Andhra Pradesh High Court – Amravati
Gadde Bala Yeswanth vs Union Of India And Others on 1 April, 2026
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
Reserved on 10.02.2026
Pronounced on 01.04.2026
Uploaded on 02.04.2026
APHC010447852025
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3558]
(Special Original Jurisdiction)
WEDNESDAY, THE FIRST DAY OF APRIL
TWO THOUSAND AND TWENTY SIX
PRESENT
THE HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
THE HONOURABLE SRI JUSTICE TUHIN KUMAR GEDELA
WRIT PETITION NO: 22723/2025
Between:
1. GADDE BALA YESWANTH, , S/O. RAMA MOHAN RAO, AGED
ABOUT 41 YEARS, OCC SOFTWARE ENGINEER, NATIVE OF
D.NO.1-794/2, BANK COLONY, CHILAKALURIPETA, GUNTUR
DISTRICT, A.P-522616, PERMANENT RESIDENCE AT 9
BLANSHARDS LANE, NORTH CAVE, HU152LN, UNITED KINGDOM.
...PETITIONER
AND
1. THE STATE OF AP, REP. BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF HOME, SECRETARIAT BUILDING, VELAGAPUDI,
GUNTUR DISTRICT, ANDHRA PRADESH.
2. THE DIRECTOR GENERAL OF POLICE, , STATE OF ANDHRA
PRADESH, POLICE HEADQUARTERS, MANGALAGIRI, GUNTUR
DISTRICT, ANDHRA PRADESH.
3. THE SUPERINTENDENT OF POLICE, , GUNTUR, GUNTUR
DISTRICT.
4. THE DEPUTY SUPERINTENDENT OF POLICE, , WEST SUB-
DIVISIONAL OFFICE, GUNTUR, GUNTUR DISTRICT.
5. THE STATION HOUSE OFFICER, PATTABHIPURAM POLICE
STATION, GUNTUR, GUNTUR DISTRICT.
6. NANDIGAM VIJAY KUMAR, S/O. VENKATESWARLU, AGED ABOUT
67 YEARS, R/O.FLAT NO.3A, UVS GRAND APARTMENT,
VIJAYAPURI COLONY, JKC COLLEGE ROAD, GUNTUR.
7. NANDIGAM MANGAMMA, W/O VIJAY KUMAR, AGED ABOUT 65
YEARS, R/O FLAT NO 3A, UVS GRAND APARTMENT, VIJAYAPURI
2
COLONY, JKC COLLEGE ROAD, GUNTUR.
8. GADDE KEERTHI, W/O.GADDE BALA YASWANTH, AGED ABOUT
39 YEARS,R/O.U.V.S.GRAND APARTMENT, F.NO.3A,VIJAYAPURI
COLONY,NEAR J.K.C.COLLEGE, GUNTUR. RESPONDENT NO.8
WAS SUOMOTO IMPLEADED AS PER C.O.DT.02.09.2025 IN
W.P.NO.22723 OF 2025.
...RESPONDENT(S):
Petition under Article 226 of the Constitution of India praying that in the
circumstances stated in the affidavit filed therewith, the High Court may be
pleased toprays that this Honble Court may be pleased to issue writ, order or
direction more particularly one in the nature of Habeas Corpus or any other
appropriate writ, directing the Respondent Authorities 3 to 5 to produce minor
child Gadde Sitara (British Citizen), aged about 6 years, who is permanent
resident and born citizen of UK before this Honble Court, who is at present in
the unlawful custody of the respondent Nos. 6, 7 and 8, in compliance with the
orders dated 18.07.2025 passed in case No.1751-3352-6208-7041, order
dated 30.09.2025 passed in case No. 1756-2297-9027-9698 by the Honble
Family Court of England sitting at Kingston upon Hull and order dated
02.10.2025 passed in case No. FD25P00600 by the Honble High Court of
England respectively and further direct to immediately handover the custody
of the said minor child to the petitioner father to enable him to take the minor
child back to the jurisdiction of UK and to pass such other order or orders as
this Honble Court may deems fit just and proper in the circumstance of the
case. Main prayer was amended as per c.o.dt.11.12.2025 Vide I.A.No.3 of
2025 in W.P.No.22723 of 2025.
IA NO: 1 OF 2025
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
pleased to grant Interim direction, directing the Respondent No.8 to enable the
petitioner and his parents to interact with the minor child namely Sitara, aged
about 6 years, by way of video conference on every 3 days, pending the
above said writ petition and to pass such other order or orders as this Honble
Court may deems fit just and proper in the circumstance of the case.
Prayer in I.A.No.1 of 2025 was amended as per c.o.dt.11.12.2025 vide
I.A.No.3 of 2025 in W.P.No.22723 of 2025.
IA NO: 2 OF 2025
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
pleased to grant permission for filing additional counter affidavit in W.P
No.22723 of 2025 and to pass
3
IA NO: 3 OF 2025
Petition under Section 151 CPC praying that in the circumstances stated
in the affidavit filed in support of the petition, the High Court may be pleased
pleased to order amendment of main prayer in WP.No.22723 of 2025 as
below. In the light of the facts stated it is prayed that this Hon‟ble Court may
be pleased to issue writ, order or direction more particularly one in the nature
of Habeas Corpus or any other appropriate writ, directing the Respondent
Authorities 3 to 5 to produce minor child Gadde Sitara (British Citizen), aged
about 6 years, who is permanent resident and born citizen of UK before this
Hon'ble Court, who is at present in the unlawful custody of the respondent
No‟s. 6, 7 & 8, in compliance with the orders dated 18.07.2025 passed in
case No. 1751-3352-6208-7041, order dated 30.09.2025 passed in case No.
1756-2297-9027-9698 by the Hon‟ble Family Court of England sitting at
Kingston upon Hull and order dated 02.10.2025 passed in case No.
FD25P00600 by the Hon‟ble High Court of England respectively and further
direct to immediately handover the custody of the said minor child to the
petitioner father to enable him to take the minor child back to the jurisdiction
of UK and to pass
Counsel for the Petitioner:
1. V V LAKSHMI NARAYANA
Counsel for the Respondent(S):
1. K S MURTHY ASSOCIATES
2. P VIVEK
3. THE ADVOCATE GENERAL
The Court made the following:
4
THE HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
&
THE HONOURABLE SRI JUSTICE TUHIN KUMAR GEDELA
WRIT PETITION NO: 22723/2025
ORDER:
(Per Hon‟ble Sri Justice Tuhin Kumar Gedela)
Happy are those who have a heart of gold and no one can claim to own
this purity except that it can only be seen in children. Children are the
supreme assets of the nation and the rightful place of the child in the sizeable
fabric is founded on the principle that public could promote proper growth of
the children, who are the future of the nation, and are required to be treated as
people of today and not people of tomorrow.
——
Heard,
Mr.V.V.Lakshmi Narayana, learned counsel for the petitioner, learned
Assistant Government Pleader attached to the office of the learned Advocate
General appearing for respondent Nos.1 to 5, Mr.K.S.Murthy, learned Senior
Counsel appearing for respondent Nos.6 and 7 and Mr.Posani Venkateswarlu,
learned Senior Counsel appearing on behalf of Mr.P.Vivek, learned counsel
for respondent No.8.
1. The Writ Petition is initially filed seeking a Writ of Habeas Corpus,
directing respondent Nos.3 to 5 to produce the minor daughter (hereinafter
called as “child”) namely Sitara (British Citizen) aged about 5 years 11 months
before this Hon‟ble Court and inter alia direct to set her free from the
respondent Nos.6 and 7 and handover the petitioner‟s daughter (child) to the
petitioner.
2. Along side the Writ Petition, I.A.No.1 of 2025 is filed seeking
interim direction to produce the petitioner‟s daughter, namely Sitara. On
02.09.2025, this Court suo moto impleaded the mother of the child and
granted time, to file counter, to the respondent Nos.6 and 8. The respondent
5
No.8 has filed counter affidavit on 08.09.2025. Thereupon, refuting the said
contentions, reply affidavit is filed by the petitioner to the counter affidavit filed
by the respondent No.8 on 12.09.2025.
3. In the interregnum period, I.A.No.3 of 2025 was filed by the
petitioner to amend the main prayer as “direct the respondent authorities 3 to
5 to produce minor child Gadde Sitara (British Citizen) aged about 6 years,
who is permanent resident and born citizen of UK before this Court, who is at
present in unlawful custody of respondent Nos.6 to 8, in compliance with the
orders dated 18.07.2025 passed in case No.1751-3352-6208-7041, order
dated 30.09.2025 passed in case No.1756-2297-9027-9698 by the Family
Court of England sitting at Kingston upon Hull and order dated 02.10.2025
passed in case No.FD25P00600 by High Court of England and direct to
immediately handover the custody of the said minor child to the petitioner-
father to enable him to take the minor child back to the jurisdiction of UK”.
4. Instantaneously, the Amendment Petition filed by the petitioner
seeking a direction in the nature of Writ of Habeas Corpus to implement the
orders of the Family Court of England sitting at Kingston-upon-Hull, and order
dated 02.10.2025 in case No.FD25P00600 passed by the High Court of
England, is intrinsic.
5. Apropos, counters to the amendment petition were filed by
respondent Nos.5 and 8 in the Writ Petition on 05.11.2025. Considering the
averments contained in the petition and also the counters, this Court allowed
the amendment petition on 11.12.2025. To the main petition, a counter was
filed by respondent No.8 on 08.09.2025 and refuting the averments made in
the counter, the petitioner filed reply affidavit on 12.09.2025. Additional
counter affidavit was filed by respondent No.8 on 22.09.2025 to which again
additional reply affidavit was filed by the petitioner on 24.10.2025.
