Madhya Pradesh High Court
Vishnu Gupta Through Arvind Kumar Gupta vs The State Of Madhya Pradesh on 16 June, 2025
Author: Anand Pathak
Bench: Anand Pathak
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
&
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
WRIT PETITION NO. 10746 of 2024
VISHNU GUPTA
Vs.
STATE OF MADHYA PRADESH AND OTHERS
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APPEARANCE:
Shri Prashant Sharma and Shri Rudraksh Gupta - Advocates for
the petitioner.
Shri Saket Udainiya - Government Advocate for respondents
No.1&3/State.
Shri V.D. Sharma and Shri Harshit Sharma - Advocates for
respondent No.2.
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ORDER
th
{Passed on 16 the Day of June, 2025}
1. The instant petition under Article 226 of the Constitution in the
nature of Habeas Corpus is preferred by the petitioner seeking
following reliefs:
“A. To issue an appropriate writ, order or direction in the nature
Habeas Corpus to the Respondent No.1 to immediately trace and
produce the minor child Agastya Gupta before this Hon’ble Court
and deliver his custody to the Petitioner Father so as to be
repatriated to the U.S. in compliance with the Order passed by the
U.S. Court dated 04.04.2023.
B. Issue an appropriate writ, order or direction in the nature of
Habeas Corpus to Respondent No.2 to cooperate with any one
appointed by the Petitioner to transport the minor child to the
United States within a time frame;
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C. Pass any such other order or further orders and directions as
this Hon’ble Court may deem fit and proper in the facts and
circumstances of the case and in the interest of justice.”
2. Precisely stated facts of the case are that petitioner is seeking
direction to the respondents to produce petitioner’s son Agastya
Gupta before this Court with a further direction to return his son to
the United States of America (USA) with petitioner being father, with
whom vests sole custody by virtue of order dated 04-04-2023 by
Superior Court of New Jersey, Chancery Division, USA.
3. On 01-02-2013, petitioner and respondent No.2 – Shilpi Khaira (wife
of petitioner) married in Vidisha according to Hindu Rites and
Rituals. After their marriage, initially petitioner and thereafter
respondent No.2 moved to USA and established their matrimonial
home in Austin Texas in March, 2013.
4. On 14-02-2015 they were blessed with a son master Agastya Gupta
and he acquired citizenship of USA by birth. It appears that domestic
incompatibility ensued between the couple resulted into return of
respondent No.2 to India in July, 2018. Since then she is living at her
maternal home with her parents at Sehore (Madhya Pradesh) along
with her son. It is the allegation of petitioner that despite efforts being
made to contact respondent No.2 and their son master Agastya Gupta,
no response was ever given by respondent No.2. Even she did not
3
allow the petitioner to be in touch with their son.
5. Meanwhile, it appears that petitioner contacted IPCA (US Agency
under State Department) regarding access to his son but failed. Later
on, US Consulate got access to the child and gave report in this
regard. Petitioner also approached National Commission for
Protection of Child Right (NCPCR) and District Magistrate, Sehore
as well as Child Welfare Committee and Child Welfare Commission.
6. It further appears that petitioner filed a case of divorce and seeking
custody of his child before Superior Court of New Jersey, Chancery
Division and vide order dated 04-04-2023 divorce has been granted
to the petitioner and the Court entrusted the sole physical and legal
custody of his son to father and ordered that he shall be parent of
primary residence of master Agastya Gupta. Despite order of custody
being granted in favour of petitioner when respondent No.2 did not
respond then he preferred this petition in the nature of Habeas
Corpus.
7. It is the submission of learned counsel appearing for the petitioner
that despite the directions being issued by the Court of New Jersey,
Chancery Division, USA no step has been taken by respondent No.2
to hand over custody of child of master Agastya Gupta to the
petitioner. Same is arbitrary and illegal. Therefore, looking to the
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principle of comity of courts, it is imperative that custody be handed
over. According to him, Superior Court, New Jersey, Chancery
Division, USA already adjudicated the following issues by way of an
enquiry in favour of petitioner:
“(i) Custody
(ii) Child Support
(iii) Child’s College Education
(iv) Emergency Decision Making
(v) Restriction on leaving the Country with the Child
(vi) Restriction on leaving the State with the Child
(vii) Sharing the records
(viii) Communication guidelines and Notifications
(ix) Child’s Extra-Ordinary Hobbies
(x) Emancipation.”
Therefore, order is required to be complied with, hence custody
of child be handed over to the petitioner.
8. It is further submitted that corpus (son of petitioner) is a foreign
national who is minor and is being forcibly kept in India without any
authority. The child not being Indian citizen is being deprived of all
rights and remedies available to Indian citizen. Now complication
regarding visa availability is also apparent which would consume
some time, therefore, petitioner be given custody.
9. Learned counsel for the petitioner heavily relied upon the judgment
of Apex Court in the case of Yashita Sahu Vs. State of Rajasthan
5
and others, (2020) 3 SCC 67, Tejaswini Gaud and others Vs.
Shekhar Jagdish Prasad Tewari and others, (2019) 7 SCC 42,
Lahari Sakhamuri Vs. Sobhan Kodal, (2019) 7 SCC 311 and
Rohith Thammana Gowda vs. State of Karnataka, AIR 2022 SC
3511 and submits that because of comity of courts based on interest
of child and scope of writ of Habeas Corpus vis-a-vis custody of
minor child petition is not only maintainable but deserves
consideration. He seeks custody of child and/or visitation rights
alternatively.
10. Per contra, learned counsel for respondent No.2 (wife of petitioner)
opposed the prayer with equal vehemence and prayed for dismissal of
petition as non maintainable.
