# 13 S.C.R. 230 PRATEEK GUPTA v. SHILPY GUPTA & ORS - **Citation:** [2017] 13 S.C.R. 230 - **Court:** Supreme Court of India - **Decided:** 2017-12-06 - **Case number:** Criminal Appeal No. 968 of2017 - **Bench:** Dipak Misra, Amitava Roy - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/13-s-c-r-230-prateek-gupta-v-shilpy-gupta-ors-31795 - **Pages:** 38 ## Headnote Child and Family Welfare: Custody of child - Principles of "comity of courts". "intimate contact"' and "'closest concern"' - Invocation of - Held: Invocation of these principles/doctrines has to he judged on the touchstone of myriad attendant facts and circumstances of each case, the paramount concern being the welfare of the child - These doctrines are of persuasive relevance only when the child is uprooted from its native country and taken to a place to encounter alien environment. language. custom etc. with the portent of mutilative hearing on the process of its overall growth and grooming - It is thus imperative that unless. the continuance of child in the country to which it has been removed. is unquestionably harmful. when judged on the touchstone of overall perspectives. it ought not to be dislodged and extricated from the environment and setting to which it had got adjusted for its we/I-being - Doctrines/Principles. Child and Family Welfare: Writ of habeas corpus - Writ petition file(i by respondent-mother seeking custody of child from appellant-father - The parties were residing in US with two sons - In view of irreconcilable marital issues. parties started living separately since 2014 - The children were US citizens by birth - The case of re,pondent-mother before the High Court was that the child. who is the subject matter of the /is and custody. was barely 20 years old when appellant took him to India and had been staying in India since then -- The child is a little over 5 years old now - High Court directing appellant-father to hand over custody of child to respondtmt-mother - Challenge against - Held: The child has spent half of his life at this age, in India - His infant yem. · of stay in US was too little for his required integration with the social, physical, psychological, cultural and academic environmelll of US tu get totally upturned by his transition to India. so much so that 230 PRATEEK GUPTA v. SHILPI GUPTA & ORS. 231 unless he is immediately repatriated, his inherent potentials and A faculties would suffer an immeasurable set back - The respondentmother is also disinclined to restore her matrimonial home - The younger son is with her - There is no convincing material on record that the continuation of the child in the company and custody of the appellant in India would be irreparably prejudicial to him - The e-mails exchanged by the parties suggested that they had been in touch since the child was brought to India - In the e-mails, they have fondly and keenly referred to both the sons staying in each others company, expressing concern about their illness and general well-being as well - As has been claimed by the appellant, the child B is growing in a congenial environment in the loving company of his grand-parents and contrary to the nuclear family environment in US, he is exposed to a natural process of grooming in the association of his elders, friends, peers and playmates, which is irrefutably indispensable for comprehensive development of his mental and physical faculties - Immediate restoration of the child is called for only on an unmistakable discernment of the possibility of immediate and irremediable harm to it and not otherwise - High Court did not at all apply itself to examine the facts and circumstances and the other materials bearing on the issue of welfare of the child which are unmistakably of paramount significance and instead seemed to have been impelled by the principle of comity of courts and the doctrines of "intimate contact" and "closest concern" de hors thereto - The appellant being the biological father, his custody of the child can by no means in law be construed as illegal or unlawful drawing the invocation of a superior Courts jurisdiction to issue a writ in the nature of habeas corpus. Allowing the appeal, the Court c D E F HELD: 1. The gravamen of the judicial enunciation on the issue of repatriation of a child removed from its native country is clearly founded on the pre ## Text _Characters 0–39,846 of 94,131. This is a partial read: ask again with offset=39846 for what follows._ A B c D E F G H (2017] 13 S.C.R. 230 PRATEEK GUPTA v. SHILPY