# Aarav Shukla & Anr v. State of U.P. & Ors

- **Citation:** (2023) 6 ILRA 601
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-18
- **Case number:** Habeas Corpus No. 43 of 2020
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/aarav-shukla-anr-v-state-of-u-p-ors-50335
- **Pages:** 28

## Headnote

The Constitution of India, 1950-Article226- WRIT of Habeas Corpus- Doctrine
of intimate and closest concern are of
persuasive relevance only when the
child has uprooted from its native
country
and
taking
to
a
place
to
encounter alien environment, language,
customs and surroundings etc.,which
may have substantial bearing on the
process of his over all growth and
grooming. As the child was very tender
age it cannot be supposed that he was
segregated
from
social
customs
prevalent to U.S.A. to which he has been
accustomed. He did not receive any
schooling, education or care of any
daycare institution in U.S.. On the
contrary minor child is under due care of
his mother and maternal grand parents
and other relatives of maternal side
since his arrival in Noida (India). There
is no consent order with regard to
custody of child by U.S court or any
competent authority in U.S. even after
alleged order dated 24.12.2020 which
was passed by U.S. court with regard to
custody of child long after his departure
from U.S-No compelling reason to direct
return of minor child to U.S., nor his stay
in the company of his mother along with
maternal grand parents at Greater Noida
is prejudicial to his interest in any
manner warranting his return to U.S -
Issue of custody of child ought not to be
on the basis of rights of parties claiming
custody of minor child but to focus
should stand on whether the factum of
best
interest
of
the
minor
childVisitation rights to father are admissible
so that he may have access to minor
child whenever he would visit India.
(Para 33 & 34) (E-15)

List of Cases cited:

## Text

_Characters 0–39,721 of 101,156. This is a partial read: ask again with offset=39721 for what follows._

6 All. Aarav Shukla & Anr. Vs. State of U.P. & Ors.
601
and date specifically incorporated in the
policy and not from an earlier point of
time."

 (emphasis by Court)

23. In view of the findings of this
Court that the policy was issued in fact
at 2:00 p.m. on 04.09.1991 and the
accident happened at 10:30 a.m., earlier
in the day, the principles of law laid
down by the Supreme Court in Sunita
Rathi and Smt. Sobina Iakai, squarely
apply to the Insurers' case. In the
opinion of this Court, therefore, the
liability to satisfy the award would go to
the owners and the insurers have to be
relieved.

24. In the result, this appeal succeeds
and is allowed. The impugned judgment
and award dated 13.10.1992 passed by the
Motor
Accident
Claims
Tribunal
is
modified and it is ordered that the award
shall be satisfied by the owners and not the
Insurers. The Insurers shall be entitled to
costs in the sum of Rs.10,000/- recoverable
from the owners.
----------
(2023) 6 ILRA 601
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.05.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Habeas Corpus No. 43 of 2020

Aarav Shukla & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Upendra Singh, Sri Nitin Chopra, Sri Prakhar
Saran Srivastava, Sri Suvarna Singh, Sri Tarun
Agarwal, Ms. Rosemarry Raju
Counsel for the Respondents:
G.A., Sri Ashish Deep Verma

The Constitution of India, 1950-Article226- WRIT of Habeas Corpus- Doctrine
of intimate and closest concern are of
persuasive relevance only when the
child has uprooted from its native
country
and
taking
to
a
place
to
encounter alien environment, language,
customs and surroundings etc.,which
may have substantial bearing on the
process of his over all growth and
grooming. As the child was very tender
age it cannot be supposed that he was
segregated
from
social
customs
prevalent to U.S.A. to which he has been
accustomed. He did not receive any
schooling, education or care of any
daycare institution in U.S.. On the
contrary minor child is under due care of
his mother and maternal grand parents
and other relatives of maternal side
since his arrival in Noida (India). There
is no consent order with regard to
custody of child by U.S court or any
competent authority in U.S. even after
alleged order dated 24.12.2020 which
was passed by U.S. court with regard to
custody of child long after his departure
from U.S-No compelling reason to direct
return of minor child to U.S., nor his stay
in the company of his mother along with
maternal grand parents at Greater Noida
is prejudicial to his interest in any
manner warranting his return to U.S -
Issue of custody of child ought not to be
on the basis of rights of parties claiming
custody of minor child but to focus
should stand on whether the factum of
best
interest
of
the
minor
childVisitation rights to father are admissible
so that he may have access to minor
child whenever he would visit India.
(Para 33 & 34) (E-15)

List of Cases cited:

1. Tejaswini Gaud & ors.Vs Shekhar Jagdish
Prasad Tewari & ors., (2019) 7 SCC 42

2. Yashita Sahu VS St. of Rajasthan & ors.,
(2020) 3 SCC 67
602 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Kanika Goel VS St. of Delhi Through Station
House Officer & anr., (2018) SCC 578.

