Writ of Habeas Corpus is not a tool for mechanical enforcement of foreign custody orders.

The Petitioner (husband), a British citizen of Pakistani origin, and Respondent No. 2 (wife), an Indian national with indefinite leave to remain in the UK, married in 2011 and resided in the UK

They have two minor sons, both British nationals.

In August 2023, the wife traveled to India with the children for a purported vacation but subsequently filed a custody petition (GP No. 47/2023) in Delhi.

The Petitioner obtained orders from the High Court of Justice, Family Division, London, declaring the children "wards of the court" and directing their return to the UK by September 1, 2024.

When the wife refused to comply, the husband filed this Habeas Corpus petition in the Delhi High Court.

Meanwhile, the Family Court in Delhi rejected the husband’s challenge to its jurisdiction on January 29, 2026.

Whether a writ of Habeas Corpus is maintainable for the custody of minor children when they are residing with their biological mother.

Whether the principle of comity of courts requires the mechanical enforcement of a foreign return order regardless of the children's welfare.

Whether the High Court should exercise its extraordinary jurisdiction under Article 226 when statutory guardianship proceedings are already pending.

The court relied on the principle that 'welfare of the child' is the paramount consideration, overriding the legal rights of parents or foreign court orders, as established in Veena Kapoor v. Varinder Kumar Kapoor.

It applied the doctrine from Nithya Anand Raghavan v. State (NCT of Delhi), which holds that a Habeas Corpus petition cannot be used as a mere tool to execute foreign decrees and that the "first strike" principle is subordinate to the child's best interests.

The court further cited Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, emphasizing that a writ of Habeas Corpus is an extraordinary remedy and should not supplant statutory remedies under the Guardians and Wards Act, 1890, unless the detention is patently illegal.

The Court reasoned that the custody of the children with their biological mother cannot be termed "illegal detention," which is a prerequisite for a writ of Habeas Corpus.

It observed that since a Guardianship Petition (GP No. 47/2023) is already pending and the Husband’s jurisdictional challenge (Order VII Rule 11 CPC) was dismissed by the Family Court, the Petitioner is attempting to bypass an efficacious statutory remedy.

The Court noted that the children have lived in India for over two years, are enrolled in school, and are settled in a supportive family environment; thus, uprooting them based solely on a foreign order without a detailed evidentiary inquiry into their welfare would be inappropriate.

The Court held that disputed questions of fact regarding the children’s well-being are best adjudicated by the Family Court exercising parens patriae jurisdiction rather than through summary writ proceedings.

The Court answered that the welfare of the children outweighs the principle of comity of courts in this instance.

The Petitioner was granted liberty to pursue his claims for custody and visitation before the Family Court at Karkardooma, Delhi, where the matter is pending adjudication.