1 REPO RTABLE IN THE SUPREME COURT OF INDIA CRIMINAL ORIG INAL JURISDICTION WRIT PETITION (CRIMINAL) NO. 402 OF 2021 RAJESWARI CHANDRASEKAR GANESH …PETITIONER(S) VERSUS THE STATE OF TAMIL NADU & ORS. …RESPONDENT(S) J U D G M E N T J.B. PA RDIWALA, J. : 1. This writ petition under Article 32 of the Constitution of India involves a contest over the custody of children born out of the wedlock between the petitioner -mother and the respondent no.2 -father. The responde nts nos.4 and 5 respectivel y are the bro ther and father of the respondent no.2. 2. The petitioner -mother has prayed for the following reliefs : “(a) Issue an appropriate writ, order or direction in the nature Habeas Corpus to the Respondent No.1 to immed iately trace and produce th e minor ch ild re n Lakshaya Ganesh and Bhavin Sai Ganesh before this Hon’ble Court and deliver their custody to the Petitioner Mother so as to repatriated them to the U.S. in compliance with the Order passed by the U.S. Court dated 30.07.2021. 2 (b) issue a d irection to t he Respondent No.3/Director of CBI to trace the minor children Lakshaya Ganesh and Bhavin Sai Ganesh and to produce them before this Hon’ble Court, since the Respondent No.2 is not traceable. (c) issue an appropriat e writ, order or direction in the na ture H abeas Corpus to Respondent No.2 to cooperate with anyone appointed by the Petitioner Ex -Wife to transport the minor children – Lakshaya Ganesh and Bhavin Sai Ganesh to the United States within a time frame; (d) Pa ss such other order or furt her order s an d directions as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case and in the interest of justice.” 3. The case put up by the petitioner -mother may be summarised as under : 4. The marriage between the petit ioner and the re spondent no.2 was solemnized on 31 st October 2008 as per the Hindu rites and rituals at Chennai, India. Within one month from the date of the marriage, the parties migrated to the Bear, Delaware, USA. 5. The resp ondent no.2, at the relevan t point of time, was working with the Satyam Computers. Sometime in May 2009, the parties were constrained to return to Chennai, India, as the project that the respondent no.2 had been working on with the Satyam Computers got ter minated on account of some internal is sues i n the company. 6. On 7 th October 2009, the parties were blessed with a 3 daughter named Lakshaya Ganesh. It appears from the materials on record that sometime in January 2012, the respondent no.2 was able to secur e a job in Kansas, USA. Sin ce 2012, the parti es have been residing in the USA. 7. It further appears that between April 2012 and November 2012, the respondent no.2 lost several jobs, and in such circumstances, the parties had to shift from Kansas, USA, to Boston, Massachu se tts, USA . Sometime l ater, t hey shifted to Findlay, Ohio, USA. In January 2012, the minor daughter Lakshaya Ganesh started her preschool at the Owen’s Day Care, Findlay, Ohio, and thereafter, was admitted to a kindergarten at the Lincoln Elementary School, Findlay, Ohio. While the mi nor daughter Lakshaya was studying in the kindergarten, the teachers over there noticed that Lakshaya was a gifted child, i.e. a child with a remarkable IQ level. The parties were blessed thereafter with a son named Bhavin Sai Ganesh on 20 th July 201 3 at t he Blanchard Valley Hospital, Findlay, Ohio. The minor son Bhavin Sai Ganesh is a U.S. citizen by naturalization and holds an American passport. 8. In March 2016, the petitioner cleared her GRE and TOEFL and secured admissi on in the Cleveland State U nivers ity Oh io, USA. The respondent no.2, on the other hand, lost yet another job. 4 9. It is the case of the petitioner that she started living in a room with eight other girls and her minor children. She attended the university and had to take up t wo jobs to fee d and take care of herself and her minor children. 10. By December 2016, both the children started going to school. It is her case that she used to take care of her children in all respects. Sometime in August 2016, t he respondent no.2 m oved for yet an ot he r j ob to Milwaukee, Wisconsin, and in such circumstances, the petitioner had to stay all alon e with the minor children and take care of them. 11. In May 2018, the petitioner completed her Master’s in Computer and Inf ormation Science and also obtained a G radua te Certificate in Data Analytics with the GPA of 3.64. She started working with the G&S Metal Products. On the other hand, in April 2019, the respondent no.2 -father managed to find a full time job in Michigan, US A. 12. It is the ca se of the petit io ne r tha t once the respondent no.2 was able to procure a full time job in Michigan, USA, he started conceiving ideas of taking away the minor children. 13. It is the case of the petitioner that on 1 st June 2019, the res pondent no.2 picked up the minor chi ld ren and left for Michigan, USA, from Cleveland, Ohio, without informing the petitioner -mother. 5 14. It is alleged that the respondent no.2 also took away all the legal documents of the petitioner including her passport , State ID, home key s, car keys along w ith the documents of the minor children. 15. It is alleged that the petitioner was locked in her own house. It is also alleged that with a view to ensure that the petitioner had no recourse/redressal, the respondent no.2, before leaving for Michigan, USA , lo dg ed a false complaint with the local police that the petitioner was mentally ill and that she had r un away from a mental ward. 16. In such circumstances referred to above, the petitioner was constrained to immedi ately file an Emerge ncy Motion for Temp or ar y Cus tody of the minor children along with a complaint for divorce before the Court of Common Pleas, Division of Domestic Relations, Cuyahoga County, Ohio. The court concerned, vide order dated 17 th June 2019, gra nted temporary custo dy of the minor chi ld re n to the petitioner. 17. It is alleged that despite such order being passed by the court of Common Pleas referred to above, the respondent no.2 paid no heed to such order and continued to keep the children away w ithout allowing them to talk with their mo th er . 18. It appears that the petitioner also filed for an Emergency Motion restraining the removal of the minor children from the 6 jurisdiction of the Ohio Court. The court concerned passed a restraint order in fa vour of the petition er on the same date , i.e. 17th June 2019. 19. Sometime in July 2019, one Ms. Megan was appointed by the US Court as the guardian -ad -litem . However, the order granting the custody of the minor children to the petitioner was not acted upo n by the respondent no.2. 20. In Augus t 2 01 9, the US Court directed supervised visitation and referred the parties to mental evaluation experts. 21. It is the case of the petitioner that despite the custody order dated 17 th June 2019 passed in favour of her, the respondent no.2, without seeki ng p er mi ss ion of the US Court and without informing the petitioner, removed the minor children from the specialized school in Ohio to Allegan, Michigan. While doing so, the respondent no.2 did not even furnish the det ails of the petition er -mother including her con ta ct number, etc. so as to completely alienate the petitioner from her children. 22. It is the case of the petitioner that thereafter the respondent no.2 started administering threats that he would take away the children to Indi a. As a result of s uch t hr ea ts , t he petitioner was constrained to bring the necessary facts to the notice of the Court concerned. The Court concerned directed that 7 the passport of both the minor children be put in the Court’s custody. 23. As the responden t no.2 was not able to re m ov e the minor children from the USA, he decided to alienate the children from the petitioner -mother by refusing her unsupervised visitation. It is alleged that the respondent no.2 prevented the children from re aching out to their mother and it was o nly wi th th e intervention of the expert evaluator, namely Dr.Mark Lovinger, that the petitioner was allowed to spend time with the minor children. 24. In November 2019, both the expert evaluators, submitted their opi nion, stating that t he petitioner was f it to h ave unsu pervised time with the children and there was no merit in any of the allegations levelled by the respondent no.2. 25. In February 2020, the petitioner was able to procure a new job and obtained H1B visa via sponsorship. The pe titioner moved back to Find lay , Ohi o, where the minor son was born and was able to secure a new apartment with good facilities for the children. However, according to the petitioner, the respondent no.2 failed to abide by the custody or der dated 17 th June 20 19 and also faile d t o abi de by th e evaluation reports recommending unsupervised visitation to the petitioner qua the minor children. It is alleged that the respondent no.2 declined to bring the 8 children to the petitioner and allowed h er to visit them onl y in his presence. 26. It a ppe ars t hat a shared parenting plan was arrived at between the parties vide order dated 12 th May 2021 passed by the Court of Common Pleas, Division of Domestic Relations, Cuyahoga County, Ohio. The shared par enting means the par ents share the righ ts a nd re spo nsibi lities as provided for in a plan approved by the Court as to all or some of the aspects of the physical and legal care of their children. The mother and the father together, under a shared parenting a greement, are grante d custody, care and con trol of the m inor children until further order that may be passed by the Court subject to certain terms and conditions. By virtue of the shared parenting plan referred to above, both the parties got joint custody of their children. T he visitation sched ule w as c lea rly l aid down in the shared parenting plan dated 12 th May 2021. The parties agreed to not relocate without the consent of the other party and without the Court’s permission by way of a 60 day prior notice and the passports of the children were to s tay i n a ltern ation with the non -custodian parent while the children were in the custody of the other parent. 27. It appears that a separation agreement was also entered upon between the parties dated 27 th July 20 21. On 28 th July 9 202 1, the respondent n o.2 s ent a n e mail to the US Court in the form of an intimation that he would like to take his minor children on a vacation to India and asked the petitioner -mother to keep the children for three weeks. 28. On 15 th Au gust 2021, the respo ndent no.2 posted a trave l iti ner ary. The petitioner noticed that the itinerary was such that the children would miss their school by a week. The petitioner declined to accept the itinerary. The petitioner requested the respondent no.2 to go to India for h is vacation, and du ring t hat peri od, t he kids would stay with their mother. 29. It is the case of the petitioner that the respondent no.2, out of spite, called upon the local police levelling false allegations that the petitioner was c ausing harm to her c hildren owing to an allege d men tal illn ess. The local police responded to the call and after due verification arrived at the conclusion that the children were healthy and were well taken care of by the petitioner. The case was according ly closed. 30. It a ppears that on 16 th August 2021, th e res pondent no.2 lodged one another complaint with the police. The petitioner had to leave her house with the minor children so as to consult her lawyer. She requested her friend to take care of her c hildren while she wa s gone. When the fr iend of the p eti tione r reached the petitioner’s house, the children were nowhere to be found. In 10 such circumstances, the petitioner immediately called up the US police at Findlay, Ohio. At 10:00 pm., the respondent no .2 informed the peti tioner that the chi ldren we re in Mi chiga n. 31. It is the case of the petitioner that on 16/17 th August 2021 at 2:55 am, she received a distress call from her minor daughter Lakshaya Ganesh aged 12. The petitioner noticed that her minor daughter Lakshaya G anesh was crying on phone. T he mi nor daug hter also informed the petitioner -mother that she was in Chicago and the father was intending to take them to India. The petitioner was shocked to hear what was informed by her daughter on phone, as the respondent n o.2 was not schedul ed to tra vel t o I ndia before 19 th August 2021 as per his own itinerary. The minor daughter revealed to the petitioner -mother that the respondent no.2 -father had sent an incorrect itinerary. 32. It is the case of the petitioner that the respondent no.2 cla ndestinely and wit h a v iew to solely removing the children from the USA and from the joint custody of the petitioner, left for India with the two minor children on 17 th August 2021. 33. On 18 th August 2021, being com pletely unaware of t he respondent no.2 having left for Ind ia wi th the minor children, the petitioner immediately moved an Emergency Motion for restraining the respondent no.2 from removing the minor children from the USA. The Court concerned granted the or der 11 as prayed for by the petitioner. It was after this ord er th at, according to the petitioner, she checked with the Etihad Airways to confirm the itinerary of the respondent no.2 and found that the one submitted by the respondent no.2 was incorrect. 34. The petitioner later discovered that th e respondent no.2 ha d alr eady flown out with the minor children on 17 th August 2021 against his own itinerary. The respondent no.2 was supposed to leave on 19 th August 2021. 35. The petitioner desperately tried to ge t in touch with her minor daughter on p hone between 16th Aug ust 2 021 and 21 st August 2021 but her phone was found to be switched off. On 21 st August 2021, the petitioner received a call from her minor daughter pleading with the petitioner -mother to take he r back to the USA. 36. The petitioner -mother console d her mi nor d aughter not to panic or confront the respondent no.2 -father less he would harm her. The petitioner was also informed by her minor daughter that the respondent no.2 had first taken them to so meone’s house at Che nnai and was therea fter planning to mo ve to th e house of their grandfather. 