GUPTA & ORS. (Criminal Appeal No. 968 of2017) DECEMBER 06, 2017 [DIPAK MISRA, CJI AND AMITAVA ROY, J.] Child and Family Welfare: Custody of child - Principles of "comity of courts". "intimate contact"' and "'closest concern"' - Invocation of - Held: Invocation of these principles/doctrines has to he judged on the touchstone of myriad attendant facts and circumstances of each case, the paramount concern being the welfare of the child - These doctrines are of persuasive relevance only when the child is uprooted from its native country and taken to a place to encounter alien environment. language. custom etc. with the portent of mutilative hearing on the process of its overall growth and grooming - It is thus imperative that unless. the continuance of child in the country to which it has been removed. is unquestionably harmful. when judged on the touchstone of overall perspectives. it ought not to be dislodged and extricated from the environment and setting to which it had got adjusted for its we/I-being - Doctrines/Principles. Child and Family Welfare: Writ of habeas corpus - Writ petition file(i by respondent-mother seeking custody of child from appellant-father - The parties were residing in US with two sons - In view of irreconcilable marital issues. parties started living separately since 2014 - The children were US citizens by birth - The case of re,pondent-mother before the High Court was that the child. who is the subject matter of the /is and custody. was barely 20 years old when appellant took him to India and had been staying in India since then -- The child is a little over 5 years old now - High Court directing appellant-father to hand over custody of child to respondtmt-mother - Challenge against - Held: The child has spent half of his life at this age, in India - His infant yem. · of stay in US was too little for his required integration with the social, physical, psychological, cultural and academic environmelll of US tu get totally upturned by his transition to India. so much so that 230 PRATEEK GUPTA v. SHILPI GUPTA & ORS. 231 unless he is immediately repatriated, his inherent potentials and A faculties would suffer an immeasurable set back - The respondentmother is also disinclined to restore her matrimonial home - The younger son is with her - There is no convincing material on record that the continuation of the child in the company and custody of the appellant in India would be irreparably prejudicial to him - The e-mails exchanged by the parties suggested that they had been in touch since the child was brought to India - In the e-mails, they have fondly and keenly referred to both the sons staying in each others company, expressing concern about their illness and general well-being as well - As has been claimed by the appellant, the child B is growing in a congenial environment in the loving company of his grand-parents and contrary to the nuclear family environment in US, he is exposed to a natural process of grooming in the association of his elders, friends, peers and playmates, which is irrefutably indispensable for comprehensive development of his mental and physical faculties - Immediate restoration of the child is called for only on an unmistakable discernment of the possibility of immediate and irremediable harm to it and not otherwise - High Court did not at all apply itself to examine the facts and circumstances and the other materials bearing on the issue of welfare of the child which are unmistakably of paramount significance and instead seemed to have been impelled by the principle of comity of courts and the doctrines of "intimate contact" and "closest concern" de hors thereto - The appellant being the biological father, his custody of the child can by no means in law be construed as illegal or unlawful drawing the invocation of a superior Courts jurisdiction to issue a writ in the nature of habeas corpus. Allowing the appeal, the Court c D E F HELD: 1. The gravamen of the judicial enunciation on the issue of repatriation of a child removed from its native country is clearly founded on the predominant imperative of its overall wellbeing, the principle of comity of courts, and the doctrines of G "intimate contact and clo.sest concern" notwithstanding. Though the principle of comity of courts and the aforementioned doctrines qua a foreign court from the territory of which a child is removed are factors which deserve notice in deciding the issue of custody and repatriation of the child, it is no longer res integra that the H 232 A