4. Nithya Anand Raghavan Vs St. (NCT of Delhi)
& anr., (2017) 8 SCC 454

5. K.S. Puttaswami Vs U.O.I., (2017) 10 SCC 1.

6. Prateek Vs Shilpi, (2018) SCC 309

7. Shilpa Aggarwal Vs Aviral Mittal (2010) 1 SCC
591

8.V. Ravi Chandran Vs U.O.I., (2010) 1 SCC 174

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Heard Ms. Rosemarry Raju,
learned counsel for the petitioners, Mr.
Ashish Deep Verma, learned counsel for
the private respondent, learned A.G.A. for
the State and perused the material on
record.

2. Instant habeas corpus petition
under Article 226 of the Constitution of
India has been filed by petitioner no. 2
Abhishek Shukla on behalf of the corpus
Arav Shukla, who is his minor son, against
state respondent and respondent no. 3 (the
mother of the corpus and wife of petitioner
no. 2) with following prayers:-

(i) Issue a writ order or direction in
the nature of habeas corpus commanding
the respondent no. 3 to produce the
petitioner no. 1 in the Hon'ble Court and
thereafter the Hon'ble Court may be
pleased to give the custody of the petitioner
no. 1 to the petitioner no. 2.

(ii) Issue a writ, order or direction in
the nature of mandamus commanding the
respondents not to interfere in petitioner
no. 2 right to meet his son.

(iii) Issue a writ, order or direction
which this Hon'ble Court may deem fit and
proper in the facts and circumstances of the
case.
(iv) To allow the writ petition and award
the cost in favour of the petitioner.

3. During pendency of present writ
petition, an amendment application has
been moved by petitioner no. 2 with prayer
to add the prayer in writ petition at Sr. No.
i-(a) in prayer clause of writ petition i.e. i-
(a) issue an appropriate writ, order or
direction directing the Authorities to
produce the minor child namely Arav
Shukla, a U.S. Citizen and direct the
repatriation of the minor child back to U.S.
in compliance of orders dated 24.12.2020
passed
by
the
Superior
Court
of
Washington, King County, U.S. being Case
No. 20-3-04720-5-SEA- and also to deposit
the passport of the minor child and other
documents of the minor child which ought
to be delivered to the petitioner no. 2 to
enable the petitioner no. 2 to take minor
child back to U.S..

4. At the time of final hearing of writ
petition, learned counsel for the parties
could not brought the attention of this
Court towards amendment application
which was filed on 21.9.2021, as no
objection has been filed on this amendment
application
and
proposed
amendment
appears to have been filed with a view to
clarify the prayer made in writ petition in
view of subsequent developments which
took place after filing of writ petition,
therefore,
the
amendment
sought
in
amendment application will be treated as
included in writ petition.

