Sandhu Vs. Harbax Singh Sandhu &
another, (1984) 3 SCC 698.
Mrs. Elizabeth Dinshaw Vs. Arvand M. Dinshaw &
another, (1987) 1 SCC 42.
Mr. Paul Mohinder Gahun Vs. Mrs. Selina Gahun,
2006(130) DLT 524.
Aviral Mittal Vs. The State & another, 2009(112) DRJ 635.
Shilpa Aggarwal Vs. Aviral Mittal & another, (2010) SCC
591.
Dr.V.Ravi Chandran Vs. Union of India, (2010) 1 SCC 174.
Sondur Gopal Vs. Sondur Rajini, (2013) 7 SCC 426.
Arathi Bandi Vs. Bandi Jagadrakshaka Rao & Ors, (2013)
15 SCC 790.
Surya Vadanan Vs. State of Tamil Nadu & Ors., (2015) 5
SCC 450.
Nithya Anand Raghavan Vs. State of Net of Delhi, (2017) 8
SCC 454.
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Tippa Srihari Vs. State of AP, 2018 SCC Online Hyd 123.
Ganamukkala Sirisha Vs. Tippa Srihari,
MANU/SCOR/23943/2019.
Lahari Sakhamuri Vs. Sobhan Kodali, (2019) 7 SCC 311.
Varun Verma Vs. State of Rajasthan, 2019 SCC Online Raj
5430.
Yashita Sahu Vs. State of Rajasthan & Ors., (2020) 3 SCC
67.
Tejaswini Gaud Vs. Shekhar Jagdish Prasad Tewari, (2019)
7 SCC 42.
Nilanjan Bhattacharya Vs. The State of Karnataka, 2020
SCC Online SC 928.
Ghadian Harshavardhan Reddy Vs. State of Telangana &
Ors., MANU/TL/1033/2021.
Vasudha Sethi Vs. Kiran Vs. Bhaskar, 2022 SCC Online SC
43.
Rohith Thammana Gowda Vs. State of Karnataka & Ors.,
2022 SCC Online SC 937.
Rajeswari Chandrasekar Ganes Vs. State of Tamil Nadu,
2022 SCC OnLine SC 885.
Abhinav Gyan Vs. State of Maharashtra & Another, Crl.
WP No.693/2021.
Abhay Vs. Neha Joshi & another, 2023 SCC Online Bom
1943.
Neha Joshi Vs. State of Maharashtra & another, SLP (Cri)
No.12866/2023.
Anupriya Vs. Abhinav Gyan, SLP (Crl) No.10381/2022.
04. Counsel for the petitioner further argued that in the case of
Vishnu Gupta (supra), the Gwalior Bench has incorrectly held that the
judgment passed by the Larger Bench by a Three-Judge Bench in the
case of Nithya Anand Raghavan Vs. State (NCT of Delhi) &
another, (2017) 8 SCC 454, Kanika Goel Vs. State of Delhi &
another, (2018) 9 SCC 578 and a Two-Judge bench in the case
of Prateek Gupta Vs. Shilipi Gupta & Ors., (2018) 2 SCC 309 have
not been considered.
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05. We had considered all the judgments on the point of
maintainability of writ of habeas corpus in regard to the custody of a
child. We considered it apposite to refer the aforesaid judgments again,
in order to consider that if the writ of habeas corpus is maintainable in
respect of the custody of a child and what are the considerations for
passing an order of custody of a child. In the case of Yashita
Sahu (supra), the issue that whether a writ of habeas corpus is
maintainable was considered. Paragraphs 10 to 12 are quoted as under:
“10. It is too late in the day to urge that a writ of habeas corpus is
not maintainable if the child is in the custody of another parent.
The law in this regard has developed a lot over a period of time but
now it is a settled position that the court can invoke its
extraordinary writ jurisdiction for the best interest of the child. This
has been done in Elizabeth Dinshaw v. Arvand M.
