The Supreme Court has directed a mother to take her US-citizen daughter back to the United States on or before December 31, 2026, holding that the child's welfare is paramount and must prevail over the order of a foreign court. A bench of Justices J.B. Pardiwala and K.V. Viswanathan allowed the father's appeal and set aside the Karnataka High Court's judgment of December 20, 2023, which had dismissed his habeas corpus petition seeking the child's return.
Source: LawStreet Journal
The couple married in New Jersey in 2018 and lived in California, where their daughter was born in 2019. After the marriage broke down, the mother herself approached the Superior Court of California, which on August 25, 2022 granted the parents joint custody on an equal basis 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. The California court later recorded the violation and directed the child's immediate return.
Source: Legal Republic
Welfare first, foreign court orders second
Laying down the approach for cross-border custody disputes, the Court held that “an order of a foreign court must yield to the welfare of the child.” A habeas corpus petition in a custody contest, it said, can rest on the wrongful deprivation of one parent's right to custody, and not only on strictly illegal detention. Disobedience of a foreign order does not by itself require its automatic enforcement, but the order must be given proper weight under the comity of courts, and a parent should not ordinarily be allowed to benefit from their own wrong — a factor the Court said may be considered only after welfare has been fully examined, when the scales are otherwise evenly poised.
Source: LawStreet Journal
Because the child had been in India for nearly four years, the Court conducted an elaborate inquiry rather than ordering a summary return. It found the High Court's reasons insufficient: the child's comfort with her mother reflected four years of living only with her, her tender age meant her wishes could not be meaningfully ascertained, no material showed she would be harmed in her father's care, and the father's delay of about eight months in approaching the court was not long enough to establish that she had put down firm roots in India. The Court said the child, as a US citizen, should grow up and be educated in the USA. It also recorded that it had attempted mediation on not less than ten occasions, without success. Counsel for the mother had argued, among other things, that India is not a signatory to the Hague Convention on child abduction.
Source: Legal Republic
The Court clarified that it could not compel the mother to move to the United States or continue the marriage, but she could not insist that the child remain in India. On her counsel's statement that she would accompany the child, the Court directed her to travel to the USA with the daughter by December 31, 2026, with the father to cooperate in renewing the child's expired passport. The father's undertakings — including separate accommodation for the mother, help in restoring her lapsed Green Card and monthly support of USD 3,200 — are to be filed by affidavit, and he must furnish security of Rs 1 crore (yaani one crore rupees) by way of a fixed deposit in the name of the Registrar, Supreme Court, within two weeks. The Court said its observations will not affect the custody and divorce proceedings pending in the USA, listed the matter for a report on January 5, 2027, and dismissed a connected petition by the mother arising from the Jamshedpur family court proceedings.
Source: Legal Republic