5. Factual matrix of the case are that
present petition under Article 226 of the
Constitution of India has been filed by the
petitioner no. 2 with averment that he is
permanent resident of District Kanpur
6 All. Aarav Shukla & Anr. Vs. State of U.P. & Ors.
603
Nagar (U.P.) and works as Software
Engineer in U.S.A. at present. Petitioner
no. 2 was married with respondent no. 3
Esha Pathak at G.B. Nagar on 6.3.2011
according to Hindu rites and rituals and
said
marriage
was
registered
under
Marriage Registration Rules ,1973 at
Kanpur Nagar on 20.12.2013, a copy of
marriage certificate has been filed along
with writ petition. The parents of petitioner
no. 2 are residing at Kanpur Nagar. His
academic qualification is B.Tech and M.S.,
whereas respondent no. 3, his wife, is
M.B.A..
The
petitioner
nos.
2
and
respondent no. 3 after multiple discussions
decided to go to America. Petitioner no. 2
even suggested the respondent no.3 that if
she wishes then she could stay in India for
now and continue her career and thereafter
both of them could reevaluate their
situation and take a decision that best suited
the interest of the family, however,
respondent no. 3 did not concede to the
proposal and forced petitioner no. 2 to take
her to U.S.A. They reached there on
7.2.20215 but after arrival in U.S.A.,
respondent no. 3 got upset due to change in
life style in U.S.. She also did not adjust
herself in U.S., being away from her
parents. The son was born on 7th of
December 2017 from the wedlock of
petitioner no. 2 and respondent no. 3 at
Kirkland, King Country Washington in the
hospital namely Evergreen Health Medical
Center and birth certificate was issued by
State of Washington, Department of Health,
wherein their son name has been christened
as Master Aarav Shukla dated 12.12.2017.
The petitioner no. 2 also registered for
child's stem cell and cord blood cell
preservation with Cord Blood Registry in
U.S.A. to cope with future health issues
arising to the child if any. The respondent
no. 3 used to blame the parents of petitioner
no. 2 who had arrived after birth of child to
visit him. The respondent no. 3 and
petitioner no. 2 came with the child in India
on 2nd of June, 2018 with their son Master
Aarav. Respondent no. 3 has been very
demanding for money from petitioner no. 2
and for that she used to threaten him. The
petitioner no. 2 had made an U.S. credit
card available to respondent no. 3 so that
she could cater to her educational and other
needs but she would decline to provide any
information about the expenses incurred
through
credit
card.
Even
before
respondent no. 3 came to U.S., petitioner
no. 2 tried to apply for a work permit for
respondent no. 3 through Microsoft, but the
petitioner no. 2 was advised that it could
only be done when she is in U.S. but she
was not interested in working. Respondent
no. 3 told the petitioner no. 2 that she has
booked her tickets for the U.S. The
petitioner started baby-proofing the house.
He installed cameras for the safety and
security of the child as well. When she
came back to U.S. on 19th February, 2019
she was very aggressive. She was blaming
and threatening the petitioner no. 2 to get
everything done her away. Even her mother
was provoking her to agitate and stress out
the petitioner no. 2. The respondent no. 3
and her family members used to take
objection if he was engaged in conversation
with his parents. The petitioner no. 2 and
respondent no. 3 were looking for a
daycare of the child and in the meanwhile
respondent no. 3 was having driving
lessons which was scheduled at noon
everyday in spite of the requests of
petitioner no. 2 that this should be planned
after 5:00 pm so that he could come back
from work to watch his son while she takes
driving lesson but she did not oblige and
got a driving lesson in the noon and asked
the petitioner no. 2 to visit the home in
lunch hours to take care of the child and
when he stated that it was not possible for
604 INDIAN LAW REPORTS ALLAHABAD SERIES
him, she became agitated and began
threatening him. The petitioner no. 2 had
planned snowboarding after work on that
day to which respondent no. 3 became very
angry and at 10:00 pm she sent a message
to him that she was not feeling well and he
immediately started hitting back from the
location. He could reach home at 11:30 pm
due to distance of the location from his
home, however, she did not accompany
him to the hospital and went there in a Taxi.
The petitioner no. 2 left behind to take care
of his son at home. Respondent no. 3
finalized a daycare for the child which was
13 km away from their place of residence
and this was not acceptable to petitioner no.
2 but she was adamant that he signed the
cheques immediately so that the money
could be deposited in daycare. When he did
not succumb to his pressure, she became
furious. She called police in U.S. with
complaint of domestic violence. The
Redmond Police of U.S. came to their place
within few months and after thorough
investigation they concluded that no case of
domestic violence was made out and filed a
final report on 15.3.2019. In the midst of
these sequence of events the petitioner no.
2 got frightened and troubled due to
unusual behaviour of respondent no. 3 and
he started living outside the home to avoid
any future problem created by respondent
no. 3, but she did not express any concern
for his well being. She filed a complaint of
domestic violence against petitioner no. 2
through her Twitter Account wherein she
tweeted at 11:00 am on 15th March 2019 to
C.E.O's of his Microsoft Office Mr. Satya
Nadella Mr. Bill Gates and Indian External
Affairs Minister Sushma Swaraj and Indian
Ambassador to U.S., Mr. Harsh Shringla,
and even to President of United States of
America, Mr. Donald Trump, copies have
been filed as annexures to the affidavit. The
petitioner no. 2 met his lawyer on
19.3.2019 and after consulting him he went
to his apartment and found that his wife
and child were not there. He came to know
that respondent no. 3 had left for India on
17.3.2019 along with the son and did not
let him know that she was leaving country
and illegally took his child without his
permission and knowledge. He sent a
notice to respondent no. 3 on 26.3.2019
through the attorney at law in U.S.A., Mr.
Patrick Shearer, with regard to take his son
without the consent of the petitioner and
behind his back, he threatened him to
implicate in some dowry related criminal
cases and filed written complaint to
National Commission for Women against
petitioner
no.
2
with
allegation
of
maltreatment with false allegations.

6. Feeling perturbed by conduct of
respondent no. 3, petitioner no. 2 had filed
a divorce petition to dissolve his marriage
with respondent no. 3 in the court of
Principal Judge, Family Court, G.B. Nagar,
numbered as Matrimonial Petition No. 709
of 2019 (Abhishek Shukla Vs. Esha
Shukla) in which notice was issued to
respondent no. 3.

7. Petitioner no. 2 regularly paid the
expenses of respondent no. 3 without any
break even that the parents of respondent
no. 3 did not allow him to meet his son
when he was in India in July, 2019, August
2019 and December, 2019. Even he
approached the police officials but they
directly refused to intervene in the matter.
The corpus is a minor child who was aged
about two years when he was abducted by
respondent no. 3 from U.S. to India without
consent and permit of his father. Petitioner
no. 2 is legal guardian and custodian of
petitioner no. 1. The custody of petitioner
no. 1, who is a U.S. citizen, is not safe in
the hands of respondent no. 3, therefore,
6 All. Aarav Shukla & Anr. Vs. State of U.P. & Ors.
605
custody of child be given to petitioner no.
2, who is his father and natural guardian.