6
6. As the multiplicity of filing petitions gained momentum, both the
counsels appearing on behalf of the parties filed their citations relied upon by
them and the same will be discussed at the later point.
7. Mr.V.V.Lakshmi Narayana, learned counsel appearing for the
petitioner has drawn the Court‟s attention to the pleadings in the Writ Petition,
tracing the manner in which the petitions came to be filed before the Family
Court, UK, which are capsuled hereunder:
(i) The writ petitioner and respondent No.8 got married on 24.11.2017
at Tirupati and respondent Nos.6 and 7 are the parents of respondent No.8.
Petitioner contends that he is a British citizen and prior to his marriage, he
was staying in UK regarding job purpose and later the respondent No.8 joined
him in the month of March, 2018 for leading marital life at UK. They are
blessed with the daughter out of the wedlock, namely Sitara, born in UK and is
a British citizen, presently aged about 5 years 11 months and thereafter their
relationship became strained.
(ii) The counsel further placed on record through the arguments and
documents that the daughter was admitted in North Cave Pre-School in the
month of February, 2024. Thereafter joined the school in the month of
September, 2024 for pursuing Early Years Foundation @ Reception, and
Sitara completed the same. Regarding the marriage, the petitioner contends
that after few months of the marriage, disputes have arisen due to the attitude
and behavior of his wife and exhibited cruelty and harassment towards the
petitioner and his family members. As the attitude of respondent No.8 is not
changed albeit the intervention of elders of both the sides and further that due
to his interest on his child and family, was benevolent with a hope that she
could change. In the year 2023, respondent No.8 decided to move to Saudi
Arabia for job purpose leaving behind the daughter and the petitioner in UK.
The respondent No.8 later joined the marital home in the month of November,
2024 at UK and since then there is no change in her attitude and showed
spasmodic harassment and the petitioner filed application for divorce on
7
15.01.2025 in the Family Court, United Kingdom, and the case was registered
vide reference No.1736-9409-9016-3327, which is sub judice.
(iii) Mr.V.V.Lakshmi Narayana, learned counsel would submit that
because of the intervening school holidays after completion of one year and
before joining the new academic year and holidays being six weeks for which
the petitioner intended to visit India along with his daughter and live for a
period of two weeks and the same was informed to the respondent No.8, who
with disposition did not give consent to visit India and having no option, the
petitioner approached Family Court at Kingston-upon-Hull combined Court
center seeking to visit India along with his daughter vide Case No.1751-3352-
6208-7041.
(iv) After hearing, the Family Court of England sitting at Kingston-
upon-Hull, on 18.07.2025, passed the ex parte order as follows:
“Schedule
UPON the Court can only make an order today for the Specific Issue
Order whether Applicant Father can take Sitara to India during the school‟s
summer holiday.
AND UPON the Respondent Mother had agreed previously in an
th
email dated 10 January 2025 allowing Father to take Sitara to India during
the Easter Holiday. Father has brought Sitara back safely.
AND UPON The Applicant Father to take Sitara to visit maternal
grandparents during the holiday in India.
AND UPON the Court stating that it is always very important that
Sitara have caring extended family
AND UPON the Court stating the importance of maintaining cultural
connections from Sitara.
AND UPON Respondent Mother is worried that Father may not bring
Sitara back to UK. Father is in possession of her passport.
AND UPON the Applicant Father has informed the court that he is
well established in UK and has been in his job for nine years. He has
informed he has no job offers or property in India.
AND UPON The Applicant Father confirms he has access of a car in
India.
AND UPON Applicant Father undertake to drive Sitara to the
maternal grandparent‟s home for a two-night stay during the summer
holiday.
AND UPON AND UPON Applicant Father has confirmed he will
th st
travel with Sitara on 15 August 2025 and return on 31 August 2025. In
time for Sitara to settle back into her routine in the UK before school starts.
AND UPON the Court stating that if there are any further orders, the
parties would need to make a fresh application to the Court.
8
THE COURT ORDERS
1. Permission is given for the Applicant Father to travel with Sitara
th st
from 15 August 2025 to 31 August 2025
2. Applicant Father will drive Sitara to the maternal grandparents‟
home for a two-night stay during the holiday.
___________________________________________________________
ORDERED BY: HONOUR JUDGE WIGIN
th
DATED: 18 JULY 2025″
(v) Mr.V.V.Lakshmi Narayana, learned counsel would contend that on
the strength of the order of the Court, the petitioner visited India on
16.08.2025 for spending two weeks in India and in that pursuit, texted a
Whatsapp message to his father-in-law on 16.08.2025 with an intimation that
“I will drop off Sitara tomorrow for two night stay at your house”. The father-in-
law responded by texting message “OK Please inform time”. In response, the
reply message was given as “will be there around 10.30 A.M” i.e., on
17.08.2025. Accordingly, the petitioner‟s daughter was handed over to
respondent Nos.6 and 7 at their residence in obedience to the orders passed.
Petitioner informed to them that he will pick the daughter on 19.08.2025. As
stated, on 19.08.2025, at 10.01 A.M., the petitioner texted a message to his
father-in-law that “I‟ll come to pick up Sitara around 4:30 P.M today”, however,
there is no response from them.
(vi) Mr.V.V.Lakshmi Narayana, learned counsel proceeded to submit
that on 19.08.2025, he went to the in-law‟s house around 05.00 P.M and
found the house locked and later was enlightened by the watchman that they
left the residence at around 04.00 P.M along with his daughter and despite
several calls, there is no response from them. This persuaded the petitioner to
lodge a complaint before the 5th respondent. But the 5th respondent did not
show any interest, for which, the petitioner approached the 3rd respondent on
20.08.2025 and submitted a petition. In pursuance to which, the 4th and 5th
respondents were directed to enquire and handover the child to the petitioner.
As there was no response by the 4th and 5th respondents, the present Habeas
9
Corpus petition was filed, relying on the judgment of the Hon‟ble Supreme
Court in V.Ravi Chandran vs. Union of India and others1.
8. In sequel to the contentions raised in the affidavit by the writ
petitioner, the 8th respondent recalcitrant to the contentions filed the counter
which addresses as follows:
(i) The marriage between the writ petitioner and 8th respondent was
accorded on 24.11.2017 and certain facts are not in dispute, such as
consummation of marriage at UK and the birth of the child (Sitara) on
29.09.2019 and that she worked for some time in UK and thereafter she was
sent by the writ petitioner forcibly to India in the month of December, 2019.
Further the averment advanced by the learned Senior Counsel,
Mr.K.S.Murthy, is that the writ petitioner has not taken any steps to bring 8th
respondent or Sitara back to UK and living in India since 2019 and despite
several requests, the writ petitioner did not choose to renew the spouse visa
and refused to take care of the 8th respondent and Sitara and having no other
option, the 8th respondent joined in TCS in the year 2022 and later part
admitted Sitara in the Little Steps International School, Guntur, in the year
2022. The writ petitioner did not also care about her or Sitara‟s maintenance.
(ii) Countering the contention regarding leaving to Saudi Arabia, 8th
respondent stated that she left Sitara with her parents as Sitara is acquainted
with her parents since childhood and the period spent was a short duration
and retaliated the contentions of the writ petitioner. Further, in the year 2024,
she came to know that the writ petitioner went to her parents‟ place and has
forcibly taken Sitara to UK without her consent. The 8th respondent further
refuted the averments made in the Writ Petition regarding the arrangement of
spouse visa to her by the petitioner to reside in UK along with the daughter for
which it was necessitated to apply for tourist visa which took considerable time
for approval and ultimately 8th respondent reached UK on 08.11.2024. During
1
(2010) 1 SCC 174
10
the brief period, she had to stay in the petitioner‟s house, who treated her in
disposition and very cruel manner and having no other option endured all the
pain, insult and cruelty owing to Sitara‟s future.
(iii) The 8th respondent in her counter further underlined that taking
advantage of her jobless position and individual place in a gullible situation in
UK, the writ petitioner purposefully filed divorce petition in UK. Knowing that
she was not having any permission to go back to India, the writ petitioner
wantonly took advantage of the situation, filed the petition to take Sitara to
India during the school vacations and that UK Court, on 18.07.2025, granted
permission to the writ petitioner to travel to India along with Sitara. The 8th
respondent came to know through the 6th respondent that on 16.08.2025, the
writ petitioner himself texted a message that he would hand over Sitara for
two-night stay at 6th and 7th respondent‟s place to which they have accepted
readily and the child was handed over to parents on 17.08.2025, and in the
interregnum period, she received permission to travel back to India and so she
travelled on 28.08.2025 back to India and taking custody of Sitara and,
thereafter, came to know that the Writ Petition was filed. She further stated
that she lodged FIR against the writ petitioner and her in-law‟s for harassment,
which was registered as Crime No.357 of 2025 under Sections 318(4), 351(2),
79, 85 read with 3(5) of Bharatiya Nyaya Sanhita (BNS), and Sections 3 and 4
of Dowry Prohibition Act.
(iv) At paragraph No.9 of the counter, the 8th respondent reiterates her
stand that having no financial capacity, she remained in India and took care of
Sitara and that she is in a better position than the petitioner, especially, in view
of Sitara being a girl child, biological and special needs to be attended. She
also adverts that the writ petitioner will not be in a position to take good care of
the child since he stays alone in UK and often need to work late nights which
may lead to neglecting the child, thereby affects the child, both physically and
mentally, and reiterates that the mother will be in a better position to take care
of the girl child and finally maintains that the Writ Petition cannot be
11
entertained much less Habeas Corpus, as the custody cannot be tasselled as
illegal and unlawful.