37. At this stage, we would like to reproduce the verbatim averments made by the petitioner as contained in paragraphs 25 to 28 respectively. We quote the nece ssary averments thus : 12 “25. That the P etitioner Ex -Wi fe ha s b een d eliberately kept away from the children since 2019 and finally when the Settlement Agreement/In -Court Agreement allowed the Petitioner Ex -Wife to enjoy the company of the minor children tha t the Respondent no. 2 had deprived her off, the minor chil dre n hav e now been abducted by the Respondent No.2 and illegally removed from the US. That the Respondent No.2 deliberately left with the legal documents of the minor children in absolute breach of the terms of the Se ttlement Agreement dated 30.07.202 1 and sw itche d off the minor daughter’s phone to block any and every channel of communication with the Petitioner Ex -Wife. The Respondent No.2 has a manic tendency of harassing and torturing the Petitio ner Ex -Wife to no ex tent and in this fi nal blow has mi sused th e chi ldren as a weapon to seek vengeance from the Petitioner Ex - Wife. 26. The minor children are currently nowhere to be found and the Petitioner’s father has made all possible attempts to tra ce the minor childre n in Chennai. The Petitioner Ex -Wi fe’s fat her t ried to trace the minor children to the Respondent No.2’s brother’s house i.e. the Respondent No.3 at Tripti Apartments, Apt No.20, Marshall Enclave, 15/8 Egmore, Chennai but the guard told him that the said h ouse had been vacat ed alongwith th e two ch ildre n. Thereafter, he also checked at the Respondent No.2’s parental home i.e. the Respondent no.5’s house at No.5, State Bank Colony, A.A Road, Virudhunagar, Tamil Nadu however, the children w ere not even found h ere. The Respondent No. 2 has ther efore , f led t he US with the minor children and has been moving around the country completely unknown to the Petitioner mother and to the complete detriment to the minor children who have been missing th eir school and their home in the US. Th e Respondent No . 2 a nd his f amily have been hand in glove in keeping the Petitioner Ex -Wife deprived of the company of the minor children. That the Petitioner’s father fearing for the safety and welfare of the minor c hildren has made a c omplaint to the Sup erintendent of Polic e, Colle ctorate Complex, Virudhunagar, Tamil Nadu on 13 13.09.2021 requesting him to investigate into the case of searching for the minor children who have been illegally removed from their parent nat ion. 27. That on 21 .9,2021 in furthera nce to the comp laint ma de by the Petitioner Ex -Wife’s father, the Virudhanagar Police, Chennai informed the Petitioner’s father that the minor children could not be found neither at the residence of the Respondent No. 4 at Tripti Apartmen ts, Egmore, Chennai nor at the res idenc e o f the grandfather i.e. the Respondent No.5. Further now the Petitioner Ex -Wife has also found out through the Police Authorities in Ohio, USA that the Respondent No.2 is planning to shift to Mah arashtra and shifted his job in Perrigo , Allegan, ‘Mic higan , U SA to Maharashtra, India. The Petitioner is thus at a complete loss is absolutely unaware of the whereabouts of the minor children and of the Respondent no. 2. 28. The minor children are being kept away from the Petitioner Ex -Wife w ho has equal pa renta l r ights and responsibilities qua the minor children as laid out in Settlement Agreement dated 30.07.2021. The Respondent no. 2 Ex -Husband is willfully disobeying the Orders of the US Court by deta ining the minor chil dren somewhere in I ndia not just c ontra ry to th e Settlement Agreement but also against the wishes and interest of the minor children who have been plucked out of their society based on the Respondent Ex - Husband’s whim. The US Court is t he ONLY Court having jurisdiction over the minor child ren a s t he ch ildren are permanent citizens of the USA and the minor son Bhavin Sai Ganesh is a citizen of the USA and holds an American Passport. The children’s education is suffering as they were abduc ted from the USA mid -term and despite t he Petitioner E x-Wif e’s ince ssant efforts to make the Respondent No.2 understand the implications of his actions, the Respondent No.2 Ex -Husband has become unresponsive and untraceable alongwith the children.” 14 38. It would not be out of place to state ove r here that the shar ed paren ting plan referred to above by us in paragraph 26 ultimately came to be terminated by the Court at Ohio vide order dated 9 th February 2022 at the instance of the petitioner -mother. We quote few relevant observ ations mad e by the Court at Ohio as und er : “33 . Defendant/Father’s failure to return the children from India was a clear violation of the consent order, as follows : “a. Defendant/Father failed to honor Part I(C)(1) of the S hared Parenting Plan, whereby he pledge d to “provide the childre n wit h a n emo tional environment in which the children are free to continue to love the other Parent and spend time with them.” b. Defendant/Father failed to honor Part I(C)(3) of the Shared Parenting Plan, whereby he pl edged to “ allow the children to tel ephon e o n a reasonable basis.” c. Defendant/Father failed to honor Part I(C)(4) of the Shared Parenting Plan, whereby he pledged to “communicate with the other Parent openly, honestly, and r egularly to avoid misundersta ndings whi ch are harmful to the chi ldren .” d. Defendant/Father failed to honor Part I(C)(7) of the Shared Parenting Plan, whereby he pledged “not to withhold time with the other Parent as a punishment to the children or the other Parent.” e. Defendant/ Father fai led to honor Part I(C)(10 )(a) of the S hared Parenting Plan, 15 whereby he pledged to honor the children’s rights to a continuing relationship with both parents. f. Defendant/Father failed to honor Part I(C)(g) of the Sh ared Parenting Plan, whereby he pledged to honor the children’s right s t o “ex perience regular and consistent contact with both Parents and the right to know the reason for any cancellation or change of plans.” g. Defendant/Father has withheld parenting time from Plaintiff/Mother, as specified above. : h. Defendant/ Fathe r n ever provided the children’s passports to the Plaintiff/Mother. 34. It is in the best interests of both children to be returned immediately to the jurisdiction of the United States. 35. The children are famili ar with an d acclimated to the cultu re of th e Uni ted States and have thrived while studying in schools in the United States. In addition, the minor children have friends in the United States, and are acclimated to the surroundin gs of the United States. 36 . Defendan t/Father violated the Sha red P are nting Plan by failing to provide three weeks prior notice of the itinerary. 37. Defendant/Father violated the Shared Parenting Plan by failing to place the passports with Plaintiff/M other 38. Defendant/Father t ook the ch ildren surreptitiously to Indi a, a cou ntry of which the children had little familiarity. 39. One of the major components of the Shared Parenting Plan is that the Plaintiff and Defendant consistently communicate rega rding the best interests 16 of t heir child ren. Defendant/Father has fail ed to co mmunicate with Plaintiff/Mother. Plaintiff/Mother does not know where her minor children are living or if Defendant/Father ever intends to return them to the United States. 40. A change of circumstances exi sts in the children’s situation, th ey be ing surr eptitiously removed to India without notice to Plaintiff/Mother and without any plans to return. 41. It is in the children’s best interest for the Shared Parenting Plan to be ter minated. 42. It is in the c hildren’s best interest for Plainti ff/Mo ther to b e named as residential parent and legal custodian. IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that: 1. Plaintiff/Mother’s Motion to Terminate the Shared Parenting Plan and Designate Plaintiff as Reside ntial Pare nt and Legal Custodian (N o. 44 4481 ) is GRANTED in the best interests of the minor children. 2. Plaintiff/Mother, Rajeswari Chandresekar is hereby designated as the residential parent and legal custodian of daughter L akshaya Ganesh, DOB 10/7/2009 , and son Babvinsai Ganesh, DOB 7/2 0/201 3. 3. Defendant/Father shall make the children immediately available to communicate with Plaintiff/Mother and allow for daily communication between the children and their mother until t he children are in her custod y. 4. De fendant/Father shall imme diate ly r eturn the children’s passports to Plaintiff/Mother, or in the alternative arrange for and surrender the children’s passports to the Indian Court or a US Consulate in 17 India. Plaintiff/ Mother may apply for replacem ent passpo rts for the minor childre n wit hout cons ent of Defendant/Father. 5. Defendant/Father shall incur all transportation costs for the return of the children to the United States of America, per an itinerary to be determi ned by Plaintiff/Mother. 6. Defendant /Father shall submit to a n ind epen dent psychological evaluation at DeBalzo, Elugdin, Levine, Risen LLC, with Dr.Mark Lovinger for the determination of Defendant/Father’s ability to appropriately care for and co -parent the minor children, which sh all includ e psychological and chemi cal evalu ation as deemed appropriate, at Defendant/Father’s costs. 7. Defendant/Father’s visitation with the minor children is suspended until this Court can determine if visitation is appro priate. 8. Plaintiff/Mother shall be r esponsible for all non - em ergen cy m edica l decisions, emergency medical decisions, and educational decisions regarding the minor children. 9. For school purposes, Plaintiff/Mother’s residence shall dictate school enro llment for the children. 10 . This ord er is enforceable by any and a ll l aw en forcement agencies, including, but not limited to the Federal Bureau of Investigation, State Departments, and Immigration Authorities in both the United States of America and Ind ia. 11. This matter shall b e set for further hearing upon Plai ntiff /Mot her’s Motion to Show Cause, filed September 27, 2021 (No. 444480), and the request of Plaintiff/Mother for attorney’s fees pursuant to ORC §3105.73 for the change of custody motion.” 18 39. In such circumstances re ferred to above, the petitioner - mot her i s he re be fore this Court with the present petition under Article 32 of the Constitution of India seeking a Writ of Habeas Corpus. 40. Vide order dated 28 th September 2021, this Court iss ued notice to the respondents , making i t returnable within two we eks. 41. On 8 th December 2021, time was prayed for on behalf of the respondents nos.2, 4 and 5 respectively to file counter - affidavit. Three days’ time was granted to the respondents to file their counter affidavit. 42 . On 28 th January 2022, this Court pas sed t he f ollow ing order : “List this matter on 04.02.2022, as in the meantime, learned counsel for the respondent no.2 has expressed hope that she would be able to impress upon respondent no.2 to take appropriate meas ures for finding amicable solution bet w een the parti es themselves.” 43. On 28 th February 2022, this Court passed the following order : “The Mediator’s Report does indicate that the parties were unable to arrive at an amicable settlement. Nevertheless, i n deferenc e to the observation made by this Cou rt, l earned counsel for the respondent(s) prays for some more time to find out some workable 19 arrangement between the parties. As the respondent(s) has shown willingness in this re gard, by way of indulgence, w e defer th e hearing of this matter til l 04. 04.2 022.” 44. On 8 th April 2022, this Court passed the following order : “Learned counsel for respondent no.2 on instructions submits that respondent no.2 is seeking one week’s more time to interact with the pet itioner an d try to work out amicable a rrang emen t, if possible. As a result, we give one more chance to respondent no.2, as prayed. List this matter on 02.05.2022.” 45. On 2 nd May 2022, this Court passed the following order : “By way of indulgence and o n the insi stence of learned counsel fo r the pri vate respondents, we defer the hearing of this matter till 13 th May 2022. We make it amply clear that no further request for adjournment will be entertained at the instance of the private respondents on futur e date.” 46. Thus, as the parties wer e not abl e to arrive at an amicable settlement, the matter was finally heard on 13 th May 2022. STANCE OF THE RESPONDENT NO.2 : 47. According to the respondent no.2, the present petition filed by the petitioner seeki ng custody of her minor children so as to repat riate them to the USA is nothing but an abuse of the 20 process of law and not maintainable. According to the respondent no.2, the present petition is not maintainable as India is not a signatory to the Hague Con vention. T he terms of the Hague Convent ion are not b inding on the Indian parties and courts. 48. The respondent no.2 had given prior notice to the petitioner about his travel to India with children for a period of two weeks vi a email dated 28 th July 2021. The respo ndent no.2 had also informed t he p etit ioner about the travel date, i.e. 19 th August 2021, via email dated 15 th August 2021. The respondent no.2 had, via email dated 16 th August 2021, informed the petitioner about the address where they would be s taying in India. However, owing to the p ande mic, ther e were changes in the international travel norms. The transit locations of travel, i.e. the Middle East countries, were removed from the safety green list and a stay of 14 da ys in a transit location was made neces sary before flying to the home cou ntry . Acc ording to the respondent no.2, it is on account of such unforeseen circumstances that he had to make prompt changes in the travel plan, get the RTPCR test, etc. and then trav el to India to avoid a 14 day s’ stopove r in the Middle East, which wo uld have caus ed lot of inconvenience to the children including the financial burden for three persons. 21 49. It is the case of the respondent no.2 that the custody of the children with him cannot be said to be unlawfu l in any m anner. The custody of the minor chi ldre n wit h the father can never be termed as unlawful or illegal. According to the respondent no.2, the holiday was planned with the express consent of the petitioner -mother and both the children had a talk with their mot her, i.e. the petitioner, on 17 th Augus t 202 1 before leaving for India. Thereafter also, the children spoke to the petitioner - mother on 22 nd August 2021 on arrival in India. All throughout, the petitioner was kept inf ormed about the whereabouts o f the mino r children. 