ORDER P. SAM KOSHY, J. Heard Mr. Prabhjit Jauhar, learned counsel appearing on behalf of M/s.Anirudh & Associates for the petitioner, and Mr. Umesh Bhayaraju, party-in-person for respondent No.4. 2. The petitioner's minor son, Saatvik Gary Bhayaraju, born on 17.10.2019 is a US citizen and permanent resident since birth was illegally removed from the petitioner's custody and is currently in India with respondent No.4, the father. The petitioner is seeking the child's return to the USA citing orders dated 13.06.2023 and 23.04.2024 from the Circuit Court, Clark County, Wisconsin, USA, which directed the return of the minor child to US jurisdiction. Aggrieved by the same, the present writ petition is filed. 3. According to the petitioner, she got married to respondent No.4 on 26.06.2019 and blessed with a child named Saatvik Gray Bhayaraju on 17.10.2019 in USA, thereby, making him an American citizen by birth. During a brief visit to India both the petitioner and respondent No.4 renewed their martial vows in a Hindu ceremony on 09.03.2020. Due to differences in their relationship, the petitioner filed a divorce petition and also sought for custody of the minor child before the Clark County Family Court Commissioner State of Wisconsin Court, Circuit Court vide Case No. 22 FA 106 on 02.12.2022. Subsequently, on 13.06.2023 the US Court granted joint legal custody to both the parties with petitioner being awarded primary placement in Wisconsin while the respondent No.4 received unsupervised placement on alternative weekends i.e. Friday 6:00 P.M. to Sunday 6:00 P.M. Further, US the Court order mandated the respondent No.4 to pay monthly child support of USD 1,552 based on his gross monthly income and restricted him from leaving Wisconsin. However, both the parties were prohibited from relocating the minor child unless the provisions of Wisconsin State moving the child's residence within or outside the State's statute has been complied with. 4. It was submitted by the learned counsel for the petitioner that during the ongoing divorce proceedings in the US Court, a significant development occurred with the appointment of Ms. Gail R. Prock as Guardian-Ad-Litem on 25.07.2023. The petitioner and the respondent No.4 actively participated in this process and Guardian-Ad-Litem conducted a thorough evaluation including interactions with the minor child. 4. It was submitted by the learned counsel for the petitioner that during the ongoing divorce proceedings in the US Court, a significant development occurred with the appointment of Ms. Gail R. Prock as Guardian-Ad-Litem on 25.07.2023. The petitioner and the respondent No.4 actively participated in this process and Guardian-Ad-Litem conducted a thorough evaluation including interactions with the minor child. During this period in July, 2023, the minor child was diagnosed with autism which led to temporary reconciliation between them and they collectively decided to relocate to Indiana, USA, with minor child on 27.02.2024. 5. It was further submitted that this reconciliation proved short- lived as domestic issues resurfaced. On 11.03.2024 in front of minor child the petitioner was subjected to harassment and physical abuse by respondent No.4 which led to his arrest. A case was registered against the respondent No.4 in Hamilton Circuit Court where he was charged with multiple counts of felony and misdemeanour domestic abuse. The US Court imposed strict conditions including no contact with the petitioner and restrictions on leaving Indiana. Following this incident, the petitioner discovered that the father had taken possession of crucial documents including passports and birth certificates, forcing her and the minor child to seek refuge in a crisis shelter in Portage County. 6. Learned counsel for the petitioner submits that thereafter the situation become apparent through the Guardian-ad-Litem's report dated 04.04.2024 which was submitted to the Wisconsin Court. The report highlighted serious concerns about the respondent No.4's behaviour, noting his denial of the child's autism diagnosis and his attempt to blame the petitioner's parenting and mental health for the child's condition. The respondent No.4 had repeatedly requested to take the child away from the petitioner for three weeks to conduct his own autism assessment raising red flags about his intentions. Due to domestic abuse and violence, the petitioner obtained an order of protection from the Circuit Court, State of Wisconsin, Portage County vide Case No. 2024CV000085, resulting in a restraining order against respondent No. 4 valid from 09.04.2024 to 09.04.2028. 7. According to the learned counsel for the petitioner, after a schedule child exchange at the Personal Development Centre in Marshfield, Wisconsin on 21.04.2024, the respondent No.4 unlawfully took the child to India, despite existing Court orders and injunctions. 7. According to the learned counsel for the petitioner, after a schedule child exchange at the Personal Development Centre in Marshfield, Wisconsin on 21.04.2024, the respondent No.4 unlawfully took the child to India, despite existing Court orders and injunctions. This action prompted immediate legal response with the US Court issuing an emergency order on 23.04.2024 granting sole legal custody and exclusive physical placement to the petitioner. Subsequently, on 01.05.2024, the US Court (Wood County) issued a warrant for the arrest of respondent No.4 for breaching the custody order and leading to his placement on full extradition status. 8. Learned counsel for the petitioner contended that respondent No.4 filed a custody petition bearing GWOP.No.654 of 2024 on 03.05.2024 before the Family Court, Kalpataru Building under the Hindu Minority and Guardianship Act , 1956 for sole and permanent custody of the minor child. Moreover, the respondent No.4 also filed a petition for sole custody of the minor child before US Court on 07.05.2024. However, the said petition was not declined from being entertained on 13.05.2024. Despite filing a custody petition in US, the respondent No.4 concealed the said fact and filed the custody petition in Family Court. 9. Learned counsel for the petitioner in support of his contentions relied upon the following decisions of the Hon'ble Supreme Court, viz., 1) V. Ravi Chandran vs. Union of India , (2010) 1 SCC 174 2) Yashita Sahu vs. State of Rajasthan, (2020) 3 SCC 67 3) Nilanjan Bhattacharya vs. State of Karnataka , (2020) SCC OnLine SC 928 4) Shilpa Aggarwal vs. Aviral Mittal , (2010) 1 SCC 591 5) Lahari Sakhamuri vs. SobhanKodali, (2019) 7 SCC 311 6) Rajeswari Chandrasekhar Ganesh vs. State of Tamil Nadu and Ors., 2022 SCC OnLine SC 885 7) Smt. Surinder Kaur Sandhu vs. Harban Singh Sandhu & Anr., (1984) 3 SCC 698 10. Per contra, the respondent No.4 contended that during 4½ months in India there is remarkable improvement in the welfare of the minor as compared to the previous 4½ years in USA. Further, the respondent No.4 stated that the minor initially diagnosed with autism and being non-verbal has shown significant progress in speech development and also forming 4-7 words english sentences and using contextual Telugu and Hindi words. This progress is attributed due to stable family environment, consistent therapeutic support and positive parenting available in India. Further, the respondent No.4 stated that the minor initially diagnosed with autism and being non-verbal has shown significant progress in speech development and also forming 4-7 words english sentences and using contextual Telugu and Hindi words. This progress is attributed due to stable family environment, consistent therapeutic support and positive parenting available in India. Furthermore, the medical evaluations from multiple specialists at Rainbow Hospital have documented this improvement with their reports explicitly stating that any disruption to the current environment could be detrimental to the child's development. The minor's enrolment in an international school and ongoing ABA therapy further supports his developmental needs which demonstrate that India provides the optimal environment for the child's growth and progress. 11. Secondly, the respondent No.4 contended that there is substantial evidence regarding the petitioner's mental health history including documentation of pre-existing psychiatric issues and the use of anti-depression and anxiety medications predating the marriage. Further, the respondent No.4 argued with regard to the petitioner's financial instability with multiple bank defaults between 2010 and 2018 and a pattern of unstable living conditions. Moreover, the petitioner's history of relocating the minor, twelve times in 4½ years with approximately 30% of the time spent in shelter homes raises serious concerns about the child's stability. 12. The respondent No.4 further contended that repatriation to the USA would effectively mean returning the minor to shelter homes as the petitioner lacks a permanent residence and relies on state welfare funds. The respondent No.4 further argued that the petitioner's family has reportedly "ostracized" her, leaving her without the crucial support system necessary for raising a child with special needs. The respondent No.4 contended that these circumstances could potentially harm the welfare and development of the child. 13. Lastly, the respondent No.4 contended on the procedural and jurisdictional validity where he stated that this petition is not maintainable due to the existing parallel case under the Hindu Minority and Guardianship Act , 1956 pending before the Family Court. 