• Order of a foreign court not unalterable in Custody cases

    July 05, 2017

    The orders passed by foreign courts in matters child custody are not sacrosanct. Indian Courts should consider the interest of the child while deciding such disputes.

    While observing this, the courts relied on the fact that India is still not a signatory to the Hague Convention and thus, domestic courts would not breach any international obligation if they applied minds independently.

    In the instant matter of Nithya Anand  Raghavan v. NCT, the Supreme Court held that the remedy of habeas corpus cannot be used for mere enforcement of the directions given by a foreign court against a person within its jurisdiction and covert that jurisdiction into that of an executing court.

    A writ of habeas corpus was filed by the father of the girl child alleging that she was in illegal custody of her mother since there is an order of the UK court to that effect.

    The mother has approached the apex court against the said order of the High Court. The three-judge bench comprising of Justice Dipak Mishra, Justice AM Khanwilkar and Justice Mohan M Shantanagoudar said that merely because an order was passed by the foreign court directing the mother produce a child before it, the custody of the minor with the mother would not become unlawful per se.

    A pre-existing order of a foreign country can be reckoned only a sof eof the factor to be taking into consideration.

    It further observed: “Whether it is a case of a summary inquiry or an elaborate inquiry, the paramount consideration is the interests and welfare of the child. Further, a pre-existing order of a foreign Court can be reckoned only as one of the factor to be taken into consideration.”

    Dismissing the writ petition, the court observed that the mother cannot entirely disregard the proceedings of the foreign court.

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