50. According to th e re spon dent no.2, this litigation is nothing but an outcome of several mental health issues on the part of the petitioner. The respondent no.2 has levelled serious allegations against the petitioner that she has b een diagno sed with several mental health i ssue s an d has been on medication for several issues for treatment of depression, bipolar disorder, schizophrenia, obsessive compulsive disorder, etc. According to the respondent no.2, i t is the erratic behaviour of the petit ioner that has resulted in his l oss of j ob. I t is alleged that the petitioner had approached the employer of the respondent no.2, namely Perrigo, Allegan, Michigan, USA, and created a distressing seen, thereby resulti ng in termination of the 22 resp ondent no. 2’s employment with immediate ef fect . As the respondent no.2 is not an American citizen nor is he a Green Card holder, the loss of job means that he cannot go back to the US without the work permit. 51. It is the cas e of the respondent no.2 that it is the petitioner who created a situati on b eyon d rep air, which ultimately led to the cancellation of visa. 52. According to the respondent no.2, he is not in a position to go back to the US as he has no means to reach the US and start a living without a steady job. According to him, he cannot a llow his chil dren to go back to their mother, i.e. the petitioner, having regard to the alleged mental disorder of the petitioner. According to the respondent no.2, the mental illness of the petitioner may increa se the ris k of the minor children’s emotiona l an d de velop mental growth. It is the case of the respondent no.2 that both the children are very happy residing in India with their grandparents. Both the children have been admitted in a very good school at Che nnai. Thei r education is being taken care of in the best possible manner. All other allegations levelled in the memorandum of the writ petition have been denied. 53. According to the respondent no.2, he was to return to Chica go on 2 nd September with the children. He had confirmed tickets of Etihad Airw ays, but for the unnecessary hue and cry 23 raised by the petitioner, a situation was brought around by which the respondent no.2 lost his job and consequently, the work permit came to be cancelled. 54. In suc h circumst ances, it is the case of the respond ent no.2 that the present petition under Article 32 of the Constitution of India seeking a Writ of Habeas Corpus is not maintainable. It is not maintainable as the father, being the natural guardian of his chil dren, the custody of the father cannot be term ed a s il legal or unlawful restrain on the minor children. In that context, no writ of Habeas Corpus can be issued. It is the case of the respondent no.2 that before a writ of Habeas Corpus can be issued, it has to be sho wn that there is either unlawful det enti on o r cus tody or there is an imminent or serious danger to the person detained, particularly if he or she is a minor. 55. We take notice of the fact that a rejoinder has also b een filed to the reply of the responden t no.2. Few additional affidavits hav e al so b een f iled by the respondent no.2, by and large reiterating what has been referred to above. SUBMISSIONS ON BEHALF OF THE PETITIONER : 56. Mr. Prabhjit Jauhar, the learne d counsel appearing for the petitioner, vehemently submitted that both the c hi ld ren are n ot 24 residents of India. The minor daughter Lakshaya came to the USA at the age of 2 in the year 2012 and started her schooling from Findlay, Ohio, USA. She is well ent renched in the social and cul tural mili eu of the USA and could be said to ha ve been pluck ed out of the same without ascertaining her wishes. The minor daughter Lakshaya, as on date, is 12 years of age and can well express her desires. The minor daughter is a permanent resident of the USA and ha s been residing, studying and sociali zi ng in the U SA. The custody of the minor daughter Lakshaya with her father, i.e. the respondent no.2, could be termed as illegal as the same is against the settlement agreement da ted 30 th July 2021 that had b een mutual ly arrived at by and between the part ie s befo re th e US court. The respondent no.2 – father has managed to keep the custody of the children by flouting various orders passed by the US courts. He cannot be a beneficiary of his own wrongs. 57. The minor son Bhavin Sai Ganesh is an American citiz en holdi ng an American passport and, therefore, he is ordinarily a resident of the USA. The minor son Ganesh Sai is 8 years of age and has been in the USA since his birth. His custody wi th the respondent no.2 at Che nnai could also be said to be illegal, mo re parti cular ly, could be said to be in contravention of the settlement agreement dated 30 th July 2021. 25 58. The allegations levelled by the respondent no.2 that the petitioner is suffer ing from various mental disor ders are reckless, far from being true. If the pet ition er had any mental issues and the respondent no.2 was so much concerned about the interest and welfare of his two minor children, then there was no good reason for him to go for the settlement agreement dated 30 th July 2021. The respondent no.2 cou ld b e sai d to be in gross and blatant contempt of the various orders passed by the US court. He could be said to have kept the custody of the custody of the minor children illegally . His act has deprived the pe titioner a s a mother to take care of her m in or chi ldren in accordance with the shared parenting plan and allocation of parental rights and responsibilities. 59. Mr. Jauhar, the learned counsel appearing for the petitioner, subm itted that even with all that the respo ndent no.2 has done, the petitio ne r is s till ready and willing to abide by the shared parenting plan and allocation of parental rights and responsibilities. The respondent no.2 should, at the earliest, return to the U SA with both the minor childr en and abi de by the various orders passed by the U S cou rts, more particularly, the shared parenting plan. 60. The learned counsel would submit that the respondent no.2 should be asked to apply for a fresh visa at the earliest 26 pointing out to the authoriti es concern ed that he is duty -bound in law t o go bac k to the USA with both the minor children so as to abide by the shared parenting plan and the order that may be passed by this Court. 61. Mr. Jauhar, the learned counsel, has p laced strong reliance, in sup port of hi s submissions, on the following c as e- law: (1) Elizabeth Dinshaw v . Ar vand M. Dinshaw , (1987) 1 SCC 42; (2) V. Ravi Chandran v . Union of India and others , (2010) 1 SCC 174; (3) Shilpa Aggarwal v . Aviral Mittal , (2010) 1 SCC 591; (4) Lahari Sakhamuri v. Sobhan Koda li, (2019) 7 SCC 311; (5) Surinder Kaur Sandhu v . Harbax Singh Sandhu , (1984) 3 SCC 698. SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.2 : 62. Ms. Meenakshi Arora, the learned senior counsel appeari ng for the respondent nos. 2, 4 a nd 5, o n t he o ther hand, has vehemently opposed this writ petition substantially on the ground that the same seeking for a Writ of Habeas Corpus is not maintainable as the custody of the two minor children with their father, i. e. the respondent no.2, canno t be te rme d as ille gal o r 27 unlawful. 63. Ms. Arora would submit that both the minor children, as on date, are well -settled at Chennai. They are being taken care of in the best possible manner. They have been admitted in a very good school at Chennai. Both t he min or c hild ren are n ow well - settled and to take them back to the USA all of a sudden will take a very heavy toll on them both; physically and mentally. 64. According to Ms. Arora, when a party is seeking a discretionary reli ef under Article 32 of the Co nstitu tion of Indi a, th e court must look into the bona fide and the overall conduct of such party. 65. The learned senior counsel would submit that it is the petitioner who has brought around a situation whereby the respondent no.2 is now not in a position to go bac k to the USA and start a new life. The respondent no.2 has no work permit as his employment has been terminated. It is the petitioner who is responsible for the termination of services of the respondent no.2 from the company where he was serving earlier . S he w ould submi t that, as on date, if the respondent no.2 -father is asked to go back to the USA with his two minor children and if the respondent no.2 is not in a position to settle down in the USA, then he may have to come back to India. In such circums tan ces, it w ould be too dangerous to leave behind both the minor 28 children all alone with their mother who is suffering from various mental disorders. The argument of the learned senior counsel is that in such circumstan ces why should the father be deprive d o f hi s lov e and affection towards his own children and also supervision. 66. It is submitted that it is always open for the petitioner - mother to travel to India and spend some time with her minor children rather th an insisting that both the minor childre n sh oul d com e bac k to the USA. 67. The learned senior counsel submitted that it is a well - settled position of law, more particularly, after the decision of this Court in the case of Nithya Anand Ragh avan v . State (NCT of Delhi) and another , (2017 ) 8 SCC 4 54 , that the para mount consideration in cases like the one on hand, should be the welfare of the minor child – in respect of whom the Habeas Corpus writ petition is preferred by one or the other parent. The other consid erations – like comity of co urts; ord er s pass ed by for eign courts having jurisdiction in the matter regarding custody of a minor child; citizenship of the parents and the child; the ‘intimate connect’; the manner in which the child is brought in India, i.e . even if it is in breach of order of com pete nt court in foreign jurisdiction, cannot override the consideration of child’s welfare, since it is the responsibility of a 29 court, which exercises parens patriae jurisdiction, to ensure that the exercise of extr aordinary writ jurisdiction is in the bes t in tere st of the child, and the direction to return the child to a foreign jurisdiction does not result in any physical, mental, psychological, or other harm to the child. 68. The learned senior counsel would subm it that if it is not in the best inter est and w elfare o f the minor child that he/she should return to the foreign jurisdiction, and giving of such direction would harm his/her interest in the welfare, the other considerations and principles which may persu ade this Court to take a vie w in favou r of dir ecting th e return of the minor child to the foreign court jurisdiction shall stand relegated and the court would not direct the return of the child to the place falling within the jurisdiction of the foreign co urt. 69. In such circumstan ces referre d to abo ve, Ms. Ar ora, the learned senior counsel appearing for the respondent nos. 2, 4 and 5 respectively prays that there being no merit in the present writ petition, the same may be rejected. ANALYSIS : 70. Having heard the learned counsel ap pearin g fo r the parties and having gone through the materials on record, the only question that falls for our consideration is, whether the 30 petitioner is entitled to any of the reliefs prayed for ? PRINCIPLES OF LAW GOVERNING THE RIGHTS OF THE PARTIES : 71 . The G uardi ans and Wards Act , 1890, was primarily enacted to consolidate the various Acts then in force keeping in view the personal law of diverse communities in India. It, however, did not encroa ch upo n th e juri sdi ctio n of the Courts of Wards and did not take away any powers vested in the High Courts or the Supreme Court. A ‘minor’ under the Act has been defined as a person who, under the provisions of the Ind ian Maj ority Act , 1 875, is to be deemed not to have attained his majority. A ‘guardian’ has been defined as a person having the care of the person of a minor or of his property or of both his person and property . Section 6 of the Act provides that no provision in the Act shall be construed to take away or derogate from any power to appoint a guardian of a minor's person or property, or both, which is valid by the law to which the minor i s subj ect. Secti on 7 gi ves p ower to the Court that if it is satisfied that it is for the welfare of a minor that an order should be made, it may make an order appointing a guardian of his person or property, or both, or declar ing a person to be such a guardi an. Section 8 lays down that no order under Section 7 will be made except on the application of the person desirous of 31 being , or claiming to be , the g ua rdia n of the m inor or any relative or friend of the minor or the Collector of the district in which the minor ordinarily resides or in which he has property or the Collector having authority with respect to the class to which the minor belongs. Section 9 deals with the territorial jurisdiction of the court. Section 10 lays down the manner in which an application is to be ma de and what is to be stated in the appl icat ion. Section 11 provides for the procedure on admission of such an application. Section 12 gives power to the court to make interlocutory order for production of a minor and interim prote ct ion of hi s pe rson and prop erty. Section 17 enjoins upon the court to have due regard to the personal law of the minor and specially take note of the circumstances which poin t towards the welfare of the m inor in e ithe r appoin ting a guardian or declaring a guardian. If the minor is old enough to form an intelligent preference, the court may be justified to consider that preference also in coming to the final conclusion. Further , no person can be appointed as a guard ian against his o wn will. 72. The Hindu Minority and Guardianship Act , 1956 was enacted as a law complementary to the Guardians and Ward s Act , 189 0. Th is defin es a ‘minor’ to be a person who has not completed the age of eighteen years. ‘Guardian’ has been defined as a person having the care of the person of a minor or of his 32 property or of both his person and p roperty and includes - (i) a na tura l gu ar dia n, (ii) a gua rdian appointed by the will of the minor's father or mother, (iii) a guardian appointed or declared by a Court, and (vi) a person empowered to act as such by or under any enactment relating to any co urt of w ards. ‘Natural guard ian ’, a ccor di ng to this Act, means any of the guardians mentioned in Section 6 . Section 6 says that the natural guardians of a Hindu minor, in respect of the minor's person a s well as in respect of the min or's pro pe rty (exclud ing h is or her undivided interest in the joint family property) are - (a) in the case of a boy or an unmarried girl, the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five y ear s sh all or din arily be with the mother. Section 8 lays down that the natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the b enefit of the minor or for t he real izat io n, protecti on or benefit of the minor's estate but the guardian can, in no case, bind the minor by a personal covenant. Sub -section (5) of Section 8 lays down th at the Guardians and Wards Act , 1890, shall apply in certain circumstances. Section 13 of the Act lays down that in the appointment or declaration of any person as guardian of H ind u mi nor by a Court , th e wel fare of the minor 33 shall be the paramount consideration. Indeed sub -section (2) of Section 13 lays down that no person shall be entitled to the gua rdianship by virtue of the p ro visi ons o f th e Act or of an y law relating to guardianship in marriage among Hindus, if the Court is of opinion that his or her guardianship will not be for the welfare of the minor. This section is complementary to Section 17 of the Guardians and Wards Act , 1890 which lays down that in appointing or declaring the guardian of a minor the Court shall be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for th e w elfare of the m inor. 73. A mere reading of the provisions of the two Acts referred to above makes it obvious that the welfare of the minor predominates to such an extent that the legal rights of the persons claiming to be the guardians or clai min g to be en titled to the c ustod y will play a very insignificant role in the determination by the court. 