Rajasthan High Court: In a habeas corpus petition filed by the father seeking the custody of his minor son, a U.S. citizen, currently in India, a Division Bench of Shubha Mehta and Pankaj Bhandari,* JJ., allowed the petition and held that the son’s welfare would be best served in the U.S., where he enjoys full citizenship rights, rather than remaining in India as an illegal migrant.
Factual Matrix
In the instant matter, the petitioner (father) seeks custody of his minor son, currently with respondents 2 to 4, including the child’s mother (respondent 2). The minor son born in the USA on 27-06-2018, is a U.S. citizen. The petitioner secured a custody order from a U.S. court on 30-07-2019. The child traveled to India with his mother in September 2018. Despite having a return ticket to the USA, the mother filed a guardianship proceeding in India in November 2018 under the Hindu Minority and Guardianship Act, 1956.
The petitioner filed habeas corpus petitions before the Supreme Court and this High Court, but both were dismissed or withdrawn, leading to the current petition before this Court. The mother claimed the minor son’s custody based on a family court order dated 07-10-2023, where the family court considered the child’s welfare and residency in India for six years.
Moot Point
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Whether the detention of Corpus by respondents 2 to 4 illegal?
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Whether the Indian Family Court’s order can override the U.S. Court’s custody order?
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Whether the High Court should exercise habeas corpus jurisdiction to resolve custody disputes?
Petitioner’s Contentions
The petitioner contended that the U.S. custody order is valid and based on the principle of Comity of Courts which mandates respecting foreign custody judgments. It was stated that the child’s welfare is best served by returning to the USA with the petitioner, considering his U.S. citizenship and the circumstances under which the child was brought to India. It was contended that the Family Court in India lacked territorial jurisdiction under Section 9 of the Guardians and Wards Act, 1890. It was argued that the prolonged stay in India rendered the child an illegal migrant due to visa expiration and restricted his rights under the Constitution of India.
The petitioner cited Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698, where the Supreme Court granted the custody to the mother as the child was a U.K. citizen., when the father had brought the minor child to India, Elizabeth Dinshaw v. Arvand Dinshaw, (1987) 1 SCC 42, where the Supreme Court directed the return of a minor U.S. citizen to the custodial parent in the U.S. and Lahari Sakhamuri v. Sobhan Kodali, (2019) 7 SCC 311, where the Supreme Court highlighted the paramount consideration of the child’s welfare in custody matters and held that U.S. Court had exclusive jurisdiction in the matter as the children happen to be U.S. citizen.
Respondents’ Contentions
The respondents contended that the custody order by the Family Court in India is lawful and prioritised the child’s welfare. It was stated that the petitioner has other remedies, such as appealing the Family Court order, instead of seeking habeas corpus. It was argued that the child has been in the mother’s care for six years and separating him would disrupt his stability and welfare.
The respondents relied on Arya Selvakumar Priya v. Joint Secretary, 2023 SCC OnLine Kar 993, where the Karnataka High Court held that child cannot be disturbed and the Central Government has power to do justice to a child, Nasir Khan v. State of Rajasthan, 2023 SCC OnLine Raj 4723, where the Rajasthan High Court held that the Courts cannot go into disputed question of facts in a habeas corpus petition and Rohan Rajesh Kothari v. State of Gujarat,[1] wherein the Supreme Court held that custody issue is to be resolved by competent Court i.e. Family Court and Foreign Court judgment is not to be given effect and directed the authorities to not disturb the custody of the minor with mother.
Court’s Analysis
The Court noted that it is not dispute that corpus, minor child is a U.S. citizen, have a passport issued by the United States of America and came to India with his mother on on a visa issued by Indian Embassy. The Court noted that the mother did not come with clean hands when she filed a petition before the Family Court as she did not reveal that her son is a U.S. citizen and that he does not ordinarily reside at Jaipur
The Court noted that under Section 9 of the Guardians and Wards Act, a guardianship petition must be filed in the district where the minor “ordinarily resides.” The Court stated that temporary stay in India on a visa does not establish ordinary residence. The Court asserted that, in the present case, the child’s temporary stay in India on a limited visa did not qualify as “ordinary residence.” The Court held that the Family Court, Jaipur, lacked jurisdiction as the child who is a U.S. citizen and who has come on a visa issued by the Indian Embassy for a limited period, cannot be said to be ordinarily resident of Jaipur.
“The expression ‘ordinarily resides’ meant that it is something more than a temporary residence. A temporary resident at a particular place under compulsion, however long, cannot be termed as place of ‘ordinarily resides’. The term ‘ordinarily resides’ does not mean casual or factual residence of the minors.”
The Court stated that the U.S. Court is the competent forum to adjudicate custody, considering child’s citizenship and habitual residence. The Court asserted that the U.S. Court’s custody order dated 30-07-2019 should have been respected by the Family Court as the U.S. Court had proper jurisdiction and had also prioritised the child’s welfare.
The Court stated that as an illegal migrant child, the Corpus will not be entitled to many of the Constitutional rights guaranteed under the Constitution of India and would always be treated as an illegal migrant and would not even be treated as second class citizen as he is not even holding an Overseas Citizenship of India Card. The Court emphasised that the child’s welfare is best served in the U.S., where he enjoys full rights as a citizen, unlike in India, where he would be treated as an illegal migrant post visa expiry. The Court further stated that the father, living in the U.S., has the means to support the child and has shown willingness to accommodate the mother if she chooses to join them in the U.S.
Court’s Decision
The Court allowed the habeas corpus petition and directed the mother-respondent 2 to decide within two weeks and facilitate minor child’s return to the U.S. The Court stated that the mother has two options either she returns to the U.S. with child and comply with the U.S. court’s custody order or if she is unwilling to return, must hand over child to the petitioner or his parents for repatriation to the U.S. The Court further directed the petitioner to ensure that respondent 2 has access has access to the child via calls or visits when feasible.
[Vikrama P. V. Mocherla v. State of Rajasthan, D.B. Habeas Corpus Petition No. 375/2023, Decided on 05-12-2024]
*Judgment by Justice Pankaj Bhandari
Advocates who appeared in this case :
Mr. Shadan Farasat, Sr. Advocate assisted by Mr. Tarun Agarwal, Mr. Bhaskar Agrawal, Ms. Mitali Karwa, Counsel for the Petitioner
Mr. V.R. Bajwa, Sr. Advocate assisted by Mr. Snehdeep Khyaliya, Ms. Sonal Singh, Counsel for the Respondents
Mr. Rajesh Choudhary, GA-cum-AAG with Mr. Aman Kumar, AAAG, Counsel for the State
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[1] Special Leave to Appeal (Crl.) No.1722/2024, dated on 05.08.2024.