8. Rule nisi was issued to respondent
no. 3 by this Court to produce the corpus
Master Aarav Shukla on 17.1.2020 and
petitioner no. 2 deposited Rs. 20,000/- as
charges for production of the child in
registry which is payable to petitioner no.
1, on his appearance before the court,
however, respondent no. 3 did not produce
the child before the court and filed a SLP
before Hon'ble Apex Court against rule nisi
issued vide order dated 17.1.2020 which
was decided by Hon'ble Apex Court vide
order dated 11.3.2022 with observation that
"notice was issued in this SLP only to
explore possibility of settlement between
the parties. The matter was referred to
mediation centre. We are informed by the
Mediation Centre that the parties could not
arrive at a settlement. There is no reason to
interfere with the order passed by High
Court issuing notice. Special Leave Petition
is
accordingly,
disposed of. Pending
application(s), if any, shall stand disposed
of. We make it clear that we have not
expressed any opinion on the merits of the
case. We are informed that the High Court
did not hear the habeas corpus petition in
view of the pendency of this Special Leave
Petition before this Court. The High Court
is requested to dispose of the habeas corpus
petition expeditiously."

9. From perusal of record it appears
that after disposal of SLP filed by
respondent no. 3, the corpus was not
produced by respondent no. 3 before this
Court. The respondent no. 3 appeared in
present petition on 22.4.2022 through
counsel Sri Azad Khan and counter
affidavit was filed by her on 30.5.2022. A
rejoinder affidavit was filed by the
petitioner no. 2 with a view to counter the
averments made in counter affidavit, thus,
the pleadings have been duly exchanged
between the parties.

10.

Learned
counsel
for
the
petitioners based his submissions on the
basis of pleadings made in the writ petition.
He further submitted on the basis of
averments made in rejoinder affidavit filed
that the entire agenda of respondent no. 3 is
to alienate the minor child from the
petitioner no. 2 and indulge in parental
alienation in the same way that she has
indulged
in
intercontinental
parental
abduction
of
petitioner
no.
1.
The
allegations made against petitioner no. 2 in
counter affidavit filed on behalf of
respondent no. 3 are scandalous and
shocking. The respondent no. 3 has
entangled petitioner no. 2 in many cases
with false and concocted allegations.
Petitioner no. 2 has filed a divorce petition
in the court of Principal Judge, Family
Court, G.B. Nagar and subsequently filed a
divorce suit in U.S. Court. Learned Family
Judge in India has not passed any order in
ante suit injunction restraining petitioner
no. 2 from pursuing the petitioner's case in
U.S. Court and pending divorce petition in
the Family Court, G.B. Nagar. Petitioner
no. 2 went out of his way to pay for the air
tickets of respondent no. 3 to travel to
U.S.A. to meet the petitioners and copy
thereof has been filed as Annexure P-3 with
rejoinder affidavit. The counter affidavit
has been filed by the respondent no. 3 is
based of unfounded facts and concocted
allegations. The minor child Aarav Shukla
ought to be repatriated back in compliance
of the order dated 24.12.2020 passed by
Superior Court of Washington, King
County, U.S.A.. Respondent no. 3 had filed
a suit seeking ante suit injunction against
petitioner no. 2 in Noida District Court,
U.P. for pursuing the divorce and custody
606 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings filed by the petitioner no. 2 in
U.S. by concealing various documents and
important facts from the court and got an
order dated 16.4.2022 passed therein by
suppressing material facts.

11. In the present case minor child has
been removed from his native country, U.S.
to India and therefore it would be in the
interest and welfare of the minor to return
its native country as the child has not
developed roots in India and no harm
would be caused to the minor child on his
return. Petitioner no. 2 has been a caring
from the very beginning and some
photographs are filed showing petitioners
in the company of each other to fortify this
claim.