Dinshaw [Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC
42 : 1987 SCC (Cri) 13] , Nithya Anand Raghavan v. State (NCT of
Delhi) [Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8
SCC 454 : (2017) 4 SCC (Civ) 104] and Lahari Sakhamuri v. Sobhan
Kodali [Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311 :
(2019) 3 SCC (Civ) 590] among others. In all these cases, the writ
petitions were entertained. Therefore, we reject the contention of
the appellant wife that the writ petition before the High Court of
Rajasthan was not maintainable.
11. We need not refer to all decisions in this regard but it would
be apposite to refer to the following observations from the
judgment in Nithya Anand Raghavan [Nithya Anand
Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454 : (2017) 4 SCC
(Civ) 104] : (SCC pp. 479-80, paras 46-47).
“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
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against a person within its jurisdiction and convert that
jurisdiction into that of an executing court. Indubitably, the
writ petitioner can take recourse to such other remedy as
may be permissible in law for enforcement of the order
passed by the foreign court or to resort to any other
proceedings as may be permissible in law before the Indian
court for the custody of the child, if so advised.
47. In a habeas corpus petition as aforesaid, the High Court
must examine at the threshold whether the minor is in
lawful or unlawful custody of another person (private
respondent named in the writ petition).”
12. Further, in Kanika Goel v. State (NCT of Delhi) [Kanika
Goel v. State (NCT of Delhi), (2018) 9 SCC 578 : (2018) 4 SCC
(Civ) 411] , it was held as follows : (SCC p. 609, para 34):
“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.”
06. In the said judgment, there is reference and consideration of the
earlier three-judge judgment in the case of Nithya Anand
Raghavan (supra) and also the judgment in the case of Lahari
Sakhamuri (supra). Paragraphs No.40 and 45 of Nithya Anand
Raghavan (supra) are reproduced 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 theSignature Not Verified
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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 pre-existing 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.
45. In a petition for issuance of a writ of habeas corpus in
relation to the custody of a minor child, this Court in Sayed
Saleemuddin v. Rukhsana [Sayed Saleemuddin v. Rukhsana, (2001)
5 SCC 247 : 2001 SCC (Cri) 841] , has held that the principal duty of
the court is to ascertain whether the custody of child is unlawful or
illegal and whether the welfare of the child requires that his
present custody should be changed and the child be handed over to
the care and custody of any other person. While doing so, the
paramount consideration must be about the welfare of the child.
In Elizabeth [Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1
SCC 42 : 1987 SCC (Cri) 13] , it is held that in such cases the matter
must be decided not by reference to the legal rights of the parties
but on the sole and predominant criterion of what would best serve
the interests and welfare of the minor. The role of the High Court inSignature Not Verified
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examining the cases of custody of a minor is on the touchstone of
principle of parens patriae jurisdiction, as the minor is within the
jurisdiction of the Court [see Paul Mohinder Gahun v. State (NCT of
Delhi) [Paul Mohinder Gahun v. State (NCT of Delhi), 2004 SCC
OnLine Del 699 : (2004) 113 DLT 823] relied upon by the
appellant]. It is not necessary to multiply the authorities on this
proposition.
07. The same issue was considered by another three Judge Bench in the
case of Kanika Goel (supra) wherein it has been held that in a Habeas
Corpus Petition, the High Court must examine at the threshold whether the
minor is in lawful or unlawful custody of another person and if the Court is
called upon to consider the prayer for return of the minor female child to
the native country, it must have the option to resort to a summary enquiry
or an elaborate enquiry and the court must take into account the totality of
the facts and circumstances while ensuring the best interest of the minor
child. Various considerations for return to its native country pursuant to the
orders passed by the foreign country were laid down in the said case.
08. A similar issue came for consideration again before a Judge Bench
in the case of Nilanjan Bhattacharya (supra), and relevant paras 9 to 11
are quoted as under:-
” 9. This Court observed that in cases where the child is brought to
India from a foreign country, which is their native country, the
Court may undertake a summary inquiry or an elaborate inquiry.