9. Concomitant to the counter averments of the 8th respondent, the
writ petitioner thereafter filed reply affidavit more or less reiterating the
facts/contentions raised in the Writ Petition. In the reply affidavit, he repeated
certain contentions that the contention raised by the 8th respondent that return
tickets were booked and left India for UK is utterly false.
10. At paragraph D of the reply, the petitioner contends that the
company where the 8th respondent was working, granted maternity leave for a
period of one year and the 8th respondent chose to stay in India with an
intention to return to UK in April, 2020 for which return tickets were also
booked before leaving to India. He further states that he was compelled to
return back to UK in January, 2020 for the work purpose and due to Covid-19
pandemic, international travels were blocked and return tickets of respondent
No.8 and Sitara were cancelled and he, in the month of August, 2020, came to
India to join respondent No.8 and Sitara. Again, the petitioner inevitably had to
visit UK for the work and personal reasons, which he described as follows:
a) 03.04.2021 to 11.09.2021 (British citizenship ceremony
and passport)
b) 08.02.2022 to 23.06.2022 (work and vacate UK rental
property)
c) 11.10.2022 to 24.12.2022 (purchasing suitable family
home with garden and proximity to a good school)
11. For these purposes narrated, the writ petitioner returned back to
UK on 04.03.2023. He further reiterates that the petitioner in order to lead
cordial conjugal life with the 8th respondent, he, while travelling to India, visited
Saudi Arabia to meet the 8th respondent and convince her that the steps taken
by her will be against the interest of the child, for which she has not agreed
and having no other option, he travelled to India after intimating the parents of
the 8th respondent.
12
12. As could be seen, both the parties filed multiple Interlocutory
Applications with the intention to improve their cases. The fact remains that
the future of the child, Sitara, is lost in the battle of supremacy over each
other. In custody battle, the question of custody of child becomes a “tug-of-
war”, and it is the child, who has to bear the cost of unprecedented and
unwelcomed situations.
13. On 08.01.2026, upon submissions made by the petitioner to
interact with his minor daughter, Sitara, as he could not interact with her
daughter for the last three months‟ period, this Court, considering the
paramount welfare of the child, permitted the petitioner to talk to her minor
daughter and to interact with her once in a week i.e., every Thursday between
06.00 P.M to 09.00 P.M. In pursuit for reconciliation, this Court ventured to
directly interact with the petitioner, who was available online on 29.01.2026.
The petitioner expressed that all efforts made failed and had no interest for
any further relationship with the 8th respondent.
14. Basing on the facts and circumstances of the case and after
demystifying, this Court framed the following issues:-
i. Whether a Writ of Habeas Corpus can be maintained for
implementation of foreign Court orders?
ii. Whether this Court dehors the orders of the foreign Court
in UK including the High Court of England decide the
custody of the child invoking the doctrine of parens
patriae, vis-Ã -vis decide the welfare of the child, which is
paramount?
ISSUE NO.1:-
Contentions of the Petitioner:-
15. Mr.V.V.Lakshmi Narayana, learned counsel, in support of his
contentions regarding the jurisdiction of this Court and the maintainability of a
Writ of Habeas Corpus under Article 226 of the Constitution of India, strongly
13
relied upon the rulings of the Apex Court to substantiate. The law is no more
res integra that Habeas Corpus is maintainable under Article 226 of the
Constitution of India before this Court to evaluate the paramount consideration
and welfare of the child. Autem, according to facts and circumstances of each
case, the Courts are more concern with the safety of the child rather than the
orders passed by the Foreign Courts, which must yield to the paramount
consideration and welfare of the child.
16. It is also an established principle that even in the case where the
petitioner who moved the foreign Court is a citizen of that particular country
and acquired a citizenship of that country. In the present case, the petitioner
acquired British citizenship through a ceremony as admitted by him. In one or
two occasions, the petitioner has emphatically pleaded that he is a citizen of
UK and so also Sitara, who was born in UK as a permanent citizen of UK and
noticing the said fact, the UK Family Court passed the orders.
17. Now, a close scrutiny of the legion arguments advanced by the
learned counsel, Mr.V.V.Lakshmi Narayana, reveals that the petitioner, being
a citizen of UK and necessarily the child, Sitara, need to be handed over to
the petitioner to go back to UK in consonance with the directions of the Family
Court, UK. A direct judgment on this point is rendered by the Hon‟ble Supreme
Court in Government of Andhra Pradesh vs. Syed Mohammad Khan 2 a
Constitutional Bench, which, at paragraph No.6, emphasized on citizenship as
follows:
“That, raises the question about the proper order to be passed in the
present appeals. It has been urged before us by Mr. Tatachari for the
appellant that the effect of oar decision in the case of Izhar Ahmad Khan is
that as soon as it is shown that a person has acquired a passport from a
foreign Government, his citizenship of India automatically comes to an end,
and he contends that in such a case, it is not necessary that the Central
Government should hold any enquiry and make a finding against the person
before the appellant can issue an order of deportation against him. In our
opinion, this contention is clearly misconceived. In dealing with the question2
AIR 1962 SC 1778
14about the validity of the impugned section and the Rule, this Court has, no
doubt, stated that “‘the proof of the fact that a passport from a foreign
country has been obtained on a certain date conclusively determines the
other fact that before that date he has voluntarily acquired the citizenship of
that country.” But in appreciating the effect of this observation, it must be
borne in mind that in all the cases with which this Court was then dealing,
the question about the citizenship of the petitioners had been expressly
referred to the Central Government and the Central Government had made
its findings on that question. It was after the Central Government had
recorded a finding against the petitioners that they had acquired the
citizenship of Pakistan that the said writ petitions came before this Court for
final disposal and it is in the light of these facts that this Court proceeded to
consider the contention about the validity of the impugned section and the
impugned rule. It is plain, therefore, that the observations on which Mr.
Tatachari relied were not intended to mean that as soon as it is alleged that
a passport has been obtained by a person from a foreign Government, the
State Government can immediately proceed to deport him without the
necessary enquiry by the Central Government. Indeed it is clear that in the
course of the judgment, this Court has emphasised the fact that the question
as to whether a person has lost his citizenship of this country and has
acquired the citizenship of a foreign country has to be tried by the Central
Government and it is only after the Contrul Government has decided the
point the State Government can deal with the person as a foreigner. It may
be that if a passport from a foreign Government is obtained by a citizen, and
the case fall3 under the impugned Rule, the conclusion may follow that he
has acquired the citizenship of the foreign country ; but that conclusion can
be drawn only by the appropriate authority authorised under the Act to
enquire into question. Therefore, there is no doubt that in all cases where
action is proposed to be taken against persons residing in this country on the
ground that they have acquired the citizenship of a foreign State and have
lost in consequence the citizenship of this country, it is essential that that
question should be first considered by the Central Government. In dealing
with the question, the Central Government would undoubtedly be entitled to
give effect to the impugned r. 3 in Sch. III and deal with the matter in
accordance with the other relevant Rules framed under the Act. The decision
of the Central Government about the status of the person is the basis on
which any further action can be taken against him. Therefore, we see no
substance in the argument that the orders of deportation passed by the
appellant against the respondents should be sustained even without an
enquiry by the Central Government about their status. That is why we think,,
15in substance$ the direction of the High Court is right, though the High Court
was in error in holding that the Central Government should hold the enquiry
without reference to r.3.”
18. Even otherwise, the law operating the custody of the child, is
entirely different and stands on a different footing and the citizenship or
nationality will be secondary and the paramount consideration and welfare of
the child need to be addressed.
19. Learned Counsel, Mr.V.V.Lakshmi Narayana, has filed
compilation of judgments, supporting his arguments, that Writ of Habeas
Corpus is certainly maintainable when it is regarding custody of child. A three-
Judge Bench of the Hon‟ble Apex Court in the case of Nithya Anand
Raghavan Vs State (NCT of Delhi) and Another3, considering the principles
laid down in Dhanwanti Joshi vs. Madhav Unde [(1998) 1 SCC 112]
discussed elaborately regarding the maintainability of Writ of Habeas Corpus
and the same is extracted below:
“44. The present appeal emanates from a petition seeking a writ of
habeas corpus for the production and custody of a minor child. This Court in
Kanu Sanyal v. District, has held that habeas corpus was essentially a
procedural writ dealing with machinery of justice. The object underlying the
writ was to secure the release of a person who is illegally deprived of his
liberty. The writ of habeas corpus is a command addressed to the person
who is alleged to have another in unlawful custody, requiring him to produce
the body of such person before the Court. On production of the person
before the Court, the circumstances in which the custody of the person
concerned has been detained can be inquired into by the Court and upon
due inquiry into the alleged unlawful restraint pass 14 (2001) 5 SCC 247
appropriate direction as may be deemed just and proper. The High Court in
such proceedings conducts an inquiry for immediate determination of the
right of the person‟s freedom and his release when the detention is found to
be unlawful.
45. In a petition for issuance of a writ of habeas corpus in relation to
the custody of a minor child, this Court in Sayed Saleemuddin v. Dr.
