Delhi High Court Refuses Habeas Corpus Plea In Transnational Custody Dispute, Directs Father To NCPCR Mediation Mechanism
The Delhi High Court has declined to entertain a habeas corpus petition filed by a father seeking production of his minor son currently residing in the United States with his ex-wife.The Division Bench of Justices Prathiba M. Singh and Madhu Jain directed the Petitioner to approach the National Commission for Protection of Child Rights, which is specially constituted to deal with...
The Delhi High Court has declined to entertain a habeas corpus petition filed by a father seeking production of his minor son currently residing in the United States with his ex-wife.
The Division Bench of Justices Prathiba M. Singh and Madhu Jain directed the Petitioner to approach the National Commission for Protection of Child Rights, which is specially constituted to deal with such transnational custody issues between spouses and families.
“NCPCR is a body which is now extensively dealing with such matters where the children are either brought to India or taken away from India by one of the parents. The NCPCR has a complete framework which is working for resolution of such matters through mediation. Accordingly, in the opinion of this Court, the Petitioner ought to pursue his remedy before the NCPCR itself and this is not an ideal case for entertaining a Habeas Corpus petition under Article 226 of the Constitution of India,” it observed.
Petitioner and his wife, both US citizens at the time of marriage, were married in 2003 and later had two children. While the daughter has now attained majority, the minor son has been residing in the US with the mother since 2018.
Petitioner alleged that his ex-wife had taken the children to the United States without prior intimation. However, the respondent contended that the move was communicated and mutually contemplated, pointing out that the petitioner himself had arrangements in place in the US.
The High Court noted that the habeas corpus petition was filed almost 8 years after the children were taken to the USA. “The disputed question of fact as to whether the Respondent No. 5 had intimated the Petitioner prior to taking the children cannot be determined in the present proceeding, especially, after significant period having lapsed,” it observed.
Reliance was placed on Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) where the Supreme Court held that the though a writ of Habeas Corpus would be maintainable in cases where a minor has been detained by a parent illegally or without authority of the law, however, availing the said extraordinary remedy would be subject to the ordinary remedy is either unavailable or ineffective.
It emphasised that the paramount consideration in custody disputes is the welfare of the child, which cannot be adequately assessed in summary writ proceedings.
It added that the institutional mechanism available under NCPRC has a dedicated mediation framework for resolving transnational child custody disputes.
“Mediation Cell in NCPCR has been constituted to resolve cases of children who were taken by one of the spouse without permission of the other spouse from either overseas countries to India or vice-versa, and for preparing a Parental Plan with mutual consent of the parties…the NCPCR may engage and take assistance of one practicing child psychologist, one representative from National Legal Services Authority working in the field of child custody or any other expert whose services are necessary for participating the proceedings of the Mediation Cell. The local mission of the country where one of the spouses is residing may also be engaged by the Mediation Cell,” the Court explained.
As such, the Court disposed of the petition, granting liberty to the petitioner to pursue appropriate remedies before the NCPCR.
Appearance: Ms. Chand Chopra, Mr. Punishk Handa, Advs. alongwith Petitioner No. 1 in person; Ms. Radhika Bishwajit Dubey, CGSC with Ms. Gurleen Kaur Waraich, Mr. Kritarth Upadhyay, Mr. Vivek Sharma, Mr. Amulya Dev Mishra, Advs. Ms. Anubha Bhardwaj, SPP along with Ms. Ananya Shamshery, Ms. Muskan Chawla, Advs. for R4 Ms. Priya Singh, GP Mr. Attin Shankar Rastogi, Mr. Rajesh Ranjan, Mr. Archit Chauhan, Mr. Shivkant Arora, Mr. Adil Vasudeva, Mr. Jigyasa Prashaer, Advs. for R5
Case title: JSM & Anr v. Union Of India Through Ministry Of Home Affairs & Ors.
Case no.: W.P.(CRL) 1183/2025