The Court exercises its summary jurisdiction if the proceedings
have been instituted immediately after the removal of the child
from their State of origin and the child has not gained roots in
India. In such cases, it would be beneficial for the child to return to
the native State because of the differences in language and social
customs. The Court is not required to conduct an elaborate inquiry
into the merits of the case to ascertain the paramount welfare of
the child, leaving such inquiry to the foreign court. However, this
Court clarified that : (Nithya Anand Raghavan case [Nithya Anand
Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454 : (2017) 4 SCC
(Civ) 104] , SCC p. 477, para 40).
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“40 … In either situation–be it a summary inquiry or an
elaborate inquiry–the welfare of the child is of paramount
consideration.”
While discussing the powers of the High Court in issuing a
writ of habeas corpus in relation to the custody of a minor
child, this Court further observed : (Nithya Anand Raghavan
case [Nithya Anand Raghavan v. State (NCT of Delhi),
(2017) 8 SCC 454 : (2017) 4 SCC (Civ) 104] , SCC pp. 479-80,
para 46)
“46. … 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
executing court.”
10. In Prateek Gupta v. Shilpi Gupta [Prateek Gupta v. Shilpi
Gupta, (2018) 2 SCC 309 : (2018) 1 SCC (Civ) 795] , this Court
clarified that even if there is a pre-existing order of a foreign court
with respect to the custody of the child, the principles of comity of
courts, and “intimate contact and closest concern” are subservient
to the predominant consideration of the welfare of the child. In that
case, the parents and their minor child were residing in the US.
After the separation of the parents, the father left the US with the
child to come to India without any prior intimation. A US court
passed an order that the mother has the sole physical and legal
custody of the child and declared that the father will not have any
visitation rights since he had violated an interim order of the Court
directing him to return with the child to the Commonwealth of
Virginia. Thereafter, the mother invoked the writ jurisdiction of the
High Court of Delhi seeking a remedy of the writ of habeas corpus
against the father alleging that he has the child in unlawful
custody. The High Court observed [Shilpi Gupta v. Union of India,
2016 SCC OnLine Del 2561] that the most intimate contact of the
parties and the child was with the US court, which had the closest
concern with the well-being of the child and directed the father to
hand over the custody to the mother. The decision of the High Court
was set aside by this Court. While referring to the doctrines of the
principle of comity of courts, and of “intimate contact and closest
concern”, this Court observed : (Prateek Gupta case [Prateek
Gupta v. Shilpi Gupta, (2018) 2 SCC 309 : (2018) 1 SCC (Civ) 795] ,
SCC pp. 338-39, paras 49-50)
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“49. … Though the principle of comity of courts and the
aforementioned doctrines qua a foreign court from the
territory of which the 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. …
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.”
11. Where a child has been removed from their native country to
India, this Court has held that it would be in the best interests of the
child to return to their native country if the child has not developed
roots in India and no harm would be caused to the child on such
return. In V. Ravi Chandran (2) v. Union of India [V. Ravi Chandran
(2) v. Union of India, (2010) 1 SCC 174 : (2010) 1 SCC (Civ) 44] , this
Court observed : (SCC pp. 196-97, paras 32 & 35-37)
“32. Admittedly, Adithya is an American citizen, born and brought
up in the United States of America. He has spent his initial years
there. The natural habitat of Adithya is in the United States of
America. As a matter of fact, keeping in view the welfare and
happiness of the child and in his best interests, the parties have
obtained a series of consent orders concerning his
custody/parenting rights, maintenance, etc. from the competent
courts of jurisdiction in America. …
***
35. … There is nothing on record which may even remotely
suggest that it would be harmful for the child to be returned
to his native country.