Rukhsana & Ors. 15, 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 the case of Mrs. Elizabeth (supra), it is held that in such cases the
matter must be decided not by reference to the legal rights of the parties but
on the sole and predominant criterion of what would best serve the interests
and welfare of the minor. The role of the High Court in examining the cases
of custody of a minor is on the touchstone of principle of parens patriae3
2017 8 SCC 454
16jurisdiction, as the minor is within the jurisdiction of the Court (see Paul
Mohinder Gahun Vs. State of NCT of Delhi & Ors.16 relied upon by the
appellant). It is not necessary to multiply the authorities on this proposition.
46. The High Court while dealing with the petition for issuance of a
writ of habeas corpus concerning a minor child, in a given case, may direct
return of the child or decline to change the custody of the child keeping in
mind all the attending facts and circumstances including the settled legal
position referred to above. Once again, we may hasten to add that the
decision of the Court, in each case, must depend on the totality of the facts
and circumstances of the case brought before it whilst considering the
welfare of the child which is of paramount consideration. The order of the
foreign Court must yield to the welfare of the child. Further, the remedy of
writ of habeas corpus cannot be used for mere enforcement of the directions
given by the foreign court against a person within its jurisdiction and convert
that jurisdiction into that of an executing court. Indubitably, the writ petitioner
can take recourse to such other remedy as may be permissible in law for
enforcement of the order passed by the foreign Court or to resort to any
other proceedings as may be permissible in law before the Indian Court for
the custody of the child, if so advised.
47. In a habeas corpus petition as aforesaid, the High Court must
examine at the threshold whether the minor is in lawful or unlawful custody
of another person (private respondent named in the writ petition). For
considering that issue, in a case such as the present one, it is enough to
note that the private respondent was none other than the natural guardian of
the minor being her biological mother. Once that fact is ascertained, it can be
presumed that the custody of the minor with his/her mother is lawful. In such
a case, only in exceptionable situation, the custody of the minor (girl child)
may be ordered to be taken away from her mother for being given to any
other person including the husband (father of the child), in exercise of writ
jurisdiction. Instead, the other parent can be asked to resort to a substantive
prescribed remedy for getting custody of the child.
48. The next question to be considered by the High Court would be
whether an order passed by the foreign court, directing the mother to
produce the child before it, would render the custody of the minor unlawful?
Indubitably, merely because such an order is passed by the foreign court,
the custody of the minor would not become unlawful per se. As in the
present case, the order passed by the High Court of Justice, Family Division
London on 8th January, 2016 for obtaining a Wardship order reads thus:
“Order made by His Honour Judge Richards sitting as a Deputy High
Court Judge sitting at the Royal Courts of Justice, Strand, London WC2A 2LL
in chambers on 8 January, 2016
IN THE MATTER OF THE CHILDREN ACT 1989 AND IN THE
MATTER OF THE SENIOR COURTS ACT 1981
The Child is Nethra Anand (a girl, born 7/8/09) AFTER HEARING
Counsel paul Hepher, on behalf of the applicant father
AFTER consideration of the documents lodged by the applicant.
IMPORTANT WARNING TO NITHYA ANAND RAGHAVAN
If you NITHYA ANAND RAGHAVAN disobey this order you may be
held to be in contempt of court and may be imprisoned, fined or have your
assets seized.
If any other person who knows of this order and does anything which
helps or permits you NITHYA ANAND RAGHAVAN to breach the terms of this
order they may be held to be in contempt of court and may be imprisoned,
fined or have their assets seized.
You have the following legal rights:
a) to seek legal advice. This right does not entitle you to disobey any
part to this order until you have sought legal advice;
17
b) to require the applicant‟s solicitors, namely Dawson Cornwell, 15
Red Lion Square, London WC1R 4QT, tel 020 7242 2556 to provide you with
a copy of any application form(s), statement(s), note of the hearing;
c) to apply, whether by counsel or solicitor or in person, to Judge of
the Family Court assigned to hearing urgent applications at the Royal Courts
of Justice, Strand, London, if practicable after giving notice to the applicant‟s
solicitors and to the court, for an order discharging or varying any part of this
order. This right does not entitle you to disobey any part of this order until your
application has been heard;
d) if you do not speak or understand English adequately, to have an
interpreter present in court at public expense in order to assist you at the
hearing of any application relating to this order.
The parties
1. The Applicant is ANAND RAGHAVAN represented by Dawson
Cornwell Solicitors The Respondent is NITHYA ANAND RAGHAVAN Recitals
2. This order was made at a hearing without notice to the
respondent. The reason why the order was made without notice to the
respondent is because she left England and Wales on or about 2 July 2015
and notice may lead her to take steps to defeat the purpose of the application
and fail to return the child.
3. The Judge read the following documents:
(a) Position statement
(b) C67 application and C1A form
(c) Statement of Anand Raghavan with exhibits dated 8.01.2016.
4. The court was satisfied on a provisional basis of the evidence filed
that
(a) NETHRA ANAND (a girl born on 7/8/09) was on 2 July 2015
habitually resident in the jurisdiction of England and Wales.
(b) NETHRA ANAND (a girl born on 7/8/09) was wrongfully removed
from England on 2 July, 2015 and been wrongfully retained in India since.
(c) The courts of England and Wales have jurisdiction in matters of
parental responsibility over the child pursuant to Articles 8 and 10 of BIIR.
5. The Father has agreed to pay for the cost of the flights for the
Mother and child in returning from India to England. He will either purchase
the tickets for the Mother and child himself, or put her in funds, or invite her to
purchase the tickets on his credit card, as she may wish, in order for her to
purchase the tickets herself.
Undertakings to the court by the solicitor for the applicant
6. The solicitors for the applicant undertake;
(a) To issue these proceedings forthwith and in any event by no later
than 4 pm 11 January 2016;
(b) To pay the ex parte application fee forthwith and in any event by
no later than 4 pm 11 January 2016;
AND NOW THEREFORE THIS HONOURABLE COURT
RESPECTFULLY REQUESTS:
7. Any person not within the jurisdiction of this Court who is in a
position to do so to co-operate in assisting and securing the immediate return
to England and Wales of the Ward NETHRA ANAND (a girl born on 7/8/09)
IT IS ORDERED THAT:
8. NETHRA ANAND (a girl born on 7/8/09) is and shall remain a
Ward of this Court during the minority or until further order.
9. The respondent mother shall return or cause the return of
NETHRA ANAND (a girl born on 7/8/09) forthwith to England and Wales, and
in any event no later than 23.59 on 22 January 2016.
10.Every person within the jurisdiction of this Honourable Court who
is in a position to do so shall co-operate in assisting and securing the
immediate return to England and Wales of NETHRA ANAND (a girl born on
7/8/09) a ward of this Court.
11.The applicant‟s solicitor shall fax copies of this order to the Office
of the Head of International, Family Justice at the Royal Courts of Justice, the
Strand, London WC2A 2LL (DX4550 Strand RCJ: fax 02079476408); and (if
appropriate) to the Head of the Consular Division, Foreign and
Commonwealth Office Spring Gardens London SW1A 2PA, Tel:
02070080212, Fax 02070080152.
12.The matter shall be listed for directions at 10:30 am on 29
January 2016 at the Royal Courts of Justice, the Strand, London Wc2A 2LL,
18
with a time estimate of 30 minutes, when the court shall consider what further
orders shall be made. The Court may consider making declarations in the
terms of paragraph 4 above.
13.The respondent mother shall attend at the hearing listed pursuant
to the preceding paragraph, together with solicitors or counsel if so instructed.
She shall file and serve by 4 pm 27 January, 2016 a short statement
responding to the application.
14.This order may be served on the respondent, outside of the
jurisdiction of England and Wales as may be required, by way of fax, email or
personally in order for the court to deem that it constitutes good service.
15. Costs reserved.”
52. An application for grant of U.K. citizenship was made on behalf
of Nethra in September 2012 which was subsequently granted in December
2012. The father (respondent no.2) then acquired the citizenship of the U.K.
in January, 2013. After grant of citizenship of the U.K., Nethra was admitted
to a primary school in the U.K. in September 2013 and studied there only till
July, 2015. Since Nethra had acquired British citizenship, the U.K. Court
could exercise jurisdiction in respect of her custody issues.”
20. The petitioner moved the Court at Kingston-upon-Hull with case
No.KH25P00465/1756-2297-9027-9698 which was heard on 30.09.2025,
wherein directions were given for the relief prayed which read as follows:
“THE COURT ORDERS
IT IS DECLARED THAT:
1. The Court in England and Wales has jurisdiction in relation to the child on
the basis that the child was habitually resident in the jurisdiction of England
and Wales immediately before they were wrongfully removed or retained,
and they have not acquired a new habitual residence in another Member
State and satisfied the conditions in Article 7(a) or (b) of the 1996 Hague
Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and
Co-operation in Respect of Parental Responsibility and Measures for the
Protection of Children.
Specific issue order
2. Keerthi Gadde must return the child to the Jurisdiction of England and
Wales and to the care of Bala Gadde immediately upon service of this order.
Service of this order
3. The Court gives permission for this order to be served via email and
Whatsapp (to telephone number 07301796231) and dispenses with the need
for personal service.
4. The Court directs the father to attempt service by post at the mother‟s
last known address in India (provided to the court by the father), via the
process described in court through which he effected service in the ongoing
(England and Wales) High Court proceedings.
Permission to disclose this order
5. The father has permission to share this order with Sitara‟s school and
with the police on strict condition that neither agency is to further disclose
this order without permission of the court.
Liberty to apply
6. The mother has permission to apply on notice to the father to vary or set
aside this order. Any application in this regard must be made by no later than
seven days after the date on which the court affects service by the means
set out in paragraph 3 above.