14. The respondent No.4 in support of his contentions relied on the following recent precedents in which it was held that pursuing a Habeas Corpus petition while the guardianship proceedings are pending amounts to the abuse of Court process and the paramount consideration being given to the child's welfare. 14. The respondent No.4 in support of his contentions relied on the following recent precedents in which it was held that pursuing a Habeas Corpus petition while the guardianship proceedings are pending amounts to the abuse of Court process and the paramount consideration being given to the child's welfare. 1) Kilaru Suman vs. The State of Telangana, [WPHC 27 of 2024] 2) Sri Narendra Dattathi vs. State of karnataka , [(2010) 1 SCC 274] 3) V. Ravi Chandran vs. Union of India &Ors , WP 13537 of 2024 4) Gaurav Nagpal vs.SumedhaNagpal, (2009) 1 SCC 42 5) Dr.Veena Kapoor vs. Varinderkumar Kapoor, (1981) 3 SCC 92 15. The respondent No.4 emphasized that the welfare of the minor must be of paramount consideration and necessitates an elaborate inquiry, rather than a summary disposal of the case. Thus this petition should be dismissed in favour of allowing the custody matter to be properly adjudicated in the pending civil proceedings. 16. Having heard the contentions put forth on either side and on perusal of records, the aforesaid facts would reveal that both the petitioner and respondent No.4 got married in Indianapolis, Indiana, USA on 26.06.2019 and they were blessed with a male child on 17.10.2019 by name of Saatvik Gary Bhayaraju and he is the resident of USA by birth. Thereafter, due to differences between the petitioner and the respondent No.4, the petitioner filed a petition seeking divorce and also a petition seeking for sole custody of the child. The Circuit Court of USA passed the order dated 13.06.2023 prescribing the following parenting schedule: 1. Joint legal custody of the minor child to the parties. 2. Awarded the petitioner primary placement of the minor child in Wisconsin. 3. Granting the father unsupervised placement in Wisconsin on every other weekend from Friday 6:00 P.M. onwards till Sunday 6:00 P.M. 4. Directing the father to provide USD 1552 per month as child support to the petitioner. 5. Further, directing the father to not to leave the state of Wisconsin. 6. Neither party may relocate with the child unless the provisions of Wisconsin State “Moving the Child's Residence Within or Outside the State” have been complied with. 17. Directing the father to provide USD 1552 per month as child support to the petitioner. 5. Further, directing the father to not to leave the state of Wisconsin. 6. Neither party may relocate with the child unless the provisions of Wisconsin State “Moving the Child's Residence Within or Outside the State” have been complied with. 17. Further, US Court appointed a Guardian-Ad-Litem vide order dated 25.07.2023 directing both the parties as well as the minor child to appear before the Guardian-Ad-Litem with the minor child and also directed the Guardian-Ad-Litem to prepare a detailed report concerning the minor child. While the minor child is undergoing clinical treatment, he was diagnosed with autism. Looking at the conditions of the minor child, both the parties reconciled their differences and the petitioner along with the child moved to Indiana with the respondent No.4 on 27.02.2024. 18. Within a month of reconciliation the respondent No.4 again started abusing the petitioner physically and harassing in front of the minor child on 11.03.2024. Subsequenlty, the petitioner filed a domestic abuse case vide Case No.29D03-2403-F6-001988 before the Hamilton Circuit / Superior Courts. The said Court charged the respondent No.4 with two counts felony, domestic abuse and two counts of misdemeanour domestic abuse. The Court directed the respondent No.4 not to have any contact with the petitioner and the respondent No.4 was also directed not to leave the State of Indiana without the permission of the US Court. Due to ongoing safety concerns, a restraining order in Case No. 2024CV000085 was granted against the respondent No.4 by the Circuit Court, State of Wisconsin, Portage County for a period of 4 years from 09.04.2024 to 09.04.2028. 19. Due to no-contact order from Hamilton Court, child exchanges were arranged through the Personal Development Centre (PDC) in Marshfield, Wisconsin. While the respondent No. 4 picked up the minor child on 19.04.2024 from his scheduled placement, he failed to return the child at the scheduled exchange time of 5:00 P.M. on 21.04.2024. Instead, he messaged the petitioner informing that he had taken the child to India. 20. Following the unauthorized removal of the child from the petitioner, an Emergency Custody petition was filed on 23.04.2024 in the US Court. The Court recognizing the immediate risk to the child's welfare, responded by granting sole legal custody and exclusive physical placement to the petitioner. Instead, he messaged the petitioner informing that he had taken the child to India. 20. Following the unauthorized removal of the child from the petitioner, an Emergency Custody petition was filed on 23.04.2024 in the US Court. The Court recognizing the immediate risk to the child's welfare, responded by granting sole legal custody and exclusive physical placement to the petitioner. This order effectively terminated the previous joint custody arrangement and established the petitioner as the sole legal custodian. Wood County US Court on 01.05.2024 issued an arrest warrant against respondent No.4 for the breach of custody order of the injunction that prohibited him from removing the minor child from Wisconsin. The respondent No.4 has been put on full extradition arising out of the said warrant. 21. The aforesaid facts would reveal that respondent No.4 violated the order dated 11.03.2024 passed by the Hamilton Circuit / Superior Courts, USA and abducted the minor child and brought him to India. Therefore, it is illegal detention of the minor child. 22. Thereafter, the petitioner has filed the instant Writ of Habeas Corpus petition seeking a direction to respondent No.4 to produce the minor child before this Court. 23. Based on the aforesaid facts, the questions of law to be decided in the instant petition are:- 1. Whether the matters concerning minor child custody fall within the purview and jurisdiction of writs of Habeas Corpus particularly in cases involving international movement of the child? 2. Whether the principle of the child's best interest and welfare takes precedence over judicial custody orders in international custody disputes? MAINTAINABILITY OF WRIT OF HABEAS CORPUS 24. The Supreme Court in the case of Tejaswini Gaud vs. Jagdish Prasad Tewari , [ (2019) 7 SCC 42 ] dealing with the maintainability of Writ of Habeas Corpus with respect to the child custody of a foreign national held at paragraph Nos. 14, 19 and 22 as under: 14. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. 14, 19 and 22 as under: 14. Writ of habeas corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from an illegal or improper detention. The writ also extends its influence to restore the custody of a minor to his guardian when wrongfully deprived of it. The detention of a minor by a person who is not entitled to his legal custody is treated as equivalent to illegal detention for the purpose of granting writ, directing custody of the minor child. For restoration of the custody of a minor from a person who according to the personal law, is not his legal or natural guardian, in appropriate cases, the writ court has jurisdiction. 19. Habeas corpus proceedings is not to justify or examine the legality of the custody. Habeas corpus proceedings is a medium through which the custody of the child is addressed to the discretion of the Court. Habeas corpus is a prerogative writ which is an extraordinary remedy and the writ is issued where in the circumstances of the particular case, ordinary remedy provided by the law is either not available or is ineffective; otherwise a writ will not be issued. In child custody matters, the power of the High Court in granting the writ is qualified only in cases where the detention of a minor by a person who is not entitled to his legal custody. In view of the pronouncement on the issue in question by the Supreme Court and the High Courts, in our view, in child custody matters, the writ of habeas corpus is maintainable where it is proved that the detention of a minor child by a parent or others was illegal and without any authority of law. 22. In a number of judgments, the Supreme Court considered the conduct of a summary or elaborate enquiry on the question of custody by the court in the country to which the child has been removed. 