Ram Manohar Narayan Mishra, J.

1. Heard Ms. Rosemarry Raju, learned counsel for the petitioners, Mr. Ashish Deep Verma, learned counsel for the private respondent, learned A.G.A. for the State and perused the material on record.

2. Instant habeas corpus petition under Article 226 of the Constitution of India has been filed by petitioner no. 2 Abhishek Shukla on behalf of the corpus Arav Shukla, who is his minor son, against state respondent and respondent no. 3 (the mother of the corpus and wife of petitioner no. 2) with following prayers:-

"(i) Issue a writ order or direction in the nature of habeas corpus commanding the respondent no. 3 to produce the petitioner no. 1 in the Hon'ble Court and thereafter the Hon'ble Court may be pleased to give the custody of the petitioner no. 1 to the petitioner no. 2.

(ii) Issue a writ, order or direction in the nature of mandamus commanding the respondents not to interfere in petitioner no. 2 right to meet his son.

(iii) Issue a writ, order or direction which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

(iv) To allow the writ petition and award the cost in favour of the petitioner."

3. During pendency of present writ petition, an amendment application has been moved by petitioner no. 2 with prayer to add the prayer in writ petition at Sr. No. i-(a) in prayer clause of writ petition i.e. i-(a) issue an appropriate writ, order or direction directing the Authorities to produce the minor child namely Arav Shukla, a U.S. Citizen and direct the repatriation of the minor child back to U.S. in compliance of orders dated 24.12.2020 passed by the Superior Court of Washington, King County, U.S. being Case No. 20-3-04720-5-SEA- and also to deposit the passport of the minor child and other documents of the minor child which ought to be delivered to the petitioner no. 2 to enable the petitioner no. 2 to take minor child back to U.S.

4. At the time of final hearing of writ petition, learned counsel for the parties could not brought the attention of this Court towards amendment application which was filed on 21.9.2021, as no objection has been filed on this amendment application and proposed amendment appears to have been filed with a view to clarify the prayer made in writ petition in view of subsequent developments which took place after filing of writ petition, therefore, the amendment sought in amendment application will be treated as included in writ petition.

5. Factual matrix of the case are that present petition under Article 226 of the Constitution of India has been filed by the petitioner no. 2 with averment that he is permanent resident of District Kanpur Nagar (U.P.) and works as Software Engineer in U.S.A. at present. Petitioner no. 2 was married with respondent no. 3 Esha Pathak at G.B. Nagar on 6.3.2011 according to Hindu rites and rituals and said marriage was registered under Marriage Registration Rules ,1973 at Kanpur Nagar on 20.12.2013, a copy of marriage certificate has been filed along with writ petition. The parents of petitioner no. 2 are residing at Kanpur Nagar. His academic qualification is B.Tech and M.S., whereas respondent no. 3, his wife, is M.B.A.. The petitioner Nos. 2 and respondent no. 3 after multiple discussions decided to go to America. Petitioner no. 2 even suggested the respondent no.3 that if she wishes then she could stay in India for now and continue her career and thereafter both of them could reevaluate their situation and take a decision that best suited the interest of the family, however, respondent no. 3 did not concede to the proposal and forced petitioner no. 2 to take her to U.S.A. They reached there on 7.2.2015 but after arrival in U.S.A., respondent no. 3 got upset due to change in life style in U.S.. She also did not adjust herself in U.S., being away from her parents. The son was born on 7th of December 2017 from the wedlock of petitioner no. 2 and respondent no. 3 at Kirkland, King Country Washington in the hospital namely Evergreen Health Medical Center and birth certificate was issued by State of Washington, Department of Health, wherein their son name has been christened as Master Aarav Shukla dated 12.12.2017. The petitioner no. 2 also registered for child's stem cell and cord blood cell preservation with Cord Blood Registry in U.S.A. to cope with future health issues arising to the child if any. The respondent no. 3 used to blame the parents of petitioner no. 2 who had arrived after birth of child to visit him. The respondent no. 3 and petitioner no. 2 came with the child in India on 2nd of June, 2018 with their son Master Aarav. Respondent no. 3 has been very demanding for money from petitioner no. 2 and for that she used to threaten him. The petitioner no. 2 had made an U.S. credit card available to respondent no. 3 so that she could cater to her educational and other needs but she would decline to provide any information about the expenses incurred through credit card. Even before respondent no. 3 came to U.S., petitioner no. 2 tried to apply for a work permit for respondent no. 3 through Microsoft, but the petitioner no. 2 was advised that it could only be done when she is in U.S. but she was not interested in working. Respondent no. 3 told the petitioner no. 2 that she has booked her tickets for the U.S. The petitioner started baby-proofing the house. He installed cameras for the safety and security of the child as well. When she came back to U.S. on 19th February, 2019 she was very aggressive. She was blaming and threatening the petitioner no. 2 to get everything done her away. Even her mother was provoking her to agitate and stress out the petitioner no. 2. The respondent no. 3 and her family members used to take objection if he was engaged in conversation with his parents. The petitioner no. 2 and respondent no. 3 were looking for a daycare of the child and in the meanwhile respondent no. 3 was having driving lessons which was scheduled at noon everyday in spite of the requests of petitioner no. 2 that this should be planned after 5:00 pm so that he could come back from work to watch his son while she takes driving lesson but she did not oblige and got a driving lesson in the noon and asked the petitioner no. 2 to visit the home in lunch hours to take care of the child and when he stated that it was not possible for him, she became agitated and began threatening him. The petitioner no. 2 had planned snowboarding after work on that day to which respondent no. 3 became very angry and at 10:00 pm she sent a message to him that she was not feeling well and he immediately started hitting back from the location. He could reach home at 11:30 pm due to distance of the location from his home, however, she did not accompany him to the hospital and went there in a Taxi. The petitioner no. 2 left behind to take care of his son at home. Respondent no. 3 finalized a daycare for the child which was 13 km away from their place of residence and this was not acceptable to petitioner no. 2 but she was adamant that he signed the cheques immediately so that the money could be deposited in daycare. When he did not succumb to his pressure, she became furious. She called police in U.S. with complaint of domestic violence. The Redmond Police of U.S. came to their place within few months and after thorough investigation they concluded that no case of domestic violence was made out and filed a final report on 15.3.2019. In the midst of these sequence of events the petitioner no. 2 got frightened and troubled due to unusual behaviour of respondent no. 3 and he started living outside the home to avoid any future problem created by respondent no. 3, but she did not express any concern for his well being. She filed a complaint of domestic violence against petitioner no. 2 through her Twitter Account wherein she tweeted at 11:00 am on 15th March 2019 to C.E.O's of his Microsoft Office Mr. Satya Nadella Mr. Bill Gates and Indian External Affairs Minister Sushma Swaraj and Indian Ambassador to U.S., Mr. Harsh Shringla, and even to President of United States of America, Mr. Donald Trump, copies have been filed as annexures to the affidavit. The petitioner no. 2 met his lawyer on 19.3.2019 and after consulting him he went to his apartment and found that his wife and child were not there. He came to know that respondent no. 3 had left for India on 17.3.2019 along with the son and did not let him know that she was leaving country and illegally took his child without his permission and knowledge. He sent a notice to respondent no. 3 on 26.3.2019 through the attorney at law in U.S.A., Mr. Patrick Shearer, with regard to take his son without the consent of the petitioner and behind his back, he threatened him to implicate in some dowry related criminal cases and filed written complaint to National Commission for Women against petitioner no. 2 with allegation of maltreatment with false allegations.

6. Feeling perturbed by conduct of respondent no. 3, petitioner no. 2 had filed a divorce petition to dissolve his marriage with respondent no. 3 in the court of Principal Judge, Family Court, G.B. Nagar, numbered as Matrimonial Petition No. 709 of 2019 (Abhishek Shukla Vs. Esha Shukla) in which notice was issued to respondent no. 3.

