A writ of habeas corpus is not a substitute for civil remedies in child custody disputes and cannot be used solely to enforce foreign court orders; the paramount consideration in such matters is always the welfare of the child, which requires substantive inquiry rather than summary writ proceedings.

ORDER :

1. The instant petition under Article 226 of the Constitution in the nature of Habeas Corpus is preferred by the petitioner seeking following reliefs:

“A. To issue an appropriate writ, order or direction in the nature Habeas Corpus to the Respondent No.1 to immediately trace and produce the minor child Agastya Gupta before this Hon’ble Court and deliver his custody to the Petitioner Father so as to be repatriated to the U.S. in compliance with the Order passed by the U.S. Court dated 04.04.2023.

B. Issue an appropriate writ, order or direction in the nature of Habeas Corpus to Respondent No.2 to cooperate with any one appointed by the Petitioner to transport the minor child to the United States within a time frame;

C. Pass any such other order or further orders and directions as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case and in the interest of justice.”

2. Precisely stated facts of the case are that petitioner is seeking direction to the respondents to produce petitioner's son Agastya Gupta before this Court with a further direction to return his son to the United States of America (USA) with petitioner being father, with whom vests sole custody by virtue of order dated 04-04-2023 by Superior Court of New Jersey, Chancery Division, USA.

3. On 01-02-2013, petitioner and respondent No.2 – Shilpi Khaira (wife of petitioner) married in Vidisha according to Hindu Rites and Rituals. After their marriage, initially petitioner and thereafter respondent No.2 moved to USA and established their matrimonial home in Austin Texas in March, 2013.

4. On 14-02-2015 they were blessed with a son master Agastya Gupta and he acquired citizenship of USA by birth. It appears that domestic incompatibility ensued between the couple resulted into return of respondent No.2 to India in July, 2018. Since then she is living at her maternal home with her parents at Sehore (Madhya Pradesh) along with her son. It is the allegation of petitioner that despite efforts being made to contact respondent No.2 and their son master Agastya Gupta, no response was ever given by respondent No.2. Even she did not allow the petitioner to be in touch with their son.

5. Meanwhile, it appears that petitioner contacted IPCA (US Agency under State Department) regarding access to his son but failed. Later on, US Consulate got access to the child and gave report in this regard. Petitioner also approached National Commission for Protection of Child Right (NCPCR) and District Magistrate, Sehore as well as Child Welfare Committee and Child Welfare Commission.

6. It further appears that petitioner filed a case of divorce and seeking custody of his child before Superior Court of New Jersey, Chancery Division and vide order dated 04-04-2023 divorce has been granted to the petitioner and the Court entrusted the sole physical and legal custody of his son to father and ordered that he shall be parent of primary residence of master Agastya Gupta. Despite order of custody being granted in favour of petitioner when respondent No.2 did not respond then he preferred this petition in the nature of Habeas Corpus.

7. It is the submission of learned counsel appearing for the petitioner that despite the directions being issued by the Court of New Jersey, Chancery Division, USA no step has been taken by respondent No.2 to hand over custody of child of master Agastya Gupta to the petitioner. Same is arbitrary and illegal. Therefore, looking to the principle of comity of courts, it is imperative that custody be handed over. According to him, Superior Court, Ne