19
Costs
7. There is no order for costs.
Dated 30 September 2025
SCHEDULE TO ORDER
1. The father attended court. The mother did not.
2. The father confirmed that the mother is now in India. She attended at a
hearing before the High Court in India on 30 August 2025.
3. The father confirmed that he had attempted service of the current
application and papers via email and Whatsapp.
4. The father further confirmed that he has a hearing before the High Court
of England and Wales in the Royal Courts of Justice listed on 2 October
2025. That court had directed service on the mother. The father had
attempted this by sending all documents via email to his brother who resides
in India who had then arranged courier delivery to the mothers known
address in the Andhra Pradesh region of India.”
21. Speaking order was issued and the Court made specific direction,
which is labelled as Important Warning to Keerthi Gadde, which reads as
follows:
“If you Keerthi Gadde disobey paragraph 2 of this order, you
may be held to be in contempt of court and may be imprisoned, fined
or have your assets seized.”
22. Yet again, upon a petition filed by the petitioner before the High
Court of Justice, Family Division, sitting at Royal Courts of Justice, the Court
passed orders on 31.10.2025. The Court noted as follows:
“The parties
1. The applicant is Bala GADDE, the father, who appeared as a litigant in
person.
2. The respondent is Keerthi GADDE, the mother, who did not appear.
Recitals
3. The applicant was sworn.
4. The court noted that:
a. Prior to August 2025 the child was living in England.
b. On 7 February 2025 in divorce proceedings between the parents (Case
number 1736-9409-9016-3327) the mother confirmed that the courts of
England of Wales had jurisdiction in relation to matters relating to child
arrangements and financial remedies.
c. On 18 July 2025 HIIJ Wigin sitting in the Family Court in Kingston-Upon-
Hull in case number KH25P00373/1751-3352-6208-7041 made a specific
issue order under the Children Act 2025 permitting the father to take the
child to India on holiday for a two-week summer holiday from 15 to 31
August 2025, to include a two-night stay with her maternal grandparents.
The mother was represented in those proceedings.
20
d. The father took the child to India and took her to stay with her maternal
grandparents as directed by the court order.
e. The child was retained by the maternal grandparents in India and not
returned to the father.
f. The mother is now understood to be in India with the child.
g. Orders directing the mother to return the child to England and Wales have
previously been made by HHJ Brown sitting in the Family Court in Kingston
upon Hull in case number KH25P00645 1756-2297-9027-9686 on 30
September 2025 and by Ms Hannah Markham KC sitting as Deputy High
Court Judge in case number FD25P00600 on 2 October 2025.
h. The mother has failed to comply with the said return orders.
i. The mother remotely attended the hearing before Ms Hannah Markham
KC sitting as Deputy High Court Judge in case number FD25P00600 on 2
October 2025. On that occasion the mother was directed to file a statement
setting out her case by 16 October 2025. She was aware that the matter was
listed for a further hearing on 31 October 2025.
j. The mother sent an email to the Court on 16 October 2025 attaching
evidence in response. documents relating to a UK visa application but did
not attach her evidence in response.
k. The father has brought a habeas corpus petition in India in the High Court
of Andhra Pradesh (No 22723/2025) seeking the return of the child to his
custody. The next hearing in that petition is on 5 November 2025.
l. The mother has also issued proceedings in India in relation to the child in
the Family Court at Guntur (case GWOP 649 of 2025/FCOP 649 of 2025).
23. As outlined in the earlier paragraphs by this Court, there is no res
integra regarding maintainability of Writ Petition. Curiously, both the learned
Counsel appearing relied upon the same judgments of the Hon‟ble Apex Court
to substantiate that Writs are maintainable and vice versa.
24. Learned counsel for the petitioner, in auxilium, relied upon the
judgment of the Hon‟ble Supreme Court in the case of Tejaswini Gaud and
Others vs. Shekhar Jagdish Prasad Tewari and Others4, wherein it was
held as follows:
“14. 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. The writ also
extends its influence to restore the custody of a minor to his guardian
when wrongfully deprived of it. The detention of a minor by a person
who is not entitled to his legal custody is treated as equivalent to
illegal detention for the purpose of granting writ, directing custody of
the minor child. For restoration of the custody of a minor from a
person who according to the personal law, is not his legal or natural
guardian, in appropriate cases, the writ court has jurisdiction.”
4
(2019) 7 SCC 42
21
25. Learned counsel further relied upon the judgment of the Hon‟ble
Supreme Court in the case of Kanika Goel vs. State (NCT of Delhi) and
Another5, wherein it was held as follows:
“34. …… 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….”
26. Learned counsel further relied upon the judgment of the Hon‟ble
Supreme Court in the case of Lahari Sakhamuri vs. Sobhan Kodali 6 ,
wherein, at paragraph 38, it was held as follows:
“38. …..This Court applied the principles of (i) “the first strike”,
i.e the UK Court had passed effective and substantial order declaring
the children of the parties as wards of that court, (ii) the comity of
courts and (iii) the best interest and welfare of the child. It also held
that the “most intimate contact” doctrine and the “closest concern” laid
down in Surinder Kaur Sandhu‟s case(supra) are very much alive and
cannot be ignored only because their application might be
uncomfortable in certain situations. The Court also reiterated that the
best interest and welfare of the child are of paramount importance
which shall always be kept in mind by the courts while adjudicating
the disputes.”
27. Learned counsel further relied upon the judgment of the High
Court of Telangana in the case of Sara Bhayaraju vs. State of Telangana
and others7, wherein, at paragraph 51, it was held as follows:
“51. The sum and substance of the aforesaid judgments is as
follows:
i. Proceedings in writ of Habeas Corpus are summary in nature.
ii. Writ of Habeas Corpus is maintainable in child custody matters.
iii. Welfare of minor is the paramount consideration while deciding
matters with regard to child custody and it will prevail over Principle of
Comity, Principle of First Strike.
iv. Since the proceedings in writ of Habeas Corpus are summary
in nature, the same have to be decided basing on the affidavits filed
by the parties.
v. Each case has to be examined basing on its own facts and
circumstances and on case to case basis.”
5
(2018) 9 SCC 578
6
(2019) 7 SCC 311
7
2025 (1) ALT 426 (DB) (TS)
22
28. Strengthening his arguments, learned counsel relied on the
judgment of the Hon‟ble Supreme Court in the case of Nilanjan Bhattacharya
vs. The State of Karnataka and Others8, wherein, while considering Nithya
Anand Raghavan‟s case (supra 3), the Hon‟ble Supreme Court, at paragraph
10, held as follows:
“…..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.”
29. Learned counsel further relied upon the judgment of the Hon‟ble
Supreme Court in V.Ravi Chandran‟s case (supra 1), wherein it was
observed as follows:
“29. …..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. Learned counsel further relied upon the judgment of the Hon‟ble
Supreme Court in the case of Ruchi Majoo vs. Sanjeev Majoo9, wherein it
was held as follows:
“The conduct of a summary or elaborate inquiry on the
question of custody by the court in the country to which the child has
been removed will depend upon the facts and circumstances of each
case. For instance, the conduct of an elaborate inquiry may depend8
(2021) 12 SCC 376
9
(2011) 6 SCC 479
23upon the time that had elapsed between the removal of the child and
the institution of the proceedings for custody. This would mean that
longer the time gap, the lesser the inclination of the court to go for a
summary inquiry.”
Contention of the Respondents:-
31. Learned Senior Counsels made strenuous effort to convince the
Court that a Writ under Habeas Corpus for custody of child cannot be
maintained. To accept the arguments so advanced, this Court must examine
at the threshold whether the minor is in lawful or unlawful custody of another
person. For considering that issue, it is to be noted that the Writ Petition is
filed against respondent No.8, who is none other than the biological mother
and the custody of child with the biological mother cannot be termed as
„unlawful custody‟. At the same time, this Court need to visualize the fact that
the petitioner, who filed the Writ Petition for custody of child, is none other
than the father, who is a natural guardian. The other mitigating fact is that the
petitioner himself handed over the child to the respondent Nos.6 and 7, who
are the grandparents, which is a clear admission in the pleadings of the
petitioner. When it is the case that the child was left with the grandparents, the
custody cannot be termed as illegal and unlawful. The Hon‟ble Supreme
Court, in the case of Nirmala vs. Kulwant Singh and Others10, at paragraph
27, has categorically observed as follows:
“27. It can thus be seen that no hard-and-fast rule can be laid
down insofar as the maintainability of a habeas corpus petition in the
matters of custody of a minor child is concerned. As to whether the
writ court should exercise its extraordinary jurisdiction under Article
226 of the Constitution of India or not will be depend on the facts and
circumstances of each case.”
32. The Hon‟ble Supreme Court, at paragraph Nos.29 and 30, held
as follows:
“29. It can thus be clearly seen that according to the case of
the respondent father himself, in the peculiar facts and circumstances
of the case, a family environment was required for the child especially
from the grandparents and that he had placed the custody of the
minor child with the appellant grandmother for taking his care. It can10
(2024) 10 SCC 595
24thus clearly be seen that it is not a case that the appellant
grandmother had illegally kept the custody of the minor child. It is the
respondent father who had placed the custody of the minor child with
the appellant grandmother.
30. We are of the considered view that in the peculiar facts
and circumstances of the case, the High Court ought not to have
entertained the habeas corpus petition under Article 226 of the
Constitution of India. Since a detailed enquiry including the welfare of
the minor child and his preference would have been involved, such an
exercise could be done only in a proceeding under the provisions of
the Guardians and Wards Act, 1890.”