74. Ms. Arora does not really contest the above proposition. What she contends is that the father being the natural guardian of his two minor children , t he cust ody of the father canno t be termed as illegal or unlawful restraint on the minor. In that context no writ of Habeas Corpus can issue. Her contention is 34 that before a writ of Habeas Corpus can issue, it has to be shown tha t there is either unlawfu l d etentio n o r custody or th ere is imminent or serious danger to the person detained, particularly if he or she is minor. WRIT OF HABEAS CORPUS : 75. In a petition seeking a writ of Habeas Corpus in a matter relating to a claim for custody of a child, the pri ncipal iss ue which shoul d be taken into consideration is as to whether from the facts of the case, it can be stated that the custody of the child is illegal. 76. The writ of Habeas Corpus has always been given due significat ion as an effective method t o en sure r elea se of the deta ined person from prison. In P. Ramanatha Aiyar's Law Lexicon (1997 edition), while defining ‘habeas corpus’, apart from other aspects, the following has been stated : “The ancient prerogative writ of habeas corpus takes its nam e from the two mandatory wor ds ha beas. corpus, which it contained at the time when it, in common with all forms of legal process, was framed in Latin. The general purpose of these writs, as their name indicates, was to obtain the production of an individua l.” 77. In Se cretary of Sta te fo r Home Affairs v . O' Brien reported in (1923) AC 603 (609) , it has been observed that it is perhaps the most important writ known to the constitutional law 35 of England , affording as it does a swif t and imperative remedy in all cases o f ill egal restrain t or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty -third year of Edward I. It has through the ages been jealously maintained by the Courts of Law as a chec k upon the illegal usurpati on o f power by t he Executive at th e cost of the liege. 78. The writ of Habeas Corpus is a prerogative writ and an extraordinary remedy. It is a writ of right and not a writ of course and may be granted only on reasonable ground or probable cause being shown, a s held by t his Court in Moh d. Ikram Hussain v . State of U ttar Prade sh and others , AIR 1964 SC 1625 and Kanu Sanyal v . District Magistrate , Darjeeling , (1973) 2 SCC 674 . The observations made by a Constitution Bench in the case of Kan u Sanyal (supra ) with regard to the nat ure and s cope of a writ of Habeas Corpus are being extracted below : “4. It will be seen from this brief history of the writ of habeas corpus that it is essentially a procedural writ. It deals with the machinery of ju stice, not the substa ntive law . The obj ect of th e wri t is to secure release of a person who is illegally restrained of his liberty. The writ is, no doubt, a command addressed to a person who is alleged to have another person unlawfully in his custody requi ring him to bring the body o f such pers on before the Court, but the production of the body of the person detained is directed in order that the circumstances of his detention may be inquired into, or 36 to put it differently, “in order that appropriate judgme nt be rendered on jud icial e nq uiry into the alle ged unlawful restraint”. The form of the writ employed is “We command you that you have in the King’s Bench Division of our High Court of Justice -immediately after the receipt of this our writ, the body of A. B. being taken and de tained un der y our custody -togeth er with the day and cause of his being taken and detained to undergo and receive all and singular such matters and things as our court shall then and there consider of concerning him in this behalf “. The italicized words sho w that th e wri t is primaril y des igned to give a person restrained of his liberty a speedy and effective remedy for having the legality of his detention enquired into and determined and if the detention is found to be unlawful, having h imself discharged and freed from su ch r estraint. The most characteristic element of the writ is its peremptoriness and, as pointed out by Lord Halsbury, L.C. in Cox v. Hakes (supra), “the essential and leading theory of the whole procedure is the immediate determination of the right to the appl icant’s freedo m and his release, if the detention is found to be unlawful. That is the primary purpose of the writ; that is its substance and end.” 79. The exercise of the extraordinary jurisdiction for issuance of a writ of Habeas Corpus would, theref ore, be seen to be dependent on the jurisdictional fact where the applicant establishes a prima facie case that the detention is unlawful. It is only where the aforementioned jurisdictional fact is established that the ap plicant becomes entit led to th e wri t as of right . 80. The object and scope of a writ of Habeas Corpus in the context of a claim relating to the custody of a minor child fell for the consideration of this Court in Nithya Anand Ragh avan (supra ) and it was he ld that the principal duty of the c ourt in 37 such matte rs should be to ascertain whether the custody of the child is unlawful and illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of an y o ther pers on. 81. Taking a similar view in the case of Syed Saleemuddin v . Dr. Rukhsana and others , (2001) 5 SCC 247, it was held by this Court that in a Habeas Corpus petition seeking transfer of custody of a child from one parent to the other, t he pr incip al co nsideration for t he court would be to ascertain whether the custody of the child can be said to be unlawful or illegal and whether the welfare of the child requires that the present custody should be changed. It was sta ted thus : “11…it is clear that in a n applicatio n see king a writ of Habeas Corpus for custody of minor children the principal consideration for the Court is to ascertain whether the custody of the children can be said to be unlawful or illegal and whether the welfare of the ch ildre n req uires that presen t cus tody should be changed and the children should be left in care and custody of somebody else. The principle is well settled that in a matter of custody of a child the welfare of the child is of paramount consideration for the court …” 82. The question o f mai ntainability of a Habeas Corpus petition under Article 226 of the Constitution of India for the custody of a minor was examined by this Court in Tejaswini 38 Gaud and others v . Shekhar Jagdish Prasad Tewa ri and others , (2019) 7 SCC 42, and i t was held t hat t he petition would be maintainable where the detention by parents or others is found to be illegal and without any authority of law and the extraordinary remedy of a prerogative writ of Habeas Corpus can be availed in except ional cases wher e the ordina ry re medy provided by the law is either unavailable or ineffective. The observations made in the judgment in this regard are as follows : “14. Writ of habeas corpus is a prerogative process for securing the liberty of the subjec t by a fford ing a n effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a mino r by a person who is not en title d to his legal cu stody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the person al law, is not his le gal or natu ral g uardian, in appro priate cases, the writ court has jurisdiction. x x x x 19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through whi ch the custody of the chil d is addres se d t o the discre tion of the court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is e ither not available or is ineffective ; oth erwise a wri t wil l not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to 39 his legal cu stody. In view of the pron ouncement o n the issue in qu estio n by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or ot hers was illegal and witho ut any auth or ity of law. 20. In c hild custody matters, the ordinary remedy lies only under the Hindu Minority and Guardianship Act or the Guardians and Wards Act as the case may be. In cases arising out of the proceedings under th e Guardians and Wards Act, the jurisd ictio n of the cou rt is determined by whether the minor ordinarily resides within the area on which the court exercises such jurisdiction. There are significant differences between the enquiry under the Guardians and War ds Act and the exercise of powers by a wri t court whic h is of summary in nature. What is important is the welfare of the child. In the writ court, rights are determined only on the basis of affidavits. Where the court is of the view that a detailed enquiry is required, the court ma y decline t o exe rcise the ex traor dinary jurisdiction and direct the parties to approach the civil court. It is only in exceptional cases, the rights of the parties to the custody of the minor will be determined in exercise of extr aordinary jurisdiction on a petition fo r h abeas corpus .” 83 . In the case of Anjali Kapoor v . Rajiv Baijal , (2009) 7 SCC 322, where the custody of a minor child was being claimed by the father being the natural parent from the maternal grandmother, t he mother having died in ch ild birth, i t wa s hel d that taki ng proper care and attention in upbringing of the child is an important factor for granting custody of child, and on facts, the child having been brought up by the grandmother since her infancy and having developed emotional bon ding, th e cu stody of 40 th e chi ld was allowed to be retained by the maternal grandmother. While considering the competing rights of natural guardianships vis -a-vis the welfare of the child, the test for consideration by the Cour t was held to be; what woul d be st serve the welf are an d int erest of the child. Referring to the earlier decisions in Sumedha Nagpal v . State of Delhi , (2000) 9 SCC 745 ; Rosy Jacob v . Jacob A. Chakramakkal , (1973) 1 SCC 840 ; Elizabeth Dinshaw v . Arvand M. Dinshaw , (supra) and Muthuswa m i Chettiar v . K.M. Chinna Muthuswami Moopanar , AIR 1935 Mad 195, it was also held that the welfare of child prevails over the legal rights of the parties while deciding the custody of minor child. The observations mad e in the judgment in this r egard are as follows : “14 . The questi on for our consideration is, whether in the present scenario would it be proper to direct the appellant to hand over the custody of the minor child Anagh to the respondent. 15. Under the Gua rdians and Wards Act, 1890, the father is the guardian of t he mino r child until he is found unfit to be the guardian of the minor female child. In deciding such questions, the welfare of the minor child is the paramount consideration and such a question ca nnot be decided merely base d upon the rights of the pa rties under the law. (See Sumedha Nagpal vs. State of Delhi .” (2000) 9 SC C 745 (SCC p. 747, paras 2 & 5). 84. In Rosy Jacob v . Jacob A. Chakramakkal (supra) , this Court has observed that : 41 “7… the principle on which the court should decide the fitness of th e gua rdian m ainly depends on two factors: (i) the father’s fitness or otherwise to be the guardian, and (ii) the interests of the minors.” 85. This Court considering the welfare of the child a lso stated that : (SCC p. 8 55, para 15) “15….Th e children are no t mer e chatt els: nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yiel ded to the considerations o f their welf are as h uman beings so th at th ey may grow up in a normal balanced manner to be useful members of the society….” 86. In Elizabeth Dinshaw (supra), this Court has observed that whenever a question arises before a court pertaining to the custody o f the minor child, t he matter is to b e dec ided no t on consideration of the legal rights of the parties but on the sole and predominant criterion of what would best serve the interest and welfare of the child. 87. The question as to how the court would dete rmine what i s best i n the interest of the child w as considered In Re: McGrath (Infants) , [1893] 1 Ch. 143 C.A. , and it was observed by Lindley L.J., as follows : “… The dominant matter for the consideration of the Court is the welf are of the child. But the w elfare of a child i s not to be measu red b y m oney only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical 42 well -being. Nor can the ties of affection b e disre garded.” 88. The issue as to t he welfare of the child again arose In re “O” (An Infant) , [1965] 1 Ch. 23 C.A. , where Harman L.J., stated as follows : “It is not, I think, really in dispute that in all cases the paramount consideration is t he welfare o f t he ch ild ; but tha t, of course, does not mean you add up shillings and pence, or situation or prospects , or eve n religion . What you look at is the whole background of the child’s life , and the first consideration you have to take into account when you are l ookin g at his wel fare i s : who are his pare nts and are they ready to do their duty ?” 89. The question as to what would be the dominating factors while examining the welfare of a child was considered in Walker v. Walker & Harrison , 198 1 New Ze Recent Law 257 and it was obs erved tha t while the mater ial con sider ations have their place, they are secondary matters. More important are stability and security, loving and understanding care and guidance, and warm and compassionate relationships which are essential for th e developme nt of the child’s characte r, pers onali ty and talents. It was stated as follows : “Welfare is an all -encompassing word. It includes material welfare; both in the sense of adequacy of resources to provide a pleasant home and a comfortable s tandard of living and in th e sense of an ade quacy o f car e to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters. More important are the 43 stabi lity and the securit y, the loving and unders tan ding care and gui dance, the w arm and compassionate relationships that are essential for the full development of the child’s own character, personality and talents .” 