7. Petitioner no. 2 regularly paid the expenses of respondent no. 3 without any break even that the parents of respondent no. 3 did not allow him to meet his son when he was in India in July, 2019, August 2019 and December, 2019. Even he approached the police officials but they directly refused to intervene in the matter. The corpus is a minor child who was aged about two years when he was abducted by respondent no. 3 from U.S. to India without consent and permit of his father. Petitioner no. 2 is legal guardian and custodian of petitioner no. 1. The custody of petitioner no. 1, who is a U.S. citizen, is not safe in the hands of respondent no. 3, therefore, custody of child be given to petitioner no. 2, who is his father and natural guardian.

8. Rule nisi was issued to respondent no. 3 by this Court to produce the corpus Master Aarav Shukla on 17.1.2020 and petitioner no. 2 deposited Rs. 20,000/- as charges for production of the child in registry which is payable to petitioner no. 1, on his appearance before the court, however, respondent no. 3 did not produce the child before the court and filed a SLP before Hon'ble Apex Court against rule nisi issued vide order dated 17.1.2020 which was decided by Hon'ble Apex Court vide order dated 11.3.2022 with observation that "notice was issued in this SLP only to explore possibility of settlement between the parties. The matter was referred to mediation centre. We are informed by the Mediation Centre that the parties could not arrive at a settlement. There is no reason to interfere with the order passed by High Court issuing notice. Special Leave Petition is accordingly, disposed of. Pending application(s), if any, shall stand disposed of. We make it clear that we have not expressed any opinion on the merits of the case. We are informed that the High Court did not hear the habeas corpus petition in view of the pendency of this Special Leave Petition before this Court. The High Court is requested to dispose of the habeas corpus petition expeditiously."

9. From perusal of record it appears that after disposal of SLP filed by respondent no. 3, the corpus was not produced by respondent no. 3 before this Court. The respondent no. 3 appeared in present petition on 22.4.2022 through counsel Sri Azad Khan and counter affidavit was filed by her on 30.5.2022. A rejoinder affidavit was filed by the petitioner no. 2 with a view to counter the averments made in counter affidavit, thus, the pleadings have been duly exchanged between the parties.

10. Learned counsel for the petitioners based his submissions on the basis of pleadings made in the writ petition. He further submitted on the basis of averments made in rejoinder affidavit filed that the entire agenda of respondent no. 3 is to alienate the minor child from the petitioner no. 2 and indulge in parental alienation in the same way that she has indulged in intercontinental parental abduction of petitioner no. 1. The allegations made against petitioner no. 2 in counter affidavit filed on behalf of respondent no. 3 are scandalous and shocking. The respondent no. 3 has entangled petitioner no. 2 in many cases with false and concocted allegations. Petitioner no. 2 has filed a divorce petition in the court of Principal Judge, Family Court, G.B. Nagar and subsequently filed a divorce suit in U.S. Court. Learned Family Judge in India has not passed any order in ante suit injunction restraining petitioner no. 2 from pursuing the petitioner's case in U.S. Court and pending divorce petition in the Family Court, G.B. Nagar. Petitioner no. 2 went out of his way to pay for the air tickets of respondent no. 3 to travel to U.S.A. to meet the petitioners and copy thereof has been filed as Annexure P-3 with rejoinder affidavit. The counter affidavit has been filed by the respondent no. 3 is based of unfounded facts and concocted allegations. The minor child Aarav Shukla ought to be repatriated back in compliance of the order dated 24.12.2020 passed by Superior Court of Washington, King County, U.S.A.. Respondent no. 3 had filed a suit seeking ante suit injunction against petitioner no. 2 in Noida District Court, U.P. for pursuing the divorce and custody proceedings filed by the petitioner no. 2 in U.S. by concealing various documents and important facts from the court and got an order dated 16.4.2022 passed therein by suppressing material facts.

11. In the present case minor child has been removed from his native country, U.S. to India and therefore it would be in the interest and welfare of the minor to return its native country as the child has not developed roots in India and no harm would be caused to the minor child on his return. Petitioner no. 2 has been a caring from the very beginning and some photographs are filed showing petitioners in the company of each other to fortify this claim.

12. Per contra, learned counsel for the respondent no. 3 vehemently opposed the prayer made in present habeas corpus petition and submitted that the respondent no. 3 is a victim of domestic violence and matrimonial cruelty to which she was subjected by the petitioner no. 2 and his family members. She visited U.S. to live with petitioner no. 2 and a child was born to them in U.S., however, due to non cooperating attitude, high handedness, carelessness and ill-treatment meted out to her, she was forced to leave the place of petitioner no. 2 in U.S. along with her minor child. Respondent no. 3 along with his minor child, being mother and natural guardian of minor child who was around two years of age, left U.S.A. along and presently her minor child is aged around 5-6 years and cannot be given to custody of petitioner no. 2, his father. Petitioner no. 2 cannot claim that welfare and interest of the child will be more safe and secure in his custody by removing him from custody of his mother. The petitioner no. 2 is not fulfilling his obligations with regard to his wife as well as his son. Respondent no. 3 had lodged an F.I.R. on 14.4.2021 under Sections 498-A, 323, 506, 406, 342, 313, 351 IPC and Section 3/4 of D.P. Act, against petitioner no. 2 and his parents at Greater Noida, District G.B. Nagar in which necessary facts and stand of respondent no. 3 are enumerated. She had also filed complaint under Section Domestic of Violence Act against petitioner no. 2. Petitioner no. 2 and his family members filed separate writ petitions with prayer to quash the said first information report lodged against them by respondent no. 3 but same was dismissed vide order dated 10.6.2022 passed by the Division Bench of this Court. Respondent no. 3, with prior consent of petitioner no. 2 opt to join the college in U.S. where they moved together in February, 2015, on dependent visa. Petitioner no. 2 persuaded to resign from the company in which she was working to visit U.S.A. with a view to pursue her higher studies in M.S. Degree course to enhance her skills and employability. She secured admission in Pepperdine University with 50% scholarship in the U.S.A., however, contrary to his assurances and undertaking the petitioner no. 2 did not bear the financial burden of her higher studies in U.S.A. and she had to depend on her parents for her financial assistance who subsequently transferred Rs. 10,0000/- for her tuition fees, however, she could not continue her studies on account of pregnancy and she decided to take break from the study for a year with consent of petitioner no. 2 and thus, she put her studies on hold. On September, 2017, petitioner no. 2 moved to Seattle from Las Angeles because of the news of offer to respondent no. 3 in Microsoft and on 17.12.2017 she gave birth to a male child at Evergreen Health Medical Centre, Kirkland, Washington. The stay of respondent no. 3 in U.S. became verbatim due to high handedness and hostile attitude of petitioner no. 2. At one point of time she was not having any money with her. Her credit card was blocked by petitioner no. 2 and he was not extending any financial support to her. He further submits that Section 6(A) of Hindu Minority and Guardianship Act provides that the mother is natural guardian after the father and in addition to that proviso to Section 6-A provides that custody of minor child who has not completed age of five years shall ordinarily be with the mother. He lastly concluded that corpus or petitioner no. 1 lies with respondent no. 3 who is no other than biological mother for petitioner no. 1 and custody of minor with his mother cannot be permitted as illegal. The claim of petitioner no. 2 that petitioner no. 1 is supposed to be with petitioner no. 2 is wrong and not legally tenable, rather his uncaring and irresponsible conduct towards the petitioner no. 1 demonstrates his absenteeism and neglect which under law will occasion the the guardianship of the mother therefore writ petition is liable to be dismissed in total.