36. It is true that the child Adithya has been in India for
almost two years since he was removed by the mother–
Respondent 6–contrary to the custody orders of the US
court passed by the consent of the parties. It is also true that
one of the factors to be kept in mind in exercise of the
summary jurisdiction in the interests of the child is that
application for custody/return of the child is made promptly
and quickly after the child has been removed. This is so
because any delay may result in the child developing roots in
the country to which he has been removed. From the
counter-affidavit that has been filed by Respondent 6, it is
apparent that in the last two years Adithya did not have
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education at one place. He has moved from one school to
another. He was admitted in a school at Dehradun by
Respondent 6 but then removed within a few months. In the
month of June 2009 the child has been admitted in some
school in Chennai.”
09. Following the aforesaid judgments of Three-Judges in the case
of Nithya Anand (supra) and Kanika Goel (supra), in the case of Vasudha
Sethi (supra), in para 28 court held that no hard and fast rule has been laid
down specifying considerations for custody of a child; therefore, each case
has to be decided on its own facts and circumstances.
10. In the case of Rajeshwari Chandrasekar Ganesh (supra), the Court
considered the question of maintainability in para 89 onwards and held in
para 89 and 99 as under:-
“89. The question of maintainability of a habeas corpus petition
under Article 226 of the Constitution of India for the custody of a
minor was examined by this Court in Tejaswini Gaud v. Shekhar
Jagdish Prasad Tewari [Tejaswini Gaud v. Shekhar Jagdish Prasad
Tewari, (2019) 7 SCC 42 : (2019) 3 SCC (Civ) 433] , and it was held
that the petition would be maintainable where the detention by
parents or others is found to be illegal and without any authority of
law and the extraordinary remedy of a prerogative writ of habeas
corpus can be availed in exceptional cases where the ordinary
remedy provided by the law is either unavailable or ineffective.
99. Thus, it is well established that in issuing the writ of habeas
corpus in the case of minors, the jurisdiction which the Court
exercises is an inherent jurisdiction as distinct from a statutory
jurisdiction conferred by any particular provision in any special
statute. In other words, the employment of the writ of habeas
corpus in child custody cases is not pursuant to, but independent of
any statute. The jurisdiction exercised by the court rests in such
cases on its inherent equitable powers and exerts the force of the
State, as parens patriae, for the protection of its minor ward, and
the very nature and scope of the inquiry and the result sought to be
accomplished call for the exercise of the jurisdiction of a court of
equity. The primary object of a habeas corpus petition, as applied to
minor children, is to determine in whose custody the best interests
of the child will probably be advanced. In a habeas corpus
proceeding brought by one parent against the other for the custody
of their child, the Court has before it the question of the rights of
the parties as between themselves, and also has before it, if
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interest which the State, as parents patriae, has in promoting the
best interests of the child.”
11. A similar view has been taken following in Abhinav Gyan Vs. State
of Maharashtra (supra), Abhay Vs. Neha Joshi (Bombay High Court)
(supra), which was affirmed by the Supreme Court in Neha Joshi Vs.
State of Maharashtra (supra).
12. In a recent judgment in the matter of Anupriya Vs. Abhinav
Gyan (supra), the Apex Court has reiterated the same regarding
maintainability of a writ petition of Habeas Corpus in the case of custody
of a minor child.
13. We held that the Paras 18 & 19 of our order dated 18.09.2025 that
the judgment by Gwalior Bench in the case of Vishnu Gupta (supra) is per
incuriam as the aforesaid finding is incorrect and as in the case of Yashita
Sahu (supra), the Court had taken into consideration the judgment of
Three-Judges in the case of Nithya Anand (supra), Kanika Goel (supra)
and Two-Judges Bench in the case of Prateek Gupta (supra) and it was
held that the writ of habeas corpus in respect of custody of a minor
child is maintainable and the considerations for custody of a child in a
writ of Habeas Corpus petition. In Para 20 of the order dated
18.09.2025, we held as under:
“20. In the light of the enunciation of law as discussed in the earlier
paragraphs, it is held that:
(1) The writ of Habeas Corpus in the matter of custody of a
minor child is maintainable, in the light of the aforesaid judgment
of the Apex Court, which has been discussed in the earlier
paragraphs.