90. In the context of consideration of an ap plication by a paren t seeki ng custody of a c hild through the med ium of a Hab eas Corpus proceeding, it has been stated in American Jurisprudence, 2nd Edn. Vol. 39 as follows : “… An application by a parent, through the medium of a habeas corpus proceeding, for custody of a chi ld is addressed to the di scretion of the cou rt, and cust ody may be withheld from the parent where it is made clearly to appear that by reason of unfitness for the trust or of other sufficient causes the permanent interests of the child would be sacrificed by a ch ange of cus tody. I n determining wheth er it w ill b e for the best interest of a child to award its custody to the father or mother, the court may properly consult the child, if it has sufficient judgment.” 91. Thus, it is well esta blished that in issu ing the writ of Ha beas Co rpus in the case of minors , the jurisdiction which the Court exercises is an inherent jurisdiction as distinct from a statutory jurisdiction conferred by any particular provision in any special statute. In other words, the employme nt of t he writ of H abeas Corpus in child cus tody ca ses i s 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, a s parens patriae , fo r the p rotection 44 of its m inor ward, and the very na ture 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 ch ildren, is to dete rmine i n whose custody the best i ntere sts of the child will probably be advanced. In a Habeas Corpus proceeding brought by one parent against the other for the custody of their child, the court has before it the questi on of the rights of the par ties as bet w een th em selves, and also has bef ore i t, if presented by the pleadings and the evidence, the question of the interest which the State, as parens patriae , has in promoting the best interests of the child. 92. The gener al principle governin g the award of cus tody of a minor is succinc tly sta ted i n the following words in Halsbury's Laws of England, Fourth Edition, Vol. 24, Article 511 at page 217 : “… Where in any proceedings before any court the custody or upbringing of a minor is in question , then, in decidin g that ques tion, the court m ust reg ard t he minor's welfare as the first and paramount consideration, and may not take into consideration whether from any other point of view the father's claim in respect of that custod y or upbringing is s uperior to that of the mo ther , or the mother's claim is su perior to that of the father.” 45 93. In the American Jurisprudence, Vol. 39, Second Edition, Para 148 at pages 280 -281, the same principle is enunciated in the following words : “..... a court is no t bound to deliver a chil d in to the custody of any cl aiman t or of any person, but should, in the exercise of a sound discretion, after careful consideration of the facts, leave it in such custody as its welfare at the time appears to re quire.” 94. In the footnot e 14 at pag e 281, the following extract s from two A merican cases are set -out which also emphasise this point : “The employment of the forms of habeas corpus in a child custody case is not for the purpose of testing the legality of a confinement o r restrai nt as con tem plate d by the ancient com mon law writ , or by statute, but the primary purpose is to furnish a means by which the court, in the exercise of its judicial discretion, may determine what is best for the welfare of the chi ld, and the decisi on is rea ched by a co nside rat ion of the equiti es invo lved in the welfare of the child, against which the legal rights of no one, including the parents, are allowed to militate.” Howarth v. Northcott, 152 Conn 460, 208 A 2d and 540, 17 ALR 3d 758. PRE CEDENTS ON THE SUB JECT : 95. As M r. Jauhar, th e lear ned co unsel appearing for the petitioner, has placed strong reliance on the decision of this Court in the case of V. Ravi Chandra n (supra ), we must look into the same. This Court, in V. Ravi Chand ran (sup ra ), held as follo ws : 46 “29. Wh ile dealing wit h a cas e of custody of a child removed by a parent from one country to another in contravention of the orders of the Court where the parties had set up their matrimonial home, the Court in the country t o which the child has been removed mu st first consider the qu es tio n whether the Court could conduct an elaborate enquiry on the question of custody or by dealing with the matter summarily order a parent to return custody of the child to the country from wh ich the child was removed and all asp ec ts relating to the chi ld ’s welfare be investigated in a Court in his own country. Should the Court take a view that an elaborate enquiry is necessary, obviously the Court is bound to consider the welfare and happiness of the child as the param ount consid er ation and go in to all re lev ant aspects of welfare of the child including stability and security, loving and understanding care and guidance and full development of the child’s character, personality and talents. While doing s o, the order of a foreign Cou rt as to his cust ody may be g iven due weight; the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case. 30. However, in a case where the Court decides to exercise its jurisdi ction su mmarily to return the child t o his own country , keepi ng in view the jurisdiction of the Court in the native country which has the closest concern and the most intimate contact with the issues arising in the case, the Court may leave the aspects rel ating to the welfare of th e child to be investigated b y the C ou rt in his own native country as that could be in the best interests of the child. The indication given in McKee v. McKee [1951 AC 352 : (1951) 1 All ER 942 (PC)] that there may be cases in whic h it is proper for a Court in one jur is diction to make an ord er di recting that a child be returned to a foreign jurisdiction without investigating the merits of the dispute relating to the care of the child on the ground that such an order is in the best i nterests of the child has been explai ne d in L (Minors) , In re [(19 74) 1 WLR 250 : (1974) 1 All ER 913 (CA)] and the said view has been approved by this Court in Dhanwanti Joshi [(1998) 1 SCC 112] . Similar view taken by the Court of Appeal in H. (Infants), In re 47 [(1966) 1 WLR 381 ( Ch & CA) : (1 966) 1 All ER 8 86 (CA) ] has been approved by this Court in Elizabeth Dinshaw, (1987) 1 SCC 42 : 1987 SCC (Cri) 13]”. 96. This Court then proceeded to consider the issue, whether the facts of the case before it warrant ed an el aborate inquiry in to the ques tion of custody o f the m in or and should the parties be relegated to the said procedure before an appropriate forum in India. This Court concluded in its judgment that it was not necessary to relegate the parties to an e laborate procedure in Indi a. Its reas on s are found in paras 3 2 to 35, which read as follows : “32. Admittedly, Adithya is an American citizen, born and brought up in the United States of America. He has spent his initial years there. The natural habitat of Adithya is in the United States of A me rica. As a matt er of f ac t, keeping in view the welfare and happiness of the child and in his best interests, the parties have obtained a series of consent orders concerning his custody/parenting rights, maintenance, e tc. from the competent Cou rts of juri sd iction in Ameri ca. Ini tiall y, on 18.4.2005, a consent order governing the issues of custody and guardianship of minor Adithya was passed by the New York State Supreme Court whereunder the Court granted joint custody o f the ch ild to the petitio ner and Res po ndent 6 and it was sti pu lat ed in the order to keep the other party informed about the whereabouts of the child. In a separation agreement entered into between the parties on 28.7.2005, the consent order dated 18.4.200 5 regard ing custody of min or son Adit hy a continued. 33 . In 8. 9. 200 5 order whereby the marriage between the petitioner and Respondent 6 was dissolved by the New York State Supreme Court, again the child custody 48 order dated 18.4.2005 was incorporated. Then t he petit ioner and Responde nt 6 agreed for modification of the cust ody order and, accordingly, the Family Court of the State of New York on 18.6.2007 ordered that the parties shall share joint legal and physical custody of the minor Adithya and, in this reg ard, a c omprehensive arran gement in r es pect of the cus tody of the child has been made. 34. The fact that all orders concerning the custody of the minor child Adithya have been passed by the American Courts by consent of the parties shows that the objection s raised by Respondent 6 i n the count er - affidavit abou t depri va tio n of basic rights of the child by the petitioner in the past; failure of the petitioner to give medication to the child; denial of education to the minor child; deprivation of stable environ ment to the minor child; a nd child ab us e are hollow an d witho ut an y substance. The objection raised by Respondent 6 in the counter -affidavit that the American Courts which passed the order/decree had no jurisdiction and being inconsistent with Indian laws cannot b e executed in Indi a also prim a facie does not seem to have any merit since despite the fact that Respondent 6 has been staying in India for more than two years, she has not pursued any legal proceeding for the sole custody of the minor Adithya or f or decla ration that the or ders passed by the American Courts co nce rning the custody of minor child Adithya are null and void and without jurisdiction. Rather it transpires from the counter - affidavit that initially Respondent 6 initiated the proceedings und er the G uardians and Wards Act, 1890 bu t later on with drew th e sam e. 35. The facts and circumstances noticed above leave no manner of doubt that merely because the child has been brought to India by Respondent 6, the custody issue concerning minor child Ad ithya do es not deserve to be gone int o by the Courts i n India and it would be in accord with principles of comity as well as on facts to return the child back to the United States of America from where he has been removed and enable the parties to establis h the ca se before the Cour ts in the nat ive State of th e child i.e. the United States of 49 America for modification of the existing custody orders. There is nothing on record which may even remotely suggest that it would be harmful for the child to be returne d to his native country.” 97. Despite the fact that th e minor chil d Adithya had remained in India for over two years, this Court concluded that it could not be said that the he had developed his roots in India. This Court directed the respondent mother to take the child, of her own , to the US A and to report b efore t he Fa mily Court of the State of New York. This Court also imposed the condition on the petitioner that he shall bear all the travelling expenses of the mother and the minor child and make arrange ments fo r their residence in the USA till further orde rs are pa sse d by the competent Court. He was also directed to request the authorities that the warrants issued against the mother be dropped and he was directed not to file or pursue any criminal charge for vio lation by the moth er of the c on sent order in U SA. 98. In Surya Va danan v . State of Tamil Nadu , (2015) 5 SCC 450, the husband and wife both were of the Indian origin but the husband became a resident and citizen of the UK. The parties got married in India and had two daugh te rs in the U K. The wife had acquir ed th e British citizenship and the British passport as well. Both the parties were working for gain in the UK. The parties started having some matrimonial problems, as a result of 50 which the wife came back to India with he r two daught ers. The wife fil ed a p et iti on under Section 13(1)(i -a) of the H indu Marriage Act, 1955 seeking divorce in the Family Court, Coimbatore. Subsequently, the husband filed a petition in the High Court of Justice in the UK for maki ng the child ren w ar ds of the Cour t. The High C ourt m ad e t he children wards of the Court during their minority, or until further orders of the Court and the wife was directed to return the children to the jurisdiction of the foreign Court. As the wife faile d to obey th e ord er s of the forei gn Court, the husb and filed a writ petition of Habeas Corpus seeking production of his children and their return to the UK, in the Madras High Court. The High Court dismissed the petition. This Court discussed the law on th e custody of the ch ildren and obs erved the fol lowin g : “46. The principle of the comity of Courts is essentially a principle of self -restraint, applicable when a foreign Court is seized of the issue of the custody of a child prior to the domestic Court. T here may be a sit ua tion where the foreign Cour t tho ugh se ized of the issue does not pass any effective or substantial order or direction. In that event, if the domestic Court were to pass an effective or substantial order or direction prior in point of tim e then the f oreig n Court ough t to exercise sel f- res tra int and respect the direction or order of the domestic Court (or vice versa), unless there are very good reasons not to do so. 47. From a review of the above decisions, it is quite clear that there is complete una nimit y that the b est interests and welf are of the child are of paramount importance. However, it should be clearly understood 51 that this is the final goal or the final objective to be achieved — it is not the beginning of the exercise but the en d. 48. Ther efore , we are con cerne d with two p rinci ple s i n a case such as the present. They are: (i) the principle of comity of Courts; and (ii) the principle of the best interests and the welfare of the child. These principles have been referred to as “contrasting prin ciples of la w” [S hilpa Aggarw al v. Av ira l Mittal, (2010) 1 SCC 591 : (2010) 1 SCC (Civ) 192] but they are not “contrasting” in the sense of one being the opposite of the other but they are contrasting in the sense of being different princi ples that ne ed to be applied in th e facts of a give n case . 