The Supreme Court has held that an order of a foreign court must yield to the welfare of the child in a custody dispute, and that an Indian court cannot blindly follow a foreign order or act merely as its executing court, LawStreet and Verdictum reported. A bench of Justices J.B. Pardiwala and K.V. Viswanathan allowed a father's appeal and directed that his minor daughter, a citizen of the United States who was brought to India by her mother in breach of a California custody order, be returned to the USA.
The parties married in New Jersey in 2018 and set up home in California, where their daughter was born in 2019, LawStreet reported. By an order dated August 25, 2022, the Superior Court of California, Contra Costa County, granted joint custody with equal shared parenting and barred either parent from removing the child from California without the other's written consent or a court order. Barely two weeks later, on September 8, 2022, the mother left for India with the child; on December 2, 2022, the California court recorded the violation and directed the child's immediate return.
The father moved the Karnataka High Court in a habeas corpus petition, but the High Court dismissed it on December 20, 2023, holding that the mother's custody was not illegal because Section 6 of the Hindu Minority and Guardianship Act, 1956 treats the mother as the natural guardian of a child under five, and relying on the child's comfort with her mother, the delay in approaching the court and the absence of harm, LawStreet reported. The Supreme Court reversed that decision in its judgment of October 8, 2026, holding that the child's welfare lies in continuing her life in the United States.
Explaining the legal position, the bench observed, as quoted by Verdictum: “the decision in such cases turns not on the legal rights of the parties but on the welfare of the child… an order of a foreign court must yield to the welfare of the child.” The court added that a parent's disobedience of a foreign order does not by itself require automatic enforcement, and that habeas corpus cannot be invoked merely to enforce a foreign court's directions; at the same time, comity of courts requires that a foreign order be given grave consideration, Verdictum reported.
The court directed that the child travel back to the United States by December 31, 2026, accompanied by her mother, who agreed through counsel to go with her, Legal Republic reported. The court said it would not compel the mother to move or to stay in the marriage, but that she could not insist on the child remaining in India. The bench also recorded that it had attempted mediation, taking up the matter on not less than ten occasions, without the parties reaching a consensus, LawStreet reported.