12. Per contra, learned counsel for the
respondent no. 3 vehemently opposed the
prayer made in present habeas corpus
petition and submitted that the respondent
no. 3 is a victim of domestic violence and
matrimonial cruelty to which she was
subjected by the petitioner no. 2 and his
family members. She visited U.S. to live
with petitioner no. 2 and a child was born
to them in U.S., however, due to non
cooperating attitude, high handedness,
carelessness and ill-treatment meted out to
her, she was forced to leave the place of
petitioner no. 2 in U.S. along with her
minor child. Respondent no. 3 along with
his minor child, being mother and natural
guardian of minor child who was around
two years of age, left U.S.A. along and
presently her minor child is aged around 56 years and cannot be given to custody of
petitioner no. 2, his father. Petitioner no. 2
cannot claim that welfare and interest of the
child will be more safe and secure in his
custody by removing him from custody of
his mother. The petitioner no. 2 is not
fulfilling his obligations with regard to his
wife as well as his son. Respondent no. 3
had lodged an F.I.R. on 14.4.2021 under
Sections 498-A, 323, 506, 406, 342, 313,
351 IPC and Section 3⁄4 of D.P. Act, against
petitioner no. 2 and his parents at Greater
Noida, District G.B. Nagar in which
necessary facts and stand of respondent no.
3 are enumerated. She had also filed
complaint under Section Domestic of
Violence Act against petitioner no. 2.
Petitioner no. 2 and his family members
filed separate writ petitions with prayer to
quash the said first information report
lodged against them by respondent no. 3
but same was dismissed vide order dated
10.6.2022 passed by the Division Bench of
this Court. Respondent no. 3, with prior
consent of petitioner no. 2 opt to join the
college in U.S. where they moved together
in February, 2015, on dependent visa.
Petitioner no. 2 persuaded to resign from
the company in which she was working to
visit U.S.A. with a view to pursue her
higher studies in M.S. Degree course to
enhance her skills and employability. She
secured
admission
in
Pepperdine
University with 50% scholarship in the
U.S.A., however, contrary to his assurances
and undertaking the petitioner no. 2 did not
bear the financial burden of her higher
studies in U.S.A. and she had to depend on
her parents for her financial assistance who
subsequently transferred Rs. 10,0000/- for
her tuition fees, however, she could not
continue her studies on account of
pregnancy and she decided to take break
from the study for a year with consent of
petitioner no. 2 and thus, she put her
studies on hold. On September, 2017,
petitioner no. 2 moved to Seattle from Las
Angeles because of the news of offer to
respondent no. 3 in Microsoft and on
17.12.2017 she gave birth to a male child at
Evergreen
Health
Medical
Centre,
Kirkland,
Washington.
The
stay
of
6 All. Aarav Shukla & Anr. Vs. State of U.P. & Ors.
607
respondent no. 3 in U.S. became verbatim
due to high handedness and hostile attitude
of petitioner no. 2. At one point of time she
was not having any money with her. Her
credit card was blocked by petitioner no. 2
and he was not extending any financial
support to her. He further submits that
Section 6(A) of Hindu Minority and
Guardianship Act provides that the mother
is natural guardian after the father and in
addition to that proviso to Section 6-A
provides that custody of minor child who
has not completed age of five years shall
ordinarily be with the mother. He lastly
concluded that corpus or petitioner no. 1
lies with respondent no. 3 who is no other
than biological mother for petitioner no. 1
and custody of minor with his mother
cannot be permitted as illegal. The claim of
petitioner no. 2 that petitioner no. 1 is
supposed to be with petitioner no. 2 is
wrong and not legally tenable, rather his
uncaring and irresponsible conduct towards
the petitioner no. 1 demonstrates his
absenteeism and neglect which under law
will occasion the the guardianship of the
mother therefore writ petition is liable to be
dismissed in total.

13. He further submitted that
petitioner no. 2 is engaged in practicing
forum shopping which is deprecated by
Hon'ble Apex Court. Petitioner no. 2 has
filed a petition for divorce before Family
Court, G.B. Nagar and thereafter filed a
suit for divorce after returning to U.S.A. in
U.S. court also, thus he approached two
different courts in two National Jurisdiction
for litigating the same subject matter.
Hon'ble Apex Court in Union of India Vs.
Cipla Ltd. (2017) 5 SCC 262, held that
court is required to adopt a functional test
vis-a-vis the litigation and the litigant.
What has to be seen is whether there is any
functional similarity in the proceedings
between one court and another or whether
there is some sort of subterfuge on the part
of the litigant. It is this functional test that
will determine whether a litigant is
indulging in forum shopping or not. Prior
to switching over to U.S., respondent no. 3
was qualified MBA and was working with
Yamaha Motors as Sr. HR Executive,
however, on persuation of petitioner no. 2
she resigned the company on 30.1.2015 and
ultimately left her employment at Delhi and
thereafter both spouse moved to U.S.A. on
7.2.2015 on dependent visa. Petitioner no.
1 was faced with abandonment and
empowerment owing to which she could
not her ends meet in alien country and
therefore was left with no option but to
return back to India where she could live
wit her parents who could provide her and
infant basic amenities of life and above all
love and affair which was denied to her by
the petitioner no. 2. The petitioner no. 2
had met corpus in presence of respondent
no. 3 at Greater Noida at the instance of
Family Court on 14.12.2019 but he has
deliberately concealed this material fact in
present habeas corpus petition. In any
manner the custody of petitioner no. 1 with
his mother cannot be presumed or treated
as unlawful and therefore, custody of
corpus may not be changed in favour of
petitioner no. 2.