(2) A writ of Habeas Corpus cannot be used only for mere
enforcement of the direction given by foreign Court and same is one
of the facts to be considered and the extra ordinary power of writ of
Habeas Corpus can be availed in exceptional cases where the
detention of a child by parent or others is found to be illegal and
without any authority of law where the original remedy provided
by the law is either unavailable or ineffective.
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(3) The Court, while passing the writ of Habeas Corpus, will
examine whether the welfare of the child requires that the present
custody should be changed and child should be left in the care and
custody of somebody else.
(4) The paramount consideration while exercising the writ of
Habeas corpus for the change of custody of a child will be the
welfare of the child.”
14. Facts of the case are as under:
14.1. The petitioner and respondent no.4 were married on 18.01.2014 at
Lonavala, Mumbai. Prior to the marriage, the petitioner had been residing
abroad since the year 2006, initially in the United Kingdom and thereafter
in the United States of America, having shifted to Chicago in 2011. After
marriage, respondent no.4 joined the petitioner in Chicago in March 2014,
and the parties commenced their matrimonial life there. In July 2016, they
jointly purchased a residential apartment in Chicago. Their daughter,
Miraya (respondent no.5), was born on 29.08.2016 in Chicago, United
States of America and acquired U.S. citizenship by birth.
14.2. During the years 2017-2018, the petitioner, respondent no.4 and the
minor child applied for permanent residency in Canada, which was granted
on 07.06.2018. However , In August 2018, respondent no.4 commenced
her Master’s degree in Architecture at the Illinois Institute of Technology,
Chicago and In August 2019, the petitioner shifted to Toronto, Canada to
pursue an MBA at the Schulich School of Business. During this period, the
family continued to reside between the United States and Canada.Owing to
the outbreak of the COVID-19 pandemic, the minor child remained in
India with the parents of respondent no.4 from December 2019 till
September 2020 and in April 2020, respondent no.4 shifted to Canada after
completion of her academic programme. In September 2020, the petitioner,
respondent no.4 and the minor child returned to Canada as permanent
residents and thereafter, respondent no.4 commenced work as an
independent contractor in Toronto in November 2020.
14.3. The minor child was enrolled in McKee Public School, Toronto andSignature Not Verified
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attended school physically from September 2021. After completion of his
MBA, the petitioner also commenced employment with a pharmaceutical
consulting company on a full-time work-from-home basis. During the
period July-August 2021, the parties jointly explored purchase of
residential property in Ontario and were covered under the Ontario Health
Insurance Plan. On 27.01.2022, respondent no.4 informed the minor
child’s school that she would be travelling to India and would return in
April 2022. Respondent nos.4 and 5 thus travelled from Toronto to India
with return tickets dated 10.04.2022. The petitioner also travelled to India
in March 2022 and had returned to Canada on 06.04.2022. However on
the said return date, respondent no.4 communicated to the petitioner that
she would not be returning to Canada with the minor child as scheduled.
Shortly thereafter, on 11.04.2022, respondent no.4 informed the petitioner
of her decision to enroll the minor child in a school at Indore.
14.4. Marital disputes arose between the parties and on 28.04.2022,
respondent no.4 issued a legal notice seeking dissolution of marriage,
which was replied to by the petitioner on 09.05.2022. Following the minor
child’s continued stay in India, the petitioner on 20.05.2022 initiated
proceedings before the Superior Court of Justice, Ontario, Canada bearing
Court File No. FS-22-00030079-0000 seeking, inter alia, return of the
minor child to the jurisdiction of Canada. The said proceedings were duly
served upon respondent no.4 on 10.06.2022 and Respondent no.4 entered
appearance in the said proceedings and sought adjournment. Meanwhile
the proceedings before the Canadian Court were pending, the respondent
no.4 also instituted proceedings before the Family Court at Indore by filing
HMA Case No. 1335/2022 seeking dissolution of marriage along with
ancillary reliefs including custody.
