Principle Of Comity Of Courts Can’t Be Invoked To Seek Execution Of Foreign Court Orders Through Child Custody Habeas Corpus Petitions: Bombay High Court
The Court held that though the principle of comity of courts is an important consideration in international child custody disputes, Indian constitutional courts exercising habeas corpus jurisdiction cannot act as executing courts for foreign custody orders unless repatriation is independently shown to be in the paramount interest and welfare of the child.
The Bombay High Court at Goa has refused to direct repatriation of a minor child to the United States in a habeas corpus petition filed by the father, holding that foreign court orders cannot be mechanically enforced in India merely on principles of comity of courts without independently examining the welfare and best interest of the child.
The Court observed that the jurisdiction exercised under Article 226 of the Constitution in child custody habeas corpus matters is not intended to function as a mechanism for execution of foreign decrees, particularly where disputed questions relating to welfare, safety, age and custody of the child require substantive examination.
The Court was hearing a writ petition filed by a US-based father seeking issuance of a writ of habeas corpus for the production and repatriation of his minor daughter from Goa to the United States. The petitioner alleged that the respondent-mother had unlawfully removed the child from the jurisdiction of the Utah Court in violation of protective and custody-related orders passed by the US Court during pending divorce proceedings.
A Division Bench of Justice Suman Shyam and Justice Amit S. Jamsandekar observed: “The entire thrust of the statements made in the petition and the submission of Mr Jauhar is on the proceedings pending in the US Court and the orders passed therein. However, it is to be noted herein that the Court, while exercising jurisdiction under Article 226 of the Constitution of India, does not exercise jurisdiction to execute a foreign decree or an order passed by a foreign court”.
“Though the comity of court is a healthy principle in law, yet, by invoking it, this Court cannot execute the order passed by the US Court, and that cannot be a criterion to issue a writ of Habeas Corpus, unless it is cogently established that such an order will be in the best interest of the child”, the Bench added.
Further, while referring to Dhanwanti Joshi Vs. Madhav Unde (1998), the Bench reiterated: “…the duty of the Court to consider the overarching welfare of the child, … Be it noted, the predominant criterion of the best interests and welfare of the minor outweighs or offsets the principle of comity of courts”.
Senior Advocate Prabhjit Jauhar appeared for the petitioner-father. Senior Advocate A. Agni appeared for the respondent-mother. Additional Public Prosecutor Pravin Faldessai appeared for the State authorities.
Background
According to the petitioner, the parties had been residing in the United States for several years and had solemnised their marriage in California in 2013. Their daughter was born in New York in September 2022 and was stated to be a US citizen by birth. The petitioner contended that the family had shifted to Salt Lake City, Utah, in 2023.
The petitioner alleged that after marital disputes arose, he initiated divorce and custody proceedings before the Utah Court. It was contended that on 16 October 2025, the Utah Court passed a Domestic Relations Injunction restraining both parties from removing the child from the State of Utah without written consent or court permission.
According to the petitioner, despite knowing the injunction order, the respondent-mother travelled to India with the child on the very same day without obtaining permission from the Utah Court. The petitioner argued that the respondent had illegally removed the child from the jurisdiction of the foreign court and was in violation of lawful custody-related orders passed in the United States.
The petitioner, therefore, sought issuance of a writ of habeas corpus directing production and repatriation of the child to the United States. Strong reliance was placed on the principle of comity of courts and judgments of the Supreme Court dealing with transnational child custody disputes.
The respondent-mother opposed the petition, contending that she was the biological mother and natural guardian of the child, who was only around three years old and still dependent upon maternal care and breastfeeding. It was also argued that the foreign court orders were ex parte in nature and could not automatically be enforced in India through writ jurisdiction.
The respondent further contended that the petitioner had suppressed material facts concerning the parties’ marriage registration in Goa and had not approached the Court with clean hands. It was argued that custody disputes involving welfare determination ought to be adjudicated under substantive guardianship laws and not through summary habeas corpus proceedings.
Court’s Observation
The High Court undertook an extensive examination of the jurisprudence governing child custody habeas corpus petitions involving foreign court orders and principles of comity of courts.
The Court referred to the decisions of the Supreme Court in Nithya Anand Raghavan v. State (NCT of Delhi) (2017), Kanika Goel v. State of Delhi (2018), Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (2019), and Rajeswari Chandrasekar Ganesh v. State of Tamil Nadu (2023), reiterating that in matters concerning custody of minor children, the paramount consideration remains the welfare and best interest of the child.
The Bench observed that the doctrine of comity of courts, though important in maintaining harmony and respect between judicial systems of different nations, cannot override the independent obligation of Indian constitutional courts to assess the welfare of the child before directing repatriation.
The Court observed: “The 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 and the settled legal position referred to above.”
Relying upon Nithya Anand Raghavan (2017), the Court reiterated that the custody of a child with the biological mother cannot automatically be termed unlawful merely because a foreign court has passed a return or custody order.
The Court quoted: “Merely because there is an order passed by a foreign court against the mother of the child to produce the child before it, the custody of the child with the mother would not become unlawful per se.”
The Bench further held that the petitioner was effectively seeking enforcement of the orders passed by the Utah Court through writ jurisdiction under Article 226, which was legally impermissible.
The Court observed: “The Court, while exercising jurisdiction under Article 226 of the Constitution of India, does not exercise jurisdiction to execute a foreign decree or an order passed by a foreign court.”
The High Court also took note of the age and condition of the child, observing that the child was merely about three years and six months old and was still being breastfed. The Court found that such factors carried substantial relevance while determining welfare and immediate custodial arrangements.
The Court further observed that the petitioner had initially suppressed the fact that the marriage between the parties had been solemnised and registered in Goa. The Bench noted that the marriage registration certificate produced by the respondent attracted the applicability of the Portuguese Civil Code and Portuguese Civil Procedure Code.
The Court observed: “The Petitioner has initially made a false statement in the Petition. He has suppressed the fact that the marriage of the couple was solemnised in Goa on 21st February 2014.”
The Bench also noted that several disputed factual issues existed regarding service and knowledge of the foreign court orders and the surrounding matrimonial circumstances, which rendered summary adjudication through habeas corpus jurisdiction inappropriate.
The Court reiterated that child custody disputes ordinarily require substantive adjudication under the Guardians and Wards Act and other personal laws, whereas habeas corpus jurisdiction is limited to exceptional cases involving unlawful custody.
Conclusion
The Bombay High Court held that the petitioner had failed to establish that repatriation of the child to the United States would be in the paramount welfare and best interest of the child.
The Court further held that principles of comity of courts could not be invoked to mechanically enforce foreign custody-related orders through writ jurisdiction under Article 226 of the Constitution.
Accordingly, the Court declined to issue a writ of habeas corpus directing repatriation of the child and dismissed the petition.
Cause Title: AB v. State of Goa & Ors. (Neutral Citation: 2026:BHC-GOA:1021-DB)
Appearance
Petitioner: Senior Advocate Prabhjit Jauhar with Vijeta Poulekar, Rosemary Raju and Chahat Raghav
Respondents: Additional Public Prosecutor Pravin Faldessai with Advocate Swizel Falcao; Senior Advocate A. Agni with Advocates Gautami Kamat, Junaid Shaikh Shirodkar and Samiksha Vaigankar