22. In a number of judgments, the Supreme Court considered the conduct of a summary or elaborate enquiry on the question of custody by the court in the country to which the child has been removed. In number of decisions, the Supreme Court dealt with habeas corpus petition filed either before it under Article 32 of the Constitution of India or the correctness of the order passed by the High Court in exercise of jurisdiction under Article 226 of the Constitution of India on the question of custody of the child who had been removed from the foreign countries and brought to India and the question of repatriation of the minor children to the country from where he/she may have been removed by a parent or other person. In number of cases, the Supreme Court has taken the view that the High Court may invoke the extraordinary jurisdiction to determine the validity of the detention. However, the Court has taken view that the order of the foreign court must yield to the welfare of the child. After referring to various judgments, in Ruchi Majoo [Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479 : (2011) 3 SCC (Civ) 396 : (2011) 2 SCC (Cri) 1033] , it was held as under : (SCC p. 502, paras 58-59) “58. Proceedings in the nature of habeas corpus are summary in nature, where the legality of the detention of the alleged detenu is examined on the basis of affidavits placed by the parties. Even so, nothing prevents the High Court from embarking upon a detailed enquiry in cases where the welfare of a minor is in question, which is the paramount consideration for the Court while exercising its parenspatriae jurisdiction. A High Court may, therefore, invoke its extraordinary jurisdiction to determine the validity of the detention, in cases that fall within its jurisdiction and may also issue orders as to custody of the minor depending upon how the Court views the rival claims, if any, to such custody. 59. A High Court may, therefore, invoke its extraordinary jurisdiction to determine the validity of the detention, in cases that fall within its jurisdiction and may also issue orders as to custody of the minor depending upon how the Court views the rival claims, if any, to such custody. 59. The Court may also direct repatriation of the minor child to the country from where he/she may have been removed by a parent or other person; as was directed by this Court in V. Ravi Chandran (2) [V. Ravi Chandran (2) v. Union of India, (2010) 1 SCC 174 : (2010) 1 SCC (Civ) 44] and Shilpa Aggarwal [Shilpa Aggarwal v. Aviral Mittal, (2010) 1 SCC 591 : (2010) 1 SCC (Civ) 192] cases or refuse to do so as was the position in Sarita Sharma case [Sarita Sharma v. Sushil Sharma, (2000) 3 SCC 14 : 2000 SCC (Cri) 568] . What is important is that so long as the alleged detenu is within the jurisdiction of the High Court no question of its competence to pass appropriate orders arises. The writ court's jurisdiction to make appropriate orders regarding custody arises no sooner it is found that the alleged detenu is within its territorial jurisdiction.” 25. The principles for issuance of Writ of Habeas Corpus concerning the minor child brought to India in violation of the order of the foreign court, the Hon'ble Supreme Court in Nithya Anand Raghavan (supra) held at paragraph Nos.44, 45 and 46 as under: 44. The present appeal emanates from a petition seeking a writ of habeas corpus for the production and custody of a minor child. This Court in Kanu Sanyal v. District Magistrate, Darjeeling [Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2 SCC 674 : 1973 SCC (Cri) 980] , has held that habeas corpus was essentially a procedural writ dealing with machinery of justice. The object underlying the writ was to secure the release of a person who is illegally deprived of his liberty. The writ of habeas corpus is a command addressed to the person who is alleged to have another in unlawful custody, requiring him to produce the body of such person before the court. The object underlying the writ was to secure the release of a person who is illegally deprived of his liberty. The writ of habeas corpus is a command addressed to the person who is alleged to have another in unlawful custody, requiring him to produce the body of such person before the court. On production of the person before the court, the circumstances in which the custody of the person concerned has been detained can be inquired into by the court and upon due inquiry into the alleged unlawful restraint pass appropriate direction as may be deemed just and proper. The High Court in such proceedings conducts an inquiry for immediate determination of the right of the person's freedom and his release when the detention is found to be unlawful. 45. In a petition for issuance of a writ of habeas corpus in relation to the custody of a minor child, this Court in Sayed Saleemuddin v. Rukhsana [Sayed Saleemuddin v. Rukhsana, (2001) 5 SCC 247 : 2001 SCC (Cri) 841] , has held that the principal duty of the court is to ascertain whether the custody of child is unlawful or illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person. While doing so, the paramount consideration must be about the welfare of the child. In Elizabeth [Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42 : 1987 SCC (Cri) 13] , it is held that in such cases the matter must be decided not by reference to the legal rights of the parties but on the sole and predominant criterion of what would best serve the interests and welfare of the minor. The role of the High Court in examining the cases of custody of a minor is on the touchstone of principle of parenspatriae jurisdiction, as the minor is within the jurisdiction of the Court [see Paul Mohinder Gahun v. State (NCT of Delhi) [Paul Mohinder Gahun v. State (NCT of Delhi), 2004 SCC OnLine Del 699 : (2004) 113 DLT 823] relied upon by the appellant]. It is not necessary to multiply the authorities on this proposition. 46. It is not necessary to multiply the authorities on this proposition. 46. The High Court while dealing with the petition for issuance of a writ of habeas corpus concerning a minor child, in a given case, may direct return of the child or decline to change the custody of the child keeping in mind all the attending facts and circumstances including the settled legal position referred to above. Once again, we may hasten to add that the decision of the court, in each case, must depend on the totality of the facts and circumstances of the case brought before it whilst considering the welfare of the child which is of paramount consideration. The order of the foreign court must yield to the welfare of the child. Further, the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court. Indubitably, the writ petitioner can take recourse to such other remedy as may be permissible in law for enforcement of the order passed by the foreign court or to resort to any other proceedings as may be permissible in law before the Indian Court for the custody of the child, if so advised.” 26. In the case of Rajeswari Chandrasekhar Ganesh (supra) the Hon'ble Supreme Court on the point of maintainability of a Writ of Habeas Corpus held as follows: "91. Thus, it is well established that in issuing the writ of Habeas Corpus in the case of minors, the jurisdiction which the Court exercises is an inherent jurisdiction as distinct from a statutory jurisdiction conferred by any particular provision in any special statute. In other words, the employment of the writ of Habeas Corpus in child custody cases is not pursuant to, but independent of any statute. The jurisdiction exercised by the court rests in such cases on its inherent equitable powers and exerts the force of the State, as parenspatriae, for the protection of its minor ward, and the very nature and scope of the inquiry and the result sought to be accomplished call for the exercise of the jurisdiction of a court of equity. The primary object of a Habeas Corpus petition, as applied to minor children, is to determine in whose custody the best interests of the child will probably be advanced. The primary object of a Habeas Corpus petition, as applied to minor children, is to determine in whose custody the best interests of the child will probably be advanced. In a Habeas Corpus proceeding brought by one parent against the other for the custody of their child, the court has before it the question of the rights of the parties as between themselves, and also has before it, if presented by the pleadings and the evidence, the question of the interest which the State, as parenspatriae, has in promoting the best interests of the child. 27. Similarly, the Hon'ble Supreme Court in Yashita Sahu (supra) made the following observations, viz., “It is too late in the day to urge that a writ of habeas corpus is not maintainable if the child is in the custody of another parent. The law in this regard has developed a lot over a period of time but now it is a settled position that the court can invoke its extraordinary writ jurisdiction for the best interest of the child. In the present case, since the wife brought the minor to India in violation of the orders of the jurisdictional court in the USA, her custody of the child cannot be said to be strictly legal. However, the High Court could not have directed the appellant wife to go to the USA. The wife is an adult and no court can force her to stay at a place where she does not want to stay. Custody of a child is a different issue, but even while deciding the issue of custody of a child, no direction can be issued to the adult spouse to go and live with the other strained spouse in writ jurisdiction. PRINCIPLE OF THE CHILD'S BEST INTEREST 28. This Court placed significant weight on the principle of Comity of Courts and recognizes that the US Courts specifically the Circuit Court, Clark County, Wisconsin, has the most intimate contact with the matter at hand. The minor child was born in the USA and is a US citizen who spent the majority of his life there until he was moved to India. The US Court has already passed orders dated 13.06.2023 and 23.04.2024 directing the return of the child to its jurisdiction. 29. The minor child was born in the USA and is a US citizen who spent the majority of his life there until he was moved to India. The US Court has already passed orders dated 13.06.2023 and 23.04.2024 directing the return of the child to its jurisdiction. 