14.5. The petitioner further on 21.06.2022 approached this Court by filing
Writ Petition No. 14089/2022 under Article 226 of the Constitution of
India seeking issuance of a writ of habeas corpus for return of the minor
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child to Canada. On 23.06.2022, the Superior Court of Justice, Ontario,
while granting an adjournment, passed a reasoned interim order recording
a prima facie finding that the minor child was a habitual resident of
Canada and that the Canadian Court had jurisdiction to adjudicate upon
issues relating to her custody and welfare. Thereafter on conclusion of the
detailed hearing before it , the Canadian Family Court passed a detailed
order dated 13.07.2022 in Court File No. FS-22-00030079-0000, directing
respondent no.4 to return the minor child to the jurisdiction of Ontario
within thirty days with assistance of Indian courts and authorities, if
required.
14.6. On the same date, i.e., 13.07.2022, the Family Court at Indore
dismissed the application filed by respondent no.4 in HMA Case No.
1335/2022 seeking interim custody of the minor child. Subsequently,
respondent no.4 filed an application before the Family Court at Indore
seeking an anti-suit injunction restraining the petitioner from pursuing
proceedings before the Canadian Court. The said application was however
dismissed by the Family Court on 04.08.2022. The appeal preferred against
the said order before this Court was also dismissed on 28.10.2022.
Meanwhile on 07.10.2022, the Superior Court of Justice, Ontario again
passed a further order clarifying that its earlier order dated 13.07.2022
directing return of the minor child was final in nature insofar as
repatriation was concerned.
14.7. In the meantime, Writ Petition No. 14089/2022 filed by the petitioner
came to be decided by the Division Bench of this Court by judgment dated
21.12.2022 whereby the writ petition was dismissed. The petitioner
thereafter filed Review Petition No. 75/2023, which was also dismissed by
this Court on 03.02.2023. Aggrieved by the dismissal of the writ petition
and the review petition, the petitioner approached the Supreme Court of
India by filing Special Leave Petition (Civil) Nos. 6638-6639 of 2023.
During pendency of the proceedings before the Supreme Court, access
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arrangements between the petitioner and the minor child were facilitated
pursuant to interim orders passed therein.
14.8. During the subsistence of the proceedings, in October 2023, the
petitioner and the minor child acquired Canadian citizenship. Thereafter,
on 16.02.2024, the Superior Court of Justice, Ontario, passed an order in
Court File No. FS-22-00030079-0000 permitting the petitioner to renew
government-issued documents of the minor child, including passport and
identity documents, without the consent of respondent No.4. Subsequently,
by a final order dated 18.03.2024 passed in the same proceedings, the
Ontario Superior Court of Justice granted sole custody and primary
parenting rights of the minor child to the petitioner.
14.9. The Special Leave Petition pending before the Supreme Court of
India was disposed of by order dated 23.07.2024, wherein the Supreme
Court observed that, at the time of dismissal of Writ Petition No.
14089/2022, this Court did not have the benefit of considering the final
custody order dated 18.03.2024 passed by the Canadian Court. The
Supreme Court noted that the said order continued to hold the field
between the parties and granted liberty to the petitioner to seek
implementation and compliance of the said order in accordance with law
by approaching the appropriate court in India, leaving all contentions of
the parties open. The petitioner pursuant to the liberty so granted by the
Supreme Court has filed the present writ petition seeking implementation
of the custody order dated 18.03.2024 passed by the Superior Court of
Justice, Ontario, Canada.
15. Learned counsel for the petitioner argued that the petitioner and
respondent No.4 were married on 18.01.2014 at Lonavala, Mumbai.
