The Supreme Court of India, in a recent hearing, strongly criticized a foreign court’s decision to impose a travel ban on a minor child involved in a custody dispute between his parents. The apex court described the foreign court's order as “atrocious” and a blatant violation of human rights, equating it to a form of house arrest.
A Division Bench comprising Justice Surya Kant and Justice N Kotiswar Singh was hearing a habeas corpus petition filed by the child's father. The petitioner alleged that his former wife had taken their son from their residence in Dubai without his knowledge and had returned to India. He further stated that a Dubai court had issued a travel ban on the child.
Raising serious concerns about such foreign court orders, Justice Surya Kant observed:
“This is a case where she was virtually being kept in solitary confinement. Then you obtained an order from a court known for such atrocious orders. It is a complete violation of human rights… Any court that respects civil and human rights would not pass such an order. This amounts to house arrest. Can a court impose solitary confinement without any criminal charge? And now you want us to follow such an order in this country? Please don’t…”
The Supreme Court, after hearing Senior Advocate Nikhil Goel representing the petitioner, issued a limited notice only in regard to visitation rights and related reliefs.
During the hearing, Justice Kant questioned the jurisdiction of the Dubai Family Court, which had granted custody of the child to the father while also granting divorce. Goel responded that the parties were residing in Dubai, but the bench noted that jurisdiction cannot be assumed solely based on residence. The Court also pointed out that since the parties are Christians, Shariah Law did not apply to their case.
“There was no question of that court entertaining the divorce petition,” Justice Kant said.
Goel argued that the Dubai Court had considered non-Muslim law, but the bench emphasized it would first examine the petitioner’s conduct, assess the child’s welfare, including education and care, and then consider visitation rights.
The Supreme Court also acknowledged that the Karnataka High Court’s decision, which directed the Family Court to decide the custody issue, was the correct approach in this matter.
Background of the Case
According to the records, the petitioner is a Ghanaian national residing in Dubai, while the respondent, the child’s mother, is an Indian citizen. They married in 2018 under the Foreign Marriage Act, 1969, and registered their marriage at the Consulate General of India in Dubai. The couple had a son in 2019 and lived in Dubai until March 2021.
In April 2021, the mother left Dubai and came to India with the child. She remained in India from November 2021 onwards. The same year, the father filed for divorce in a Dubai court, which granted the divorce in April 2022, awarding custody of the child to the father.
In 2022, the father filed a writ of habeas corpus before the Karnataka High Court, seeking the custody of his son. He alleged that the mother stopped all communication after moving to India and denied him access to their child. He also claimed she violated the Dubai Court’s order by not returning the child, even after attending virtual hearings.
In her defense, the mother asserted that her departure from Dubai was not without the father’s knowledge. She further claimed that she was subjected to physical, emotional, and psychological abuse, which affected both her and the child. She alleged that the father had imposed an illegal travel ban on the child, contrary to UAE law, and later coerced her into withdrawing her own divorce case filed in 2021 in exchange for lifting the travel ban. After she withdrew her petition, the father filed for divorce himself and attempted to alienate her from the child.
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The mother cited judicial precedents which prioritize the custody rights of mothers in cases involving minors and stressed the importance of the child’s welfare over technicalities like foreign decrees or international comity.
The Karnataka High Court found that the petitioner was fully aware of the child's location and custody with the mother. The court also took into account that the mother had already filed a custody petition before the Family Court in Bangalore, which was still pending.
“We are of the opinion that the pending child custody case in the Bangalore Family Court must proceed to determine the child’s best interest. It is clear that the petitioner - father is perfectly well aware that the child is in the custody of the mother. The child is aged less than five years and there is no concern raised as to the safety of the child in the hands of the mother. It is also clear that the matter is pending consideration before the Family Court,” the High Court noted.
The High Court directed that all relevant contentions regarding custody and welfare of the child should be raised before the Family Court, which would decide the matter in the best interest of the child. Dissatisfied with this, the father then approached the Supreme Court.
Case Title: X v. The State of Karnataka & Ors.
