Minor children's custody with mother not illegal: Delhi HC refuses their repatriation to UK

New Delhi [India], March 13 (ANI): The Delhi High Court has refused to order the repatriation of two minor children to the United Kingdom, holding that custody of minor children with their mother, a natural guardian, cannot ordinarily be termed illegal.
The two minor children, both British nationals born in the UK, had travelled to India with their mother in August 2023, allegedly for a temporary visit, and have since been residing in Delhi.
A Division Bench comprising Justices Navin Chawla and Ravinder Dudeja disposed of a Habeas Corpus petition filed by British citizen Yasir Ayaz, who had sought production of his children and their return to the UK in accordance with an order passed by a UK Family Court.
The court declined to pass any order on custody or repatriation, instead directing the parties to pursue their legal remedy before the concerned Family Court.
"The present writ petition seeks to convert this Court into an executing forum for a foreign order, which is impermissible in custody matters," the Division Bench said.
The High Court said, "We feel it pertinent to point out that the petitioner has an efficacious alternate remedy before the Family Court where the Guardianship Petition is already pending and where the parties are free to lead evidence and pursue their claim for custody and visitation. Entertaining the present petition would result in parallel proceedings and may prejudice the adjudication before the learned Family Court."
While disposing of the petition, the High Court said that it is not in dispute that the minor children are presently residing with their biological mother in Delhi.
"Custody with a natural guardian, particularly the mother, cannot ordinarily be termed illegal to justify the issuance of a writ of Habeas Corpus," the High Court said in the judgement of March 11.
Justice Ravinder Dudeja held, "The writ of Habeas Corpus in custody matters is maintainable only where detention of the minor is illegal or without authority of law."
The petitioner sought issuance of an order of Habeas Corpus for the production of his minor children and also sought directions regarding their custody and return to the United Kingdom.
The petitioner had relied on orders passed by the UK High Court directing the return of the children.
The Delhi High Court said that while such orders are entitled to due regard, they cannot be enforced automatically through Habeas Corpus proceedings, especially when the welfare of the children is required to be independently assessed by the court within whose jurisdiction they presently reside.
The High Court said that the material on record indicates that the minor children are presently residing with their mother in Delhi, are attending school, and have been living in a family environment for more than two years.
"Uprooting them abruptly and directing their removal from the jurisdiction without a detailed inquiry into their welfare would not be appropriate," the High Court said.
The high court also noted that the mother had already filed a petition for custody and guardianship of the minor children before the Family Court at Karkardooma, Delhi.
The plea was moved through advocate Khalid Akhtar, and Abdullah Akhtar had stated that petitioner father and mother met in the United Kingdom in 2006, and after five years, they solemnised their marriage as per Islamic law in 2011 in the Kingdom of Saudi Arabia and registered their marriage in Swansea, United Kingdom in March 2012.
Out of wedlock, two sons were born on 4th March, 2014 and on 30th August, 2018. Both the children are British nationals, having been born in the United Kingdom, and have been residing in the United Kingdom since their birth, the plea said.
The petitioner, being of Pakistani origin, was granted British Citizenship in 2016, and the Respondent mother, in 2023, was granted leave to live indefinitely in the United Kingdom.
On 31st August, 2023, with the consent of the petitioner, the Respondent mother travelled to India with the minor children, allegedly for a temporary visit/vacation on the false pretext of spending more time with family and attending a wedding. (ANI)