A pre-existing order of a foreign court can be reckoned only as one of the factor to be taken into consideration, the Bench observed.
While reversing an order of the Delhi High Court, which directed a mother to comply with the direction of a court in the United Kingdom to produce her child before it, the Supreme Court, in Nithya Anand Raghavan vs State of NCT of Delhi, has observed that the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court.
The Delhi High Court had allowed a habeas corpus filed by the father of the girl child alleging that she is in illegal custody of her mother, since there is an order of UK court, to that effect. The mother approached the apex court against the said order.
A three-judge bench comprising Justice Dipak Misra, Justice AM Khanwilkar and Justice Mohan M Shantanagoudar said merely because an order was passed by the foreign court directing the mother to produce the child before it, the custody of the minor would not become unlawful per se.
Referring to the order passed by the UK court, the bench said no finding has been rendered that till the minor returns to England, the custody of the minor with the mother has become or will be treated as unlawful, including for the purposes of considering a petition for issuance of writ of habeas corpus.
“He can take recourse to such other remedy as may be permissible in law for enforcement of the order passed by the foreign court or to resort to any other proceedings as may be permissible in law before the Indian Court for the custody of the child, if so advised,” the bench added.
It further observed: “Whether it is a case of a summary inquiry or an elaborate inquiry, the paramount consideration is the interests and welfare of the child. Further, a pre-existing order of a foreign Court can be reckoned only as one of the factor to be taken into consideration.”
The court observed that only in exceptionable situation, the custody of the minor (girl child) may be ordered to be taken away from her mother for being given to any other person, including the husband (father of the child), in exercise of the writ jurisdiction.
It also observed that the child being a girl, the guardianship of the mother is of utmost significance. Ordinarily, the custody of a “girl” child who is around seven years of age must ideally be with her mother unless there are circumstances to indicate that it would be harmful to the girl child to remain in custody of her mother.
The court, though dismissed the habeas corpus writ petition, observed that mother cannot disregard the proceedings instituted before the UK court and she must participate in those proceedings by engaging solicitors of her choice to espouse her cause before the High Court of Justice.
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