29. The Hon'ble Supreme Court in the case of Smt. Surinder Kaur Sandhu (supra) held as under: "The modern theory of conflict of laws recognizes and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstances as to where the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum-shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offsprings of marriage. The spouses in this case had made England their home where this boy was born to them. The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing him to India, not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the peace of that home. The fact that the matrimonial home of the spouses was in England, establishes sufficient contacts or ties with that State in order to make it reasonable and just for the courts of that State to assume jurisdiction to enforce obligations which were incurred therein by the spouses (see International Shoe Company v. State of Washington which was not a matrimonial case but which is regarded as the fountainhead of the subsequent development of jurisdictional issues like the one involved in the instant case). It is our duty and function to protect the wife against the burden of litigating in an inconvenient forum which she and her husband had left voluntarily in order to make their living in England, where they gave birth to this unfortunate boy." 30. It is our duty and function to protect the wife against the burden of litigating in an inconvenient forum which she and her husband had left voluntarily in order to make their living in England, where they gave birth to this unfortunate boy." 30. In the case of Dhanwanti Joshi vs. Madhavunde , [ (1998) 1 SCC 112 ] the Supreme Court held as under in paragraph No. 28, 30, 32 and 33 as follows: 28. The leading case in this behalf is the one rendered by the Privy Council in 1951, in McKee v. McKee [1951 AC 352 : (1951) 1 All ER 942] . In that case, the parties, who were American citizens, were married in USA in 1933 and lived there till December 1946. But they had separated in December 1940. On 17-12-1941, a decree of divorce was passed in USA and custody of the child was given to the father and later varied in favour of the mother. At that stage, the father took away the child to Canada. In habeas corpus proceedings by the mother, though initially the decisions of lower courts went against her, the Supreme Court of Canada gave her custody but the said Court held that the father could not have the question of custody retried in Canada once the question was adjudicated in favour of the mother in the USA earlier. On appeal to the Privy Council, Lord Simonds held that in proceedings relating to custody before the Canadian Court, the welfare and happiness of the infant was of paramount consideration and the order of a foreign court in USA as to his custody can be given due weight in the circumstances of the case, but such an order of a foreign court was only one of the facts which must be taken into consideration. It was further held that it was the duty of the Canadian Court to form an independent judgment on the merits of the matter in regard to the welfare of the child. The order of the foreign court in US would yield to the welfare of the child. “Comity of courts demanded not its enforcement, but its grave consideration”. This case arising from Canada which lays down the law for Canada and U.K. has been consistently followed in latter cases. The order of the foreign court in US would yield to the welfare of the child. “Comity of courts demanded not its enforcement, but its grave consideration”. This case arising from Canada which lays down the law for Canada and U.K. has been consistently followed in latter cases. This view was reiterated by the House of Lords in J v. C [ 1970 AC 668 : (1969) 1 All ER 788 : (1969) 2 WLR 540 ] . This is the law also in USA (see 24 American Jurisprudence, para 1001) and Australia. (See Khamis v. Khamis [(1978) 4 Fam LR 410 (Full Court) (Aus)] .) 30. We may here state that this Court in Elizabeth Dinshaw v. Arvand M. Dinshaw [ (1987) 1 SCC 42 : 1987 SCC (Cri) 13] while dealing with a child removed by the father from USA contrary to the custody orders of the US Court directed that the child be sent back to USA to the mother not only because of the principle of comity but also because, on facts, — which were independently considered — it was in the interests of the child to be sent back to the native State. There the removal of the child by the father and the mother's application in India were within six months. In that context, this Court referred to H. (infants), Re [(1966) 1 All ER 886 : (1966) 1 WLR 381 , CA] which case, as pointed out by us above has been explained in L. Re [(1974) 1 All ER 913, CA] as a case where the Court thought it fit to exercise its summary jurisdiction in the interests of the child. Be that as it may, the general principles laid down in McKee v. McKee [1951 AC 352 : (1951) 1 All ER 942] and J v. C [ 1970 AC 668 : (1969) 1 All ER 788 : (1969) 2 WLR 540 ] and the distinction between summary and elaborate inquiries as stated in L. (infants), Re [(1974) 1 All ER 913, CA] are today well settled in UK, Canada, Australia and the USA. The same principles apply in our country. Therefore nothing precludes the Indian courts from considering the question on merits, having regard to the delay from 1984 — even assuming that the earlier orders passed in India do not operate as constructive res judicata. 32. The same principles apply in our country. Therefore nothing precludes the Indian courts from considering the question on merits, having regard to the delay from 1984 — even assuming that the earlier orders passed in India do not operate as constructive res judicata. 32. In this connection, it is necessary to refer to the Hague Convention of 1980 on “Civil Aspects of International Child Abduction”. As of today, about 45 countries are parties to this Convention. India is not yet a signatory. Under the Convention, any child below 16 years who had been “wrongfully” removed or retained in another contracting State, could be returned back to the country from which the child had been removed, by application to a central authority. Under Article 16 of the Convention, if in the process, the issue goes before a court, the Convention prohibits the court from going into the merits of the welfare of the child. Article 12 requires the child to be sent back, but if a period of more than one year has lapsed from the date of removal to the date of commencement of the proceedings before the court, the child would still be returned unless it is demonstrated that the child is now settled in its new environment. Article 12 is subject to Article 13 and a return could be refused if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return. In England, these aspects are covered by the Child Abduction and Custody Act, 1985. 33. So far as non-Convention countries are concerned, or where the removal related to a period before adopting the Convention, the law is that the court in the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the foreign court as only a factor to be taken into consideration as stated in McKee v. McKee [1951 AC 352 : (1951) 1 All ER 942] unless the Court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its welfare, as explained in L., Re [(1974) 1 All ER 913, CA] . As recently as 1996-1997, it has been held in P (A minor) (Child Abduction: Non- Convention Country), Re [(1996) 3 FCR 233, CA] : by Ward, L.J. [1996 Current Law Year Book, pp. 165-166] that in deciding whether to order the return of a child who has been abducted from his or her country of habitual residence — which was not a party to the Hague Convention, 1980, — the courts' overriding consideration must be the child's welfare. There is no need for the Judge to attempt to apply the provisions of Article 13 of the Convention by ordering the child's return unless a grave risk of harm was established. See also A (A minor) (Abduction: Non- Convention Country) [Re, The Times 3-7-97 by Ward, L.J. (CA) (quoted in Current Law, August 1997, p. 13]. This answers the contention relating to removal of the child from USA. 31. A three Judge bench of the Hon'ble Supreme Court in Nithya Anand Raghavan vs. State of NCT of Delhi , [ (2017) 8 SCC 454 ] considering the principles laid down in Dhanwanti Joshi (supra) held in paragraph Nos.40, 42, 47, 48 and 51 as under: “ 40. The Court has noted that India is not yet a signatory to the Hague Convention of 1980 on “Civil Aspects of International Child Abduction”. As regards the non-Convention countries, the law is that the court in the country to which the child has been removed must consider the question on merits bearing the welfare of the child as of paramount importance and reckon the order of the foreign court as only a factor to be taken into consideration, unless the court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its welfare. In exercise of summary jurisdiction, the court must be satisfied and of the opinion that the proceeding instituted before it was in close proximity and filed promptly after the child was removed from his/her native state and brought within its territorial jurisdiction, the child has not gained roots here and further that it will be in the child's welfare to return to his native state because of the difference in language spoken or social customs and contacts to which he/she has been accustomed or such other tangible reasons. In such a case the court need not resort to an elaborate inquiry into the merits of the paramount welfare of the child but leave that inquiry to the foreign court by directing return of the child. Be it noted that in exceptional cases the court can still refuse to issue direction to return the child to the native state and more particularly in spite of a pre-existing order of the foreign court in that behalf, if it is satisfied that the child's return may expose him to a grave risk of harm. This means that the courts in India, within whose jurisdiction the minor has been brought must “ordinarily” consider the question on merits, bearing in mind the welfare of the child as of paramount importance whilst reckoning the pre-existing order of the foreign court if any as only one of the factors and not get fixated therewith. In either situation—be it a summary inquiry or an elaborate inquiry—the welfare of the child is of paramount consideration. Thus, while examining the issue the courts in India are free to decline the relief of return of the child brought within its jurisdiction, if it is satisfied that the child is now settled in its new environment or if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return. We are in respectful agreement with the aforementioned exposition. 