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Custody of child with USA citizenship, Supreme Court judgment by considering overseas court order

December 7, 2017

Custody of Child USA Citizen

In an appeal filed by the father of a 5 year old child, against the order in of Delhi High court in a Writ petition of habeas corpus filed by the wife, the Supreme Court Bench of Justice Amitava Roy and Chief Justice Dipak Misra passed Judgment. The court had passed stay order from time to time and the custody of the child was remained with the appellant father.


Facts of the case are the appellant and the respondent who married on 20.01.2010 in accordance with the Hindu rites at New Delhi had shifted to the United States of America (for short, hereafter referred to as 'U.S.'), as the appellant was already residing and gainfully employed there prior to the nuptial alliance. In due course, the couple was blessed with two sons, the elder being Aadvik born on 28.09.2012 and the younger, Samath born on 10.09.2014.

As adverted to hereinabove, the present lis is with regard to the custody of Master Aadvik, stemming from an application under Article 226 of the Constitution of India filed by the respondent alleging illegal and unlawful keeping of him by the appellant and that too in violation of the orders passed by the Juvenile and Domestic Relations Court of Fairfax County, passed on 28.05.2015 and 20.10.2015 directing him to return the child to the Commonwealth of Virginia and to the custody and control of the respondent the child resided with the parents from his birth till 07.11.2014 and thereafter from 07.11.2014 till06.03.2015 with the respondent-mother in the United States. This is so, as in view of irreconcilable marital issues, as alleged by the respondent, particularly due to the volatile temperament and regular angry outbursts of the appellant often in front of the child, the parties separated on or about 15.11.2014. Prior thereto, the appellant had on 08.11.2014 left for India leaving behind the respondent and her children in U.S. He returned on 18.01.2015 to the U.S., but the parties continued to live separately, the respondent with her children. The appellant however, made short time visits in between and on one such occasion i.e. on 24.01.2015, he took along with him Aadvik, representing that he would take him for a short while to the Dulles Mall. According to the respondent, she did not suspect any foul play and permitted the child to accompany his father, but to her dismay though assured, the appellant did not return with the child in spite of fervent insistences and implorations of the mother. As alleged by the respondent, the appellant thus separated the child from her from 24.01.2015 to 07.03.2015 in a pretentious and cruel move, seemingly acting on a nefarious strategy which surfaced when on 07.03.2015, the appellant left U.S. with the child to India without any prior information or permission or consent of hers. the respondent approached Juvenile and Domestic Relations Court Fairfax County, for its intervention and for that, on 15.05.2015, she filed "Emergency Motion For Return of Minor Child and Established Temporary Custody".

On the next date fixed i.e. 19.05.2015, after the service of the process on the appellant, his counsel made a "special appearance" to contest the service. On the date thereafter i.e. 28.05.2015, he however informed the court that he was not contesting the service upon the appellant, whereupon hearing the counsel for the parties at length and also noticing the plea on behalf of the appellant that he intended to return with the child in U.S. and that the delay was because of his mother's illness, the U.S. Court passed the following direction in its order:

1. Custody

The petitioner Shilpi Gupta, is hereby granted sole legal and physical custody of the minor child, Aadvik Gupta, pending further order of this Court.


2. Return of the Child

That the respondent, Prateek Gupta, is hereby ordered to immediately return Aadvik to the Commonwealth of Virginia, and to the custody and control of the petitioner or her agents. Thereafter, the respondent shall not remove the child from the Commonwealth of Virginia under any circumstances without further order of the Court.

3. Enforcement

That the all law enforcement agencies and related agencies (including but not limited to Police Department(s), Sheriff's Department(s), U.S. State Department, Federal Bureau of Investigations) are hereby directed to assist and/or facilitate the transfer of Aadvik to the petitioner, if necessary, including taking the child into custody from anyone who has possession of him and placing him in the physical custody of the petitioner.

4. Passport

That once the child has been returned to Virginia, any and all of Aadvik's passports must be immediately surrendered to the petitioner where it will be held until further order of this Court.

5. Removal from the Commonwealth of Virginia

That all relevant and/or local law enforcement agencies shall do whatever possible to prevent the removal of Aadvik Gupta, from the Commonwealth of Virginia except at the direction of the petitioner, Shilpi Gupta.

In its Judgment the Supreme Court that:


"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 It has been consistently held that there is no forum convenience in wardship jurisdiction and the peremptory mandate that underlines the adjudicative mission is the obligation to secure the unreserved welfare of the child as the paramount consideration."

"The impugned judgment and order is thus set aside. We however direct that the parties would participate in the pending proceedings relating to the custody of the child, if the same is pursued and the court below, before which the same is pending, would decide the same in accordance with law expeditiously without being influenced in any way, by the observations and findings recorded in this determination."




Read the Judgment of Supreme Court dated 06.12.2017



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