14. Hon'ble Apex Court in three
Judges Bench judgment in Tejaswini Gaud
and Ors. Vs. Shekhar Jagdish Prasad
Tewari and Ors., (2019) 7 SCC 42, held
that writ of habeas corpus is a prerogative
process for securing the liberty of the
subject by affording an effective means of
immediate release from an illegal or
improper detention. when the guardian of a
minor is wrongly deprived of the custody
of the child, a writ can be sought to be
issued. When a minor is detained by
608 INDIAN LAW REPORTS ALLAHABAD SERIES
someone who does not have the legal
custody of the child, which will be
considered as illegal detention for applying
the writ, in such a situation the restoration
of custody is to be done from a person who
is not a legal or natural guardian of the
child, the writ can be applied. The Hon'ble
Apex Court in paragraph nos. 21, 22, 26
and 27, observed as under:-

"21. Custody of the child - removed
from foreign countries and brought to
India:- In a number of judgments, the
Supreme Court considered the conduct of a
summary or elaborate enquiry on the
question of custody by the court in the
country to which the child has been
removed. In number of decisions, the
Supreme Court dealt with habeas corpus
petition filed either before it underArticle
32of the Constitution of India or the
correctness of the order passed by the High
Court
in
exercise
of
jurisdiction
underArticle 226of the Constitution of
India on the question of custody of the child
who had been removed from the foreign
countries and brought to India and the
question of repatriation of the minor
children to the country from where he/she
may have been removed by a parent or
other person. In number of cases, the
Supreme Court has taken the view that the
High Court may invoke the extraordinary
jurisdiction to determine the validity of the
detention. However, the Court has taken
view that the order ofthe foreign court must
yield to the welfare of the child. After
referring to various judgments, in Ruchi
Majoo6, it was held as under:-

"58. Proceedings in the nature of
habeas corpus are summary in nature,
where the legality of the detention of the
alleged detenu is examined on the basis of
affidavits placed by the parties. Even so,
nothing prevents the High Court from
embarking upon a detailed enquiry in cases
where the welfare of a minor is in question,
which is the paramount consideration for
the Court while exercising its parens
patriae jurisdiction. A High Court may,
therefore,
invoke
its
extraordinary
jurisdiction to determine the validity of the
detention, in cases that fall within its
jurisdiction and may also issue orders as to
custody of the minor depending upon how
the Court views the rival claims, if any, to
such custody.
59. The Court may also direct repatriation
of the minor child to the country from
where he/she may have been removed by a
parent or other person; as was directed by
this Court in Ravi Chandran (2010) 1 SCC
174 and Shilpa Aggarwal (2010) 1 SCC
591 cases or refuse to do so as was the
position in Sarita Sharma case (2000) 3
SCC 14. What is important is that so long
as the alleged detenu is within the
jurisdiction of the High Court no question
of its competence to pass appropriate
orders arises. The writ court's jurisdiction
to make appropriate orders regarding
custody arises no sooner it is found that the
alleged detenu is within its territorial
jurisdiction."

22. After referring to various
judgments and considering the principles
for issuance of writ of habeas corpus
concerning the minor child brought to
India in violation of the order of the foreign
court, in Nithya Anand, it was held as
under:-

Ruchi Majoo v. Sanjeev Majoo(2011) 6
SCC 479 7Nithya Anand Raghavan v. State
(NCT of Delhi) (2017) 8 SCC 454 "46. The
High Court while dealing with the petition
for issuance of a writ of habeas corpus
concerning a minor child, in a given case,
may direct return of the child or decline to
change the custody of the child keeping in
mind
all
the
attending
facts
and
6 All. Aarav Shukla & Anr. Vs. State of U.P. & Ors.
609
circumstances including the settled legal
position referred to above. Once again, we
may hasten to add that the decision of the
court, in each case, must depend on the
totality of the facts and circumstances of
the
case
brought
before
it
whilst
considering the welfare of the child which
is of paramount consideration. The order of
the foreign court must yield to the welfare
of the child. Further, 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. Indubitably,
the writ petitioner 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."

26. After referring to number of
judgments and observing that while dealing
with child custody cases, the paramount
consideration should be the welfare of the
child and due weight should be given to
child's ordinary comfort, contentment,
health, Lahari Sakhamuri
v.
Sobhan
Kodali2019
(5)
SCALE
97education,
intellectual development and favourable
surroundings, in Nil Ratan Kundu, it was
held as under:-

"49.In Goverdhan Lal v. Gajendra
Kumar, AIR 2002 Raj 148 the High Court
observed that it is true that the father is a
natural guardian of a minor child and
therefore has a preferential right to claim
the custody of his son, but in matters
concerning the custody of a minor child,
the paramount consideration is the welfare
of the minor and not the legal right of a
particular party.Section 6of the 1956 Act
cannot
supersede
the
dominant
consideration as to what is conducive to the
welfare of the minor child. It was also
observed that keeping in mind the welfare
of the child as the sole consideration, it
would be proper to find out the wishes of
the child as to with whom he or she wants
to live.