42. The consistent view of this Court is that if the child has been brought within India, the courts in India may conduct : (a) summary inquiry; or (b) an elaborate inquiry on the question of custody. In the case of a summary inquiry, the court may deem it fit to order return of the child to the country from where he/she was removed unless such return is shown to be harmful to the child. In other words, even in the matter of a summary inquiry, it is open to the court to decline the relief of return of the child to the country from where he/she was removed irrespective of a pre- existing order of return of the child by a foreign court. In other words, even in the matter of a summary inquiry, it is open to the court to decline the relief of return of the child to the country from where he/she was removed irrespective of a pre- existing order of return of the child by a foreign court. In an elaborate inquiry, the court is obliged to examine the merits as to where the paramount interests and welfare of the child lay and reckon the fact of a pre-existing order of the foreign court for return of the child as only one of the circumstances. In either case, the crucial question to be considered by the court (in the country to which the child is removed) is to answer the issue according to the child's welfare. That has to be done bearing in mind the totality of facts and circumstances of each case independently. Even on close scrutiny of the several decisions pressed before us, we do not find any contra view in this behalf. To put it differently, the principle of comity of courts cannot be given primacy or more weightage for deciding the matter of custody or for return of the child to the native State. 46. The High Court while dealing with the petition for issuance of a writ of habeas corpus concerning a minor child, in a given case, may direct return of the child or decline to change the custody of the child keeping in mind all the attending facts and circumstances including the settled legal position referred to above. Once again, we may hasten to add that the decision of the court, in each case, must depend on the totality of the facts and circumstances of the case brought before it whilst considering the welfare of the child which is of paramount consideration. The order of the foreign court must yield to the welfare of the child. Further, the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court. The order of the foreign court must yield to the welfare of the child. Further, the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court. Indubitably, the writ petitioner can take recourse to such other remedy as may be permissible in law for enforcement of the order passed by the foreign court or to resort to any other proceedings as may be permissible in law before the Indian Court for the custody of the child, if so advised. 47. In a habeas corpus petition as aforesaid, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person (private respondent named in the writ petition). For considering that issue, in a case such as the present one, it is enough to note that the private respondent was none other than the natural guardian of the minor being her biological mother. Once that fact is ascertained, it can be presumed that the custody of the minor with his/her mother is lawful. In such a case, only in exceptionable situation, the custody of the minor (girl child) may be ordered to be taken away from her mother for being given to any other person including the husband (father of the child), in exercise of writ jurisdiction. Instead, the other parent can be asked to resort to a substantive prescribed remedy for getting custody of the child. 48. The next question to be considered by the High Court would be whether an order passed by the foreign court, directing the mother to produce the child before it, would render the custody of the minor unlawful? Indubitably, merely because such an order is passed by the foreign court, the custody of the minor would not become unlawful per se. As in the present case, the order passed by the High Court of Justice, Family Division, London on 8-1- 2016 for obtaining a wardship order, reads thus : (AnandRaghavan case [AnandRaghavan v. State of Delhi, 2016 SCC OnLine Del 3804] , SCC OnLine Del para 59) “59. As in the present case, the order passed by the High Court of Justice, Family Division, London on 8-1- 2016 for obtaining a wardship order, reads thus : (AnandRaghavan case [AnandRaghavan v. State of Delhi, 2016 SCC OnLine Del 3804] , SCC OnLine Del para 59) “59. … ‘Order made by His Honour Judge Richards sitting as a Deputy High Court Judge sitting at the Royal Courts of Justice, Strand, London WC2A 2LL in Chambers on 8-1-2016 The child is Nethra Anand (a girl, born 7-8- 2009) AFTER HEARING Counsel Paul Hepher, on behalf of the applicant father. AFTER consideration of the documents lodged by the applicant. IMPORTANT WARNING TO NITHYA ANAND RAGHAVAN If you NITHYA ANAND RAGHAVAN disobey this order you may be held to be in contempt of court and may be imprisoned, fined or have your assets seized. If any other person who knows of this order and does anything which helps or permits you NITHYA ANAND RAGHAVAN to breach the terms of this order they may be held to be in contempt of court and may be imprisoned, fined or have their assets seized. You have the following legal rights: a) to seek legal advice. This right does not entitle you to disobey any part of this order until you have sought legal advice; b) to require the applicant's solicitors, namely, Dawson Cornwell, 15 Red Lion Square, London WC1R 4QT, Tel. 020 7242 2556 to provide you with a copy of any application form(s), statement(s), note of the hearing; c) to apply, whether by counsel or solicitor or in person, to Judge of the Family Court assigned to hearing urgent applications at the Royal Courts of Justice, Strand, London, if practicable after giving notice to the applicant's solicitors and to the court, for an order discharging or varying any part of this order. This right does not entitle you to disobey any part of this order until your application has been heard; d) if you do not speak or understand English adequately, to have an interpreter present in court at public expense in order to assist you at the hearing of any application relating to this order. The parties 1. The applicant is ANANDRAGHAVAN represented by Dawson Cornwell, Solicitor. The respondent is NITHYA ANAND RAGHAVAN. Recitals 2. This order was made at a hearing without notice to the respondent. The parties 1. The applicant is ANANDRAGHAVAN represented by Dawson Cornwell, Solicitor. The respondent is NITHYA ANAND RAGHAVAN. Recitals 2. This order was made at a hearing without notice to the respondent. The reason why the order was made without notice to the respondent is because she left England and Wales on or about 2-7-2015 and notice may lead her to take steps to defeat the purpose of the application and fail to return the child. 3. The Judge read the following documents: a) Position statement, b) C67 application and C1A form, c) Statement of AnandRaghavan with exhibits dated 8-1-2016. 4. The court was satisfied on a provisional basis of the evidence filed that a) NETHRAANAND (a girl born on 7-8-2009) was on 2-7- 2015 habitually resident in the jurisdiction of England and Wales. b) NETHRA ANAND (a girl born on 7-8-2009) was wrongfully removed from England on 2-7-2015 and been wrongfully retained in India since. c) The courts of England and Wales have jurisdiction in matters of parental responsibility over the child pursuant to Articles 8 and 10 of BIIR. 5. The father has agreed to pay for the cost of the flights for the mother and child in returning from India to England. He will either purchase the tickets for the mother and child himself, or put her in funds, or invite her to purchase the tickets on his credit card, as she may wish, in order for her to purchase the tickets herself. Undertakings to the court by the solicitor for the applicant 6. The solicitors for the applicant undertake: a) to issue these proceedings forthwith and in any event by no later than 4 p.m. 11-1-2016; b) To pay the ex parte application fee forthwith and in any event by no later than 4 p.m. 11-1-2016; AND NOW THEREFORE THIS HONOURABLE COURT RESPECTFULLY REQUESTS: 7. Any person not within the jurisdiction of this Court who is in a position to do so to cooperate in assisting and securing the immediate return to England and Wales of the ward NETHRAANAND (a girl born on 7-8-2009) IT IS ORDERED THAT: 8. NETHR AANAND (a girl born on 7-8-2009) is and shall remain a ward of this Court during the minority or until further order. 