Conclusion:-
33. It can thus be clearly seen that according to the lis on hand, akin
to the observations above, the petitioner himself pleaded before the Family
Court of England sitting at Kingston-upon-Hull that the child needs family
environment especially with the grandparents and pursuant to the orders of
that Court, the petitioner himself placed the custody of the minor child with the
grandparents. Therefore, in view of the peculiar facts and circumstances of
this case, we hold that the Habeas Corpus petition, filed under Article 226 of
the Constitution of India, cannot be entertained and hence, is liable to be
rejected. Accordingly, this issue is answered.
ISSUE NO.2:-
34. The principal laconic submission made by Mr.V.V.Lakshmi
Narayana, learned counsel for the petitioner, is that the Comity of Courts
doctrine to be adhered and Court having „FIRST STRIKE‟. He further
contended that, in order to avoid multiplicity of proceedings, the principle of
Comity of Courts is to be taken note of and be precisely implemented among
the Courts at the State, Federal, and international levels, and not as a matter
of obligation but out of deference and mutual respect. This is also referred as
Judicial Comity or Comity of Courts.
35. Mr.V.V.Lakshmi Narayana, learned counsel, emphasizes that the
principle of Comity of Courts is to be given paramount consideration when it
comes to custody and welfare of the child. In this regard, to defend his
25
arguments, he strongly placed reliance on the judgment of Hon‟ble Supreme
Court in Yashita Sahu vs. State of Rajasthan and Others 11, wherein it is
observed as follows:
“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.”
36. Apropos to, Mr.V.V.Lakshmi Narayana, learned counsel for the
petitioner relied on a judgment of the Hon‟ble Supreme Court in Prateek
Gupta v. Shilpi Gupta12, wherein it was held as follows:
“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
gromming.”
37. Mr.V.V.Lakshmi Narayana, learned counsel would further
reiterate his stance that the Courts in the United Kingdom had the intimate
contact and closest concern over the child and are of persuasive relevance.
The child in the present case is uprooted from her native country and taken to
a place to encounter alien environment, language, custom, etc., with portent of
mutilative bearing on the process of her oral growth and grooming. He also
annexed the photographs to discern the concern shown on the child, Sitara,
and submitted that the Court should cogitate the looming effect on the child if
allowed to stay in India.
38. Inter alia, refuting the arguments of the learned counsel for the
petitioner, both the learned designated Senior Counsels, Mr.Posani
Venkateswarlu and Mr.K.S.Murthy, orchestered that the Hon‟ble Supreme
11
(2020) 3 SCC 67
12
2017 INSC 1195
26
Court in a three-judge Bench decision in Nithya Anand Raghavan‟s case
(supra 3), divulged and succinctly observed, extensively discussing all the
points argued by the petitioner‟s counsel relating to the Comity of Courts, First
Strike, intimate contact and closest concern with the child. The relevant
paragraphs read as follows:
“39. We must remind ourselves of the settled legal position that the
concept of forum convenience has no place in wardship jurisdiction. Further,
the efficacy of the principle of comity of courts as applicable to India in
respect of child custody matters has been succinctly delineated in several
decisions of this Court. We may usefully refer to the decision in the case of
Dhanwanti Joshi v Madhav Unde [(1998) 1 SCC 112]. In Paragraphs 28 to
30, 32 and 33 of the reported decision, the Court observed thus:-
“28. The leading case in this behalf is the one rendered by the Privy
Council in 1951, in McKee v. McKee. In that case, the parties, who were
American citizens, were married in USA in 1933 and lived there till December
1946. But they had separated in December 1940. On 17-12-1941, a decree of
divorce was passed in USA and custody of the child was given to the father
and later varied in favour of the mother. At that stage, the father took away the
child to Canada. In habeas corpus proceedings by the mother, though initially
the decisions of lower courts went against her, the Supreme Court of Canada
gave her custody but the said Court held that the father could not have the
question of custody retried in Canada once the question was adjudicated in
favour of the mother in the USA earlier. On appeal to the Privy Council, Lord
Simonds held that in proceedings relating to custody before the Canadian
Court, the welfare and happiness of the infant was of paramount consideration
and the order of a foreign court in USA as to his custody can be given due
weight in the circumstances of the case, but such an order of a foreign court
was only one of the facts which must be taken into consideration. It was
further held that it was the duty of the Canadian Court to form an independent
judgment on the merits of the matter in regard to the welfare of the child. The
order of the foreign court in US would yield to the welfare of the child. “Comity
of courts demanded not its enforcement, but its grave consideration”. This
case arising from Canada which lays down the law for Canada and U.K. has
been consistently followed in latter cases. This view was reiterated by the
House of Lords in J v. C. [1970 AC 668]. This is the law also in USA (see 24
American Jurisprudence, para 1001) and Australia. (See Khamis v. Khamis
[(1978) 4 Fam LR 410])
29. However, there is an apparent contradiction between the above
view and the one expressed in H. (infants), and in E. (an infant), to the effect
that the court in the country to which the child is removed will send back the
child to the country from which the child has been removed. This 13 (1998) 1
SCC 112 apparent conflict was explained and resolved by the Court of Appeal
in 1974 in L. (minors) (wardship : jurisdiction), and in R. (minors) (wardship :
jurisdiction), It was held by the Court of Appeal in L., that the view in McKee v.
McKee is still the correct view and that the limited question which arose in the
latter decisions was whether the court in the country to which the child was
removed could conduct (a) a summary inquiry or (b) an elaborate inquiry on
the question of custody. In the case of (a) a summary inquiry, the court would
return custody to the country from which the child was removed unless such
return could be shown to be harmful to the child. In the case of (b) an
elaborate inquiry, the court could go into the merits as to where the permanent
welfare lay and ignore the order of the foreign court or treat the fact of removal
of the child from another country as only one of the circumstances. The crucial
question as to whether the Court (in the country to which the child is removed)
would exercise the summary or elaborate procedure is to be determined
according to the child’s welfare. The summary jurisdiction to return the child is
invoked, for example, if the child had been removed from its native land and
removed to another country where, maybe, his native language is not spoken,
27or 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 is exercised only if the court to which the child has been removed
is moved promptly and quickly, for in that event, the Judge may well be
persuaded that it would be better for the child that those merits should be
investigated in a court in his native country on the expectation that an early
decision in the native country could be in the interests of the child before the
child could develop roots in the country to which he had been removed.
Alternatively, the said court might think of conducting an elaborate inquiry on
merits and have regard to the other facts of the case and the time that has
lapsed after the removal of the child and consider if it would be in the interests
of the child not to have it returned to the country from which it had been
removed. In that event, the unauthorised removal of the child from the native
country would not come in the way of the court in the country to which the
child has been removed, to ignore the removal and independently consider
whether the sending back of the child to its native country would be in the
paramount interests of the child. (See Rayden & Jackson, 15th Edn., 1988,
pp. 1477-79; Bromley, Family law, 7th Edn., 1987.) In R. (minors) (wardship :
jurisdiction), it has been firmly held that the concept of forum convenience has
no place in wardship jurisdiction.
30. We may here state that this Court in Elizabeth Dinshaw v. Arvind
M. Dinshaw, while dealing with a child removed by the father from USA
contrary to the custody orders of the US Court directed that the child be sent
back to USA to the mother not only because of the principle of comity but also
because, on facts, — which were independently considered — it was in the
interests of the child to be sent back to the native State. There the removal of
the child by the father and the mother’s application in India were within six
months. In that context, this Court referred to H. (infants), which case, as
pointed out by us above has been explained in L. as a case where the Court
thought it fit to exercise its summary jurisdiction in the interests of the child. Be
that as it may, the general principles laid down in McKee v. McKee and J.v.C
and the distinction between summary and elaborate inquiries as stated in L.
(infants), are today well settled in UK, Canada, Australia and the USA. The
same principles apply in our country. Therefore nothing precludes the Indian
courts from considering the question on merits, having regard to the delay
from 1984 — even assuming that the earlier orders passed in India do not
operate as constructive res judicata.
***
32. In this connection, it is necessary to refer to the Hague
Convention of 1980 on “Civil Aspects of International Child Abduction”. As of
today, about 45 countries are parties to this Convention. India is not yet a
signatory. Under the Convention, any child below 16 years who had been
“wrongfully” removed or retained in another contracting State, could be
returned back to the country from which the child had been removed, by
application to a central authority. Under Article 16 of the Convention, if in the
process, the issue goes before a court, the Convention prohibits the court
from going into the merits of the welfare of the child. Article 12 requires the
child to be sent back, but if a period of more than one year has lapsed from
the date of removal to the date of commencement of the proceedings before
the court, the child would still be returned unless it is demonstrated that the
child is now settled in its new environment. Article 12 is subject to Article 13
and a return could be refused if it would expose the child to physical or
psychological harm or otherwise place the child in an intolerable position or if
the child is quite mature and objects to its return. In England, these aspects
are covered by the Child Abduction and Custody Act, 1985.
33. So far as non-Convention countries are concerned, or where the
removal related to a period before adopting the Convention, the law is that the
court in the country to which the child is removed will consider the question on
merits bearing the welfare of the child as of paramount importance and
consider the order of the foreign court as only a factor to be taken into
consideration as stated in McKee v. McKee unless the Court thinks it fit to
28exercise summary jurisdiction in the interests of the child and its prompt return
is for its welfare, as explained in L. As recently as 1996-1997, it has been held
in P (A minor) (Child Abduction: Non-Convention Country), by Ward, L.J.