B c D E F G H SUPRltME COURT REPORTS [2017] 13 S.C.R. ever overriding determinant would be the welfare and interest of the child. In other words, the invocation of these principles/ doctrines has to be judged on the touchstone of myriad attendant facts and circumstances of each case, the ultimate live concern being the welfare of the child, other factors being acknowledgeably subservient thereto. Though in the process of adjudication of the issue ofrepatriation, a court can elect to adopt a summary enquiry and order immediate restoration of the child to its native country, if the applicant/parent is prompt and alert in his/her initiative and the existing circumstances ex facie justify such course again in the overwhelming exigency of the welfare of the child, such a course could be approvable in law, if an effortless discernment of the relevant factors testify irreversible, adverse and prejudicial impact on its physical, mental, psychological, social, cultural existence, thus exposing it to visible, continuing and irreparable detrimental and nihilistic attentuations. On the other hand, if the applicant/parent is slack and there is a considerable time lag between the removal of the child from the native country and the steps taken for its repatriation thereto, the court would prefer an elaborate enquiry into all relevant aspects bearing on the child, as meanwhile with the passage of time, it expectedly had grown roots in the country and its characteristic milieu, thus casting its influence on the process of it~ grooming in its fold. [Para 32] [264-E-H; [265-A-B) 2. The doctrines of "intimate contact" and "closest concern" are of persuasive relevance, only when the child is uprooted from its native country and taken to a place to encounter alien environment, language, custom etc., with the portent of mutilative bearing on the process of its overall growth and grooming. [Para 33] [265-C) 3. The parties are living separately since 2014 with one child each in their company and charge. The children are US citizens by birth. Noticeably, the child Aadvik, who is the subject matter of the lis and custody was barely 2% years old when he came over to India and had stayed here since then. Today, he is a little over 5 years old. In other words, he has spent half of his life at this age, in India. His infant years of stay in US is too little for the required integration of his with the social, physical, PRATEEK Q{Jy lA v. SHILPl vu!' !A & ORS. 233 psychological, cultural and academic environment of US to get A totally upturned by his transition to this country, so much so that unless he is immediately repatriated, his inherent potentials and faculties would suffer an immeasurable set back. The respondentmother also is not favourably disposed to return to India, she being a working lady in US and is also disinclined to restore her B matrimonial home. The e-mails exchanged by the parties as have been placed on records do suggest that they had been in touch since the child was brought to India and even after the first order dated 28.05.1015 was passed by the court in US. In the said e-mails, they have fondly and keenly referred to both the sons staying in each other's company, expressing concern about their C illness and general well-being as well. As has been claime.d by the appellant, the child is growing in a congenial environment in the loving company of his grand-parents and other relatives. He has been admitted to a reputed school and contrary to the nuclear family environment in US, he is exposed to a natural process of D grooming in the association of his elders, friends, peers and playmates, which is irrefutably indispensable for comprehensive and conducive development of his mental and physical faculties. The issue with regard to the repatriation of a child, as the precedential explications would authenticate has to be addressed not on a consideration of legal rights of the parties but on the E sole and preponderant criterion of the welfare of the minor. Immediate restoration of the child is called for only on an unmistakable discernment of the possibility of immediate and irremediable harm to it and not otherwise. As it is, a child of tender years, with malleable and impressionable mind and delicate and vulnerable physique would suffer serious set-back if subjected F to frequent and unnecessary translocation in its formative years. It is thus imperative that unless, the continuance of the child In the country to which it has been removed, is unquestionably harmful, when