MP High Court: In a writ petition of habeas corpus, filed under Article 226 of the Constitution, for production and custody of the minor children, a Division Bench of Vijay Kumar Shukla* and Binod Kumar Dwivedi, JJ., refused to enforce the foreign court order granting the custody of minor children to petitioner father, considering the “welfare” and “best interest” of the minor children. The Court held that the custody cannot be handed over to the petitioner father on the basis of a foreign decree as the welfare of the child is of paramount consideration.
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Background:
The petitioner resided in the United States of America, since 2017, with his wife and two minor children, the younger one being the citizen of the United States by birth. In August 2024, the respondent, i.e., the wife, expressing her desire to visit her family in India, travelled along with minor children and eventually refused to return to United States, restricting petitioner’s access to minor children. Petitioner visited India in October 2024 to resolve the dispute but despite his repeated efforts, the respondent declined to return to United States with children. Petitioner initiated court proceedings in United States but respondent did not appear, upon which the District Court, 480th Judicial District, Williamson County, Texas, passed an order, in Cause No. 25-0237-F480, appointing petitioner as the sole managing conservator of the minor children and granted him the exclusive right to designate their primary residence. But the order was not complied with by the respondent.
On no alternative remedy being available, the petitioner approached this Court seeking issuance of a writ of habeas corpus for production and custody of the minor children, asserting that the continued custody with respondent is unlawful and not in welfare of the minor children.
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Contentions: It was the contention of the petitioners that the elder child had spent most of his life in USA whereas the younger one was a citizen of USA by birth. Thus, it became the place of “habitual and ordinary residence” of the minor children and the same will be in the “welfare and best interest of the children”. Moreover, the foreign court order passed by a court of competent jurisdiction, deserves due respect and the retention of children in India is illegal. On the other hand, the respondents submitted that mere existence of a foreign decree is not conclusive and the same cannot be sought to be executed. The welfare of the children is paramount and the summary return would be detrimental to their well-being.
Issues: 1) Whether this Court is bound to summarily enforce the foreign court decree? 2) Whether retention of both the children in India is illegal? 3) What is in the paramount welfare of the minor child, particularly with regard to schooling and overall development?
Analysis
The Court observed that the Supreme Court has consistently held, regarding law relating to execution of an order of a foreign court in respect of custody of the children, that comity of courts is important but not absolute, and welfare of the child is the paramount consideration.
The Court also alluded to Indian civilizational thought while emphasising the importance of maternal care in child custody matters. Referring to illustrations from the Ramayana, where Luv and Kush were raised by Mata Sita despite the father being the reigning monarch, and from the Mahabharata, which recognises the intrinsic and enduring bond between mother and child as seen in the relationship between Kunti and Karna, the Court observed that motherhood has historically been viewed as central to a child’s emotional and moral upbringing. “The Ramayan and Mahabharat do not frame custody as a dispute between parents, but as a duty owed to the child.” It noted that these civilizational values resonate with modern child custody jurisprudence, which places the welfare and best interests of the child above parental rights and legal formalities. The Court observed that,
“The mother is portrayed as the first home, first teacher, and first protector, making the child’s right to stay with the mother a civilizational norm, not merely a modern legal construct.”
Therefore, the Court held that that in the matters relating to custody of a minor child, the paramount consideration is the “welfare” and “best interest” of the children and not the legal rights of the parents. In relation to the impact of an order of a foreign court relating to interest, it is well settled that the same is a relevant factor, but not conclusive. The doctrine of comity of courts cannot overwrite the paramount consideration of the welfare of the children. The Indian Court is not bound to mechanically enforce a foreign custody order, if such enforcement would be contrary to the child’s welfare.
The Court, considering the age of the children, their need of maternal care and emotional and educational stability, held that the custody of the children cannot be directed to be handed over to the petitioner solely on the basis of a foreign decree, as it will not subserve the “welfare” and “best interest” of both the children to return to the foreign country and the custody of the petitioner. The Court clarified that it had not adjudicated the issue of permanent custody and confined itself to the issue of ‘welfare’ and ‘best interest’ of the children.
[Ankur Joshi v. State of M.P., Writ Petition No. 23561 of 2025, 2026:MPHC-IND:10638, decided on 20-4-2026]
*Judgment authored by: Justice Vijay Kumar Shukla
Advocates who appeared in this case:
For Petitioner: Shadan Farasat, Harshit Anand, Priyal Jain, Piyush Parashar
For Respondents: Sunil Ranmchandani, Praveen Yogi, Rahul Sethi