The Supreme Court held that in petition seeking writ of habeas corpus in matter relating to custody of child, the Court exercises an inherent jurisdiction, independent of any statute and therein the paramount consideration of the Court is to ascertain what is in the best interest of the child.

"...the employment of the writ of Habeas Corpus in child custody cases is not pursuant to, but independent of any statute. The jurisdiction exercised by the court rests in such cases on its inherent equitable powers and exerts the force of the State, as parens patriae, for the protection of its minor ward, and the very nature and scope of the inquiry and the result sought to be accomplished call for the exercise of the jurisdiction of a court of equity. The primary object of a Habeas Corpus petition, as applied to minor children, is to determine in whose custody the best interests of the child will probably be advanced."

The Court allowed, but issued certain directions in a plea filed by a mother seeking the Apex Court to issue writ in the nature of habeas corpus and to issue directions to the State authorities to trace her two minor children and deliver their custody to her, so that they can be repatriated to the United States of America in compliance of order dated 30.07.2021 passed by a Court in Ohio, USA.

Factual Background

After getting married sometime in 2008, the petitioner along with her husband migrated to the United States of America. Subsequently in May, 2009 they returned to Chennai and on 07.10.2009 the petitioner gave birth to her daughter. In January 2012, the family relocated to Kansas, USA and then to Ohio. In the meanwhile, the petitioner gave birth to her son. In 2016, the petitioner secured admission in Cleveland State University, Ohio. As her husband lost jobs and moved to Wisconsin, the petitioner and her children were sharing a house with eight other girls. After graduating she found employment in Ohio. In June, 2019, the petitioner's husband picked up the minor children without informing her and left for Michigan, where he was stationed at that point in time. To leave the petitioner with no remedies, he had taken away her legal documents and before leaving Ohio lodged a complaint with the local police that she was mentally ill and had run away from a mental ward. The petitioner filed for Emergency Motion for Temporary Custody of her children along with a complaint for divorce in Ohio. On 17.06.2019, temporary custody was granted, which was not complied with by her husband. Eventually, on 30.07.2021 a shared parenting plan was worked out between the parties, granting them joint custody of their children. The parties agreed to not relocate without the consent of the other party and without informing the Court. On 17.08.2021, it seems, in order to escape joint custody, the husband left for India with the children. The shared parenting plan was terminated by the Ohio Court on 09.02.2022, as the husband had violated the consent decree and the petitioner was declared as the resident parent and legal custodian of the children.

Analysis by the Supreme Court

The Bench noted that in a petition seeking writ of habeas corpus in a matter relating to a claim for custody of a child, the primary duty is to find out if, from the facts of the case, it can be ascertained that the custody of the child is illegal, as held by the Apex Court in Nithya Anand Raghavan. It is also required to ascertain if the child is to be handed over to the care and custody of another person. The same principle was reiterated in Syed Saleemuddin v. Dr. Rukhsana And Ors. (2001) 5 SCC 247. The Bench observed that while considering the competing claims of guardianship, the test would be to see what would best serve the welfare and interest of the child. It referred to a catena of Indian as well foreign judgments, wherein the Apex Court had held that in all circumstances, welfare of the minor child would prevail over the legal rights of the parties in the custody battle. As held by the Court of Appeal, In Re: McGrath (Infants), the moral and religious welfare of the child must be considered alongside its physical well-being. The Bench referred to the judgment of the New Zealand Court in Walker v. Walker And Harrison wherein it was observed that material considerations are secondary matters and stability, security, loving and understanding care and guidance, warm and compassionate relationships are essential for the development of a child's character, personality and talents. On perusal of observations made by the Apex Court in similar circumstances, the Bench noted that doctrines of comity of courts, intimate connect, order passed by foreign courts regarding custody, citizenship of the parents and the child cannot override the consideration of the best interest of the child.