13. He further submitted that petitioner no. 2 is engaged in practicing forum shopping which is deprecated by Hon'ble Apex Court. Petitioner no. 2 has filed a petition for divorce before Family Court, G.B. Nagar and thereafter filed a suit for divorce after returning to U.S.A. in U.S. court also, thus he approached two different courts in two National Jurisdiction for litigating the same subject matter. Hon'ble Apex Court in Union of India Vs. Cipla Ltd. (2017) 5 SCC 262, [LQ/SC/2016/1358] held that court is required to adopt a functional test vis-a-vis the litigation and the litigant. What has to be seen is whether there is any functional similarity in the proceedings between one court and another or whether there is some sort of subterfuge on the part of the litigant. It is this functional test that will determine whether a litigant is indulging in forum shopping or not. Prior to switching over to U.S., respondent no. 3 was qualified MBA and was working with Yamaha Motors as Sr. HR Executive, however, on persuasion of petitioner no. 2 she resigned the company on 30.1.2015 and ultimately left her employment at Delhi and thereafter both spouse moved to U.S.A. on 7.2.2015 on dependent visa. Petitioner no. 1 was faced with abandonment and empowerment owing to which she could not her ends meet in alien country and therefore was left with no option but to return back to India where she could live with her parents who could provide her and infant basic amenities of life and above all love and affair which was denied to her by the petitioner no. 2. The petitioner no. 2 had met corpus in presence of respondent no. 3 at Greater Noida at the instance of Family Court on 14.12.2019 but he has deliberately concealed this material fact in present habeas corpus petition. In any manner the custody of petitioner no. 1 with his mother cannot be presumed or treated as unlawful and therefore, custody of corpus may not be changed in favour of petitioner no. 2.

14. Hon'ble Apex Court in three Judges Bench judgment in Tejaswini Gaud and Ors. Vs. Shekhar Jagdish Prasad Tewari and Ors., (2019) 7 SCC 42, [LQ/SC/2019/841] held that 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. when the guardian of a minor is wrongly deprived of the custody of the child, a writ can be sought to be issued. When a minor is detained by someone who does not have the legal custody of the child, which will be considered as illegal detention for applying the writ, in such a situation the restoration of custody is to be done from a person who is not a legal or natural guardian of the child, the writ can be applied. The Hon'ble Apex Court in paragraph Nos. 21, 22, 26 and 27, observed as under:-

"21. Custody of the child - removed from foreign countries and brought to India:- 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 Majoo6, it was held as under:-

"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 parens patriae 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. 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 Ravi Chandran (2010) 1 SCC 174 [LQ/SC/2009/2029] and Shilpa Aggarwal (2010) 1 SCC 591 [LQ/SC/2009/2123 ;] cases or refuse to do so as was the position in Sarita Sharma case (2000) 3 SCC 14 [LQ/SC/2000/356] . 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."

22. After referring to various judgments and considering 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, in Nithya Anand, it was held as under:-

Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479 7 Nithya Anand Raghavan v. State (NCT of Delhi) (2017) 8 SCC 454 [LQ/SC/2017/890] "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. 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, Lahari Sakhamuri v. Sobhan Kodali 2019 (5) SCALE 97 education, intellectual development and favourable surroundings, in Nil Ratan Kundu, it was held as under:-

"49. In Goverdhan Lal v. Gajendra Kumar, AIR 2002 Raj 148 [LQ/RajHC/2001/1101] 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, AIR 2003 Mad 315 [LQ/MadHC/2003/96] 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. AIR 1987 HP 34 [LQ/HimHC/1986/55] the Court observed:

"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." 9 Nil Ratan Kundu v. Abhijit Kundu, (2008) 9 SCC 413 [LQ/SC/2008/1634]

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."

27. Reliance was placed upon Gaurav Nagpal, where the Supreme Court held as under:-

"32. In McGrath, (1893) 1 Ch 143, 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."

(emphasis supplied) .........

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 10 Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42 [LQ/SC/2008/2333] 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 (2008) 7 SCC 673, [LQ/SC/2008/1181 ;] 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."

15. Learned counsel for the petitioner has drawn attention of this Court towards the supplementary affidavit filed on 25.3.2021 wherein it is stated that the corpus is a citizen of U.S.A., by virtue of his birth in that country and in accordance with laws prevalent in that country and the respondent no. 3 has illegally detained him without any provision of law and it defines his right. Petitioner no. 2 filed a Declaration about Child Custody Jurisdiction (UCCJEA) along with application seeking parenting plan before Superior Court of Washington, County of King, U.S.A., in the month of September, 2020 and a copy of Declaration about Child Custody Jurisdiction has been annexed as Annexure SA-3 to the supplementary affidavit. Summons were duly received by respondent no. 3 issued by Superior Court of Washington, County of King, USA but she did not pay to the summon of court concerned. Well-Child Visits for Infant and Young Children in U.S.A. is to be followed by all the parents failing which they will be liable to be punished in respect of child till he attains the age of five years.

16. Learned counsel for the petitioner cited various judgments of Hon'ble Apex Court and High Courts in support of his/her submissions in Jeewanti Pandey Vs. Kishan Chandra Pandey, 1981 (4) SCC 517, [LQ/SC/1981/408 ;] Smt. Surindar Kaur Sandhu Vs. Harbax Singh Sandhu And Anr., 1984 (3) SCC 698, [LQ/SC/1984/104] Mrs. Elizabeth Dinshaw Vs. Arvand M. Dinshaw and Anr., 1987 (1) SCC 42, [LQ/SC/1986/436] Mr. Paul Mohinder Gahun Vs. Mrs. Selina Gahun, 2006 (130) DLT 524, Aviral Mittal Vs. The State and Anr., 2009 (112) DRJ 635, Shilpa Aggarwal Vs. Aviral Mittal & Anr., 2010 (1) SCC 591, [LQ/SC/2009/2123 ;] Dr. V. Ravi Chandran Vs. Union of India, 2010 (1) SCC 174, [LQ/SC/2009/2029] Sondur Gopal Vs. Sondur Rajini, (2013) 7 SCC 426, [LQ/SC/2013/752] Arathi Bandi Vs. Bandi Jagadrakshaka Rao & Ors., (2013) 15 SCC 790, [LQ/SC/2013/765] Surya Vadanam Vs. State of Tamilnadu & Ors., (2015) 5 SCC 450, [LQ/SC/2015/314] Nithya Anand Raghavan Vs. State of NCT of Delhi, (2017) 8 SCC 454, [LQ/SC/2017/890] Tippa Srihari Vs. State of A.P., , Ganamukkala Sirisha Vs. Tippa Srihari, Lahari Sakhamuri Vs. Sobhan Kodali, (2019) 7 SCC 311, [LQ/SC/2019/522] Varun Verma Vs. State of Rajasthan, , Yashita Sahu VS. State of Rajasthan & Ors., (2020) 3 SCC 67, [LQ/SC/2020/83] Tejaswini Gaud Vs. Shekhar Jagdish Prasad Tewari, 2019) 7 SCC 42, [LQ/SC/2019/841] Nilanjan Bhattacharya Vs. The State of Karnataka, , Ghadian Harshavardhan Reddy Vs. State of Telangana & Ors., Vasudha Sethi Vs. Kiran V. Bhaskar, , Rohith Thammana Gowda Vs. State of Karnataka & Ors., Rajeswari Chandrasekar Ganesh Vs. State of Tamil Nadu, and Abhinav Gyan Vs. State of Maharashtra & Anr., Crl. Writ Petition No. 693 of 2021. Their main thrust was on decision of Apex Court in Yashita Sahu's case (supra) as this case was also related to custody of minor child who was born in U.S.A. and wife of the petitioner brought the child in India in violation of orders of jurisdictional court in U.S.A.. Yashita Sahu (the appellant) and Varun Verma (respondent) got married on 30.5.2016 in India. Husband was already working in U.S.A. The wife accompanied the husband to U.S.A. on 17.7.2016. A daughter named Kiyara Verma was born to the couple on 3.5.2017. She is citizen of U.S.A.. Relationship between husband and wife got strained and they make various allegations and counter allegations against each other. Wife applied for an emergency protection order on 25.8.2018 to the Norfolk Juvenile and Domestic Relations District Court praying for her protection and an ex-parte preliminary protection order was passed against the husband. Thereafter on 29.8.2018, the wife instituted a petition in the same Court seeking sole custody of the minor child. She also filed a petition praying that husband be directed to give monitory support to her and the minor child. An order was passed by the court on 26.9.2018 in terms of agreement reached between the parties. The wife along with child left USA and came to India on 30.9.2018 after few days of passing of order dated 26.9.2018. The husband on coming to know that wife along with their child had left the USA for India, filed a motion for emergency relief before Norfolk Court on 2.10.2019. The ex-parte order was passed in favour of the husband whereby Norfolk Court granted sole legal and physical custody of the child to the husband and directed the wife to return to USA along with their child but she did not comply the order of Norfolk Court and a warrant was also issued against her for violation of order dated 26.9.2018 of Norfolk Court. The husband filed a petition for writ of habeas corpus before Rajasthan High Court for production of a minor child. High Court on 1.7.2019 directed the wife to return to USA along with her minor daughter within a period of six weeks to enable jurisdictional court in USA to pass further orders in this regard in the proceedings already pending. Aggrieved by the order of Rajasthan High Court, wife has filed present appeal before Hon'ble Apex Court. Hon'ble Apex Court held that we reject contention of the appellant wife that the writ petition before the High Court of Rajasthan was 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 jurisdiction for the best interest of the child. Hon'ble Apex Court quoted judgment of the court in Elizabeth Dinshaw Vs. Arvand M. Dinshaw and Ors., (1987) 1 SCC 42, [LQ/SC/1986/436] Nithya Anand Raghavan Vs. State (NCT of Delhi) and Anr., (2017) 8 SCC 454 [LQ/SC/2017/890] and Lahari Sakhamuri Vs. Sobhan Kodali, (2019) 7 SCC 311 [LQ/SC/2019/522] . Hon'ble Apex Court in the case of Yashita Sahu (supra) in paragraph no. 13, 16, 17, 18, 19 and 20, 21, 25, 31 and 32 of the said judgment observed as under:-