49. What then are some of the key circumstances and factors to be taken into consideration for reaching this final goal or final objective? First, it must be appreciated that the ‘most intimate co ntact’ doctr ine and the ‘clos est c oncern’ doct rine of Sur inder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698 : 1984 SCC (Cri) 464 are very much alive and cannot be ignored only because their application might be uncomfortable in certain situations. It is not ap propr ia te that a domes tic Court ha ving m uc h l ess intimate contact with a child and having much less close concern with a child and his or her parents (as against a foreign Court in a given case) should take upon itself the onerous task of deter mining the b est i nt erests and welf are of the c hild. A for eign Court having the most intimate contact and the closest concern with the child would be better equipped and perhaps best suited to appreciate the social and cultural milieu in which the child has been brough t up ra ther than a dom estic Court. This is a factor that must be kept in mind. x x x x 52 52. What are the situations in which an interim or an interlocutory order of a foreign Court may be ignored ? There are very few such situations. It is o f primary im porta nc e to deter mine, prima facie , tha t the foreign Court has jurisdiction over the child whose custody is in dispute, based on the fact of the child being ordinarily resident in the territory over which the foreign Court exercises jurisdictio n. If the fo reign Court does have jurisdiction , the in ter im or interlocutory order of the foreign Court should be given due weight and respect. If the jurisdiction of the foreign Court is not in doubt, the ‘first strike’ principle would be applicable. That is to say t hat d ue respect a nd we ight must be give n to a substantive order prior in point of time to a substantive order passed by another Court (foreign or domestic). 53. There may be a case, as has happened in the present appeal, where one parent invoke s the jurisd ictio n of a Court but does not obt ain a ny sub stantive order in his or her favour and the other parent invokes the jurisdiction of another Court and obtains a substantive order in his or her favour before the first Court. In such an event, due r espect and w eight ought to be give n to the sub stant ive or der passed by the second Court since that interim or interlocutory order was passed prior in point of time. x x x x 55. Finally, this Court has accepted the view [L. (Minors), In re, (1974) 1 WLR 250 : (1974 ) 1 A ll ER 913 (CA )] th at in a give n ca se , it might be appropriate to have an elaborate inquiry to decide whether a child should be repatriated to the foreign country and to the jurisdiction of the foreign Court or in a given case to have a summ ary inquiry with out going int o the merits of t he d is pu te relating to the best interests and welfare of the child and repatriating the child to the foreign country and to the jurisdiction of the foreign Court.” 53 99. Thus, it is evident that while the paragra ph 49 refer red t o above recog nised the well -se ttle d pr inc iple/doctrine of the ‘most intimate contact’ and the ‘closest concern’ doctrine, the paragraphs 47, 52 & 53 respectively emphasized the doctrine of comity of Courts and the first strike principle. Ev en before statin g t he aforesa id pr inciples, in par ag ra ph 47, the Court observed that there is complete unanimity that the best interests and welfare of the child are of paramount importance. 100. The Court allowed the appeal on the ground that the UK Court had passed an e ffe ctive and subst antial order dec la ring the children of the parties as wards of that Court and also that the UK Court has the most intimate contact with the welfare of the children. 101. In Nithya Anand Ragh avan (supra ), this Court struck altogether a dif fer ent note a nd ga ve a new dim ensio n. In that case, the couple married on 30.11.2006 at Chennai and shifted to the UK in the early 2007. Disputes between the spouses arose. The wife having conceived in December 2008, came to New Delhi in Ju ne 2009 and stay ed with her p arent s and gave birth to a g irl child - Nethra on 07.08.2009 at Delhi. After the husband arrived in India, the couple went back to the UK in March, 2010 and following certain unsavoury events, the wife and the daughter returned to India in Aug ust 2010. Aft er 54 ex change of le gal c orr esp ondence, the wife and her daughter went back to London in December, 2011, and in January 2012 the daughter was admitted in a nursery in the UK. In December, 2012, the child was granted the UK citizen ship and the hus ban d was also gran ted the UK c itize nsh ip in January 2013. They bought a home in the UK to which they shifted their family. In September, 2013 the child was admitted in a primary school in the UK and she was around four years old. In July, 2 014 the wife ret urn ed to Indi a alo ng with her daugh ter . S he again returned to the UK along with the child. Between late 2014 and early 2015 the child became ill and was diagnosed with cardiac disorder. On 02.07.2015, the wife returned to India with her dau ghter due to the al leged viol ent b ehaviour of her h usb and . On 16.12.2015, the wife filed a complaint against the husband at the CAW Cell, New Delhi, and in spite of the notices to the husband and her parents, neither of them appeared. The husband filed a c ustody/wards hip pet ition on 0 8.01. 2016 in the UK to se ek return of the child. On 23.1.2016, he also filed a Habeas Corpus petition in the Delhi High Court which was allowed on 08.07.2016. The wife carried the case to this Court. This Court strongly relied upon its ear lier ju dgment in Dhanw anti Joshi v. Mad hav Unde , (1998) 1 SCC 112 , whi ch in turn, referred to Mckee v. McKee , 1951 AC 352 : (1951) 1 All ER 55 942 (PC) , where the Privy Council held that the order of the foreign court would yield to the welfare of the child and that the com ity of courts dem anded not i ts enforcement, but its grav e consideration. While taking note of the fact that India is not a signatory to the Hague Convention of 1980, on the “Civil Aspects of International Child Abduction”, this Court, inter alia , held as under : “40. … As regard s the non -Convention countries, the law i s th at the court in the country to whic h the child has been removed must consider the question on merits bearing the welfare of the child as of paramount importanc e and reckon the orde r of the foreig n court as only a fac tor to be taken into consideration, unle ss the court thinks it fit to exerc ise su mmary jurisdiction in the interests of the child and its prompt return is for its welfare. In exercise of summary juri sdiction, the court m ust be s atisfie d and of t he opi nion that the proceeding instituted befor e it was in close proximity and filed p rom ptl y after the child was removed from his/her native state and brought within its territorial jurisdiction, the child has not gained roots her e and fu rther t hat it wil l be i n the child's welfare to return to his na tive state because of the difference in la ngu age spoken or social customs and contacts to which he/she has been accustomed or such other tangible reasons. In such a case the court need not res ort to an elabora te inq uiry into the merits of the paramount wel fare of the child but leave that inquir y to t he foreign court by directing return of the child. Be it noted that in exceptional cases the court can still refuse to issue direction to r eturn th e child to the na tive s tate and more particularly in spite of a pre -existing order of the foreign court in th at behalf, if it is satisfied that the child's return may expose him to a grave risk of harm. This means that the cour ts in India, within w hose jur isdicti on the min or has been brought must “ordinarily” consider the question on merits, bearing in mind th e w elfare of the child as of paramount 56 importance whilst reckoning the pre -existing order of the foreign court if any as only one of the facto rs and not get fixated th erewit h. In either situation — be it a summary in quir y or an elaborate inquiry — the welfa re of the child is of paramount consideration. Thus, while examining the issue the courts in India are free to decline the r elief of return of th e child brought within it s juri sdict ion, if it is satisfied that the chi ld i s now settled in its new environmen t or i f it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is qu ite matu re and objects to its r eturn . We are in respectful agreement wit h th e aforementioned exposition. ” 102. Thi s C ourt also relied upon the judgment in V. Ravi Chandran (supra ) and inter alia held that the role of the High Court in examining the cases of custo dy of a minor is on the touch stone of principle of parens patriae juri sdiction, as the minor is within th e jur isdiction of the court. It has held that the High Court while dealing with the petition for issuance of Habeas Corpus concerning a minor c hild in a given case, may direct retu rn of the child or decline to change the custody of the child keeping in min d all the attending facts and circumstances including the settled legal position discussed therein. It has further added t hat the decision of t he court , in ea ch case, m ust dep end o n the totality of the facts and circu msta nces of the case brought before it wh ile considering the welfare of the child which is of paramount consideration and that the order of the foreign court mus t yield to the welfar e of the child and the re medy of writ of Habeas Corpus cannot be used for mere enforcement of 57 the directions give n by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing co urt. It has further o bserved that th e writ pet itioner can take recourse to such other remedy as may be permissible in law for enforcem en t o f the order passed by the foreign court or resort to any other proceedings as may be permissible in law before the In dian Court for the cu stody of the ch ild, if so advise d. Th is Court has disapproved paragraph 56 (a) to (d) in Surya Vadanan (supra ) whi ch re ads as follows: “56. However, if there is a pre -existing order of a foreign court of competent jurisdiction and the domestic court decide s to con duct an elaborate inquir y (as against a summary inquiry), it must have special reasons to do so. An elabo ra te inquiry should not be ordered as a matter of course. While deciding whether a summary or an elaborate inquiry should be conducted, the dom estic co urt mus t take int o consi derat ion: (a) The nature and effect of the int erim or interlocutory order passed by th e foreign court. (b) The existence of special reasons for repatriating or not repatriating the child to the jurisdict ion of the foreign co urt. (c) The re patriation of the chil d does not cause any moral or physica l or social or cultural or psychologica l har m to the child, nor should it cause any legal harm to the parent with whom the child is in India. There are instances where the order of t he forei gn cour t may resu lt in t he ar rest of the parent on his or her retu rn t o the foreign country. [Arathi Bandi v. Bandi 58 Jagadrakshaka Rao , ( 2013) 15 SCC 790 : ( 2014) 5 SCC (Civ) 475 ]. In such c ases, the domestic court is also obliged to ensure the phy sical safety of the p arent. (d) The alacrity with wh ich t he parent moves the foreign court con cern ed or the domestic court concerned, is a lso relevant. If the time gap is unusually large and is not reasonably explainable and the child has developed firm r oots in India, the do mestic c ourt ma y be well advised to c onduct an elaborate inquiry.” 103. As re gards (a) to (c) of paragraph 56 ab ov e, this Court termed the same as tending to drift away from the exposition in Dhanwanti Joshi (supra ) and V. Ravi Chandr an (supra ) and with r egard to clause (d), the Court d isagr eed with the same. For better appreci atio n, paragraphs 62, 63 and 66 respect iv ely of the report are extracted herein below : “62. As regards clauses (a) to (c) above, the same, in our view, with du e respect, tend to dr ift away from t he exposit ion in Dhanw anti Joshi case , which has been quote d wi th approval by a three -Judge Bench of th is Court in V. Ravi Chandran case. In that, the nature of inquiry suggested therein inevitably recognises giving prim acy to the order of t he forei gn cour t on the i ssue of cust ody of the minor. That has been expli citl y negated in Dhanwanti Joshi case . For, whether it is a case of a summary inqu iry or an elaborate i nquiry, the par amount con siderat ion i s the interests and welfare of the ch ild. Further, a pre -existing order of a fore ign court can be reckoned only as one of the factor to be taken into consideration. We have elaborated on this aspect in the earlier part of this judgmen t. 63. As regard s the fourth factor noted in clause (d) of par a 56, Surya Vadanan v. State of T.N. , ( 2015) 5 SCC 45 0: (2015) 3 SCC (Civ) 94 ], we respectfull y di sagree with the same. The first par t giv es weightage to the 59 “first strike” principle. As noted earlier, it is not relevant as to which party first approached the court or so to say “firs t strik e” referre d to in para 52 of the judgment. Even the analogy giv en in para 54 regarding extrapolati ng th at principle to the courts in India, if an order is passed by the Indian Court is inapposite. For, the Indian Courts are strictly governed by the provisi ons of the Guardi ans a nd Wards Act, 1890, as applicable to the issue of custody of the minor withi n its jurisdiction. x x x x 66. The invocation of first strike principle as a decisive factor, in our opinion, woul d undermine and whitt le down the who lesome pri nciple of the duty of the court having jurisdiction to consider the best interests and welfare of the ch ild , which is of paramount importance. If the Court is convinced in that regard, the fact that there is al ready an order passed by a fo reign court in ex istence may not be so sign ificant as it must yield to the welfa re o f the child. That is only one of th e fac tors to be taken into consideration. The interests and welfare of the child are of paramount considerat ion. The principle of comity of cour ts as obse rved in Dhanwanti Joshi v. Ma dhav Unde , (1998) 1 SCC 112, in relation to non -Convention countries is that the court in the country to which the child is removed will c onsider th e question on merits beari ng the welfare of the child as of par amou nt importance and consider the orde r of the foreign court as only a factor to be taken into consideration. While considering that aspect, the c ourt may reckon the f act that the ch ild was ab ducted from his or he r cou ntry of habitual residence but the co urt' s overriding consideration must be th e c hild's welfare.” 