9. NETHR AANAND (a girl born on 7-8-2009) is and shall remain a ward of this Court during the minority or until further order. 9. The respondent mother shall return or cause the return of NETHRA ANAND (a girl born on 7-8-2009) forthwith to England and Wales, and in any event no later than 23.59 on 22-1-2016. 10. Every person within the jurisdiction of this Honourable Court who is in a position to do so shall cooperate in assisting and securing the immediate return to England and Wales of NETHRA ANAND (a girl born on 7-8-2009) a ward of this Court. 11. The applicant's solicitor shall fax copies of this order to the Office of the Head of International, Family Justice at the Royal Courts of Justice, the Strand, London WC2A 2LL (DX4550 Strand RCJ : fax 02079476408); and (if appropriate) to the Head of the Consular Division, Foreign and Commonwealth Office Spring Gardens London SW1A 2PA, Tel : 02070080212, Fax 02070080152. 12. The matter shall be listed for directions at 10 : 30 a.m. on 29-1-2016 at the Royal Courts of Justice, the Strand, London WC2A 2LL, with a time estimate of 30 minutes, when the Court shall consider what further orders shall be made. The Court may consider making declarations in the terms of Para 4 above. 13. The respondent mother shall attend at the hearing listed pursuant to the preceding paragraph, together with solicitors or counsel if so instructed. She shall file and serve by 4 p.m. 27-1-2016 a short statement responding to the application. 14. This order may be served on the respondent, outside of the jurisdiction of England and Wales as may be required, by way of fax, email or personally in order for the Court to deem that it constitutes good service. 15. Costs reserved. Dated this 8 January 2016.” 51. For considering the factum of interests of the child, the court must take into account all the attending circumstances and totality of the situation. That will have to be decided on case to case basis. In the present case, we find that the father as well as mother of the child are of Indian origin. They were married in Chennai in India according to Hindu rites and customs. The father, an Indian citizen, had gone to the UK as a student in 2003 and was working there since 2005. In the present case, we find that the father as well as mother of the child are of Indian origin. They were married in Chennai in India according to Hindu rites and customs. The father, an Indian citizen, had gone to the UK as a student in 2003 and was working there since 2005. After the marriage, the couple shifted to the UK in early 2007 and stayed in Watford. The mother did get an employment in London in 2008, but had to come to her parents' house in Delhi in June 2009, where she gave birth to Nethra. Thus, Nethra is an Indian citizen by birth. She has not given up her Indian citizenship. Indeed, the mother, along with Nethra, returned to the UK in March 2010. But from August 2010 till December 2011, because of matrimonial issues between the appellant and Respondent 2, the appellant and her daughter remained in India. It is only after the intervention of and mediation by the family members, the appellant and her daughter Nethra went back to England in December 2011, more than a year after they had come to India. After returning to the UK, Nethrawas admitted to a nursery school in January 2012. 32. The Hon'ble Supreme Court further in the case of Tejaswini Gaud (supra) held in paragraph Nos.26 to 28 as under: 26. The court while deciding the child custody cases is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes govern the rights of the parents or guardians, but the welfare of the minor is the supreme consideration in cases concerning custody of the minor child. The paramount consideration for the court ought to be child interest and welfare of the child. 27. After referring to number of judgments and observing that while dealing with child custody cases, the paramount consideration should be the welfare of the child and due weight should be given to child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings, in Nil RatanKundu [Nil RatanKundu v. Abhijit Kundu, (2008) 9 SCC 413 ] , it was held as under : (SCC pp. 427-28, paras 49-52) “49. 427-28, paras 49-52) “49. In Goverdhan Lal v. Gajendra Kumar [Goverdhan Lal v. Gajendra Kumar, 2001 SCC OnLine Raj 177 : AIR 2002 Raj 148 ] , the High Court observed that it is true that the father is a natural guardian of a minor child and therefore has a preferential right to claim the custody of his son, but in matters concerning the custody of a minor child, the paramount consideration is the welfare of the minor and not the legal right of a particular party. Section 6 of the 1956 Act cannot supersede the dominant consideration as to what is conducive to the welfare of the minor child. It was also observed that keeping in mind the welfare of the child as the sole consideration, it would be proper to find out the wishes of the child as to with whom he or she wants to live. 50. Again, in M.K. Hari Govindan v. A.R. Rajaram [M.K. Hari Govindan v. A.R. Rajaram, 2003 SCC OnLine Mad 48 : AIR 2003 Mad 315 ] , the Court held that custody cases cannot be decided on documents, oral evidence or precedents without reference to “human touch”. The human touch is the primary one for the welfare of the minor since the other materials may be created either by the parties themselves or on the advice of counsel to suit their convenience. 51. In Kamla Devi v. State of H.P. [Kamla Devi v. State of H.P., 1986 SCC OnLine HP 10 : AIR 1987 HP 34] the Court observed : (SCC OnLine HP para 13) ‘13. … the Court while deciding child custody cases in its inherent and general jurisdiction is not bound by the mere legal right of the parent or guardian. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the Court exercising its parens patriae jurisdiction arising in such cases giving due weight to the circumstances such as a child's ordinary comfort, contentment, intellectual, moral and physical development, his health, education and general maintenance and the favourable surroundings. These cases have to be decided ultimately on the Court's view of the best interests of the child whose welfare requires that he be in custody of one parent or the other.' 52. These cases have to be decided ultimately on the Court's view of the best interests of the child whose welfare requires that he be in custody of one parent or the other.' 52. In our judgment, the law relating to custody of a child is fairly well settled and it is this : in deciding a difficult and complex question as to the custody of a minor, a court of law should keep in mind the relevant statutes and the rights flowing therefrom. But such cases cannot be decided solely by interpreting legal provisions. It is a human problem and is required to be solved with human touch. A court while dealing with custody cases, is neither bound by statutes nor by strict rules of evidence or procedure nor by precedents. In selecting proper guardian of a minor, the paramount consideration should be the welfare and well being of the child. In selecting a guardian, the court is exercising parens patriae jurisdiction and is expected, nay bound, to give due weight to a child's ordinary comfort, contentment, health, education, intellectual development and favourable surroundings. But over and above physical comforts, moral and ethical values cannot be ignored. They are equally, or we may say, even more important, essential and indispensable considerations. If the minor is old enough to form an intelligent preference or judgment, the court must consider such preference as well, though the final decision should rest with the court as to what is conducive to the welfare of the minor.” 28. Reliance was placed upon Gaurav Nagpal [Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42 : (2009) 1 SCC (Civ) 1], where the Supreme Court held as under: (SCC pp. 52 & 57, paras 32 & 50-51) “32. In McGrath (Infants), In re [McGrath (Infants), In re, (1893) 1 Ch 143 (CA)] , Lindley, L.J. observed : (Ch p. 148) ‘… The dominant matter for the consideration of the court is the welfare of the child. But the welfare of the child is not to be measured by money only nor merely physical comfort. The word “welfare” must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well being. Nor can the tie of affection be disregarded.' 50. But the welfare of the child is not to be measured by money only nor merely physical comfort. The word “welfare” must be taken in its widest sense. The moral or religious welfare of the child must be considered as well as its physical well being. Nor can the tie of affection be disregarded.' 50. When the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The court has not only to look at the issue on legalistic basis, in such matters human angles are relevant for deciding those issues. The court then does not give emphasis on what the parties say, it has to exercise a jurisdiction which is aimed at the welfare of the minor. As observed recently in Mausami Moitra Ganguli case [Mausami Moitra Ganguli v. Jayant Ganguli, (2008) 7 SCC 673 ] , the court has to give due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others. 