judged on the touchstone of overall perspectives, perceptions and practicabilities, it ought not to be dislodged and G extricated from the environment and setting to which it had got adjusted for its well-being. [Para 35] [265-E-H; 266-A-E] 4. In view of order dated 03.05.2016 of this Court, the child has remained in the custody of the appellant-father. No matedal . ~ 'Jt 234 SUPREME COURT REPORTS [2017] 13 S.C.R. A was brought on record to take a view that immediate restoration of the custody of the child to the respondent-mother in the native country is obligatorily called for in its interest and welfare. The High Court did not at all apply itself to examine the facts and circumstances and the other materials on record bearing on the B c issue of welfare of the child which are unmistakably of paramount significance and instead seems to have been impelled by the principle of comity of courts and the doctrines of "intimate contact" and "closest concern" de hors thereto. The appellant being the biological father, his custody of the child can by no means in law be construed as illegal or unlawful drawing the invocation of a superior Court's jurisdiction to issue a writ in the nature of habeas corpus. The dislodgment of the child as directed by the impugned decision would be harmful to it. Having regard to the nature of the proceedings before the US Court, the intervening developments thereafter and most importantly the prevailing 0 state of affairs, the child, till he attains majority, ought to continue in the custody, charge and care of the appellant, subject to any order to the contrary, if passed by a court of competent jurisdiction in an appropriate proceeding deciding the issue of its custody in accordance with law. The parties are however directed to participate in the pending proceedings relating to the custody of E the child, if the same is pursued. [Paras 38, 39] [267-B-E, F-G] F G H Nithya Anand Raghavan v. State (NCT of Delhi) and another (2017) 8 sec 454 - relied on. Surya Vadanan v. State of Tamil Nadu & Ors. (2015) 5 SCC 450 : [2015] 4 SCR 903 ; Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC 112 : [1997) 5 Suppl. SCR 30 ; Sarita Sharma v. Sushi/ Sharma (2000) 3 sec 14 : [20001 1 SCR 915 ; Shi/pa Aggarwal v. Aviral Mittal and another (2010) 1 SCC 591 : [2009] 16 SCR 287 ; V Ravi Chandran (Dr.) v. Union of India and others (2010) 1 SCC 174 : [2009] 15 SCR 960 ; Elizabeth Dinshaw v. Arvand M. Dinshaw & Anr (1987) 1 SCC 42 : [1987] 1 SCR 175 ; Syed Saleemuddin v. Dr. Rukhsana & Ors. (2001) PRATEEK GUPTA v. SHILPI GUPTA & ORS. 235 5 SCC 247 ; Arathi Randi v. Randi Jagadrakshaka Rao A and others (2013) 15 SCC 790 ; Ruchi M(Jjoo v. Sanjeev Majoo (2011) 6 SCC 479 : [ 2011] 7 SCR 674 - referred to. Mark T. Mckee v. Evelyn Mckee (1951) AC 352 (PC) ; L (minors) (Wardship: Jurisdiction). In. re (1974) 1 WLR 250 (CA) - referred to. Case Law Reference [2015] 4 SCR 903 referred to Para 14 [1997] 5 Suppl. SCR 30 referred to Para 16 [2000] l SCR 915 referred to Para 16 (2017) 8 sec 454 relied on Para 19 [2009] 16 SCR 287 referred to Para 20 [2009] 15 SCR 960 referred to Para 20 [1987] l SCR 175 referred to Para 20 (2001) 5 sec 247 referred to Para 22 (2013) 15 sec 790 referred to Para 25 [2011] 7 SCR 674 referred to Para 31 CRIMIN >\L APPELLATE JURISDICTION : Criminal Appeal No. 968 of2017. From the Judgment and Order dated 29.04.2016 of the High Court of Delhi at New Delhi in W.P. (Crl.) No.1003 of2016. Ms. Binu Tamta, Dhruv Tamta, Advs. for the Appellant. N. S. Dalal, D. P. Singh, R. C. Kaushik, Advs. for the Respondents. B c D E F G H 236 A B c SUPRE~ COURT REPORTS [2017] 13 S.C.R. The Judgment of the Court was delivered by AMITAVA ROY, J. 1. By the impugned judgment and order dated29.04.2016 rendered by the High Court of Delhi, in a writ petition filed by the respondent No. I seeking a writ in the nature of habeas corpus, the appellant-father has been directed to hand over the custody of the child, Master Aadvik, aged about 5 years to respondent No. I - mother. The appellant-father is in assailment of this determination and seeks the remedial intervention of this Court. By order dated 03.05.2016, the operation of the impugned verdict was stayed and as the said arrangement was continued thereafter from time to time, the custody of the child as on date has remained with the appellant. The orders passed by this Court though attest its earnest endeavour to secure a reconciliation through interactions with the parents and the child, the efforts having failed, the appeal is being disposed of on merits. 