Child Welfare Paramount: a foreign court’s custody order deserves respect but cannot be enforced mechanically, the Supreme Court has held, while directing a mother to return to the United States with her US-citizen daughter by December 31, 2026.
New Delhi: The Supreme Court has allowed a father’s appeal against a Karnataka High Court judgment that had refused his habeas corpus petition, and has directed that his minor daughter, a US citizen, be returned to the United States, holding that a writ of habeas corpus is maintainable in custody disputes between parents but that the question then is the child’s welfare, not the legality of detention [V.K. v. State of Karnataka & Ors.].
A bench of Justice JB Pardiwala and Justice KV Viswanathan delivered the reportable judgment on October 8, 2026. To protect the child’s identity, LawChakra is not naming the parents or the child.
The case
The father, a US citizen, married the mother in the United States in 2018 after she travelled there on a fiance visa. She is a doctor and obtained a Green Card. Their daughter was born in 2019. After the marriage broke down, the mother herself moved the Superior Court of California, County of Contra Costa, for dissolution of marriage and later for custody. The California court restrained both parents from taking the child out of California without the other’s written consent or a court order, and its custody order of August 25, 2022 repeated that condition.
About two weeks later, on September 8, 2022, the mother brought the child to India. The California court found a violation and directed her to return the child to the father’s custody. The father then filed a habeas corpus petition in the Karnataka High Court, which dismissed it on December 20, 2023. The High Court held that a foreign order did not by itself make the mother’s custody unlawful, that the child’s interests lay with her mother, and noted that the petition came eight months late and that the child was in school in Jamshedpur. The Supreme Court tried mediation, but the parties could not settle.
Habeas corpus and foreign orders
The bench held that habeas corpus can be invoked in a custody dispute between parents, but the inquiry then moves from whether the detention is lawful to what is in the child’s best interests. A competent foreign court’s order must be given serious weight under the principle of comity of courts, and a parent who removes or keeps a child in disregard of such an order should not ordinarily gain from it. At the same time, an Indian court is not an executing court for foreign directions: it must form its own view on welfare, and the comity principle becomes decisive only where the welfare considerations are evenly balanced.
What the Court found
The Court accepted that the child had spent nearly four years in India and her early formative years here, but said this did not show that her welfare could be served only by staying in India with her mother. It said:
“On the other hand, the child is a citizen of the United States and is entitled to all the benefits that such citizenship carries. That, in our view, makes a strong case for her to continue her life in the United States, particularly when nothing on record suggests that an upbringing there would hamper her progress or would not be in her interests. We believe that the child, being a USA citizen, should grow up in the USA and receive an education in the USA.”
The bench was candid that the case was not one-sided:
“While we are of the view that the welfare of the child lies in continuing her life in the United States, we are conscious that this is not a case in which the considerations point overwhelmingly in one direction. The child has, after all, spent her early formative years in India with her mother. It is in these circumstances that the manner in which the child came to be in India assumes relevance, and lends further support to the view we have taken.”
The Court noted that the couple had married and set up their home in the United States, that the mother had herself started both the divorce and custody cases there, and that the August 25, 2022 custody order was passed after hearing both sides. Barely two weeks later, she brought the child to India in breach of its conditions, and nothing on record showed circumstances so grave that she had no option. The Court found nothing substantial to suggest the child would be harmed in her father’s custody, and said that given her age, her wishes could not be meaningfully ascertained.
The directions
Counsel for the mother, Advocate Malavika Rajkotia, told the Court on instructions that the mother would accompany the child to the United States. Recording that statement, the bench directed her to travel to the US with the child on or before December 31, 2026, and asked the father to cooperate with visas and travel documents. Since the child’s US passport has expired, the mother is to hand it to the father’s counsel, Advocate Prabhjit Jauhar, within a week for renewal.
The father, who joined the hearing online from the United States, gave undertakings to arrange and pay for separate accommodation for the mother near his residence, help restore her lapsed Green Card, pay her USD 3,200 a month as ordered by the California court along with travel and other expenses, and take no legal steps against her over the alleged violation of the 2022 order. He also undertook to seek similar orders from the US court. The bench directed these undertakings to be filed on affidavit and said he must leave no stone unturned to ensure the best care of both his daughter and his wife.
As a further safeguard, the father must furnish security of Rs 1 crore within two weeks by a fixed deposit, initially for 18 months on auto-renewal, in the name of the Registrar, Supreme Court of India. The Court clarified that its observations will not affect the custody and divorce proceedings pending in the US, and listed the matter on January 5, 2027 for an update.
In a connected petition, the Court dismissed the mother’s challenge to a Jharkhand High Court judgment of December 2, 2025 that had upheld the Jamshedpur Family Court’s rejection of her guardianship petition under the Guardians and Wards Act, 1890.
Why the judgment matters
The judgment restates the settled rule in inter-country custody disputes: the welfare of the child is the paramount consideration, and habeas corpus in such cases is a welfare inquiry rather than a test of illegal detention. Foreign custody orders are neither binding decrees to be executed nor documents to be ignored. They carry weight as a matter of comity, and a parent who defies them should not ordinarily profit from it.
Its practical value lies in how the bench combined that principle with protection for the parent who moves with the child. Rather than ordering a bare return, the Court tied the child’s relocation to recorded undertakings on housing, maintenance, immigration status and non-prosecution of the mother, backed by a Rs 1 crore security and continued supervision from New Delhi.
Case Title: V.K. v. State of Karnataka & Ors. [Civil Appeal No. 13785 of 2026, arising out of SLP (C) No. 4163 of 2024], with SLP (C) No. 37143 of 2026
Citation: 2026 INSC 1130
Bench: Justice JB Pardiwala and Justice KV Viswanathan, Supreme Court of India
Date of Judgment: October 8, 2026
Appearances: Advocate Prabhjit Jauhar for the appellant; Advocate Malavika Rajkotia for Respondent No. 4