51. The word “welfare” used in Section 13 of the Act has to be construed literally and must be taken in its widest sense. The moral and ethical welfare of the child must also weigh with the court as well as its physical well being. Though the provisions of the special statutes which govern the rights of the parents or guardians may be taken into consideration, there is nothing which can stand in the way of the court exercising its parens patriae jurisdiction arising in such cases. 33. Similarly, the learned counsel for the petitioner relied on the judgment in the case of Yashita Sahu (supra) wherein in paragraph Nos.14 and 19 it was held as under: 14. In the fast shrinking world where adults marry and shift from one jurisdiction to another, there are increasing issues of jurisdiction as to which country's courts will have jurisdiction. In many cases, the jurisdiction may vest in two countries. The issue is important and needs to be dealt with care and sensitivity. Though the interest of the child is extremely important and is, in fact, of paramount importance, the courts of one jurisdiction should respect the orders of a court of competent jurisdiction even if it is beyond its territories. The issue is important and needs to be dealt with care and sensitivity. Though the interest of the child is extremely important and is, in fact, of paramount importance, the courts of one jurisdiction should respect the orders of a court of competent jurisdiction even if it is beyond its territories. When a child is removed by one parent from one country to another, especially in violation of the orders passed by a court, the country to which the child is removed must consider the question of custody and decide whether the court should conduct an elaborate enquiry on the question of child's custody or deal with the matter summarily, ordering the parent to return the custody of the child to the jurisdiction from which the child was removed, and all aspects relating to the child's welfare be investigated in a court in his/her own country. 19. We are of the considered view that the doctrine of comity of courts is a very healthy doctrine. If courts in different jurisdictions do not respect the orders passed by each other it will lead to contradictory orders being passed in different jurisdictions. No hard-and-fast guidelines can be laid down in this regard and each case has to be decided on its own facts. We may, however, again reiterate that the welfare of the child will always remain the paramount consideration. 34. Further, a three Judge bench of Supreme Court in V. Ravi Chandran (supra) held in paragraph Nos.29 and 30 as follows: 29. While dealing with a case of custody of a child removed by a parent from one country to another in contravention of the orders of the court where the parties had set up their matrimonial home, the court in the country to which the child has been removed must first consider the question whether the court could conduct an elaborate enquiry on the question of custody or by dealing with the matter summarily order a parent to return custody of the child to the country from which the child was removed and all aspects relating to the child's welfare be investigated in a court in his own country. Should the court take a view that an elaborate enquiry is necessary, obviously the court is bound to consider the welfare and happiness of the child as the paramount consideration and go into all relevant aspects of welfare of the child including stability and security, loving and understanding care and guidance and full development of the child's character, personality and talents. While doing so, the order of a foreign court as to his custody may be given due weight; the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case. 35. In Nilanjan Bhattacharya (supra), the Hon'ble Supreme Court held in paragraph Nos.10 and 16 as under: 10. In Prateek Gupta v. Shilpi Gupta [Prateek Gupta v. Shilpi Gupta, (2018) 2 SCC 309 : (2018) 1 SCC (Civ) 795] , this Court clarified that even if there is a pre-existing order of a foreign court with respect to the custody of the child, the principles of comity of courts, and “intimate contact and closest concern” are subservient to the predominant consideration of the welfare of the child. In that case, the parents and their minor child were residing in the US. After the separation of the parents, the father left the US with the child to come to India without any prior intimation. A US court passed an order that the mother has the sole physical and legal custody of the child and declared that the father will not have any visitation rights since he had violated an interim order of the Court directing him to return with the child to the Commonwealth of Virginia. Thereafter, the mother invoked the writ jurisdiction of the High Court of Delhi seeking a remedy of the writ of habeas corpus against the father alleging that he has the child in unlawful custody. The High Court observed [Shilpi Gupta v. Union of India, 2016 SCC OnLine Del 2561] that the most intimate contact of the parties and the child was with the US court, which had the closest concern with the well-being of the child and directed the father to hand over the custody to the mother. The decision of the High Court was set aside by this Court. The decision of the High Court was set aside by this Court. While referring to the doctrines of the principle of comity of courts, and of “intimate contact and closest concern”, this Court observed : (Prateek Gupta case [Prateek Gupta v. Shilpi Gupta, (2018) 2 SCC 309 : (2018) 1 SCC (Civ) 795] , SCC pp. 338-39, paras 49-50) “49. … Though the principle of comity of courts and the aforementioned doctrines qua a foreign court from the territory of which the child is removed are factors which deserve notice in deciding the issue of custody and repatriation of the child, it is no longer res integra that the ever-overriding determinant would be the welfare and interest of the child. … 50. The doctrines of “intimate contact” and “closest concern” are of persuasive relevance, only when the child is uprooted from its native country and taken to a place to encounter alien environment, language, custom, etc. with the portent of mutilative bearing on the process of its overall growth and grooming.” 16. The Court has come to the conclusion that the welfare of the child would best be served by his accompanying the appellant to the US. The child was born in the US and is a citizen of the US by birth. The appellant has taken the responsibility for shared parenting while the child was in the US. The respondent left US shores for a brief sojourn but has unilaterally resolved not to return. Both the appellant and the respondent are qualified professionals who have been employed in the US and the appellant continues to be employed there. Faced with the departure of his spouse and child, the appellant moved the court of jurisdiction in New Jersey for orders of temporary custody. He has followed their tracks to India and invoked judicial remedies here. The child has remained here for a short period and it would not be contrary to his interest to allow the appellant to take him back. Hence, independent of the desire communicated by the respondent to the Amicus Curiae that she does not wish to contest the proceedings, the Court has concluded that the direction of the High Court to allow the child to return to the US is in the interest of his welfare. Hence, independent of the desire communicated by the respondent to the Amicus Curiae that she does not wish to contest the proceedings, the Court has concluded that the direction of the High Court to allow the child to return to the US is in the interest of his welfare. We have enquired into this aspect though the special leave petition by the petitioner is only as regards the conditions for return imposed by the High Court. This Court has an overarching duty to ensure and preserve the welfare of a minor child within its jurisdiction. 36. This very High Court in the case of Tarannum Naaz vs. State of Telangana,  2023 SCC OnLine TS 2712 dealing with a similar situation held in paragraph Nos.49 to 54 as under: 49. In Elizabeth Dinshaw v. Arvind M. Dilshaw 21 where father brought the child secretly to India from USA in violation of the orders passed by Court at USA, Apex Court held that writ of Habeas Corpus is maintainable, mother is entitled to child's custody with liberty to take the child to USA, father may, if he so desires, tender unconditional apology before the American Court for contempt and seek permission for restoration of visitation rights. 