[1996 Current Law Year Book, pp. 165-166] that in deciding whether to order
the return of a child who has been abducted from his or her country of habitual
residence — which was not a party to the Hague Convention, 1980, — the
courts’ overriding consideration must be the child’s welfare. There is no need
for the Judge to attempt to apply the provisions of Article 13 of the Convention
by ordering the child’s return unless a grave risk of harm was established. See
also A (A minor) (Abduction: Non-Convention Country) [Re, The Times 3-7-97
by Ward, L.J. (CA) (quoted in Current Law, August 1997, p. 13]. This answers
the contention relating to removal of the child from USA.” (emphasis supplied)
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 inspite 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.
41. Notably, the aforementioned exposition has been quoted with
approval by a three-judge bench of this Court in Dr. V. Ravi Chandran
(supra) as can be discerned from paragraph 27 of the reported decision. In
that, after extracting paragraphs 28 to 30 of the decision in Dhanwanti
Joshi‟s case, the three-judge bench observed thus:
“27……..However, in view of the fact that the child had lived with his
mother in India for nearly twelve years, this Court held that it would not
exercise a summary jurisdiction to return the child to the United States of
America on the ground that its removal from USA in 1984 was contrary to the
orders of US courts. It was also held that whenever a question arises before a
court pertaining to the custody of a minor child, the matter is to be decided not
on considerations of the legal rights of the parties but on the sole and
predominant criterion of what would best serve the interest of the minor.”
(emphasis supplied)
29
Again in paragraphs 29 and 30, the three-judge bench observed
thus:-
“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 the child has been removed must first consider the question whether
the court could conduct an elaborate enquiry on the question of custody or by
dealing with the matter summarily order a parent to return custody of the child
to the country from which the child was removed and all aspects relating to
the child‟s welfare be investigated in a court in his own country. Should the
court take a view that an elaborate enquiry is necessary, obviously the court is
bound to consider the welfare and happiness of the child as the paramount
consideration and go into all relevant aspects of welfare of the child including
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 interests of the
child. The indication given in Mckee v. McKee that there may be cases in
which it is proper for a court in one jurisdiction to make an order directing that
a child be returned to a foreign jurisdiction without investigating the merits of
the dispute relating to the care of the child on the ground that such an order is
in the best interests of the child has been explained in L (Minors), In re and
the said view has been approved by this Court in Dhanwanti Joshi. Similar
view taken by the Court of Appeal in H. (Infants), in re has been approved by
this Court in Elizabeth Dinshaw.” (emphasis supplied)”
39. In regard to the propelled question as to whether the order
passed by the Foreign Court, directing the mother to produce the child before
it would render the custody of the minor unlawful and indubitably, merely
because such an order is passed by the Foregin Court, the custody of the
minor would not become unlawful per se. There cannot be a pedantic
approach contrary.
40. The learned Senior Counsels orchestered arguments that, while
dealing with the issue of custody of a child, the Court should impede from
venturing into other branches of law, where it will be always open for the
parties to seek relief since the present Writ Petition is filed for the custody of
child under Article 226 of Constitution of India for a Writ of Habeas Corpus.
41. Again, at paragraph 46 of Nithya Anand Raghavan‟s case,
where it is emphatically observed that “Once again, we may hasten to add that
the decision of the Court, in each case, must depend on the totality of the
30
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 16 113 (2004)
Delhi Law Time 823 resort to any other proceedings as may be permissible in
law before the Indian Court for the custody of the child, if so advised.”
42. The Hon‟ble Supreme Court legalistically laid down the principle
that even in case where Habeas Corpus petition is filed for the enforcement of
an order passed by the Foreign Court cannot be blindly accepted or
implemented without considering the paramount consideration and welfare of
the child. Particularly, this point in the present case is forcibly argued,
concomitantly by both the sides. It was also observed in Nithya Anand
Raghavan‟s case that “India is not yet a signatory to the Hague Convention
and also has no Comity of Court.” A fortiori, as observed by the Hon‟ble
Supreme Court regarding the true test to be applied in a case of Habeas
Corpus dealing with the welfare of the child, the law is well settled. In a recent
judgment of the Hon‟ble Supreme Court in Rohan Rajesh Kothari vs State
of Gujarat and Others 13 , decided on 05.08.2024, while answering as to
whether the order of the Foregin Court needs to be implemented or is decisive
in nature. At paragraph 3, the Hon‟ble Supreme Court has answered as
follows:
“3. It is further clarified that no attempt shall be made or
allowed by the Indian authorities or the Indian Courts (except this
Court) to affect the status of the children or their mother, who are
staying in India, in purported compliance to an order the petitioner is
claimed to have obtained from the District Court, Fourth Judicial13
SLP(Crl).No.1722 of 2024
31District, Family Court Division, State of Minnesota, U.S.A. in July,
2023. A foreign judgment violative of Indian law is not conclusive
between the parties and thus, Indian Courts are not bound to follow it.
This principle is also statutorily recognized by Section 13(f) of the Civil
Procedure Code, 1908. Hence, the aforesaid order is not binding on
the respondents or the children.”
43. The alacrity of the desirous father for the custody of the child by
filing the petitions before the Family Court of England, sitting at Kingston-
upon-Hull, and High Court of England would certainly illuminate love and
affection. But, the letter and spirit of law is that the Court should be ad litem
(guardian) to the child and its welfare, but it gets obliterated for the time being.
44. As seen from the pleadings narrated in the Writ Petition as well
as in the counter-affidavits, the child, Sitara, was moved from the UK in the
year 2019 and since then living with the parents of respondent No.8. In this
connection, it is necessary to refer to the Hague Convention of 1980 on the
Civil Aspects of International Child Abduction.
45. According to Article 12 of the Hague Convention, the child to be
sent back, but if a period of more than one year has lapsed from the date of
removal to the date of commencement of proceedings before the Court, the
child would still be returned unless it is demonstrated that the child is now
settled in her new environment. Article 12 is subject to Article 13 and a return
could be refused if it would expose the child to physical or psychological harm
or otherwise place the child in an intolerable position or if the child is quite
mature. In England, these aspects are covered by the Child Abduction and
Custody Act, 1985. This elucidates and throws light specifically on the present
case that the child, who is now in India has gained acquaintance with the
family of respondent No.8, in particular, with her grandparents. In view of the
duration spent by Sitara with her grandparents, she has encountered close
ties with the parents of respondent No.8 and milieu.
46. The petitioner, in his affidavit, has categorically admitted that, in
order to provide love and affection of the parents of respondent No.8 to the
32
child, he moved the Courts in UK for permission to permit the petitioner to
travel to India during the vacations, enabling the child, Sitara, to spend time
with her grandparents. If that is so, the petitioner‟s intention is very clear that
the child, Sitara, needs love and affection of the grandparents where she is
now presently brought up and living since her removal from the United
Kingdom. To an incisive query to the petitioner, regarding his stay in UK and
the care of the child, during his office hours, to which, his answer was, „staying
alone‟, and employed a maid servant to look into the needs of the child, Sitara.
47. The aspect as to whether the petitioner intentionally moved the
application to travel to India along with the child, Sitara, to spend in India
during the vacations and as to whether the respondent No.8 has given her
consent and accepted the jurisdiction of the England Courts, will be gone into
in the appropriate proceedings initiated before the Courts and it is left open to
the parties to raise the said issues. Since the present petition is only to
handover the custody of the child to the petitioner by implementing the orders
of the Foreign Court i.e., Family Court of England, sitting at Kingston-upon-
Hull, and High Court of England, the same was answered supra that the
orders of the Foreign courts are not binding, particularly, when deciding with
the custody of the child in a Habeas Corpus petition. This aspect is answered
by the Hon‟ble Supreme Court affirmatively, and hence, the request of the
petitioner cannot be considered for the present.
CUSTODY OF CHILD AS PER PARENS PATRIAE DOCTRINE:-
48. There is no dispute regarding the marriage, which was accorded
on 24.11.2017 including solemnization, customization and child, Sitara, who is
now aged about 6 years 4 months that this is also not in dispute. The child is
tangled in between the petitioner and respondent No.8, who are the natural
guardians and having equal force under law for their custody. This Court
sensitizing the parens patriae principle, has to consider the welfare of the child
as paramount which is also disciplined under Article 12 of Hague Convention
and the rulings of the Hon‟ble Supreme Court.
33
49. The argument advanced by the petitioner‟s counsel
Mr.V.V.Lakshmi Narayana, regarding the implementation of the Foreign
Court‟s order under First Strike, intimate contact and closest concern, are also
considered and negatived. This Court, while exercising the jurisdiction under
Article 226 of the Constitution of India, Writ of Habeas Corpus regarding the
custody of child is guided by the afflux and catena of judgments of the Hon‟ble
Supreme Court in the matter of exercising parens patriae and also particularly
when adjudicating the welfare of a girl child.
50. The invocation of First Strike principle as a decisive factor, in our
opinion, would undermine and whittle down the wholesome principle of the
duty of the Court having jurisdiction to consider the best interests and welfare
of the child, which is of paramount importance, if the Court is convinced in that
regard. While considering that aspect, the Court may reckon the fact that the
child was abducted from his or her country of habitual residence but the
Court‟s overriding consideration must be the child‟s welfare, and having
regard to the child‟s presently residence and the laws prevailing in the
positioned place of the child.
51. It is also important to bear in mind a very germane biological
aspect of the matter concerning puberty, privacy and care needed to a girl
child. At this juncture of life, the girl child needs special care and attention of
the mother. There are certain biological changes, which a girl child undergoes,
which cannot be taken care of by the father, who acceding to his admission
that he stays alone in United Kingdom.