104. Finally this Court, in Nithya Anand Raghavan (supra ), concluded as under : “69. We once again re iter ate that the exp osition i n Dhanwanti Joshi v. Mad ha v U nde , (1998) 1 SCC 112 is a good law and has been quoted with approval by a three -Judge Bench of this C ourt in V. Ravi Chand ran. We approve the view taken in Dhanwanti Joshi v. M adhav Unde , (1998) 1 SCC 112, inter alia, in para 33 60 that so far as non -Convention countries are conce rned, the law is that the cou rt in th e country to which the child i s rem oved while considering the question m ust bear in mind the welfare of the chi ld as of paramount importance and consider the order of the foreign court as only a factor to be taken into consideration. The su mmary ju risdicti on to ret urn the child be exer cised in cases where the child had been re move d from its native land and removed to an other country where, may be, his native language is not spoken, or the child gets divorced from the soc ial customs and conta cts to w hich he has been accustomed, or if its educ ation in his native land is interrupt ed a nd the child is being subjected to a for eign system of education, for these are all acts which could psychologically disturb the child. Again t he summary jurisdicti on be ex ercised only if t he court to which the chil d has been removed is moved promptly and quickly. The overriding considerati on mu st be the interests and welfare of the child.” 105. The essence of the judgment in Nithya Anand Raghav an (supra ) is that th e doctri nes of c omity of courts, intimate conn ect, orders passed by foreign courts havin g ju risdiction in the matter regarding th e c ustody of the minor child, the citizenship of the parents and the child, etc. cannot override the consi deration of the best interest and the welfare of the child, and tha t the direction to return the child to the for eign jurisdiction must not result i n any physical, mental, psychological, or other harm to the child. 106. As observed by this Court in Vivek S ingh v . R omani Singh , (2017) 3 SCC 23 1, in ca ses of this nature, w here a child feels tormented because of t he s trained relations between her 61 paren ts and ideally needs the company of both of them, it becomes, at times, a difficult choice for the court to d ecide as to whom the c ustody should be given. However, even in such a di lemma, the paramount consideration i s th e welfare of the child. However, at times the prevailing circumstances are so puzzling that it becomes difficult to weigh the conflicting parame ters and decide on whi ch side the bala nce tilt s. FINAL ANALYSIS : 107 . Keeping in mind the principles of law as explained by this Court in Nithy a Anan d Ragh avan (supra ), we now proceed to consider, whether it will be in the paramount interest and welfar e of both the minor ch ildren to go back to the USA ? To put it in othe r words, whether we should direct the re spondent no.2 to go back to the USA wi th both the minor children and abide by the shared parenting plan as ordered by the Court of Common Pleas, Division of Domestic Relatio ns, Cuyahog a Coun ty, Ohio, or handover the custody of both the minor children to th e petitioner -mother ? 108. We take not ice of the following circumstances emerging from the materials on record so far as the two minor children are concerned : 62 (1) Bo th the minor chi ldren ar e residents of the US A. (2 ) The son is a natural citizen and th e daughter is a permanent resident o f t he US A. (3) Both the children have been brought up in the social and cultural milieu of the USA. They are ac customed to the lifest yle, la nguage, c ustoms, rules and regulations , etc . of that country. (4) The child ren are residents of the USA. One of wh om is a na tural citizen and will have better future prospects if goes back to the USA. As observed by this Court in the case of Vasudh a Sethi and other s v. K iran V. Bhaskar and a nothe r, ( 2022) SCC OnLine SC 43 , the natural process of grooming in the environment of th e native country is indispensable for comprehensive development. We quote the relevant observations made by this Court in t he cas e of Vivek Singh (supra ) thus : “9. We h ave g iven our utmost serious consideratio n to the respective submissions which a ca se of this nature deserves to be given. In cases of this nature, where a child feels tormented because of the strained relatio ns bet ween her pa rents and ideally needs the co mpany of both of them, it becomes, at tim es, a difficult choice for the court to de cid e as to whom the custody should be given. No doubt, paramount consideration is the 63 welfare of the ch ild. However, at times the pr evailing circumst ances are so puzzling th at it becomes difficult to weigh the conf lict ing parameters and decide on which s id e the balance tilts. 10. The Hindu Minority and Guardianship Act , 1956 lays down the pr incipl es on which custody disp utes are to be decided. Sect io n 7 of this Act empowers the Court to make order as to guardianship. Sec tion 1 7 enumerat es the matters which need to b e con sidered by the Court in appointing g uardian and among others, enshrines the pr inc ip le of welfare of the minor child. This is also stated very eloquently in Section 13 w hich reads as under : “13. W elfar e of minor to be paramount consider ation. ( 1) In the appointment or declarat io n o f any person as guardian of a Hindu minor by a court, the welfare of the minor shall be the paramoun t consideration. (2) No perso n shall be entitl ed to the guardianship b y vir tue of the provisions of this Act or of an y law relating to guardianship in ma rri age among Hindus, if the court is of opinion that his or her guardianship will not be for the welfar e of the minor.” 11. Th is Cou rt in the c ase of Gaurav Nagpal v. Sumedh a Nag pal stated in detail, the law rel ating to cus tody in England and America and poin ted out that even in those jurisdictions, welfare of the minor child is the first and paramount cons ideration and in order to det ermine chil d cust ody, the jurisdiction ex ercis ed by the Court rests on its own inherent equ ality powers where the Court ac ts as 'P arens Patriae'. The Court further observed that various statutes give legislative recognition to the aforesaid establish ed pri nciples. Th e Cour t explained the expressi on 'w elfare', occurring in Sec tio n 1 3 of the said Act in the following manner : “51. The word “welfare” used in Section 13 of the Act has to be cons trued literally and must be taken in its widest s ense. The moral and ethical welf ar e o f the child must also weigh with the court as well as its physical well -being. Though the provisions of the special statute s whic h 64 govern th e righ ts of the parents or gua rdian s may be taken into consideratio n, there is nothing which can stand in the w ay of the court exercising its parens patriae jurisdiction arising in such cases. 52. The trump card in t he appellant's argument is th at the chil d is l iving since long with th e fat her. The argument is attractive . But the sa me overlooks a very significant f ac tor . By flouting various orders, leading even to initiation of contempt proceedings, the appellant has managed to keep custody of th e child. He canno t be a beneficiary of hi s own wrongs. The High Court has ref erred to the se aspects in detail in the impug ne d j udgments.” 12. We understand that the aforesaid principle is aimed at serving twin objectives. In th e first instance, it is to en sure that t he chi ld grows and develops in the best environment. The best int erest of the chi ld has been placed at the vang ua rd of f amily/custody disputes according the optimal growth and development of the child primacy over ot her considerations. The child is often l eft to grapple with the breakd own o f an adult institution. While the parents aim to ensure that the child is le as t a ffec ted by the outcome, the inevitability of the uncertainty that follows regarding the child’s grow th lingers on till the new ro utine sinks in. T he effect of separation of sp ouses, on children, psychologi cally, emotional ly and even to some extent phy si cal ly, spans from negligible to serious, which could be insignificant to noticeably critical. It could also have effects that are mo re immediat e and transitory to long lasti ng th ereby having a significantly n egative repercus sion in the advancement of the chil d. W hile these effects don’t apply to every child of a separated or divorced couple, nor has any chi ld experienced all thes e effe cts, the de leteri ous risks of maladjustme nt re mains the objective of the par ents to evade an d the court’s intent to circum ve nt. Thi s right of the child is also based on individual dignity. 13. Second justification behind the 'w elfare' principle is th e publ ic interest that stand served with the op timal growth of the children. It i s well recognised 65 th at children are the supreme asse t of th e nation. Rightful place of the child in the sizeable fabric has been recognised in many inte rnational covenants, wh ich ar e adopted i n this country as well. Child - cent ric human rights jurisprudenc e that has been evol ved over a period of time i s fou nded on the principle that public good demands proper growth of the child, who are the future of the nation. It has been em phasis ed by this Court also, time and again, fo llowi ng observations in Bandh ua Mu kti Mor cha vs. Union of India & Ors . : “4. The child of today cannot develop to be a responsible an d productive member of tomorr ow's societ y unle ss an environment which is co nducive to his social and ph ysical health is ass ured to him. Every nation, d ev elo ped or developing, links its future with the status of the child. Childhood holds the potential and also sets the limit to the fu ture develo pment of the society. Children are the greatest gift to humanit y. Mankind has the best hold of itself. The pare nt s t hemsel ves live for them. They embody the joy of life in them and in the innocence relieving the fati gue and drudgery in the ir str uggle of da ily li fe. Parents regain peace and happiness in the company of the children. The ch ildren signify eternal optim is m i n the human being and always provide the potential for human development. If the children are better equipped with a broade r huma n output, t he soc iety will feel happy wit h the m. Neglecting the children m eans loss to the soc iety as a whole. If children are depriv ed of their childhood — socially, economically, physically and mentally — the nation gets depr ived of the potential h uman resources fo r soci al progress, economic em power ment and peace and order, th e social stability a nd good citizenry. The Found in g Fathers of the Constitution, therefore, have emphasised the importance of the role of the child and t he need of its best dev elopme nt.” 14. Same se ntiments were earlier ex press ed in Rosy Jacob vs. Jacob A. Chakramakkal in the following words: “15. ... Th e c hildren are not mere chattels : nor are they mere play -things for their parents. Absolute 66 right of p arents over the destini es and the lives of the ir children has, in the moder n changed social condition s, yielded to the consid erations of their welfare as hu man bein gs so that they may grow up in a normal balanced manner to be useful members of the society. ..” 15. It hardly need s to b e emphasise d that a proper education enco mpass ing skill development, re creation and cultural activi ties has a positive imp ac t o n the child . The children are the most important human resources whose development has a direct impa ct on the development o f the nation, for the c hild of today with suita ble h ealth, sound education an d constructive environment i s the productive key me mb er of the soci ety. The present of the child links to the future of the nation, and while the children a re the treasures of the ir par ents, they are th e assets who will be res ponsi ble for governing the nat ion. The tools of education, environment, skill and heal th shape th e child thereby moulding the nation with the child equipped to play his part in the diffe rent spheres aiding the publi c and contr ibutin g to economic progressio n. Th e growth and advancement of the child with the person al interest is accompan ie d b y a signifi cant public interest, which arises because of the crucial role they play in nation buildi ng. x x x x 17. While com ing to the conclusion that the resp ondent as mother was more appropriate to have the custody of the child and u nd er the given circumstances the responden t herein was fully competent to take care of the child, the Hig h Court proceeded with the fo llowing dis cussio n: “31. The role of th e mot her in the development of a child's personality can never be doubted. A chil d get s the best protection through the mot her. It is a most natural thing for any child to grow up in the company of one's mothe r. The company of the m other is the most natura l thi ng for a child. Neither t he father nor any other person can give the same ki nd of lover, affection, care and 67 sympathie s to a child as that of a mother. The company of a mother is mo re valuable to a growin g up f emale child unles s there are compelling a nd ju stifiable reasons, a chil d should not be deprived of the company of the moth er . The company of the mother is always in the welfare of the minor child. 32. It may be noticed that the stand of the appellant is th at since Au gust 0 4, 2010 she had been pur suing for the custody of her child. She had also visited the police station and app roa ched the CAW Cell. It is also admitt ed position that within 22 days, i.e., on August 26, 2010 the pe tition for the grant of custo dy of child was f iled by her. Had she aba ndone d the child of her own s he would not have pursued continuously thereafter fo r get ting the custody of the child. Even she had requested the learned Principal Judge, Family Court for interim custody of the child which was g iven t o her in the form of vis itati on rights thrice in a mo nth and she and her family had been meeting the chil d dur ing that period. After filing the ap peal, the appellant has been taking the interim custody of the c hild as is stated above . In t hese circum stance s, it cannot be said tha t the appellant has not care for the child. Further, respondent is any army Offic er . D uring the course of his service he w ill be also getting non - family stations and it will be difficul t for him to keep the c hild. Further, ev en tho ugh as per him his paren ts ar e looking after the chil d but when the natural mother is there and has knock ed th e door of the court without any dela y and has all love and affection for the child and is willing to do her duty with all l ove an d affection and s ince the birth of the ch ild s he has been keeping the child. In these circumstances, she should not be dep rived of her right especially considering the tender age and child being a girl child. The grandparents c annot be a substitute f or nat ural mother . Ther e is no substitute for m other ’s love in this world. T he grandparents are old. Old age has its own problem s. Co nsidering the totality of facts and circumstances, the welfare of the child lies with the mother, i. e, appellant who is edu cated, 68 working an d earn ing a good salary and af ter school hours has ample ti me to spend with the child. In these circumstances, im pug ned order is set aside and the reque st of the appellant for the grant of custody of the said child t o her being natural mot her is allowed an d the appellant is also appoin ted a s guardian of her child being a natural guardian/mother.” 