The Andhra Pradesh High Court (Amaravati Bench) has clarified that in a habeas corpus petition concerning a minor child, the principal duty of the Court is to ascertain whether the custody of the child is unlawful or illegal. Emphasising that custody of a minor child with the biological mother or with grandparents, especially when placed there by the petitioner himself pursuant to court orders, cannot be termed as ‘unlawful custody’, and hence a Habeas Corpus petition under Article 226 of the Constitution of India cannot be entertained.
The Court explained that the decision of the Court in child custody matters must depend on the totality of the facts and circumstances whilst considering the welfare of the child, which is of paramount consideration, and the order of the foreign Court must yield to the welfare of the child. The remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court.
The Division Bench comprising Justice Cheekati Manavendranath Roy and Justice Tuhin Kumar Gedela observed that it must examine at the threshold whether the minor is in lawful or unlawful custody of another person. It noted that the petition is filed against respondent No. 8, who is the biological mother, and the custody of the child with the biological mother cannot be termed as ‘unlawful custody’. Further, the petitioner himself pleaded before the Family Court of England that the child needs a family environment and, pursuant to the orders of that Court, placed the custody of the minor child with the grandparents. Therefore, the custody cannot be termed as illegal and unlawful.
Regarding the Comity of Courts and the ‘First Strike’ principle, the Bench observed that India is not yet a signatory to the Hague Convention of 1980 on the Civil Aspects of International Child Abduction. The Bench held that the invocation of the First Strike principle as a decisive factor would undermine and whittle down the wholesome principle of the duty of the Court having jurisdiction to consider the best interests and welfare of the child, which is of paramount importance.
The Bench emphasized a germane biological aspect concerning puberty, privacy, and care needed for a girl child, noting that at this juncture of life, the girl child needs special care and attention of the mother, which cannot be taken care of by the father who stays alone in the United Kingdom.
Further, the Bench strongly criticized the observation made by the High Court of Justice, Family Division sitting at the Royal Courts of Justice, which stated that ‘the Courts of India do decline to exercise any jurisdiction in relation to matters of parental responsibility in respect of the child’. The Bench observed that this imprints a fostered culture of subordination, embraces a colonial mindset, and cannot be permitted to be revived or superimposed upon the independence of the Indian Judiciary.
Lastly, the Bench concluded that the order of the foreign Court must yield to the welfare of the child, and the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court. A foreign judgment violative of Indian law is not conclusive between the parties and thus, Indian Courts are not bound to follow it.
Briefly, the petitioner and respondent No. 8 got married in 2017 at Tirupati, and their marriage was consummated in the UK. They were blessed with a daughter, Sitara, born in the UK in 2019, who is a British citizen. Later, disputes arose between the parties, and the petitioner filed an application for divorce in 2025 in the Family Court, United Kingdom. The petitioner approached the Family Court at Kingston-upon-Hull seeking permission to visit India along with his daughter during school holidays. This was allowed and the Family Court of England passed an ex parte order permitting the petitioner to travel with Sitara to India from Aug 15 to 31, 2025 and directed him to drive Sitara to the maternal grandparents’ home for a two-night stay.
In obedience to the orders passed, the petitioner handed over the daughter to respondent Nos. 6 and 7 (maternal grandparents) at their residence. When the petitioner went to pick up the child, he found the house locked and was informed that they had left with the daughter. Later, the Respondent No. 8 (mother) travelled back to India on Aug 28, 2025 and took custody of Sitara.
The Family Court of England sitting at Kingston-upon-Hull therefore passed an order directing respondent No. 8 to return the child to the jurisdiction of England and Wales. Thereafter, the High Court of England passed a further order noting the mother’s failure to comply with the return orders. Hence, the petitioner filed the present petition seeking a Writ of Habeas Corpus directing the respondent to produce the minor child and handover custody to the petitioner in compliance with the orders of the UK Courts.
Appearances:
Advocate V V Lakshmi Narayana, for the Petitioner
K S Murthy Associates, P Vivek, and the Advocate General, for the Respondent
