Himachal Pradesh High Court denies autistic daughter’s custody to father living in US

“Therein the court can examine the interests of the minor without being fixated with the factum of an order of the foreign court directing return of the child nor influenced with the fact that the petitioner was successful in getting an order from the foreign court for production of the child,” the July 30 order said.

The father approached the court seeking a writ of habeas corpus, alleging that her minor daughter, who has autism, was illegally detained by her mother in India. The couple had married in 2008 in Delhi, later moved to the United States, and divorced in 2023.

Chief Justice Girmeet Singh Sandhawalia and Justice Bipin Chander Negi heard a matter over cross-border child custody.

He alleged that subsequently, the woman moved to Palampur, Himachal Pradesh, with their child in September 2023 without obtaining the “mirror judgment” that occurs in international family law, in cross-border child custody cases, where a custody order is passed by a foreign court, which has to be issued by an equally competent court of India.

He relied on a later US family court contempt order that granted him sole custody of the child and permitted him to travel to India to take her custody, and held the mother guilty of contempt.

Advocate Vihaan Kumar and Mukesh Sharma appearing for the father submitted that the mother had violated the US family court’s order by relocating the child to India without obtaining a mirror order, making he rcutody illegal. It was argued that the child being a US citizen continued to fall under US courts, and the family court at Palampur lacked jurisdiction.

Senior Advocate Rajnish Maniktala, with advocate Dinkar Bhaskar for the mother, argued that she had not violated the US court’s order, as she had informed the father before moving to India. It was submitted that she had taken necessary steps to obtain the mirror judgment from an Indian court.

The counsel submitted that the child had been living and studying in Indian sine 2023, guardianship proceedings were pending in the Indian family court, and therefore the habeas corpus petition was not maintainable.

‘Father’s plea dismissed’

The court observed that the custody of the minor in the case was with her biological mother, and therefore, her custody with her mother had to be presumed to be lawful. It also stated that the child had expressed her desire to stay with her mother before the family court, Palampur.

The court dismissed the father’s plea and held that while taking the foreign court as only a factor to be taken into consideration, the paramount importance will be given to the welfare of the child.