A child taken to India two weeks after a California custody order must go back to the United States

Justices J.B. Pardiwala and K.V. Viswanathan allowed a father's habeas corpus appeal, holding the child's welfare lies in the US, with comity and the mother's breach of the order tilting the balance.

On 25 August 2022 a California court gave two parents joint custody of their three-year-old daughter, with time split equally and a condition that neither could take her out of the State without the other's written consent or a court order. Two weeks later the mother flew to India with the child. The Karnataka High Court refused the father's habeas corpus petition, finding the mother's custody lawful and holding that it was in the child's interest to stay with her. On 8 October 2026 the Supreme Court reversed that decision. Justices J.B. Pardiwala and K.V. Viswanathan held that the child's welfare lies in continuing her life in the United States, of which she is a citizen. They directed that she travel back by 31 December 2026, accompanied by her mother, who agreed through counsel to go with her. The Court said it would not compel the mother to move or to stay in the marriage, but that she could not insist on the child remaining in India.

A marriage in New Jersey and a home in California

The father is a US citizen. The mother moved to the United States on a fiancée visa he sponsored, and they married and registered the marriage in South Brunswick, New Jersey, on 5 May 2018. No ceremony took place in India and they never lived together here. Their home was in Mountain View, California. The mother, a doctor, passed the US medical licensing examination and obtained a ten-year Green Card. Their daughter was born in the United States on 19 May 2019 and is a US citizen.

After the birth the marriage broke down, and the mother moved out with the child. She filed for dissolution in the Superior Court of California, County of Contra Costa, on the ground of irreconcilable differences. The summons carried automatic temporary restraining orders barring either parent from removing the child from California or applying for a new passport without the other's consent or a court order. In 2022 she also sought sole custody, with the father to have only visitation.

After hearing both parents, the court ordered joint custody and shared parenting on a 4-3-3-4 schedule on 25 August 2022, finding nothing to suggest the time should be split other than equally. It ordered the father to pay $1,095 a month in child support and $2,116 a month in temporary spousal support. On 8 September 2022 the mother left for India with the child and emailed the father two days later. He filed a police complaint in the United States. At the scheduled review hearing on 2 December 2022, the California court recorded the violation, ordered the child's immediate return to the father, gave him sole authority over her passport, directed that all of the mother's future contact be professionally supervised, and suspended all support until she complied.

Why the High Court refused

Relying on Tejaswini Gaud, the High Court held that habeas corpus lies in custody matters only where the child's detention is illegal. Following Nithya Anand Raghavan, it held that a foreign order does not by itself make a mother's custody unlawful and must give way to the child's welfare. It found the custody lawful under Section 6 of the Hindu Minority and Guardianship Act, 1956, which places a girl under five with her mother. It also relied on three further points: the child's demeanour in chambers showed she was comfortable only with her mother, the father had waited about eight months before filing, by which time she was at school in Jamshedpur, and there was no evidence that the mother had harmed her. Citing Vasudha Sethi v. Kiran V. Bhaskar, it held that a habeas court cannot direct a parent to leave India against her wishes.

Before deciding the appeal, the Supreme Court tried to settle the dispute in the Committee Room on at least ten occasions, and the father twice travelled to India to appear. No agreement was reached.

Summary or elaborate inquiry

The Court first addressed the threshold question. It held that habeas corpus is available not only where custody is strictly illegal but also where one parent has been wrongfully deprived of custody by the other, because the focus is on the child's welfare and not on legality. Whether custody retained in breach of a US order could properly be called lawful was not something the Court thought needed lengthy discussion.

Relying on Dhanwanti Joshi v. Madhav Unde, the Court explained the two kinds of inquiry. In a summary inquiry, the court assumes that the foreign order serves the child's welfare and returns the child unless return is shown to be harmful. In an elaborate inquiry, it considers the foreign order but decides for itself where the child's welfare lies. Both aim at the child's welfare and differ only in how closely they examine it. How quickly the court is approached and how far the child has put down roots in the new country weigh heavily in choosing between them. Even an elaborate inquiry in a habeas petition decides only whether the writ should issue, not final custody, and observations made in it should not influence later custody proceedings.

Welfare is to be understood in its widest sense, covering stability, security, care and emotional bonds as well as material comfort, as the Court had held in Rajeswari Chandrasekar Ganesh. The Court also referred to the factors listed in Lahari Sakhamuri v. Sobhan Kodali. Since the child had by now lived in India for nearly four years, partly because of the time spent in the courts, a summary inquiry was not appropriate.

Why the High Court's reasons did not hold

The Court found none of the High Court's three reasons sufficient to show that the child's welfare could be served only by staying with her mother. A child who has lived only with her mother for four years will naturally appear to want to stay with her, and at her age her own wishes cannot be meaningfully ascertained, let alone relied on alone. The mother had not harmed her, but nothing substantial in the record, including the mother's own US custody proceedings, suggested the child would be harmed in her father's care. Eight months was not long enough for a child who arrived at about three to have put down such deep roots that her welfare lay only in India.

On the other side, the child is a US citizen entitled to the benefits of that citizenship, and nothing suggested that growing up there would harm her. The Court concluded that she should grow up and be educated in the United States.

When the parent's wrong can count

The Court was careful about the place of the mother's breach of the order. It said that a wrongdoer should not ordinarily benefit from their wrong, and that a competent foreign court's orders deserve respect as a matter of comity. But that principle is not to be weighed against the child's welfare, because welfare must always come first. Where welfare clearly points one way, the inquiry ends there. Only where welfare is met roughly equally whichever way the court decides, and only after welfare has been fully considered, may the court take into account that one parent defied a court order.

This was such a case, the Court said, because the child had spent her early years in India and the considerations did not point overwhelmingly one way. The mother had herself started both the divorce and the custody proceedings in the United States. The custody order was made after hearing both parents. Two weeks later she removed the child in clear breach of it, and nothing showed that her circumstances left her no other option. In those circumstances, comity and the principle that no one should benefit from their own wrong tipped the balance in the father's favour, while welfare remained the governing consideration throughout.

Order

The appeal was allowed. Counsel for the mother, Ms Malavika Rajkotia, said on instructions that the mother would accompany the child, and the Court directed her to travel to the United States with the child on or before 31 December 2026, with the father cooperating on visas. The child's expired US passport is to be handed to the father's counsel within a week for renewal. The father, who joined the hearing online from the United States, undertook through senior counsel Mr Mukul Rohatgi and Ms Meenakshi Arora to provide the mother separate accommodation near his home at his cost, help restore her lapsed Green Card, pay her $3,200 a month as ordered by the California court along with her travel and other expenses, take no legal action against her over the breach and cooperate in any other proceedings against her, and seek corresponding orders from the US court. He must give these undertakings on affidavit and furnish security of ₹1 crore by fixed deposit in the name of the Registrar for an initial eighteen months, within two weeks. The Court said its observations would not affect the custody or divorce proceedings pending in the United States, and listed the matter on 5 January 2027.

In a connected special leave petition, the Court declined to interfere with a Jharkhand High Court judgment of 2 December 2025 that upheld the Jamshedpur family court's rejection, under Order VII Rule 11 of the Code of Civil Procedure, of the mother's guardianship petition under the Guardians and Wards Act, 1890. That petition was dismissed.