Summary
The child’s welfare prevailed over mechanical enforcement of a foreign return order or a first-strike rule. The Court set aside the habeas-corpus direction for return to the UK and left the child with her mother, subject to any competent custody decision, while prescribing paternal contact and safeguards for the mother’s participation in UK proceedings.
Issues
- Whether comity or the earlier foreign order required return despite the child’s welfare.
- What relief was appropriate in habeas corpus rather than substantive custody adjudication.
Held
- Whether proceeding summarily or through detailed inquiry, the Indian court must treat welfare as paramount and the foreign order as one relevant factor. Habeas corpus is not an execution mechanism for foreign custody directions; the first-strike approach cannot override welfare. (¶¶ 24–32, 38–43)
- Custody with the biological mother was presumed lawful here; the later ex parte UK order did not by itself make it unlawful. The child’s circumstances and care needs supported remaining with her mother, while disputed allegations and final custody merits were left to appropriate proceedings. (¶¶ 30–33, 42–44)
- The father received supervised-in-context visits in Delhi on two weeks’ written notice, two hours a day twice weekly, without removing the child from the venue, and telephone/video contact during the specified school-holiday hours. (¶ 44)
- The mother was required to participate in UK proceedings through chosen solicitors. The father must fund litigation and any necessary travel, return and independent accommodation, and remove or refrain from coercive proceedings as a condition for her required personal appearance there. (¶ 45)
Result
Appeal allowed; High Court order set aside and father’s habeas petition dismissed subject to the contact and UK-litigation arrangements. No costs; competent substantive custody proceedings remain available.