2. We have heard Ms. Binu Tamta, learned counsel for the appellant and Mr. N.S. Dalal, learned counsel for the respondent No. 1 (hereafter D to be referred to as "respondent"). 3. A skeletal outline of the factual backdrop is essential. The appellant and the respondent who married on 20.01.2010 in accordance with the Hindu rites at New Delhi had shifted to the United States of America (for short, hereafter referred to as 'U.S.'), as the appellant E was already residing and gainfully employed there prior to the nuptial alliance. In due course, the couple was blessed with two sons, the elder being Aadvik born on 28.09.2012 and the younger, Samath born on 10 .09.2014. As adverted to hereinabove, the present !is is with regard to the custody of Master Aadvik, stemming from an application under Article 226 of the Constitution oflndia filed by the respondent alleging illegal 'artd unlawful keeping of him by the appellant and that too in violation of the orders passed by the Juvenile and Domestic Relations Court of Fairfax County, passed on 28.05.2015 and 20.10.2015 directing him to return the child to the Commonwealth ofVirginia and to the custody and control of the respondent. F G 4. The pleaded facts reveal that the child resided with the parents from his birth till 07.11.2014 and thereafter from07.1 l.2014 till 06.03.2015 with the respondent-mother in the United States. This is so, as in view of irreconcilable marital issues, as alleged by the respondent, particularly due to the volatile temperament and regular angry outbursts of the H appellant often in front of the child, the parties separated on or about PRATEEK GUPTA v. SHILPI GUPTA & ORS. [AMITAVA ROY, J.) 237 15.11.2014. Prior thereto, the appellant had on 08.11.2014 left for India A leaving behind the respondent and her children in U.S. He returned on 18.01.2015 to the U.S., but the parties continued to live separately, the respondent with her children. The appellant however, made short time visits in between and on one such occasion i.e. on 24.01.2015, he took along with himAadvik, representing that he would take him for a short B while to the Dulles Mall. According to the respondent, she did not suspect any foul play and pennitted the child to accompany his father, but to her dismay though assured, the appellant did not return with the child in spite of fervent insistences and implorations of the mother. As alleged by the respondent, the appellant thus separated the child from her from 24.01.2015 to 07.03.2015 in a pretentious and cruel move, seemingly C acting on a nefarious strategy which surfaced when on 07.03.2015, the appellant left U.S. with the child to India without any prior infonnation or pennission or consent of hers. 5. Situated thus, the respondent approached Juvenile and Domestic Relations Court Fairfax County, for its intervention and for that, on D 15.05.2015, she filed "Emergency Motion For Return of Minor Child and Established Temporary Custody''. 6. On the next date fixed i.e. 19.05.2015, after the service of the process on the appellant, his counsel made a "special appearance" to contest the service. On the date thereafter i.e. 28.05.2015, he however E informed the court that he was not contesting the service upon the appellant, whereupon hearing the counsel for the parties at length and also noticing the plea on behalf of the appellant that he intended to return with the child in U.S. and that the delay was because of his mother's illness, the U.S. Court passed the following order: "IN THE JUVENILE & DOMESTIC RELATIONS DISTRICT COURT FOR FAIRFAX COUNTRY SHILPI GUPTA Petitioner Vs. Prateek Gupta Respondent IN re: Aadvik Gupta D.O.B. September 28, 2012 Case No. JJ 431468-01-00 · F G H 238 A B SUPREME COURT REPORTS (2017) 13 S.C.R. ORDER This cause came before this Court on the 19" May, 2015, upon the petitioner Shilpi Gupta's verified motion for return of minor child and to establish temporary custody; It appearing to the Court that this Court has proper jurisdiction over the parties to this action pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, more specifically 20-146.24 and 20-146.32 of the Code of Virginia, 1950, as amended. c It further awearing to the Court that it is in the best interest of the child, Aadvik Gupta, (hereinafter "Aadvik"l born on September 28, 2012, that he be immediately returned to the custody of the petitioner and to the Commonwealth ofVrrginia pending any further order of this Court and that good cause exists with which to require that the petitioner take immediate possession of the child by all D means necessary. It is therefore adjourned and ordered as follows: E F G H I. Custody: The petitioner Shilpi Gupta, is hereby granted sole legal and physi~al custody of the minor child,Aadvik Gupta, pending further order qf this Court. 