By Niyati Dhiman

In a recent ruling, the Jaipur bench of the Rajasthan High Court addressed a complex international custody dispute involving a U.S.-born minor. The case arose from a habeas corpus petition filed by the father, a U.S. resident, seeking custody of his child who had been brought to India by the mother in 2018. The father argued that the child’s welfare would be best served in the United States, citing the child’s legal status as a U.S. citizen and the implications of his overstayed visa in India.

The child was brought to India by the mother on a return ticket but remained in the country beyond the expiration of his visa in 2019. Subsequently, the mother filed an application before the Family Court in Jaipur under the Guardians and Wards Act, seeking custody of the child, which the court granted. The father, on the other hand, had filed a custody petition in a U.S. court, which was decided in his favor before the Jaipur Family Court’s order. Despite this, the mother continued to hold custody of the child in India.

The father approached the Rajasthan High Court, arguing that the mother had concealed critical facts before the Family Court, including the child’s U.S. citizenship and his lack of ordinary residence in Jaipur. He further contended that the principle of comity of courts required the Indian court to honor the U.S. custody order. Moreover, he asserted that the child’s overstayed visa rendered him an illegal migrant in India, placing severe restrictions on his legal rights and opportunities.

The mother defended her position by asserting that the U.S. custody order was ex-parte and not based on substantial evidence. She also argued that the Family Court’s order, passed after a detailed hearing, was valid and binding. Additionally, she claimed that the child had been living with her for six years and that his welfare was intrinsically tied to her custody. The mother dismissed the claim that the child could be considered an illegal migrant, asserting that his stay in India should not adversely affect his status or welfare.

The High Court examined the case in detail, focusing on the jurisdiction of the Family Court under Section 9 of the Guardians and Wards Act. It determined that the Family Court had no authority to entertain the mother’s plea, as the child was not an “ordinary resident” of Jaipur. Citing the Supreme Court’s precedent in Ruchi Majoo v. Sanjeev Majoo, the court clarified that temporary residence, even if extended, does not qualify as “ordinary residence.” The court observed that the child was brought to India on a visa that had since expired, making his presence in Jaipur temporary and unauthorized.

The court also emphasized the importance of respecting the Doctrine of Comity of Courts. It ruled that the custody order passed by the U.S. court, being issued by a competent authority and predating the Family Court’s decision, should have been honored. The Family Court’s dismissal of the U.S. court’s order on the grounds of it being ex-parte was deemed inappropriate, as the principle of comity required Indian courts to recognize foreign judgments in such cases.

On the matter of the child’s welfare, the court underscored that the child’s illegal migrant status in India would severely limit his rights and opportunities. The court noted that the child, being a U.S. citizen, would not have access to constitutional protections or the privileges of Indian citizenship. His welfare, therefore, lay in returning to the United States, where he could fully exercise his rights as a citizen.

In its ruling, the High Court allowed the father’s habeas corpus petition and granted him custody of the child. The court provided two alternatives for the mother: she could either return to the U.S. with the child and comply with the custody order or hand over the child’s custody to the father or his parents for the child’s return to the U.S. To ensure the mother could maintain her relationship with the child, the court directed the father to facilitate regular video calls and visits whenever the child returned to India.

This ruling marks a significant development in cross-border custody disputes, highlighting the challenges of balancing child welfare, legal jurisdiction, and international cooperation. By prioritizing the child’s welfare and respecting the Doctrine of Comity of Courts, the Rajasthan High Court has set an important precedent for similar cases in the future.

Case Title: Vikrama P. V.  Mocherl v. State   Of   Rajasthan and Ors.

Citation: 2024:RJ-JP:47816-DB

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