After marriage, they resided in the United States of America and
subsequently in Canada. Their daughter, Miraya, was born on
29.08.2016 in Chicago, USA, and acquired U.S. citizenship by birth.
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16. The family thereafter settled in Canada as permanent residents.
The minor child was enrolled in McKee Public School, Toronto, and
was attending school physically since September 2021. Canada thus
became the place of ‘habitual and ordinary residence’ of the minor child.
17. Owing to the COVID-19 pandemic, the child temporarily stayed
in India with the maternal grandparents. Subsequently, matrimonial
disputes arose between the parties, and respondent no.4 retained the
child in India.
18. The petitioner approached the competent court in Canada, which
passed ‘custody / access orders’ in favour of the petitioner, directing
return of the child to Canada. Alleging violation of those orders, the
present writ petition has been filed.
19. Learned counsel for the petitioner further argued that for the
following reasons, it would be in the ‘welfare of the child’ and in his
‘best interest’ that the order of return of child to Canada be passed by
giving him the custody:
The child is a habitual resident of Canada.
Foreign court orders passed by a court of competent jurisdiction
deserve due respect.
Retention of the child in India amounts to ‘illegal removal /
retention’.
The child’s education, social environment, and emotional stability
are integrally connected with Canada.
The order of return of custody of child to the petitioner would not
cause any harm to the child.
20. Per contra, learned counsel for respondent no.4 submits that:
The welfare of the child is paramount.
Mere existence of a foreign decree is not conclusive and the same
cannot be sought to be executed.
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The child has settled in India and is presently studying here.
Summary return would be detrimental to the child’s well-being.
21. The following issues arise for consideration:
i. Whether this Court is bound to summarily enforce the foreign
court decree?
ii. Whether retention of the child in India is illegal?
iii. What is in the paramount welfare of the minor child,
particularly with regard to schooling and overall development?
22. Before adverting to law relating to the custody of a child, it would
be apt to consider the role of a mother in Indian mythology and society:
(A). In Ramayan and Mahabharat period, if we see the role of a
mother and her rights for a child in Ramayana: Mother is the First
Refuge of the Child:
(a) Luv-Kush living with Mata Sita
After Mata Sita is separated from Shri Ram, Luv and Kush are
raised exclusively by their mother, in the hermitage of Maharishi
Valmiki.
Despite Shri Ram being the king of Ayodhya and their father,
the children remain with the mother, emphasizing:
Emotional security
Moral upbringing
Maternal guardianship
(Source)
Valmiki Ramayan, Uttara Kanda, Sargas 65-67
(Birth and upbringing of Luv-Kush under Mata Sita)
Valmiki Ramayan, Ayodhya Kanda, Sarga 20
“जननी ज मभूिम वगाद प गर यसी”
Mother and motherland are greater than heaven.
2. Mahabharat: Mother’s Custody Beyond Social Legitimacy
(A) Kunti and Karna
Karna is born to Kunti and raised by another woman (Radha),
but Kunti remains the moral mother throughout his life.
(Source)
Mahabharat, Adi Parva, Chapter 104
Karna Parva, Chapter 5
This highlights that motherhood is not extinguished by
separation, reinforcing the idea that the child’s bond with the mother
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is intrinsic.
These principles resonate with modern law, such as:
Section 6(a), Hindu Minority and Guardianship Act, 1956
Article 3, UN Convention on the Rights of the Child (UNCRC)
The Ramayan and Mahabharat do not frame custody as a
dispute between parents, but as a duty owed to the child.
(B). In Ancient Hindu Society, the concept of child custody as
understood in modern legal terms did not exist. The family structure
was deeply patriarchal, governed by dharmashastra texts including
the Manusmriti, Yajnavalkya Smriti, and Narada Smriti.