2. Return of the Child: That the respondent, Prateek Gupta, is hereby ordered to inunediately returnAadvik to the Commonwealth of Virginia, and to the custody and control of the petitioner or her agents. Thereafter, the respondent shall not remove the child from the Commonwealth of Virginia under any circumstances without further order of the Court. 3. Enforcement: That the all law enforcement agencies and related agencies (including but not limited to Police Department(s), Sheriff's Deparnnent(s), U.S. State Department, Federal Bureau of Investigations) are hereby directed to assist and/or facilitate the transfer of Aadvik to the petitioner, if necessary, including taking the child into custody from anyone who has possession of him and placing him in the physical custody of the petitioner. 4. Passport: That once the child has been returned to Virginia, any and all of Aadvik 's passports must be immediately surrendered to the petitioner where it will be held until further order of this Court. PRATEEK GUPTA v. SHILPI GUPTA & ORS. [AMITAVA ROY, J.] 239 5. Removal from the Commonwealth ofVirginia: That all relevant A and/or local law enforcement agencies shall do whatever possible to prevent the removal of Aadvik Gupta, from the Commonwealth ofVirginia except at the direction of the petitioner, Shilpi Gupta. And this cause is continued. Entered this 28 day ofMay, 2015. Sci/- Judge" B 7. Thereby, the Court in U.S. being satisfied that it had the proper jurisdiction over the parties to the action before it and also being of the opinion that it was in the best interest of the child, that he be returned to C the custody of the respondent and to the Commonwealth of Virginia pending further orders, and that being convinced that good cause existed to require that the respondent-mother take_immediate possession of the child by all means necessary, granted sole legal and physical custody of the child to the respondent pending further orders of the Court. The D appellant was directed to immediately return the child to the Commonwealth of Virginia and to the custody and control of the respondent or her agents with a further restraint on him not to remove the child from the Commonwealth of Virginia under any circumstance without the furtherorderofthe Court. Thereby, all law enforcement and related agencies as mentioned in the order were directed to assist and/ E or facilitate the transfer of the child to the respondent, if necessary by taking the child into custody from anyone who had his possession and by placing him in the physical custody of the respondent. 8. As the records laid before this Court would divulge, the appellant meanwhile on 26.05.2015 filed a petition for restitution of conjugal rights F under Section 9 of the Hindu Marriage Act, 1956 (as amended) and also a petition under Section 7(b) of the Guardian and Wards Act, 1890 in the court of the Principal Judge, Family Court, Rohini, Delhi seeking a decree for restitution of conjugal rights between the parties and for a declaration that he was the sole and permanent guardian of the child, respectively. G Subsequent thereto on 26.08.2015 he also instituted a suit in the High Court of Delhi at New Delhi praying for a decree inter alia to adjudge the proceedings initiated by the respondent in the court in U.S. to be false, malicious, vexatious, oppressive and nullis juris, being without jurisdiction and also to declare the order dated 28.05.2015 with regard to H 240 SUPREME COURT REPORTS [2017] 13 S.C.R. A the return of the child to the custody of the respondent-mother to be also null and void and not binding on him. A decree for permanent injunction against the respondent, her agents etc. from pursuing her proceedings before the court in U.S. was also sought for. The orders, if any, passed in these proceedings instituted by the appellant having a bearing on those B c pursued by the respondent before the court in U.S. are however not on record and we therefore refrain from making any comment thereon. Suffice is to state that the lodging of the proceedings by the appellant in courts in India demonstrates in unambiguous terms, his knowledge about the /is in the Co\lfl in U.S. and the order dated 28.08.2015, interim though, directing him to return the custody of the child immediately to the respondent-mother and to the Commonwealth ofVtrginia, pending further orders. 