52. Children will be reticent in the tender age and may demonstrate a
greater degree of emotional intelligence, awareness, and responsiveness to
her surroundings. This developmental characteristic assumes significance
while considering issues relating to the welfare, care, and emotional security
of a minor girl child.
34
53. This Court opines that it is necessary to elucidate and not to
hesitate to refer the language used by the High Court of Justice, Family
Division sitting at the Royal Courts of Justice, which pricks the mind of the
Court. At point No.15 of the order, it is observed that “the Courts of India do
decline to exercise any jurisdiction in relation to matters of parental
responsibility in respect of the child”. This order passed by the High Court of
Justice, Family Division, Sitting at Royal Courts of Justice, after noticing that
Habeas Corpus petition in India in the High Court of Andhra Pradesh
(No.22723 of 2025) seeking the return of the child to his custody is filed. At
point l, the mother also initiated proceedings in India relating to the child in the
Family Court at Guntur (GWOP No.649 of 2025/FCOP No.649 of 2025).
54. This imprints a fostered culture of subordination and embraces
speaks of colonial mindset. As subsidium sine qua non, this colonial legacy
cannot be permitted to be revived or superimposed upon the independence of
the Indian Judicial.
55. The another glossy argument advanced by Mr.V.V.Lakshmi
Narayana, learned counsel for the petitioner is that the conduct of the
respondent No.8 has to be looked into by the Court. He asserts that
respondent No.8 has, with all letter and spirit, accepted and admitted before
the Family Court of England sitting at Kingston-upon-Hull, that the petitioner
consented to travel to India and more particularly that she has voluntarily
declared her habitual residence to be England and is within the jurisdiction of
England and Wales. Basing on the admission of the respondent No.8, the
Family Court of England sitting at Kingston-upon-Hull passed the orders and
any inflation or vilification of the orders would amount to wanton disobedience.
56. As evinced, the Hon‟ble Supreme Court in Nithya Anand
Raghavan‟s case (supra 3) enshrined that the orders of the Foreign Court
would not be binding when it is a matter pertaining to the custody of the child
where paramount consideration is to be taken.
35
57. In view of the above ratio, which is no more a legal conundrum,
the arguments of the petitioner are necessarily to be negatived.
58. When addressing the issue of visitation rights, the Hon‟ble
Supreme Court, in Yashita Sahu‟s case (supra 10) held as follows:
“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.
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.
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 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.
In addition to „Visitation Rights‟, „Contact rights‟ are also
important for development of the child specially in cases where
both parents live in different states or countries. The concept of
contact rights in the modern age would be contact by telephone,
email or in fact, we feel the best system of contact, if available
between the parties should be video calling. With the increasing
availability of internet, video calling is now very common and
courts dealing with the issue of custody of children must ensure
36that the parent who is denied custody of the child should be able to
talk to her/his child as often as possible. Unless there are special
circumstances to take a different view, the parent who is denied
custody of the child should have the right to talk to his/her child for
510 minutes everyday. This will help in maintaining and improving
the bond between the child and the parent who is denied custody.
If that bond is maintained the child will have no difficulty in moving
from one home to another during vacations or holidays. The
purpose of this is, if we cannot provide one happy home with two
parents to the child then let the child have the benefit of two happy
homes with one parent each.
In the present case, it is not necessary to go into various
allegations and counter-allegations made by both the spouses.
The husband states that he has no intention of divorcing his wife. It
is hoped that the couple can either by themselves or through
mediation settle their disputes which would not only be in their own
custody but also in the interest of the child.
Since at this stage , the dispute between the appellant and
the V remains unresolved, the factors are required to be weighed
in a proper manner to see what is best in the interest of the child.
The child is less than three years old. She is a girl and, therefore,
she probably requires her mother more than her father. This is a
factor in favour of the wife”.
59. In determining the question of welfare of the minor, the Court may
take into consideration the nearness of the relationship of the party with his/her
child, which is a matter of main concern. The word “welfare” has the widest
amplitude and it is to be understood in its wildest sense so as to cover the
material and physical well being, education, health, happiness and moral
welfare of the child. The welfare of the minor has to be determined by the
Court after a full consideration of the facts and circumstances of each and
every case. Recently, the Hon‟ble Supreme Court in the case of Mohtashem
Billah Malik vs. Sana Aftab14, with a slight deviation, held that the welfare of
the child is paramount, but the Courts must also take into consideration the
other relevant factors, including the conduct of the parties, their financial
capacities, standard of living and comfort and education of the children.
(emphasis supplied)
60. The care and inalienable standard is the paramount consideration
of the child‟s welfare which is affected by an array of factas, is ever evolving
14
2026 LiveLaw (SC) 115
37
and cannot be confined to a straitjacket formula. The case need to be dealt
within the basis of the facts and circumstances which have an impact on the
quality of the child‟s upbringing.
61. This Court also emphasizes and expects both the parents to build
“child-parent” bond gradually through the patience and empathy. Court advises
both the parents to ensure effective communication and avoid letting the past
disputes affect the child. Maintaining the relationship with both parents is
crucial even when they live apart. That apart, the child‟s emotional, mental and
physical well being should always be a predence and when such issues arise,
the central question is not who is right or wrong between the parents, but what
arrangements will best serve the child.
62. The Interim Order of this Court dated 08.01.2026 shall continue.
The father as a natural guardian has every right to interact with the child,
Sitara, and this Court permits the father to interact on video calls everyday
and the mother shall ensure the same by allowing to talk with the child, Sitara,
for 30 minutes as per the child‟s adaptability. The order now passed, giving
custody to the mother, does not eclipse or impeach the right of the father to
agitate his claims in the United Kingdom against respondent No.8. The
petitioner shall also ensure the travel tickets and stay of respondent No.8 as
well as the child, Sitara, in the event the Courts of United Kingdom need their
presence.
63. This order cannot be construed by respondent No.8 that the
custody of child is permanently given to her. This order is passed under the
principle of parens patriae, exercising jurisdiction under Article 226 of the
Constitution in the case of custody of a child under a Writ of Habeas Corpus.
64. The law will take its own course in respect of the rights of the
parties in case they want to proceed individually according to the laws
prevailing in India, since the legalistic view is already settled that the laws in
India should be reckoned as long as the child stays in India.
38
65. This order of custody to respondent No.8 remains, till the child,
Sitara, attains majority or subject to option exercised by the child, Sitara, as
per her wish according to her age and capability of thinking.
66. Adverting to the niceties of justice, this Court is of the opinion, to
meet the ends of justice, allow the petitioner to travel to England (place of
residence) along with the child, Sitara, yearly once till she attains majority.
67. Consequenter, with the above directions, the Writ Petition is
disposed of. There shall be no order as to costs.
68. As a sequel, Interlocutory Applications pending, if any, shall stand
closed, except the interim order dated 08.01.2026.
________________________________________
CHEEKATI MANAVENDRANATH ROY, J
___________________________
TUHIN KUMAR GEDELA, J
Date : 01-04-2026
BMS/Tsy
Note : L.R. Copy be marked
39
IN THE COURT OF ANDHRA PRADESH: AT AMARAVATI
***
+WRIT PETITION No.22723 of 2025
Between:
# Gadde Bala Yeswanth ...PETITIONER
AND
$ The State of Andhra Pradesh, Represented by its
Principal Secretary, Department of Home, Secretariat
Building, Velagapudi, Guntur District, Andhra Pradesh
and 7 others ..RESPONDENTS
ORDER PRONOUNCED ON 01.04.2026
SUBMITTED FOR APPROVAL:
THE HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
&
THE HONOURABLE SRI JUSTICE TUHIN KUMAR GEDELA
1. Whether Reporters of Local newspapers
may be allowed to see the Judgments?
Yes/No
2. Whether the copies of judgment may be marked to
Law Reporters/Journals Yes/No
3. Whether Their Ladyship/Lordship wish to see the fair
copy of the Judgment? Yes/No
________________________________________
JUSTICE CHEEKATI MANAVENDRANATH ROY
_____________________________
JUSTICE TUHIN KUMAR GEDELA
40
THE HONOURABLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
&
*THE HONOURABLE SRI JUSTICE TUHIN KUMAR GEDELA
+WRIT PETITION No.22723 of 2025
% 01.04.2026
# Between:
# Gadde Bala Yeswanth ...PETITIONER
AND
$ The State of Andhra Pradesh, Represented by its
Principal Secretary, Department of Home, Secretariat
Building, Velagapudi, Guntur District, Andhra Pradesh
and 7 others ..RESPONDENTS
! Counsel for the Petitioner : Mr.V.V.Lakshmi Narayana
! Counsel for the Respondents 1 to 5 : Learned Assistant Government
Pleader attached to office of learned
Advocate General
! Counsel for the Respondents 6 and 7 : Mr.K.S.Murthy, learned Senior
Counsel
! Counsel for the 8th Respondent : Mr.Posani Venkateswarlu, learned
Senior Counsel appearing on behalf
of Mr.P.Vivek
<Gist :
>Head Note:
? Cases referred: 1. (2010) 1 SCC 174
2. AIR 1962 SC 1778
3. (2017) 8 SCC 454
4. (2019) 7 SCC 42
5. (2018) 9 SCC 578
6. (2019) 7 SCC 311
7. 2025 (1) ALT 426 (DB) (TS)
41
8. (2021) 12 SCC 376
9. (2011) 6 SCC 479
10. (2024) 10 SCC 595
11. (2020) 3 SCC 67
12. 2017 INSC 1195
13. SLP(Crl).No.1722 of 2024
14. 2026 LiveLaw (SC) 115