Spiritual and Moral Role: While mothers were venerated in
Hindu philosophy with concepts like “matru devo bhava” (mother is
divine), this spiritual reverence did not translate into legal rights. The
mother’s role was confined to nurturing and early childhood care, but
without any legal recognition.
The evolution of Hindu mothers’ custody rights in India
represents one of the most significant transformations in Indian
family law. The journey can be characterized in four phases:
Phase 1 (Ancient Period): Complete legal invisibility –
mothers had moral status but zero legal rights over children.
Phase 2 (Colonial Era): Minimal recognition – mothers
acknowledged as guardians only in father’s absence, with strict
conditions.
Phase 3 (Early Independence): Statutory discrimination –
Hindu Minority and Guardianship Act explicitly placed mothers
secondary to fathers, though courts began developing welfare
principle.
Phase 4 (Post-1999 to Present): Progressive judicial
activism – courts have interpreted laws expansively to recognize
mothers’ equal rights, with strong preference for maternal custody of
young children.
This aligns remarkably with modern legal principles such as:
1. Best Interest of the Child
2. Natural Guardian Doctrine
3. Tender Years Principle
(C). The mother is portrayed as the first home, first teacher, and
first protector, making the child’s right to stay with the mother a
civilizational norm, not merely a modern legal construct.
23. Now, we reiterate the law relating to execution of an order of a
Foreign Court in respect of custody of a child and consideration, the law
relating to foreign custody orders is no longer res integra. The Supreme
Court has consistently held that comity of courts is important but not
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absolute, and welfare of the child is the paramount consideration.
The same is reiterated as under:
24. In V. Ravi Chandran (supra), the Supreme Court held that where
a child is removed from the foreign country in violation of custody
orders, Indian courts may direct summary return, unless such return is
shown to be harmful to the child.
25. In Surya Vadanan (supra), it was reiterated that if the child’s
habitual residence is abroad and the foreign court has exercised
jurisdiction, Indian courts should normally respect such orders, unless
grave risk to the child is demonstrated.
26. However, in Nithya Anand Raghavan (supra), the Hon’ble
Supreme Court clarified that :
“The existence of a foreign court order is only one of the factors.
The welfare of the child remains the paramount consideration.”
27. Recently, in Lahari Sakhamuri (supra), the Supreme Court
emphasized the importance of schooling, social roots, emotional
security, and stability of the child.
28. As already discussed in the preceding paragraphs we held that in
the matters relating to custody of a minor child, the paramount
consideration is the ‘welfare’ and ‘best interest’ of the child and not the
legal rights of the parents. In relation to the impact of an order of a
Foreign Court relating to interest, it is well settled that the same is a
relevant factor, however, the same is not conclusive. The doctrine of
comity of Courts cannot overwrite the paramount consideration of the
welfare of the child. The Indian Court is not bound to mechanically
enforce a foreign interest order, if such enforcement would be contrary
to the child’s welfare.
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29. In compliance to our order, the child was produced before us and
we interacted with him in the chamber. The child, though of tender age,
has expressed comfort and emotional attachment towards the respondent
mother. He has been residing in India for last four years and at present
he is studying in a good school. The child appears well settled in the
present environment.
30. We have also taken into consideration the age of the child, the
need of maternal care at her formatting stage, the emotional and
educational stability of the child and the overall circumstances placed on
record, we are of the considered view that the custody of the child
cannot be directed to be handed over to the petitioner solely on the basis
of a foreign decree, which would not subserve the welfare of the minor
as it has been found that it is not in the interest of child to return to the
foreign country and the custody to the petitioner.
31. Before parting, it is clarified that this Court has not adjudicated
the merits of permanent custody and has confined itself to the issue of
‘welfare’ and ‘best interest’ of the child.
32. In view of the above, the Writ Petition is dismissed. No order as
to costs.
(VIJAY KUMAR SHUKLA) (BINOD KUMAR DWIVEDI)
JUDGE JUDGE
Divyansh
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