9. Be that as it may, the court in U.S. on 20.10.2015 noticing inter alia that the appellant had refused to return the child to the U.S. and to the custody of the respondent in direct violation ofits earlier order D dated 28.05.2015, ordered that the respondent be granted sole, legal and physical custody of the child and also declared that no visitation be granted to the appellant. It was further directed that if either party intended to relocate his or her residence, he/she would have to give 30 days' advance written notice of any such intended relocation and of any E F intended change in address to the other party and the court. The proceedings concluded with the observation "This cause is final". For immediate reference the proceedings of 20.l 0.2015 is also extracted hereinbelow: "IN THE JUVENILE & DOMESTIC RELATIONS DISTRICT COURT FOR FAIRFAX COUNTY Shilpi Gupta Petitioner In re: Aadvik Gupta D.O.B. September 28, 2012 G Case No. JJ431468-0l-00/02-00 Vs. H Prateek Gupta Respondent PRATEEK GUPTA v. SHILPI GUPTA & ORS. [AMITAVA ROY, J.] CUSTODY AND VISITATION ORDER This cause came before this Court on the 20th day of October, 2015, upon the petitioner Shilpi Gupta's petitions for custody and visitation of Aadvik Gupta. It appearing to the Court that it has jurisdiction over the parties and the subject matter of the above-stvled matter; 241 A B It further appearing to the Court that the respondent, Prateek Gupta. unilaterally removed Aadvik Gupta to India without notice to or consent of the petitioner, and has further refused to return said child to the United States and into the custody of the petitioner in direct violation of this Court's order entered on May 28. 2015. C Having considered all of the factors of20-124.3 of the Code of Virginia, 1950, as amended, it is hereby: Adjudged and ordered that petitioner is granted sole legal and physical custody of Aadvik Gupta: it is further. Adjudged and ordered that no visitation is granted to the respondent at this time: and it is further: Adjudged and ordered that pursuant to 20-124.5 of the Code of Virginia, 1950 as amended, either party who intends to relocate D his or her residence shall give thirty-days advance written notice E of any such intended relocation and of any intended change of address, said notice being given to both the other party and to this Court. This cause is final Entered this 20'" day of October, 2015." 10. Mentionably, before the order dated 20.10.2015 was passed, the respondent in the face of deliberate non-compliance of the order dated28.05.2015 of the court in U.S. had filed a contempt petition before F it and the copy thereof was served on the appellant asking him to show cause. It is also a matter ofrecord that the order dated 28.05.2015 of G the court in U.S. had been published in the daily "The Washington Times" on 03.09.2015, whereafter the order dated 20.10.2015 was passed in the presence of the counsel for the appellant after affording the respondent due hearing, whereupon the counsel of the appellant signed H 242 SUPREME COURT REPORTS [2017] 13 S.C.R. A the order with the following endorsement "objected to for returning the child to mother sole legal and physical custody". The proceedings of the order dated 20.10.2015 would also testify that he failed to appear even after personal service. That the notice of the proceedings in U.S. Court at both the stages had been served on the appellant is a minuted fact. It 8 was in this eventful backdrop, that the respondent invoked the writ jurisdiction of the High Court of Delhi seeking a writ of habeas corpus against the appellant for the custody of the child alleging its illegal and unlawful charge by him. c D E F G H 11. In reinforcement of her imputations, the respondent elaborated that the child was an American citizen by birth, Virginia being his home State and that in spite ofthe order(s) of a court of competent jurisdiction, the appellant had illegally detained him. Various correspondences made by her with different authorities seeking their intervention and assistance as the last resort before approaching the Writ Court were highlighted. 