"Comity of Courts

13. 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. 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.

14. Reference in this regard may be made to the judgment in Elizabeth Dinshaw (supra) wherein this Court was dealing with a case where the wife was an American citizen whereas the husband was a citizen of India. They got married in America and a child was born to them in the year 1978. In 1980, differences arose between the couple and the wife filed a petition for divorce. The jurisdictional court in America had dissolved the marriage by a decree of divorce on 23.04.1982 and by the same decree it was directed that the wife would have the care, custody and control of the child till he reaches the age of 18 years. The husband was given visitation rights. Taking advantage of the weekend visitation rights, the husband picked up the child from school on 11.01.1986 and brought him to India. The wife filed a petition under Article 32 of the Constitution of India before this Court. Not only was the petition entertained, but the same was allowed and we would like to refer to certain important observations of this Court in Para 8:

"8. Whenever a question arises before a court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor. We have twice interviewed Dustan in our chambers and talked with him. We found him to be too tender in age and totally immature to be able to form any independent opinion of his own as to which parent he should stay with. The child is an American citizen. Excepting for the last few months that have elapsed since his being brought to India by the process of illegal abduction by the father, he has spent the rest of his life in the United States of America and he was doing well in school there.

In our considered opinion it will be in the best interests and welfare of Dustan that he should go back to the United States of America and continue his education there under the custody and guardianship of the mother to whom such custody and guardianship have been entrusted by a competent court in that country. We are also satisfied that the petitioner who is the mother, is full of genuine love and affection for the child and she can be safely trusted to look after him, educate him and attend in every possible way to his proper upbringing. The child has not taken root in this country and he is still accustomed and acclimatized to the conditions and environments obtaining in the place of his origin in the United States of America. The child's presence in India is the result of an illegal act of abduction and the father who is guilty of the said act cannot claim any advantage by stating that he has already put the child in some school in Pune. The conduct of the father has not been such as to inspire confidence in us that he is a fit and suitable person to be entrusted with the custody and guardianship of the child for the present." In V. Ravi Chandran (Dr. ) (2) vs. Union of India (UOI) and Ors.5 it was held 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 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 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 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.

30. However, in a case where the court decides to exercise its jurisdiction summarily to return the child to his own country, keeping in view the jurisdiction of the court in the native country which has the closest concern and the most intimate contact with the issues arising in the case, the court may leave the aspects relating to the welfare of the child to be investigated by the court in his own native country as that could be in the best interest of the child...." 5 (2010) 1 SCC 174 15. In Nithya Anand Raghavan (supra), this Court took the following view:

"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 preexisting 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 preexisting 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." Thereafter, another bench of this Court in Lahari Sakhamuri (supra), while interpreting the judgment in Nithya Anand Raghavan (supra) held as follows : "41...the doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding custody of the minor child, citizenship of the parents and the child etc., cannot override the consideration of the best interest and the welfare of the child and the direction to return the child to the foreign jurisdiction must not result in any physical, mental, psychological, or other harm to the child."

16. 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. Welfare of the child - the paramount consideration

17. It is well settled law by a catena of judgments that while deciding matters of custody of a child, primary and paramount consideration is welfare of the child. If welfare of the child so demands then technical objections cannot come in the way. However, while deciding the welfare of the child it is not the view of one spouse alone which has to be taken into consideration. The courts should decide the issue of custody only on the basis of what is in the best interest of the child.

18. The child is the victim in custody battles. In this fight of egos and increasing acrimonious battles and litigations between two spouses, our experience shows that more often than not, the parents who otherwise love their child, present a picture as if the other spouse is a villain and he or she alone is entitled to the custody of the child. The court must therefore be very vary of what is said by each of the spouses.

19. A child, especially a child of tender years requires the love, affection, company, protection of both parents. This is not only the requirement of the child but is his/her basic human right. Just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents. A child is not an inanimate object which can be tossed from one parent to the other. Every separation, every reunion may have a traumatic and psychosomatic impact on the child. Therefore, it is to be ensured that the court weighs each and every circumstance very carefully before deciding how and in what manner the custody of the child should be shared between both the parents. Even if the custody is given to one parent the other parent must have sufficient visitation rights to ensure that the child keeps in touch with the other parent and does not lose social, physical and psychological contact with any one of the two parents. It is only in extreme circumstances that one parent should be denied contact with the child. Reasons must be assigned if one parent is to be denied any visitation rights or contact with the child. Courts dealing with the custody matters must while deciding issues of custody clearly define the nature, manner and specifics of the visitation rights.

20. The concept of visitation rights is not fully developed in India. Most courts while granting custody to one spouse do not pass any orders granting visitation rights to the other spouse. As observed earlier, a child has a human right to have the love and affection of both the parents and courts must pass orders ensuring that the child is not totally deprived of the love, affection and company of one of her/his parents.

21. Normally, if the parents are living in the same town or area, the spouse who has not been granted custody is given visitation rights over weekends only. In case the spouses are living at a distance from each other, it may not be feasible or in the interest of the child to create impediments in the education of the child by frequent breaks and, in such cases the visitation rights must be given over long weekends, breaks, and holidays. In cases like the present one where the parents are in two different continents effort should be made to give maximum visitation rights to the parent who is denied custody.

25. Nationality of the child The child is a citizen of USA by birth. Her father was already working in the USA when he got married. We are told that the mother had visited the USA once before marriage and when she got married it was done with the knowledge that she may have to settle down there. The child was born in a hospital in the USA and the mother did not come back to India for delivery which indicates that at that time the parents wanted the child to be a citizen of USA. Since the child is a citizen of USA by birth and holds a passport of that country, while deciding the issue of custody we have to take this factor into consideration.