50. In Nilanjan Bhattacharya (supra), considering the age of the minor child is 4 years and the wife has not shown any particular inclination to retain the child with her in India, the appellant has provided extensive details of his association with the child and the steps which he has taken since the birth of the child to be associated with the upbringing of the child. The husband would share on the video conferencing platform, the videos which the appellant has of his association with numerous activities of the child. On consolation of the said aspects, the Apex Court also considered where a child has been removed from their native country to India, it has held that it would be in the best interests of the child to return to their native country if the child has not developed roots in India and no harm would be caused to the child on such return. Principle of Comity:— Comity refers to courts of one state or jurisdiction respecting the laws and judicial decisions of other jurisdiction whether state, federal or international not as a matter of obligation but out of deference and mutual respect. Principle of Comity:— Comity refers to courts of one state or jurisdiction respecting the laws and judicial decisions of other jurisdiction whether state, federal or international not as a matter of obligation but out of deference and mutual respect. It is referred to as Judicial comity or Comity of Courts. Principle of First Strike:— The principle of first strike means that due respect and weight must be given to a substantive order prior in point of to a substantive order passed by another Court (foreign domestic), provided that the jurisdiction of the Foreign Court is not doubted. Doctrine of Intimate contact and closest concern:— It indicates that the court in whose jurisdiction, the child has been living for many years is the court that has the closest contact with the child and therefore is the place where the issues of child custody and ancillary issues should be determined. Principle of best interest of a child:— It indicates that the best interest of a child shall be taken as a primary consideration when different Interests are under consideration. This principle should be implemented when any decision is affecting a child. If a legal provision is open to more than one interpretation, the interpretation which most effectively serves the child's best interests should be chosen. 51. The sum and substance of the aforesaid judgments is as follows:— i. Proceedings in writ of Habeas Corpus are summary in nature. ii. Writ of Habeas Corpus is maintainable in child custody matters. iii. Welfare of minor is the paramount consideration while deciding matters with regard to child custody and it will prevail over Principle of Comity, Principle of First Strike. iv. Since the proceedings in writ of Habeas Corpus are summary in nature, the same have to be decided basing on the affidavits filed by the parties. v. Each case has to be examined basing on its own facts and circumstances and on case to case basis. 52. Habeas Corpus proceedings is not to justify or examine the legality of the custody. The Habeas corpus proceedings is a medium through which custody of child is addressed to the discretion of the Court. v. Each case has to be examined basing on its own facts and circumstances and on case to case basis. 52. Habeas Corpus proceedings is not to justify or examine the legality of the custody. The Habeas corpus proceedings is a medium through which custody of child is addressed to the discretion of the Court. Habeas Corpus is a prerogative writ which is an extra ordinary remedy and the writ is issued where in the circumstances of a particular case ordinary remedy provided by the law is either invaluable or is ineffective, otherwise a writ will not be issued in a child custody matters. The power of High Court in granting writ is qualified only in cases where the detention of minor is to a person who is not entitled to his legal custody. In view of the pronouncement issue in question in Supreme Court and High Courts, the child custody matters, writ of Habeas Corpus is maintainable where it is approved that the detention of a minor child or parents and others is illegal without any authority of law. 53. In the aforesaid cases, the Apex Court has taken a view that the High Court may invoke extra ordinary jurisdiction to determine the legality of the detention, however, the Court has taken a view that the order of foreign Court must yield to the welfare of the child. The High Court has to decide the Habeas Corpus petition by conducting summary proceedings basing on the affidavits filed by the parties. The High Court has to examine each case basing on its own facts and circumstances and case to case basis. Finally High Court has to decide whether the custody is lawful or not. 54. As stated supra, writ of Habeas Corpus is prerogative writ and is an extraordinary remedy. It is a writ of right not a writ of course and may be granted only when the reasonable or probable cause has been shown. 37. In the present case, the Writ of Habeas Corpus is maintainable as per the principles laid down by the Hon'ble Supreme Court in the above referred various judgments. The minor child Saatvik Gary Bhayaraju, being a US citizen and permanent resident was illegally and unlawfully removed from the custody of the petitioner. 37. In the present case, the Writ of Habeas Corpus is maintainable as per the principles laid down by the Hon'ble Supreme Court in the above referred various judgments. The minor child Saatvik Gary Bhayaraju, being a US citizen and permanent resident was illegally and unlawfully removed from the custody of the petitioner. The said action was also in violation of the orders dated 13.06.2023 and 23.04.2024 passed by the Circuit Court, Clark Country, Wisconsin, US. The detention of the minor by respondent No. 4 who was temporarily denied of his legal custody as per the US Court orders is equivalent to illegal detention warranting the issuance of the Writ of Habeas Corpus. Since the minor child is presently within the territorial jurisdiction of this Hon'ble Court, it has the competence to pass appropriate orders regarding custody while exercising its parenspatriae jurisdiction, keeping the welfare of the child as paramount consideration. 38. Following the principles laid down in Nithya Anand Raghavan (supra) case, this Bench is of the firm view that the petitioner is entitled for a direction of the return of the child to USA considering that the minor child has his roots there since birth and his welfare would be best served under the jurisdiction of the US Courts which has the most intimate contact with the issues arising in this case. Further, in addressing the complex interplay between foreign Court orders and domestic jurisdiction, this Court emphasizes that while the principle of Comity of Courts is significant, it cannot override the paramount consideration of the child's welfare. This Court asserted its authority to conduct an independent assessment of what best serves the child's interests, rather than merely enforcing foreign Court orders. 39. This approach is particularly relevant in cases where the child has been brought to India in violation of foreign Court orders, as the Court must balance the respect for international judicial decisions with its fundamental duty to protect the child's best interests. The Court's power to make appropriate orders regarding custody stems from its inherent jurisdiction and is not limited by foreign Court directives. 40. As an outcome of the discussions made in the preceding paragraphs, this Bench has got no hesitation in reaching to the conclusion that the two questions of law framed by this Bench is to be answered in the affirmative. 40. As an outcome of the discussions made in the preceding paragraphs, this Bench has got no hesitation in reaching to the conclusion that the two questions of law framed by this Bench is to be answered in the affirmative. Accordingly, with the aforesaid direction, the instant Habeas Corpus petition stands allowed. 41. Additionally, this Bench notes with particular concern of the respondent No.4 in the matter of medical treatment for autism. We are of the considered opinion that the United States healthcare system offers significantly advanced and comprehensive treatment options for autism spectrum disorders, including early intervention programs, specialized behavioural therapies and access to cutting-edge research when compared to India which would serve the minor child's specific medical needs. The presence of well-regulated healthcare standards and the availability of specialized educational programs in the USA further reinforces that the child's interests would be better served by repatriation to the USA. 42. In the result, the Habeas Corpus petition is allowed and for the return to status quo ante, the respondent No.4 is directed to handover the custody and all relevant documents, such as Passport and medical record of the detenu/Minor to the writ petitioner by 14.12.2024 in the presence of Station House Officer (for short ‘SHO'), Malakpet / respondent No.3. In addition, the respondent No. 4 shall also bear the travel expenses of the petitioner and the detenu/Minor for their immediate return/repatriation to USA. In the meantime, the SHO, Malakpet / respondent No.3 shall be watchful and if the respondent No. 4 fails to voluntarily comply the order of handing over the custody along with the documents of the detenu/Minor, the SHO, Malakpet / respondent No.3 shall take the custody of the detenu/minor along the relevant documents from the respondent No. 4 in the presence of two mediators and record the proceedings in a report. Whereafter the detenu/Minor and the relevant documents shall be handed-over to the writ petitioner under acknowledgement before the Member Secretary, State Legal Services Authority by 15.12.2024. In the event of the respondent No.4 not meeting the expenses granted in this writ petition, apart from keeping open other remedies as well, liberty is granted to the writ petitioner to file an execution petition before the competent civil Court. In the event of the respondent No.4 not meeting the expenses granted in this writ petition, apart from keeping open other remedies as well, liberty is granted to the writ petitioner to file an execution petition before the competent civil Court. In either case, the SHO, Malakpet / respondent No.3 is directed to file a detailed report of compliance of the order of the Writ petition before the Registrar Judicial by 24.12. 2024. 43. As a sequel, miscellaneous petitions pending if any, shall stand closed. No order as to costs.