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Shimla, July 30
Himachal Pradesh High Court has dismissed a criminal writ petition filed by a US-based father seeking custody of his 10-year-old autistic daughter, holding that a writ of habeas corpus cannot be converted into an executing mechanism for enforcing the directions of a foreign court. The Division Bench of Chief Justice G.S. Sandhawalia and Justice Bipin Chander Negi held that the custody of the child with her biological mother at Palampur in Kangra district was not illegal and that the welfare of the child remains the paramount consideration.
The petitioner, Shaleen Kacker, had approached the High Court alleging that the child’s mother had shifted the child from the United States to India on September 30, 2023, in violation of a judgment dated January 27, 2023, passed by the Trial Court of the Probate and Family Court Department, Commonwealth of Massachusetts.
He sought issuance of a writ of habeas corpus for production and restoration of custody of the minor, relying upon subsequent contempt orders of the US Family Court granting him sole legal and physical custody.
When the petition first came up in March this year, the Division Bench had issued notice to the State Government after the petitioner’s counsel argued that the child had been brought to India contrary to clauses 7 and 8 of the Massachusetts court’s divorce decree and that a mirror judgment from an Indian court had not been obtained.
It was also submitted that the child, a special child suffering from autism, was studying in Class IV at Palampur and that the father, despite paying 1,075 US dollars every month towards child support, had been denied visitation rights. The matter was thereafter listed for further proceedings.
Rejecting the father’s contentions, the High Court observed that the US divorce judgment itself permitted the mother to relocate the child to India after August 15, 2023, while granting her legal and physical custody subject to the father’s parenting time. The Bench held that clause 8 merely required the mother to take necessary steps to obtain a mirror judgment in India and did not prohibit relocation until such a judgment was secured.
It also noted that the petitioner’s own request before the US court to amend this clause had earlier been rejected.
The Court further ruled that the subsequent contempt orders of the US Family Court did not render the mother’s custody illegal. Relying on the Supreme Court judgments in Nithya Anand Raghavan, Yashita Sahu, Tejaswini Gaud and Smriti Madan Kansagra, the Bench held that in matters involving children brought from non-Convention countries, foreign court orders are only one relevant factor and cannot override the paramount consideration of the child’s welfare.
It reiterated that habeas corpus jurisdiction cannot be used to enforce foreign court directions and that disputes regarding custody should ordinarily be adjudicated under the Guardians and Wards Act.
The Bench also took note of the child’s statement expressing her desire to continue living with her mother, the fact that she had been residing in India since September 2023, and the pendency of guardianship proceedings before the Family Court at Palampur.
Observing that the extraordinary writ jurisdiction had been invoked nearly two-and-a-half years after the child’s relocation and that an effective statutory remedy was already available, the Court dismissed the petition as being devoid of merit along with all pending miscellaneous applications.
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