31. There are various factors to be taken into consideration while deciding what is best in the interest of the child. No hard and fast rules can be laid down and each case has to be decided on its own merits. We are also not oblivious of the fact that when two parents are at war with each other it is impossible to provide a completely peaceful environment to the child. The court has to decide what is in the best interest of the child after weighing all the pros and cons of both the respective parents who claim custody of the child. Obviously, any such order of custody cannot give a perfect environment to the child because that perfect environment would only be available if both the parents put the interest of the child above their own differences. Even if parents separate, they may reach an arrangement where the child can live in an environment which is reasonably conducive to her/his development. As far as the present case is concerned other than the age of the child nothing is in favour of the mother. She herself approached the jurisdictional court in Norfolk. She entered into an agreement on the basis of which a consent order was passed. She has violated that order with impunity and come back to India and, this is a factor which we have to hold against her.

32. In view of the above discussion, we are clearly of the view that it is in the best interest of the child to have parental care of both the parents, if not joint then at least separate. We are clearly of the view that if the wife is willing to go back to USA then all orders with regard to custody, maintenance etc., must be looked into by the jurisdictional court in USA. A writ court in India cannot, in proceedings like this direct that an adult spouse should go to America. We are, therefore, issuing directions in two parts. The first part will apply if the appellant wife is willing to go to USA on terms and conditions offered by the husband in his affidavit. The second part would apply if she is not willing to go to USA, how should the husband be granted custody of the child."

17. Hon'ble Apex Court ultimately taking into consideration and undertaking of the husband held that we feel it would be in the interest of the child if the mother herself accompanies the child to the USA. The appellant's wife may like to live in USA or not, and this is personal choice of the appellant's wife. However, if she goes back to USA along with child then she must comply with the orders of Norfolk Court. Obviously, she can apply for modification/vacation of the order, if so advised. In case, the wife goes back to USA it shall be responsibility of the husband to pay reasonable expenses for her entire travel and stay. If she expressed her willingness to go to USA along with child, husband shall purchase tickets for travel of the wife and minor child to the USA which journey will be performed on or before 20.2.2020 and it is wife's responsibility to obtain requisite travel document required by her to travel to USA by the said date. In case the wife does not inform the counsel for the husband within a week from the order that she is willing to go back to USA then it shall be presumed that she has no intention to go to USA along with child and in that event the wife shall hand over custody of minor child to the husband, if he travels to India otherwise the custody may be handed over to mother of the husband before Registrar General of High Court on a fixed date. Thereafter the husband shall make necessary arrangements for taking the child to USA accompanied by at least one of the husband parents. Husband shall ensure that child talks to his mother from video calling facilities such as whatsapp, skype etc. every day on a fixed time. Some other visitation rights were also granted to mother of the child.

18. Learned counsel for the respondent placed reliance on Prateek Gupta Vs. Shilpi Gupta and Ors., (2018) 2 SCC 309, [LQ/SC/2017/1785] Vivek Singh Vs. Romani Singh, (2017) 3 SCC 231, [LQ/SC/2017/223] Ritika Sharan Vs. Sujoy Ghosh, Nithya Anand Raghavan Vs. State (NCT of Delhi) and Another, (2017) 8 SCC 454, [LQ/SC/2017/890] Gaurav Nagpal Vs. Sumedha Nagpal, (2009) 1 SCC 42, [LQ/SC/2008/2333] Smriti Madan Kansagra Vs. Perry Kansagra, and Kanika Goel VS. State of Delhi Through Station House Officer and Another, (2018) SCC 578.

19. In Kanika Goel's (supra) case first marriage between the parties was performed in New Delhi as per Sikh rites i.e. Anand Karaj ceremony, and Hindu Vedik rites, whereas, the civil marriage ceremony was performed at Circuit Court of Cook Country, Illinois, U.S.A. to complete the formalities. The appellant mother after coming to India, filed a petition for divorce under Section 13(1) of Hindi Marriage Act,1955 ground of cruelty along with an application seeking a restrain order against husband/respondent for taking the minor child away from jurisdiction of Indian Courts. The husband (respondent no. 2) also filed a petition before Circuit Court, Illinois (U.S.) which court directed that the child was to be immediately returned to residence located in Cook Country, Illinois. Since the appellant's wife did not comply with the order of Circuit Court, respondent husband filed a writ petition before the High Court to issue a writ or habeas corpus and directed the appellant to produce the minor child and cause her return to the jurisdiction of the court in U.S.. The High Court by speaking judgment and order dated 16.11.2017 in favour of respondent no. 2, husband of appellant, after recording a finding that the paramount interest of the minor child was to return to USA, so that she could be in her natural environment. To facilitate the parties to have a working arrangement and to minimize inconvenience, the Division Bench of High Court issued certain directions like the return of respondent no. 2 (present appellant) with the minor child should be at the expense of the petitioner; their initial stage Chicago, U.S.A. should also be entirely funded and taken care of by the petitioner by providing a separate furnished accommodation from basic amenities coupled with internet connection etc. for the two of them in the vicinity of matrimonial home of the parties, wherein they have lived till December, 2016. In terms of direction contained in judgment dated 16.11.2017 petitioner Karan Goyal had filed the affidavit on 20.11.2017 wherein he undertook and consented to abide by all the conditions imposed upon him so that respondent no. 2 could return to USA with the minor child. Again on 6.12.2017 another order was passed by High Court finally disposed of, on certain specified terms.

20. However, being aggrieved by the judgment of High Court, the appellant being mother of the minor child has approached Apex Court by way of Special Leave under Article 236 of the Constitution. The appellant being mother of the child has assailed the decision of the High Court for having overlooked rudimentary principles governing issue of invoking jurisdiction to issue a writ of habeas corpus in respect of a minor child who was in lawful custody of her mother. According to appellant, High Court has completely glossed over or to put it differently, misconstrued and mis applied the principles of paramount interest of the minor girl child of tender age of about four years. Similarly the High Court has glassed doctrine of choice and dignity of the mother of a minor girl child keeping in mind the exposition in K.S. Puttaswami Vs. Union of India, (2017) 10 SCC 1 [LQ/SC/2017/1233] . Hon'ble Apex Court had given a through and meticulous consideration of the impugned order passed by High Court including reasons given therein and noticed that High Court has taken note of all the relevant decisions including latest three Bench decisions in Nithyanand (Supra) which had occasion to exhaustively analyse the earlier decision on the subject matter under consideration. The exposition in the earlier decisions has been again reinstated and reaffirmed in the subsequent decision of this Court in Prateek Vs. Shilpi, (2018) SCC 309. In Nithya Raghvan's case (supra) this Court observed 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 preexisting 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."

(emphasis supplied)

Again in paragraph 42, the Court observed thus:

"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 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."

(emphasis supplied),

"67. The facts in all the four cases primarily relied upon by Respondent 2, in our opinion, necessitated the Court to issue direction to return the child to the native state. That does not mean that in deserving cases the courts in India are denuded from declining the relief to return the child to the native state merely because of a pre-existing order of the foreign court of competent jurisdiction. That, however, will have to be considered on case to case basis - be it in a summary inquiry or an elaborate inquiry. We do not wish to dilate on other reported judgments, as it would result in repetition of similar position and only burden this judgment.

xxx xxx xxx

69. ............... The summary jurisdiction to return the child be exercised in cases where the child had been removed from its native land and removed to another country where, may be, his native language is not spoken, or the child gets divorced from the social customs and contacts to which he has been accustomed, or if its education in his native land is interrupted and the child is being subjected to a foreign system of education, for these are all acts which could psychologically disturb the child. Again the summary jurisdiction be exercised only if the court to which the child has been removed is moved promptly and quickly. The overriding consideration must be the interests and welfare of the child."

