Order Of A Foreign Court Must Yield To Welfare Of The Child; Indian Court Cannot Blindly Follow It Acting Merely As Executing Court: Supreme Court
The Bench noted that the comity of courts requires foreign order be given “grave consideration”; wrongdoing of parent not to be balanced against welfare of child.
Justice J.B. Pardiwala, Justice K.V. Viswanathan, Supreme Court
The Supreme Court has held that an order of a foreign court must yield to the welfare of the child, and that a court in India, when exercising its jurisdiction, cannot blindly follow such an order and act merely as an executing court. The Court observed that, once seized of a habeas corpus petition between two parents, it exercises its parens patriae jurisdiction and must assess the child’s welfare for itself. A parent’s disobedience of a foreign order therefore does not, by itself, require automatic effect to be given to that order, nor can habeas corpus be invoked merely to enforce the directions of a foreign court.
The Court clarified that the paramountcy of welfare does not mean a foreign order is to be disregarded. In forming its independent judgment, the court must give the order proper weight, since comity of courts requires that it be given grave consideration. That weight depends on the nature of the order, the time elapsed since it was passed, and any change in circumstances. The principle that a wrongdoer ought not to gain from their own wrong is not to be balanced against the welfare of the child, as that would take away the primacy of welfare. Only after welfare has been fully considered, and where it is met more or less equally either way, may the court have regard to a parent’s disregard of a competent court’s order.
A Bench of Justice J.B. Pardiwala and Justice K.V. Viswanathan observed, “…the decision in such cases turns not on the legal rights of the parties but on the welfare of the child. The same emphasis on welfare over legal entitlement runs through our statutes on custody and guardianship.4 They make clear that a person otherwise entitled to custody or guardianship need not be granted it if that would not be for the welfare of the child. There is thus no ambiguity in the fact that an order of a foreign court must yield to the welfare of the child. The necessary consequence of the paramountcy of the child’s welfare, and of a foreign order yielding to it, is simple. A parent’s disobedience of a foreign order does not, by itself, require the court to give automatic effect to that order. Nor can the remedy of habeas corpus be invoked merely to enforce the directions of a foreign court”.
“…a court in this country, when exercising its jurisdiction, cannot blindly follow the order of a foreign court and act merely as an executing court…Comity of courts may not require that such an order be enforced, but it does require that the order be given grave consideration”, the Bench further noted.
Senior Advocates Mukul Rohatgi and Meenakshi Arora appeared for the appellant and Advocate Malavika Rajkotia appeared for the respondent.
The parties married in New Jersey on May 05, 2018, and set up their home in California. A daughter, a US citizen, was born on May 19, 2019. After the marriage broke down, the wife sought divorce and custody in the Superior Court of California. By order dated August 25, 2022, that court granted joint custody with an equal time share and barred removal of the child from California without consent. On September 08, 2022, the wife left for India with the child. On December 02, 2022, the California court recorded a violation and directed the child’s return.
The father approached the Karnataka High Court under habeas corpus, where by a judgment dated December 20, 2023, the High Court dismissed the petition, holding the mother’s custody lawful under Section 6 of the Hindu Minority and Guardianship Act, 1956, and finding it in the child’s interest to remain with her. The father appealed.
The Court held that, between two parents, the threshold for habeas corpus is wrongful deprivation of a parent’s custody rather than illegality of detention. It found the matter unsuited to a summary inquiry, as the child had lived in India for nearly four years, and proceeded on an elaborate inquiry. It rejected the High Court’s reliance on the eight-month delay, the child’s demeanour and the absence of harm. The child’s preference to stay with her mother was natural, and nothing showed she would suffer harm with her father. Her US citizenship made a strong case for her to grow up and be educated there. As the case was not one-sided, the mother’s breach of the California order, passed on her own petition, tilted the scales further.
The Court directed the mother to travel to the USA with the child on or before December 31, 2026, as her counsel had stated. It ordered the child’s expired passport to be handed over within one week and renewed. It recorded the father’s undertakings on accommodation, restoration of her Green Card, monthly support of USD 3,200 and no legal action over the violation, to be filed by affidavit. He must furnish security of Rs. 1,00,00,000 within two weeks. The matter will be listed on January 05, 2027. The wife’s connected special leave petition was dismissed.
Cause Title: V v. State of Karnataka & Ors. (Neutral Citation: 2026 INSC 1130)
Appearances:
Appellant: Mukul Rohatgi and Meenakshi Arora, Senior Advocates, Prabhjit Jauhar, Advocate.
Respondent: Malavika Rajkotia, Advocate.