12. In refutation, it was pleaded on behalf of the appellant that the petition for a writ in the nature of habeas corpus was misconceived in absence of any imminent danger of the life or physical or moral wellbeing of the child. Referring to, amongst others the proceedings initiated by him under the Guardian and Wards Act, 1890 which was pending adjudication, it was asserted on his behalf that as the same assured effective and efficacious remedy in law, the prayer in the writ petition ought to be declined. It was insisted as well that as the issue of the custody of the child was involved, a summary adjudication thereof was unmerited and that a proper trial was the imperative. Apart from referring to the reasons for the acrimonious orientation of the parties, the initiatives and efforts made by him and his family members to fruitlessly effect a resolution of the differences, were underlined. It was maintained on his behalf that the parties however, as an interim arrangement made on 24.01.20 l 5 had agreed to live separately with each parent keeping one child in his/her custody and that in terms thereof Aadvik, the minor whose custody is in dispute, was given in charge of the appellant. Institution and pendency of the other proceedings before the Indian Courts were also cited to oppose the relief of the writ of habeas corpus. It was contended as well that the respondent being a single working woman, she would not, in any view of the matter, be capable of appropriately looking after both the children. PRATEEK GUPTA v. SHILPI GUPTA & ORS. [AMITAVA ROY, J.] 243 13. In rejoinder, it was asserted on behalf of the respondent that A the proceedings instituted by the appellant were all subsequent to the one commenced by her in the court in U.S. on 15.05.2015 and in the face of the final order(s) passed, directing return of custody of the child to her and the Commonwealth of Virginia, the continuance of the child with the appellant was apparently illegal and unauthorized, warranting the grant of writ of habeas corpus. 14. The High Court, as the impugned judgment would evince, after traversing the recorded facts, amongst others took note of the disinclination of the respondent-wife to join the company of her husband in India because of his alleged past conduct and the trauma and torture suffered by her, a plea duly endorsed by her father present in court, granted the writ as prayed for. While rejecting the contention of the appellant that no orders ought to be passed in the writ petition in view of the pendency of the three proceedings initiated by him in India, the High Court seemed to place a decisive reliance on the decision of this Court in Surya Vadanan B c vs. State of Tamil Nadu & Ors.,1 and after subscribing to the principle D of "comity of courts" and the doctrines of "most intimate contact" and "closest concern" returned the finding, in the prevailing factual setting, that the domestic court had much less concern with the child as against the foreign court which had passed the order prior in time. It observed further that no special or compelling reason had been urged to ignore the principle of comity of courts which predicated due deference to the orders passed by the U.S. Court, more particularly when the appellant was represented before it through his counsel and had submitted to its jurisdiction. It was held that as the child remained in the U.S. since birth upto March, 2015, it could be safely construed that he was accustomed to and had adapted himself to the social and cultural milieu different from that of India. It was observed that no plea had been raised on behalf of the appellant that the foreign court was either incompetent or incapable of exercising its jurisdiction or had not rendered a reasonable E F or fair decision in the best interest of child and his best welfare. In the textual facts, the conclusion of the High Court was that the most intimate contact with the parties and their children was of the court in U.S. which G did have the closest concern for their well-being. 15. Having determined thus, the High Court directed the appellant to produce the child in court on the date fixed for consequential handing over of his custody to the respondent. '(2015) 5 sec 450 H 244 A B c D E F G H SUPREME COURT REPORTS [2017] 13 S.C.R. 16. In the process of impeachment of the impugned ruling of the High Court, the learned counsel for the appellant at the threshold has assiduously questioned the maintainability of the writ proceeding for habeas corpus. According to the learned counsel, in the attendant facts and ci:rcumstances, the custody of the child of the appellant who is the bioloi,>ical fatber can by no means be construed as illegal or unlawful and thus the writ proceeding is mi