(emphasis supplied)

20. At this stage, we deem it apposite to reproduce paragraphs 70 and 71 of the reported judgment, which may have some bearing on the final order to be passed in this case. The same read thus:

"70. Needless to observe that after the minor child (Nethra) attains the age of majority, she would be free to exercise her choice to go to the UK and stay with her father. But until she attains majority, she should remain in the custody of her mother unless the court of competent jurisdiction trying the issue of custody of the child orders to the contrary. However, the father must be given visitation rights, whenever he visits India. He can do so by giving notice of at least two weeks in advance intimating in writing to the appellant and if such request is received, the appellant must positively respond in writing to grant visitation rights to Respondent 2 Mr. Anand Raghavan (father) for two hours per day twice a week at the mentioned venue in Delhi or as may be agreed by the appellant, where the appellant or her representatives are necessarily present at or near the venue. Respondent 2 shall not be entitled to, nor make any attempt to take the child (Nethra) out from the said venue. The appellant shall take all such steps to comply with the visitation rights of Respondent 2, in its letter and spirit. Besides, the appellant will permit Respondent 2 Mr. Anand Raghavan to interact with Nethra on telephone/mobile or video conferencing, on school holidays between 5 p.m. to 7.30 p.m. IST.

21. In prateek Gupta Vs. Shilpi Gupta (supra), Hon'ble Apex Court in paragraph Nos. 49 to 51, has observed as under:-

"49. The gravamen of the judicial enunciation on the issue of repatriation of a child removed from its native country is clearly founded on the predominant imperative of its overall well-being, the principle of comity of courts, and the doctrines of "intimate contact and closest concern" notwithstanding. Though the principle of comity of courts and the aforementioned doctrines qua a foreign court from the territory of which a 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. In other words, the invocation of these principles/doctrines has to be judged on the touchstone of myriad attendant facts and circumstances of each case, the ultimate live concern being the welfare of the child, other factors being acknowledgeably subservient thereto. Though in the process of adjudication of the issue of repatriation, a court can elect to adopt a summary enquiry and order immediate restoration of the child to its native country, if the applicant/parent is prompt and alert in his/her initiative and the existing circumstances ex facie justify such course again in the overwhelming exigency of the welfare of the child, such a course could be approvable in law, if an effortless discernment of the relevant factors testify irreversible, adverse and prejudicial impact on its physical, mental, psychological, social, cultural existence, thus exposing it to visible, continuing and irreparable detrimental and nihilistic attenuations. On the other hand, if the applicant/parent is slack and there is a considerable time lag between the removal of the child from the native country and the steps taken for its repatriation thereto, the court would prefer an elaborate enquiry into all relevant aspects bearing on the child, as meanwhile with the passage of time, it expectedly had grown roots in the country and its characteristic milieu, thus casting its influence on the process of its grooming in its fold.

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.

51. 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."

22. Hon'ble Apex Court finally observed in paragraph Nos. 33 and 34 as under:-

"33. The High Court in the present case focused primarily on the grievances of the appellant and while rejecting those grievances, went on to grant relief to respondent No.2 by directing return of the minor girl child to her native country. On the totality of the facts and circumstances of the present case, in our opinion, there is nothing to indicate that the native language (English) is not spoken or the child has been divorced from the social customs to which she has been accustomed. Similarly, the minor child had just entered preschool in the USA before she came to New Delhi along with her mother. In that sense, there was no disruption of her education or being subjected to a foreign system of education likely to psychologically disturb her. On the other hand, the minor child M is under the due care of her mother and maternal grandparents and other relatives since her arrival in New Delhi. If she returns to US as per the relief claimed by the respondent No.2, she would inevitably be under the care of a Nanny as the respondent No.2 will be away during the day time for work and no one else from the family would be there at home to look after her. Placing her under a trained Nanny may not be harmful as such but it is certainly avoidable. For, there is likelihood of the minor child being psychologically disturbed after her separation from her mother, who is the primary care giver to her. In other words, there is no compelling reason to direct return of the minor child M to the US as prayed by the respondent No.2 nor is her stay in the company of her mother, along with maternal grandparents and extended family at New Delhi, prejudicial to her in any manner, warranting her return to the US.

34. As expounded in the recent decisions of this Court, the issue ought not to be decided on the basis of rights of the parties claiming custody of the minor child but the focus should constantly remain on whether the factum of best interest of the minor child is to return to the native country or otherwise. The fact that the minor child will have better prospects upon return to his/her native country, may be a relevant aspect in a substantive proceedings for grant of custody of the minor child but not decisive to examine the threshold issues in a habeas corpus petition. For the purpose of habeas corpus petition, the Court ought to focus on the obtaining circumstances of the minor child having been removed from the native country and taken to a place to encounter alien environment, language, custom etc. interfering with his/her overall growth and grooming and whether continuance there will be harmful. This has been the consistent view of this Court as restated in the recent three Judge Bench decision in Nithya Anand Raghavan (supra), and the two Judge Bench decision in Prateek Gupta (supra). It is unnecessary to multiply other decisions on the same aspect."

23. With above observations, the Hon'ble Apex Court set aside the impugned order passed by the High Court and disposed of the writ petition in the light of observations made in the judgment.

24. This was a three Judge Bench judgment in which reliance was placed on Nithya Anand Raghavan (supra), Prateek Gupta (supra) and Shilpa Aggarwal Vs. Aviral Mittal (2010) 1 SCC 591 [LQ/SC/2009/2123 ;] and V. Ravi Chandran Vs. Union of India, (2010) 1 SCC 174 [LQ/SC/2009/2029] . In this judgment, Hon'ble Apex Court in paragraph no. 23 held as below:-

"23. In a case such as the present one, we are satisfied that return of minor Adithya to United States of America, for the time being, from where he has been removed and brought here would be in the best interest of the child and also such order is justified in view of the assurances given by the petitioner that he would bear all the traveling expenses and make living arrangements for respondent no. 6 in the United States of America till the necessary orders are passed by the competent court; that the petitioner would comply with the custody/parenting rights as per consent order dated June 18, 2007 till such time as the competent court in United States of America takes a further decision; that the petitioner will request that the warrants against respondent no. 6 be dropped; that the petitioner will not file or pursue any criminal charges for violation by respondent no. 6 of the consent order in the United States of America and that if any application is filed by respondent no. 6 in the competent court in United States of America, the petitioner shall cooperate in expeditious hearing of such application. The petitioner has also stated that he has obtained confirmation from Martha Hunt Elementary School, Murphy, Texas, 75094, that minor son Adithya will be admitted to school forthwith.

25. Hon'ble Apex Court finally concluded that there was no compelling reasons to direct return of the minor girl child who was lying in custody of her mother to U.S. nor his stay in company of her mother or other family members was prejudicial in any manner warranting to her return to USA. as expounded in recent decisions was not applicable in facts of the case. As observed in Nitya Anand (supra) the court must take into account totality of the facts and circumstances while ensuring the best interest of the minor child. Further the doctrine of intimate and cogent concern are of persuasive relevance only when the child is uprooted from its native country and taken to place to encounter alien environment, any custom etc. with the portent of mutuality bearing in process of its overall growth and moving. The minor child had just enter pre-school in the USA before she came to New Delhi along with her mother. She was at that time of three years of age. There was no description of her education or being subjected to a foreign system of education likely to psychologically disturbed her. On the other hand, minor child is under due care of her mother and maternal grand parents and other relatives seeks her arrival in New Delhi. If she returns to U.S., as per, the relief claimed by the respondent no. 2, she would inevitably be under the care of a nani as the respondent no. 2 will be away during the time for work and no one else from the family would be there at home to look after her. Placing her under a trained Nani may not be harmful as such but its is certainly avoidable. For, there is likelihood of the minor child being psychologically disturbed after her separation from her mother, who is the primary care given to her.