50. Again, inM.K. Hari Govindan v.
A.R. Rajaram, AIR 2003 Mad 315 the
Court held that custody cases cannot be
decided on documents, oral evidence or
precedents without reference to "human
touch". The human touch is the primary
one for the welfare of the minor since the
other materials may be created either by
the parties themselves or on the advice of
counsel to suit their convenience.

51.In Kamla Devi v. State of H.P. AIR
1987 HP 34 the Court observed:

"13. ... the Court while deciding child
custody cases in its inherent and general
jurisdiction is not bound by the mere legal
right of the parent or guardian. Though the
provisions of the special statutes which
govern the rights of the parents or
guardians may be taken into consideration,
there is nothing which can stand in the way
of the Court exercising its parens patriae
jurisdiction arising in such cases giving
due weight to the circumstances such as a
child's ordinary comfort, contentment,
intellectual,
moral
and
physical
development, his health, education and
general maintenance and the favourable
surroundings. These cases have to be
decided ultimately on the Court's view of
the best interests of the child whose welfare
requires that he be in custody of one parent
or the other." 9Nil Ratan Kundu v. Abhijit
Kundu, (2008) 9 SCC 413
52. In our judgment, the law relating to
custody of a child is fairly well settled and
it is this: in deciding a difficult and
complex question as to the custody of a
minor, a court of law should keep in mind
the relevant statutes and the rights flowing
610 INDIAN LAW REPORTS ALLAHABAD SERIES
therefrom. But such cases cannot be
decided
solely
by
interpreting
legal
provisions. It is a human problem and is
required to be solved with human touch. A
court while dealing with custody cases, is
neither bound by statutes nor by strict rules
of evidence or procedure nor by precedents.
In selecting proper guardian of a minor, the
paramount consideration should be the
welfare and well-being of the child. In
selecting a guardian, the court is exercising
parens patriae jurisdiction and is expected,
nay bound, to give due weight to a child's
ordinary comfort, contentment, health,
education, intellectual development and
favourable surroundings. But over and
above physical comforts, moral and ethical
values cannot be ignored. They are equally,
or we may say, even more important,
essential and indispensable considerations.
If the minor is old enough to form an
intelligent preference or judgment, the
court must consider such preference as
well, though the final decision should rest
with the court as to what is conducive to
the welfare of the minor."

27. Reliance was placed upon Gaurav
Nagpal, where the Supreme Court held as
under:-

"32. In McGrath, (1893) 1 Ch 143,
Lindley, L.J. observed: (Ch p. 148) The
dominant matter for the consideration of
the court is the welfare of the child. But the
welfare of the child is not to be measured
by money only nor merely physical comfort.
The word 'welfare' must be taken in its
widest sense. The moral or religious
welfare of the child must be considered as
well as its physical well-being. Nor can the
tie of affection be disregarded." (emphasis
supplied) .........

50. When the court is confronted with
conflicting demands made by the parents,
each time it has to justify the demands. The
court has not only to look at the issue on
legalistic basis, in such matters human
angles are relevant for deciding those
issues. The court then does not give
emphasis 10Gaurav Nagpal v. Sumedha
Nagpal(2009) 1 SCC 42on what the parties
say, it has to exercise a jurisdiction which
is aimed at the welfare of the minor. As
observed recently in Mausami Moitra
Ganguli case (2008) 7 SCC 673, the court
has to give due weightage to the child's
ordinary contentment, health, education,
intellectual development and favourable
surroundings but over and above physical
comforts, the moral and ethical values have
also to be noted. They are equal if not more
important than the others.

51.
The
word
"welfare"
used
inSection 13of the Act has to be construed
literally and must be taken in its widest
sense. The moral and ethical welfare of the
child must also weigh with the court as well
as its physical well-being. Though the
provisions of the special statutes which
govern the rights of the parents or
guardians may be taken into consideration,
there is nothing which can stand in the way
of the court exercising its parens patriae
jurisdiction arising in such cases."

15. Learned counsel for the petitioner
has drawn attention of this Court towards
the
supplementary
affidavit
filed
on
25.3.2021 wherein it is stated that the
corpus is a citizen of U.S.A., by virtue of
his birth in that country and in accordance
with laws prevalent in that country and the
respondent no. 3 has illegally detained him
without any provision of law and it defines
his
right.
Petitioner
no.
2
filed
a
Declaration
about
Child
Custody
Jurisdiction
(UCCJEA)
along
with
application seeking parenting plan before
Superior Court of Washington, County of
King, U.S.A., in the month of September,
2020 and a copy of Declaration about Child
6 All. Aarav Shukla & Anr. Vs. State of U.P. & Ors.
611
Custody Jurisdiction has been annexed as
Annexure SA-3 to the supplementary
affidavit. Summons were duly received by
respondent no. 3 issued by Superior Court
of Washington, County of King, USA but
she did not pay to the summon of court
concerned. Well-Child Visits for Infant and
Young Children in U.S.A. is to be followed
by all the parents failing which they will be
liable to be punished in respect of child till
he attains the age of five years.

