‘Custody with mother not illegal’: Delhi High Court rejects Pakistani-origin British father’s plea to send kids back to UK

The high court noted that the children, who are British nationals, have been residing with their mother in Delhi for the last two years.

‘UK court order can’t be enforced automatically’

• While the orders of the High Court of Justice, Family Division, London, are entitled to due regard, they cannot be enforced automatically through habeas corpus proceedings, the Delhi High Court held.
• It also emphasised that the welfare of the children, aged 7 and 11, is required to be analysed by the court where the minors presently reside.
• The dispute is a custody battle between the parents, where the father, the petitioner, sought the issuance of the habeas corpus for the production of his minor children.

• He also sought directions regarding their custody and return to the United Kingdom.
• The mother has instituted a petition under the Guardians and Wards Act, 1890, seeking custody and guardianship of her minor children before the family court at Karkardooma.
• The said guardianship plea is presently pending before the competent court.
• The existence and pendency of the said proceedings are crucial, and the family court is the appropriate forum to evaluate the competing claims of the parents.
• The Guardians and Wards Act, 1890, provides a comprehensive statutory framework for the determination of custody disputes on the basis of evidence and welfare considerations.
• The present plea seeks to convert this court into an executing forum for a foreign order, which is impermissible in custody matters.
• The petitioner has an efficacious alternate remedy before the family court, where the guardianship petition is already pending and where the parties are free to lead evidence and pursue their claim for custody and visitation.
• Entertaining the present plea would result in parallel proceedings and may prejudice the proceedings before the family court.

Justices Navin Chawla and Ravinder Dudeja said the children’s welfare is required to be analysed by the court where they presently reside.

‘UK court ordered return of minor children’

• The couple met in the United Kingdom in 2006, and after five years, they solemnised their marriage as per Islamic law in Saudi Arabia.
• They registered their marriage in the United Kingdom in March 2012.
• They had two sons who were born in 2014 and 2018.
• It was claimed that both children are British nationals and have been residing in the UK since birth.
• The petitioner, being of Pakistani origin, was granted British Citizenship in 2016, and his wife was in 2023 granted leave to live indefinitely in the UK.
• On August 31, 2023, with the consent of the petitioner, the wife travelled to India with the minor children, allegedly for a temporary visit on the false pretext of spending more time with family and attending a wedding.

• The wife, however, filed a custody petition before the Karkardooma Court in November 2023.
• Since the visa of the minor children was to expire in November 2023, the petitioner requested his wife for an extension of the visa for three months.
• The visa extension was granted. However, the wife allegedly, thereafter, wrongfully retained the children in India.
• The petitioner moved an application before the family court of London in February 2024 seeking the return of his children to the UK.
• The UK high court, after a final hearing, passed an order in August 2024, directing the return of minor children to the father in the UK by September 1, 2024, because they are British nationals and their habitual residence was in that jurisdiction.
• The British High Court also observed that the appropriate forum for the matter was the UK and not India.
• Since the wife refused to return to the UK along with the children in compliance with the orders of the UK high court, the petitioner filed the present plea before this court.

‘Return British national minor children’

• One of the counsels of the petitioner, advocate Khalid Akhtar, argued that his client’s wife travelled to India with the children only for a temporary visit but thereafter refused to return to the UK.
• He claimed that this has disrupted their settled environment and deprived the petitioner of access to his children by retaining them in India.
• Akhtar further submitted that the UK high court has already exercised jurisdiction over the minor children, who are British passport holders, and declared the children as wards of the high court and directed their return to the UK.
• It was contended that the principle of comity of courts requires Indian courts to enforce the said order.

‘Lawful custody, welfare of children’

• Representing the state, advocate Sanjay Lao submitted that the present plea of the husband is misconceived and amounts to an attempt to bypass the statutory remedies available under the Guardians and Wards Act, 1890.
• It was contended that the custody of the minor children with their mother is lawful and in their best interest, and cannot be characterised as illegal detention to justify the issuance of a habeas corpus.
• It was contended that the children are now settled in Delhi, are living in a supportive family environment and are attending school via online mode here.
• It was argued that uprooting them from their present surroundings and compelling their return to the UK would cause them severe emotional and psychological distress.
• The counsel contended that the return order passed by the UK high court cannot be enforced “mechanically” and that this court must independently consider the welfare of the children.