18. The aforesa id ob se rvations, contained in para 31 of the o rder of the High Court extracted above, apply with greater force today, when Saesh a is 8 years' old child . She is at a crucial ph ase w hen there is a major shi ft in thinking ability which may help her to underst an d c au se and effect better and think about th e future. She would need regular and frequent contact with each parent as well as shield ing from par ental hostility. Involvement of bo th parents in her life a nd regular school attendance are absolutely essentia l at th is age for her personality development. She would soon be able to establish her individual interes ts and preferences, sha ped by her own ind ividu al personality as well a s exp erience. Towards this en d, it also becomes necessary for parents to exhibit mo del good behaviour and set healthy and posit ive examples as much and as often as possible. It is the ag e when her emotional de velopm ent may be evolvi ng at a deeper level tha n eve r before. In order to en sure that she achieves stability and maturity in her thin ki ng and is able to deal with complex emo tions, it is necessary that she is in the company of her mo ther as well, for some time. This Court c annot turn a blind eye to the fact that there have been st rong feelings of bitterness, betrayal, anger and dis tress between the appellant and the respondent , where each party feels that they are ‘right’ in many of t heir views on issues wh ich le d to separat ion. The intensity of negativ e fee ling of the appellant to wards the respondent would have obvious effect on th e psy ch e of Saesha, who has remained in the co mpany of her father, to the exclusion of her mother. The po ssibility of appellant' s effo rt to get th e chi ld to give up her own po sitiv e perceptions of the oth er parent, i.e., the mother and change her to agree wi th th e appellant’s view point cannot be rule d out thereby diminishing the affection of Saesha towards h er mother. Obviously, t he 69 app ellant, duri ng al l this period, would not have said anything about the positive traits of the respondent. Even the matrimo ni al di scord between the two parties would hav e been understood by Saesha, as perceived by the appellant. Psychologist term it a s ‘The Parental Al ienat ion Syndrome’. It has at leas t two psychological dest ructive effects: (i) First, it puts the child square ly in the middle of a contest of loyalty, a c ontest which cannot possibly be won. The child is asked to choose who is the prefer red pa rent. No mat ter w hatever is the choice, t he ch ild is very likely to en d up feeling painfully guilty and confused. This is be cau se in the overwhelming majority of cases , what the child wants and needs is to continue a relationsh ip with each parent, as indep endent as po ssibl e from their own conflic ts. (ii) Second, the child is required to make a shift in assessing reality. One pa ren t is presented as being totally to blam e for all problems, and as someone who is devoid of any posit ive characteristics. Bo th of these assert ions represent one parent's d istor tions of reality. 19. The aforesaid discussion leads us to feel that conti nu ous compa ny of the mother with Saesha, for some time, is absolutely essential. It may also be underlyin g that the notion that a chil d’s primary n eed is for the care and love of i ts mother, where she has bee n its primary care giving parent, is supported b y a vast bo dy of psychological literature. Empiric al studies show that mother infant “bonding” begins at the child’s birth and t hat in fants as youn g as two months old frequent ly sh ow signs of distress when th e mother is replaced by a substitute caregiver. An in fant t ypically responds preferentially to the sound of its mother’s voice by four weeks, actively de mands her presence and protes ts her absenc e by eight months, and withi n the first year has formed a pro found and enduring attachment to her. Psychologi ca l t heory hypothesizes that the mother is the cen ter of an infant’s small world, his psychological homeb ase, and that she “must conti nue to be so for some years to come.” Dev elopm ental psychologists believe that the quality and strength of this original 70 bon d l argely determines the child's later capacity to fulfill her individual potential and to form attachm ents to other individua ls and to the human com munity.” Thus, what h as be en explained by this Court as aforesaid is the doctrine of Parental Alienati on Sy ndrome, i.e. the efforts made by one parent to get the child to give up his/her own positive percept ions of the other paren t and get him/her t o ag ree with their own viewp oint. It has two psychological dest ructive effects : (1) It puts the child in the m idd le of a loyalty contest, which cannot possibly won by any parent; (2) It makes the child to assess the reality, thereby re quirin g to blame ei ther parent who is supposedl y dep rived of positive traits. The intent of the court should be to circumvent su ch ill effects. 109. The minor daughter has a remarkable high IQ. She has been identified to be a gift ed child. In such circu mstanc es, both the m ino r children were admitted in a special school meant for children with such remarkably high IQ in the USA. Su ch schoo ls in the USA are specialized in provid ing education to the gifted children which, ultimately, helps in the overall de velopm ent of such ch ild ren. The special educati on ul timately enhances the 71 poten tial of such children. Both the children in the p re sen t cas e have better prospects of getting refi ned education that may ultimately enhance their potentia l they already possess and ar e already accu sto med to and comfortable w ith. 110. Both the minor childre n, in the case on hand, have already been enrolle d in the s chool in the USA. Therefore, if the min or children are repatriated to the USA, they will not be subjected entirely to any fo reign system o f education. It is the fund ament al right of the petitioner -mother to have the company of her children and no t to be de prived of the same without a reasonable cause. FACTS SUPPORTING THE STAY OF THE PETITIONER I N THE USA : 111 . The pe tition er is a resident of the USA and has acqu ired H1B visa via sponsorship an d has a good job at Ranstad, USA. The petitioner is ea rning handsome salary and has the resources to provide for a comfortable life to her children in the USA. The petitioner is comfor tably settled in the USA and is accustom ed to different kind of lifestyl e, culture, society, etc. 112 . We take notice of th e f act that the petitioner worked very hard to secure admission in the Cleveland State University and co mpleted her studies wit h the GPA of more than 3, while taking care of her children. This is indicati ve of the fact that she is a 72 hard working woman an d wou ld b e in a position to take good care of he r minor children in accordance with the shared parenting p lan. 113 . It would be t oo muc h for this Court to tell the petitioner that she may periodically visi t India to meet her children but the children shoul d not be asked to go back to the USA with their father, i.e. the respondent no.2. 11 4. In the overall view of the matter, we have reach ed to the conclu sion that the respondent no.2 , at the earliest, shoul d be directed to go back to the USA with both the mi no r c hi ldren and abide by the shared parenting plan as ordered by the Court at Ohio. Although, the shared parenting plan as order ed by the Court at Ohi o stood terminated at th e ins tance of the petitioner - mother, yet the same can be revived once again by th e aut horities by going before the concerned c ourt at Ohio. It is for the parties to take the necessary ste ps in this regard. The respon dent no.2 shall immediately apply for th e vis a on the strength of th is order. If the respondent no.2 is in a position to ob tai n a job in the USA on the strength of a work permit or any other document, then it is well and good. However, we are sure of one t hing that it wil l be in the interest and welf are of both the childre n to go back to the USA for the purpose of their educ at ion , etc. The allegations levelled by the r espondent no.2 73 that the petitioner suffers from some mental i llness appears to be ab solute ly wild and reck less. Even otherwise thi s iss ue is a highly disputed question of fact. 11 5. We would therefore hold that in th e case at bar the dominant consideratio n to which all other considerations must remain subordinate mu st be the welfare of th e chil d. This is not to say that the question of cu stody will be determin ed by weighing the economic circumstances of the conte nd ing parties. The matter will not be determ ined solely on the basis of the physical comfort and material advantages that may be availa ble in the home of one contender or the other . The welfare of the child must be decided on a consideration of these and a ll ot her relevant factors, including the gen eral psychological, spiritual and emotional welfare of the chi ld. It must be the aim of the Court, when res olving disputes between the r ival claimants for the custody of a child, to choose the course which will b es t provide for the healthy growth, developm ent and education of the child so that he or she will be equip ped to face the problem s of life as a mature adult. FINAL CONCLUSIO N : 11 6. We allow this wri t petition wi th the following directions : (1) The re sp ond ent no.2 -father shall, within one 74 week from today, apply to the authority concerned for visa to trave l to the USA with the t wo min or children. (2) Th e concerned authority may keep the observations made by this Court in the present judgment in mind and , in the larger interest of the two minor children, consider grant of visa to the respondent no.2 -father. Once the visa is grante d, the respondent no.2 sh all, within one week there after, proceed to travel to the US A. (3) Once the two minor children rea ch t he US A, thereafter, it will be open for the petitioner -mother to take care of her children. (4) We leave i t open to the responden t no.2 -father to chalk out his own plan. (5) If th e respondent no.2 wants to stay back in the USA, it is always open for him t o do so in accordance with the law of the country. If the respondent no.2 decides to come back to India, t hen in such circumstanc es, th e petitioner -moth er shall make both the minor children speak to their father on -line at least once every week. (6) In any ev en t, i f the visa is declined to the respondent no.2, then in such circumstances, the 75 petitioner -mother shall travel to India a nd pic k up her two mino r c hildre n and go back to th e USA. In such an eventuality, the respo ndent no.2 and his family members are d irecte d to fully cooperate and not create any impediment of any nature. If it comes to the notice of this Court that the respondent no.2 or any of his fa mil y members have cr eat ed any impediment for the p etiti oner -mother, then the same shall be viewed as the contempt of this Court’s order. In ad dition, it will be open to the petitioner -mother to contact the jurisdictional Commissioner / Sup erinte ndent of Pol ice , who sh all th ereafter ensure that the custody of the chil dren is immediately / forthwith handed over to the petitioner -mother and submit complian ce report in that regard to this Court . In case of any impediment despite the peremptory direction , the pet itioner -mother m ay app ly for appropriat e direct ion s from this Cou rt, if so advised. (7 ) We le av e i t open for the parties to go back to the Court at Ohi o and revive the shared parenting plan as was arrived at vide order dated 12 th May 2021. 11 7. Before we c lose this matter, w e woul d like to convey to the parties that the ir two minor children a re watc hi ng them very 76 closely. Showing the children that the ir pa rents can respect each other and resolve the conflict respectfully will give them a good foun dation for the conflict that may, God forbid, arise in thei r own lives. The p artie s should try to do thei r bes t to remain relaxed and focused. It is critical to ma intain boundaries between the adult problems and children. It is of utmost interest to protec t the in no cence of children a nd allow them to remain childr en. They must not be bu rdened by any ad ult pro bl em. Minor children do not have the coping skills or the intellectual ability to understand any issues like the financial constraints, adult relations hip is su es or their parents u nhappine ss. 11 8. We find the observations made b y the Delhi High Cou rt, in the ca se of K.G. v . State of Delhi and another , dated 16.1 1.2017 in Writ Petition (Cr iminal) No. 374/201 7 and Cr iminal Miscellaneous Application No. 2007/201 7, qu ite commendable , th at the best welfare of t he child, normally, wou ld lie in living with both h is /he r parents in a happy, loving and caring environment, where t he parents contribute to the upbringing of the child in all spheres of life, and the child rec eiv es emotional, socia l, phys ical and material support – to name a fe w. In a disturbed marriage, un for tunately, there is bound to be impairment of some of the inp uts which are, ideally, essential for t he best interest of the child. 77 11 9. There will be no or der as to costs. 120 . The Reg istry shall notif y this mat ter once agai n aft er a period of four wee ks to report compl iance of our directions. … … … … … … … … … … … … … … … ..J. (A.M. KHANWILKAR) … … … … … … … … … … … … … … … ..J. (J.B. PARDIWALA) NEW DELHI ; JU LY 14 , 20 22