16. Learned counsel for the petitioner cited
various judgments of Hon'ble Apex Court
and High Courts in support of his/her
submissions in Jeewanti Pandey Vs.
Kishan Chandra Pandey, 1981 (4) SCC
517, Smt. Surindar Kaur Sandhu Vs.
Harbax Singh Sandhu And Anr., 1984 (3)
SCC 698, Mrs. Elizabeth Dinshaw Vs.
Arvand M. Dinshaw and Anr., 1987 (1)
SCC 42, Mr. Paul Mohinder Gahun Vs.
Mrs. Selina Gahun, 2006 (130) DLT 524,
Aviral Mittal Vs. The State and Anr., 2009
(112) DRJ 635, Shilpa Aggarwal Vs.
Aviral Mittal & Anr., 2010 (1) SCC 591,
Dr. V. Ravi Chandran Vs. Union of India,
2010 (1) SCC 174, Sondur Gopal Vs.
Sondur Rajini, (2013) 7 SCC 426, Arathi
Bandi Vs. Bandi Jagadrakshaka Rao &
Ors., (2013) 15 SCC 790, Surya Vadanam
Vs. State of Tamilnadu & Ors., (2015) 5
SCC 450, Nithya Anand Raghavan Vs.
State of NCT of Delhi, (2017) 8 SCC 454,
Tippa Srihari Vs. State of A.P., 2018 SCC
Online Hyd 123, Ganamukkala Sirisha
Vs.
Tippa
Srihari,
MANU/SCOR/239343/2019,
Lahari
Sakhamuri Vs. Sobhan Kodali, (2019) 7
SCC 311, Varun Verma Vs. State of
Rajasthan, 2019 SCC Online Raj 5430,
Yashita Sahu VS. State of Rajasthan &
Ors., (2020) 3 SCC 67, Tejaswini Gaud Vs.
Shekhar Jagdish Prasad Tewari, (2019) 7
SCC 42, Nilanjan Bhattacharya Vs. The
State of Karnataka, 2020 SCC Online SC
928, Ghadian Harshavardhan Reddy Vs.
State
of
Telangana
&
Ors.,
MANU/TK/1033/2021, Vasudha Sethi Vs.
Kiran V. Bhaskar, 2022 SCC Online SC
43, Rohith Thammana Gowda Vs. State of
Karnataka & Ors., 2022 SCC Online SC
937, Rajeswari Chandrasekar Ganesh Vs.
State of Tamil Nadu, 2022 SCC Online SC
885 and Abhinav Gyan Vs. State of
Maharashtra & Anr., Crl. Writ Petition
No. 693 of 2021. Their main thrust was on
decision of Apex Court in Yashita Sahu's
case (supra) as this case was also related to
custody of minor child who was born in
U.S.A. and wife of the petitioner brought
the child in India in violation of orders of
jurisdictional court in U.S.A.. Yashita Sahu
(the
appellant)
and
Varun
Verma
(respondent) got married on 30.5.2016 in
India. Husband was already working in
U.S.A. The wife accompanied the husband
to U.S.A. on 17.7.2016. A daughter named
Kiyara Verma was born to the couple on
3.5.2017. She is citizen of U.S.A..
Relationship between husband and wife got
strained and they make various allegations
and counter allegations against each other.
Wife applied for an emergency protection
order on 25.8.2018 to the Norfolk Juvenile
and Domestic Relations District Court
praying for her protection and an ex-parte
preliminary protection order was passed
against
the
husband.
Thereafter
on
29.8.2018, the wife instituted a petition in
the same Court seeking sole custody of the
minor child. She also filed a petition
praying that husband be directed to give
monitory support to her and the minor
child. An order was passed by the court on
26.9.2018 in terms of agreement reached
between the parties. The wife along with
child left USA and came to India on
30.9.2018 after few days of passing of
order dated 26.9.2018. The husband on
612 INDIAN LAW REPORTS ALLAHABAD SERIES
coming to know that wife along with their
child had left the USA for India, filed a
motion for emergency relief before Norfolk
Court on 2.10.2019. The ex-parte order was
passed in favour of the husband whereby
Norfolk Court granted sole legal and
physical custody of the child to the husband
and directed the wife to return to USA
along with their child but she did not
comply the order of Norfolk Court and a
warrant was also issued against her for
violation of order dated 26.9.2018 of
Norfolk Court.