26. Learned counsel for the petitioner placed reliance on three Judge Bench Judgment in Dr. V. Ravi Chandran (supra), wherein Hon'ble Apex Court held that 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 matter summarily order a parents to return the custody of the child to the country from which the child was removed and all aspects relating to child 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 to 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 foreign court as to which custody may be given due weight; the weight and persuasive effect of foreign judgment must depend on circumstances of each case, however, in a case where the court decides to exercise its jurisdiction summarily to return the child to his own country, keeping in view the jurisdiction of the court in the native country which has the closest concern and must intimate contact with the issues arisen in the case, court may leave the aspects relating to welfare of the child to be investigated by the court in his own native country as that could be in the best interest of the child. The child is an American citizen born and brought up in U.S.A., spent his initial years. Keeping in view the child welfare and happiness and in his best interest, parties have obtained a series of consent orders concerning his custody/parenting rights, maintenance etc. from the court of competent jurisdiction in America. Return of minor child to the U.S., for the time being, from where he has been removed and brought to India, would be in the child best interest.

27. In above case child was born on 1.7.2022 in U.S.A.. Habeas corpus petition was filed by father of the child for the production of his minor son Aditya and for handing over the custody and his passport to him. On 28.8.2009, Hon'ble Apex Court passed an order requesting Director, CBI to produce him before the court due to fact that despite best efforts made by police officers of different states, child and his mother could not be traced and their whereabouts could not be found for more than two years since the notice was issued by the Apex Court. C.B.I. issued look out notices on all India basis through the heads of India police and ultimately child and mother were traced on Chennai on 24.10.2009 and they were produced at the residential office of one of Hon'ble Judges of the Apex Court hearing the matter on 25.10.2009. The petitioner was permitted to meet child for one hour. Pleadings were exchanged. During course of hearing it was found that petitioner and respondent no. 6 were got married on 14.12.2008 at Andhra Pradesh. On 1.7.2022 a child was born in U.S.. In month of July, 2023, respondent no. 6, mother approached New York Supreme Court for divorce and dissolution of marriage. The consent order governing the issues of custody and guardianship of minor was passed by the Hon'ble New York Supreme Court on 18.4.2005. The court granted joint custody of the child to the petitioner and respondent no. 6 and it was stipulated in the order that to keep the other party informed about the whereabouts of the child. On 28.7.2005 a separation agreement was entered between the spouse for distribution of marital property, spouse maintenance and child support. As regards the custody of the minor son and parenting time, the petitioner and respondent no. 6 consented to order dated 18.4.2005. On 8.9.2005 the marriage between petitioner and respondent no. 6 were dissolved by the New York Supreme Court and child custody order dated 18.4.2005 was incorporated in that order. The Family Court of State of New York on 18.6.2007 ordered that the parties shall share joint legal and physical custody of the minor child and the child shall reside in Allen, Texas. The parties shall alternate share physical custody on a weekly basis with the exchange being on Friday at the end of the school day or at that time when school would ordinarily let out in the event that there is no school on Friday, therefore from perusal of facts of Dr. V. Ravi Chandran's case (supra) it is crystal clear that there were number of consent orders passed by competent court in U.S. in presence of the spouse prior to 28.6.2007 when respondent no. 6 brought minor to India informing the petitioner that she would be residing with her parents in Chennai, whereas in present case there was no order regarding custody of the child, joint parenting plan before the alleged parental abduction of child by his mother, respondent no. 3, therefore, ratio of V. Ravi Chandran's case is not likely to extend benefit to present petitioner in facts and circumstances of the present case.

28. In Yashita Sahu (supra) case, the guiding force behind the reasoning of Hon'ble Apex Court was that in that case since the wife brought the minor to India in violation of the orders of jurisdictional court in USA, her custody of the child cannot be said to be strictly legal and the girl child Kiyara Verma was born to couple Yashita Verma and Varun Verma on 3.5.2017 in U.S.. She was citizen of U.S.A.. The wife had filed a petition before Norfolk Court praying for her protection and an ex-parte primary protection order was passed against the respondents thereafter she had instituted a petition in same court seeking sole custody of the minor child. Wife, along with the child left USA and came to India on 30.9.2018 and after knowing this fact husband filed a motion for emergency relief before Norfolk Court on 2.10.2019 and an ex-parte order was passed in favour of the husband whereby Norfolk Court granted sole legal and physical custody of the minor child to the husband and directed the wife to return to USA along with the child. A warrant was also issued against wife for violating the order dated 26.9.2018 of the Norfolk Court in terms of the agreement reached between the parties which was made part of the order wherein it was provided that joint legal custody and shared physical custody of the child was given to the parents, with each parent being given individual parenting time, whereas in present case when the Respondent No. 3 left U.S.A. along with child Aarav Shukla, there was no binding order of U.S. Court was in existence. Only allegations against her is that she had taken the child along with her from U.S.A. to India at her parental place without consent or knowledge of the petitioner no.2, her husband. In habeas corpus petition, there is no description of any U.S. Court order with regard to custody of the child except the legal notice issued by Patrick F. Shearer, Attorney of Law, in USA to the respondent no. 3 dated 26.3.2019 wherein he has addressed the respondent no. 3 Ms. Esha Shukla and asked her not to contact Mr. Abhishek Shukla with harassing disparaging remarks and allegations. He has also asked her to cease any contact with Mr. Shukla, both directly or indirectly, however, in Rejoinder affidavit he has stated that pursuant to filing of the writ petition before this Court petitioner no. 2 filed a petition before the Superior Court of Washington, County King, U.S.A. seeking dissolution of marriage along with custody of the minor son, who is a U.S. citizen, U.S. Court issued summon to respondent no. 3, wife of the petitioner no. 2. On 24.10.2020 respondent no. 3 was served with summons of divorce and custody petition and in this regard petitioner no. 2 filed a proof of service being effected upon respondent no. 3(wife) in India, however, pursuant to receipt of notice by her, she issued a notice through her counsel dated 18.11.2020 calling upon petitioner no. 2 husband to withdraw the divorce and custody case filed in U.S. Court and informed that she had also filed an anti suit injunction before Noida District Court. Since respondent no. 3 failed to appear after being affected service upon her, the U.S. Court vide order dated 24.12.2020 granted the motion in favour of petitioner no. 2 and proceeded in the case without notice to the respondent no. 3. U.S. Court vide another order dated 24.12.2020 directed that respondent no. 3 (mother) shall return the child to the U.S., native State of the minor child i.e. State of Washington within 30 days of the passing of the said order and the petitioner no. 1 i.e. child shall live with his father i.e. petitioner no. 2 and the mother shall exercise appropriate visitation rights with the minor child in the State of Washington, up to ten days as she provides three weeks' notice and does not remove the child from the State of Washington. The U.S. Court also passed an order dated 24.12.2020 directing that respondent no. 3, mother, shall not remove the child from State of Washington but for summer visitation or by agreement of the parties. According to the petitioner U.S. Court is the Court of competent jurisdiction and having the closest concern with the issue of custody and welfare of the minor child and, therefore, this Court has to exercise its summary jurisdiction and repatriate the minor child back to U.S. Court where U.S. Court would finally determine as to what would be the best interest and welfare of the minor child.

