Per V.V.S.Rao, J.

Background

A Non-Resident Indian initiated these 'habeas corpus' proceedings seeking direction to official respondents to produce fifth respondent in the custody of fourth respondent before this Court and further direct fourth respondent to produce the detenu before Oakland County Court, Michigan, the USA (Oakland Court) as per its order dated 02.12.2009 in Case No.09 764663 DC. The brief admitted fact of the matter reveals the following relevant background for adjudicating an important issue in private international law touching upon doctrine of comity of Courts. The petitioner and fourth respondent are Indians. They married on 10.4.2004 in Nellore Town, State of Andhra Pradesh. Their child, Aikya (the detenu) was born on 16.11.2007 at Willow Creek Women's Hospital, Johnson, Washington County in Arkansas. Unfortunately matrimonial disharmony afflicted the couple. Petitioner moved Benton County Court, Arkansas, on 12.6.2009 for divorce in Case No.DR 2009983-6. He also moved for emergency temporary child custody. The said Court declined to exercise jurisdiction as the detenu had not resided there since April 2008; the family had temporarily moved to Michigan. The petitioner then moved Oakland Court which passed ex parte order granting child custody to petitioner pending final orders. Fourth respondent was ordered to return the child to petitioner. As the same was disregarded, the Court found fourth respondent to be in contempt of Court and ordered for return of the detenu. Meanwhile on 11.11.2009, fourth respondent moved application to set aside ex parte order regarding custody, and to dismiss petitioner's motion for want of jurisdiction. On 02.12.2009, the Court denied the motion.

2. Fourth respondent and the detenu came to India in March 2009. Petitioner alleges that in spite of Bench warrant for arrest, fourth respondent did not surrender the minor child before Oakland Court. But she filed a criminal case being Crime No.185 of 2009 of VI Town P.5., Nellore. Petitioner then filed quash criminal petition before this Court. This Court stayed his arrest. Fourth respondent also filed a case under the Protection of Women from Domestic Violence Act, 2005, being DVC Non of 2009 on the file of the Court of V Additional Judicial Magistrate of First Class, Nellore, which granted temporary custody of detenu to her with direction to Police to ensure its implementation. The petitioner and his parents were restrained from visiting minor child until further orders. Petitioner filed yet another case being Crl.P.No.832 of 2010 before this court for quashing DVC. In the meanwhile fourth respondent's application to reconsider interim custody order was rejected by the Oakland Court.

3. In her counter affidavit, fourth respondent does not dispute proceedings before Arkansas and Oakland Courts. She states that she filed appeal against the orders of Oakland Court. She justified her custody on the ground that detenu is female child of 2½ years old, that the child is attached to fourth respondent and her parents whereas petitioner is alone in USA and he would not be in a position to take care of a female child.

4. The Senior Counsel for petitioner, the Counsel for fourth respondent and· the Advocate General for State made their submissions. Counsel rely on V.Ravi Chandran (Dr.) v. Union of India (3) (2010 1 SCC 174 and Shilpa Agganval v Aviral Mittal (4) 2010 (2) SCJ 56. In the light of the rival contentions, the issue for consideration is whether the detenu is in illegal custody of fourth respondent and whether a Habeas Corpus shall issue for production before Oakland Court.

Rights of the child

5. In a case of this nature, the Court has two options. First, on the principle of comity of Courts, direct the person having the custody of the minor detenu to produce before foreign Court if child is citizen of foreign State, to be subjected to "family and child custody law" of that Nation. The second option is the exercise of parens patria