Summary writ jurisdiction is declined where a child’s welfare necessitates a detailed evidentiary inquiry due to prolonged residence.

The parties, Aman Kathpal (AK/Mother) and Pankaj Dhingra (PD/Father), married in 2011 and had a daughter, Ms. XXX, born in the USA in 2015

Following allegations by AK of sexual and physical abuse, a Connecticut Superior Court granted a divorce on 06.05.2022, ordering joint legal custody with the child primarily residing with the mother and supervised visitation for the father

On 09.06.2022, AK removed the child to India without the father’s consent or court permission

Consequently, the US court modified its order on 13.07.2022, granting sole legal and physical custody to the father and ordering the child’s return

AK filed W.P.(CRL) 2049/2022 in the Delhi High Court seeking protection against the US orders, obtaining an ad-interim stay on 13.09.2022

PD subsequently filed W.P.(CRL) 3029/2024 seeking a Writ of Habeas Corpus for the child’s return to the USA

By the time of the hearing, the child had resided in India for approximately four years

1. Whether a Writ of Habeas Corpus is maintainable for the return of a child removed from a foreign jurisdiction in violation of a court order.

2. Whether the doctrine of comity of courts should override the "welfare of the child" principle when the child has spent a significant duration in India.

3. Whether the High Court should exercise its summary jurisdiction under Article 226 to determine custody in cases involving complex factual allegations of abuse.

The court relied on Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (2019), which establishes that a Writ of Habeas Corpus in custody matters is maintainable only where detention is illegal or without authority of law, and is an extraordinary remedy

It applied the principle from Nithya Anand Raghavan v. State (NCT of Delhi) (2017) and Lahari Sakhamuri v. Sobhan Kodali (2019), emphasizing that the welfare of the child is the paramount consideration, and while foreign court orders are factors, they are not conclusive

The court further noted the doctrine from Yashita Sahu v. State of Rajasthan (2020), stating that courts must decide whether to conduct an elaborate inquiry or deal with the matter summarily based on the child's best interests, including nationality, education, and social security

Finally, Nirmala v. Kulwant Singh (2024) was cited to affirm that Article 226 jurisdiction is discretionary and depends on the specific facts of each case

The Court observed that AK’s removal of the child to India was not bona fide as it circumvented the Connecticut court’s jurisdiction

However, it noted that PD delayed seeking a Habeas Corpus writ for nearly two years after the child’s arrival in India

The Court highlighted that the child, now 11, has "gained roots" in India and that both parents remain Indian citizens

While the US court's order is entitled to respect, the Court held it cannot be the sole determinative factor given the passage of time

The Court found that the competing allegations of sexual assault (by the mother) and parental tutoring (by the father) required a detailed examination of evidence which is not suitable for the summary nature of writ proceedings under Article 226

It determined that a holistic consideration of the child's welfare—beyond mere legal citizenship or foreign orders—requires a trial-level inquiry

It held that while the mother’s actions were not bona fide, the child's long-term residence in India and the complexity of the abuse allegations necessitated a detailed trial rather than a summary order for return

The parties were granted liberty to avail alternate efficacious remedies for guardianship and custody before the competent civil courts

The Court clarified that its observations were limited to the maintainability of the writs and should not influence the eventual merits of the custody battle in a lower court