29. The petitioner no. 2's stand is that admittedly the minor child is a U.S. citizen and should not be deprived of his status and available as well as the facilities such as social security available to a minor child being a U.S. citizen. The parties had intended to give birth to the minor child in U.S. and therefore it is only the U.S. Court which had to determine as to what is in the best interest and welfare of the minor child. He has filed copy of personal service of notice of divorce and custody petition filed by the petitioner no. 2 on respondent no. 3, dated 26.2.2021, at her residential address in Greater Noida, U.P.. He has also filed a copy of parenting plan filed before Superior Court of Washington, King County, U.S.A. dated 18.12.2020 which is unilaterally signed by petitioner no. 2 and it is nowhere appearing signature of the mother of child namely Easha Shukla, the respondent no. 3. He has also filed a Declaration about Child Custody Jurisdiction before Superior Court of Washington, County of King, dated 18.12.2020 at Seatel City, Washington State, which is also signed by petitioner no. 2 with regard to custody of child Aarav Shukla, born on 12.7.2017 and this is admitted fact that prior to this, the child was taken away by his mother to India on 17.3.2019 and thereafter petitioner no. 2 has filed the divorce petition before Principal Judge, Family Court, G.B. Nagar. This version of petitioner no. 2 has been refuted by respondent no. 3 in counter affidavit that after alleged abduction of child by respondent no. 3, who is mother, petitioner no. 2 was not permitted to meet his son while he was in India in July and August, 2019 and December, 2019. In paragraph no. 12 of the counter affidavit it is specifically stated that petitioner no. 2 met petitioner no. 1 at very Small Greater Noida on 24.12.2019 in presence of respondent no. 3 prior to filing of present habeas corpus petition. In annexure no. 4 to the supplementary affidavit dated 25.3.2021, the parenting plan dated 18.12.2020 has been filed together with King County Superior Court, Judicial Electronic Signature Page, Case No. 20-3-04720-5, Case Title Shukla Vs. Shukla, document title-Parenting Plan (final order), signed by Leonid Ponomarchuk dated December 24, 2020, the Commissioner, therefore, it appears that court concerned in U.S. has not passed any separate order regarding custody of child on 24.12.2020, however, the court has approved parenting plan filed by petitioner no. 2 on 18.12.2020 in which it is stated inter alia that mother shall not remove the child from Washington State but for summer visitation or by agreement of the parties, neither parents shall disparage the other, nor discuss any legal matters in front of the child. Mother shall return the child to U.S. with whom State of Washington within 30 days, entry of this order. This Court in order dated 26.7.2021 observed that "petitioner no. 2 submits that there is an order passed by Superior Court of Washington, King County dated 24.12.2020, but is not in a position to answer query of this Court that, when this order itself provides for disputes resolution and names and arbitrator or agency to carry out arbitration/mediation for dispute resolution and proceedings are according to learned counsel and proceedings are according to learned counsel for the petitioners are already under way before the concerned arbitrator, though he submits that respondent no. 3 is not appearing before the said arbitrator, how this petition is maintainable. List this case on 29.7.2021." However, the query made by this Court in order dated 26.7.2021 has not been replied by the petitioner no. 2 on subsequent dates of listing.

30. In present case every legal action was taken by the petitioner no. 2 before U.S. Court after departure of respondent no. 3 along with petitioner no. 1 from U.S.A. to India and that too after filing of present habeas corpus petition and all these proceedings are the ex-parte qua respondent no. 3. She has neither signed the joint parenting plan nor the Declaration as stated which has been approved by court's order dated 24.12.2020.

31. Dictum of Hon'ble Apex Court in Kanika Goel's case (supra), is more proximate to the facts and circumstances of the present case as in that case also the minor child is an U.S. citizen by birth and and grown up in her native country for over three years before she was brought to New Delhi by his biological mother. Father and mother of the child are of Indian origin but the father is domiciled in U.S.A. after marriage.

32. The mother in instant case had visited U.S. for studies in M.S. course and came back to India along with child after the relations between spouse became strained after birth of the child there. As the child was withdrawn from the country of his birth at tender age of one and 1/3 years, on totality of the facts and circumstances of the present case there is nothing to indicate that the child has been divorced from the social customs to which he has been accustomed. There is no statement of either of the petitioner that the child has received any sort of education in U.S.. It appears that immediate cause of marital discord was on the issue of keeping the child in child care and non signing of a cheque to meet out the expenses of daycare by petitioner no. 2, therefore, there is no question of disruption of his education from his movement from U.S. to India. However, this thing is obvious that on being directed to be transferred from India to U.S. and from custody of his mother to father, the child will be taken care of either by a naini or by a daycare institution as the according to material on record father is presently residing alone in Washington, U.S. whereas the respondent no. 3 is residing with her parents where the child is being nurtured in maternal and maternal grand parental care. He might be aged around five years at present, therefore, it would be pertinent to observe that his roots have been developed in India rather than in U.S., in more unobstructed manner and for long time than in U.S., despite the fact that being born in U.S., he will be treated as U.S. citizen.

33. Keeping in view the totality of facts and circumstances of the case at anvil of binding judicial Authorities of Hon'ble Apex Court, it is not open to contend that custody of male minor child with his biological mother would be unlawful only due to the fact that mother had taken child from U.S.A., from the place of his father to her native place in India without intimate to or seeking consent of father. The child was only at around 1 and 1/3rd years of age at that time and he was supposed to reside in safe custody of his mother and the custody of minor child with mother is continuing from very inception, this court is not inclined to undertook detail and elaborate enquiry into the matter. Doctrine of intimate and closest concern are of persuasive relevance only when the child has uprooted from its native country and taking to a place to encounter alien environment, language, customs and surroundings etc., which may have substantial bearing on the process of his overall growth and grooming. As the child was very tender age it cannot be supposed that he was segregated from social customs prevalent to U.S.A. to which he has been accustomed. He did not receive any schooling, education or care of any daycare institution in U.S.. On the contrary minor child is under due care of his mother and maternal grand parents and other relatives of maternal side since his arrival in Noida (India). There is no consent order with regard to custody of child by U.S court or any competent authority in U.S. even after alleged order dated 24.12.2020 which was passed by U.S. court with regard to custody of child long after his departure from U.S.. In this factual scenario this Court finds no compelling reason to direct return of minor child to U.S., as prayed by petitioner no. 2 nor his stay in the company of his mother along with maternal grand parents at Greater Noida is prejudicial to his interest in any manner warranting his return to U.S.. As the legal position is settled on the basis of catena of decisions of Hon'ble Apex Court that issue of custody of child in such type of cases ought not to be on the basis of rights of parties claiming custody of minor child but to focus should stand on whether the factum of best interest of the minor child is to return to U.S. or otherwise. It cannot be said that continuance of custody of minor child with his mother in India is in any manner prejudicial to his overall growth, nurturing or grooming of the child or in other words his continue custody with his mother in this country will be harmful to his overall interest. Petitioner no. 2, father of the child, has already filed a petition of dissolution of marriage before U.S. Court having jurisdiction in that behalf.

34. Be that as it may, in any manner whatsoever custody of minor child with his mother in present case cannot be held to be unlawful. It would be in fitness of things that custody of minor male child remain with his mother who is presently living at her native place in India until he attains the age of majority, or the court of competent jurisdiction in U.S. or India, as the case may be, trying the custody of minor child orders to the contrary. However, visitation rights to father are admissible so that he may have access to minor child whenever he would visit India. If the U.S. court summons the respondent no. 3 with regard to any legal issue of custody of child, she is expected to appear before the court as the child is U.S. citizen by birth, however expenses of visit of respondent no. 3 along with the child and her stay in U.S. for appearing in legal proceedings will be born by petitioner no. 2 along with travel expenses incurred by her. The visitation right is being granted to petitioner no. 2, father of the child, as follows:-

(i)- whenever petitioner no. 2, Abhishek Shukla, is available in India, he shall respondent no. 3 by E-mail, or telephonically so that she can make the child available for meeting with the father at a mutual agreed and comfortable place for meeting between father and son, either in Greater Noida or in Delhi between 11:00 am to 5:00 pm on holidays when his school is closed, or between 5:30 pm to 7:30 pm on week days.

(ii) when father will be meeting child, they shall meet without any supervision. They shall meet and mother or her family members may appear there but will have sufficient distance from them so that they may not be able to overhear the conversation between father and son and any interference by respondent no. 3 or her family members will not be created.

(iii) When petitioner no. 2 in India, he may have communication/interaction with his minor son through video call, skype or whatsapp with the child at about 7:30 pm (IST) or any other mode online.

35. While granting aforesaid visitation right to father i.e. petitioner no. 2 is conducive to paramount interest of the child as interaction with the child by both parents is necessary and desirable for emotional and intellectual growth and grooming of the child. The respondent no. 3 will extend all cooperation to petitioner no. 2 so that visitation right granted to him in respect of the child are duly realised and complied with.

36. Accordingly, present habeas corpus petition stands dismissed with above observations and directions.