11. Learned counsel for respondent No.2 Shri V.D. Sharma submits that
petitioner is claiming a relief in the shape of execution and
enforcement of US Court order dated 04-04-2023 while invoking
prerogative writ of Habeas Corpus, whereas an alternative remedy is
available to the petitioner by virtue of provision so enshrined under
the Code of Civil Procedure, 1908. He relied upon CPC with
Limitation Act, 1963, 7th Edition, authored by Justice C.K. Thakkar
reprinted 2016 to bring home the analogy that petitioner has
alternative remedy.
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12. On merits, respondent No.2 vehemently opposed the allegations of
petitioner and submits that because of misbehaviour and conduct of
petitioner she was forced to leave USA. According to respondent
No.2 she tried to mend the relationship by making efforts to contact
him but in vain. Petitioner did not respond to the e-mails/messages
sent by her. Respondent No.2 levelled series of allegations (as per
reply/synopsis filed) and held the petitioner responsible for
discordant relationship.
13. Learned counsel for respondent No.2 refers order dated 18-12-2024
passed by the Coordinate Bench while hearing application for psycho
analysis of child Agastya Gupta vide I.A.No.8875/2024. Said
application was considered in detail by the Coordinate Bench and
rejected the same. It is held in the said order that in writ jurisdiction
such exercise cannot be undertaken. Petitioner may approach the
Civil Court under the Guardians and Wards Act, 1890 (hereinafter
referred to as “the Act of 1890”) for the same.
14. Learned counsel for respondent No.2 further refers order dated 17-
10-2024 passed by the Principal Judge, Family Court, Sehore
whereby the application under Section 25 of the Act of 1890
preferred at the instance of parents of petitioner namely, Morarilal
and Shanti Devi Gupta for declaration of guardianship and to meet
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their grandson, was dismissed by the Family Court while allowing the
application preferred under Order VII Rule 11 of CPC at the instance
of present respondent No.2.
15. Learned counsel for respondent No.2 also relied upon three Judge
Bench judgment passed by the Apex Court in the case of Nithya
Anand Raghavan Vs. State (NCT of Delhi) and another, (2017) 8
SCC 454 in which scope of petition in the nature of Habeas Corpus
under Article 226 is discussed vis-a-vis order of foreign Court.
Learned counsel also relied upon the judgment of Apex Court in the
case of Prateek Gupta Vs. Shilpi Gupta and others, (2018) 2 SCC
309 as well as another three Judge Bench judgment of Apex Court in
the case of Kanika Goel Vs. State of Delhi and another, (2018) 9
SCC 578. He also relied upon judgment in the case of Jose Antonio
Zalba Diez Del Corral alias Jose Antonio Zalba Vs. State of West
Bengal and others, 2021 SCC OnLine SC 3434.
16. Heard learned counsel for the parties at length and perused the
documents appended thereto.
17. This is a petition under Article 226 of the Constitution in the nature
of Habeas Corpus. As per allegation, corpus (son of petitioner) is in
illegal custody of respondent No.2 who happens to be the mother of
corpus. Date of birth of corpus is 14-02-2015, therefore, at present
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corpus is more than 10 years of age.
18. So far as scope of petition under Article 226 of the Constitution in the
nature of Habeas Corpus is concerned that issue has been discussed
in detail by three Judge Bench of the Apex Court in the case of
Nithya Anand Raghavan (supra) in detail and held in following
manner:
“38. We have cogitated over the submissions made by the counsel
for both the sides and also the judicial precedents pressed into
service by them. The principal argument of the respondent-
husband revolves around the necessity to comply with the
direction issued by the foreign Court against the appellant-wife to
produce their daughter before the UK Court where the issue
regarding wardship is pending for consideration and which Court
alone can adjudicate that issue. The argument proceeds that the
principle of comity of courts must be respected, as rightly applied
by the High Court in the present case.
39. We must remind ourselves of the settled legal position that the
concept of forum convenience has no place in wardship
jurisdiction. Further, the efficacy of the principle of comity of
courts as applicable to India in respect of child custody matters
has been succinctly delineated in several decisions of this Court.
We may usefully refer to the decision in the case of Dhanwanti
Joshi Vs. Madhav Unde …………….”
“44. The present appeal emanates from a petition seeking a writ of
habeas corpus for the production and custody of a minor child.
This Court in Kanu Sanyal v. District, has held that habeas corpus
was essentially a procedural writ dealing with machinery of
justice. The object underlying the writ was to secure the release of
9a person who is illegally deprived of his liberty. The writ of
habeas corpus is a command addressed to the person who is
alleged to have another in unlawful custody, requiring him to
produce the body of such person before the Court. On production
of the person before the Court, the circumstances in which the
custody of the person concerned has been detained can be
inquired into by the Court and upon due inquiry into the alleged
unlawful restraint pass appropriate direction as may be deemed
just and proper. The High Court in such proceedings conducts an
inquiry for immediate determination of the right of the person’s
freedom and his release when the detention is found to be
unlawful.
45. In a petition for issuance of a writ of habeas corpus in relation
to the custody of a minor child, this Court in, has held that the
principal duty of the Court is to ascertain whether the custody of
child is unlawful or illegal and whether the welfare of the child
requires that his present custody should be changed and the child
be handed over to the care and custody of any other person. While
doing so, the paramount consideration must be about the welfare
of the child. In the case of Mrs. Elizabeth (supra), it is held that in
such cases the matter must be decided not by reference to the legal
rights of the parties but on the sole and predominant criterion of
what would best serve the interests and welfare of the minor. The
role of the High Court in examining the cases of custody of a
minor is on the touchstone of principle of parens patriae
jurisdiction, as the minor is within the jurisdiction of the Court
(see:Paul Mohinder Gahun Vs. State of NCT of Delhi15 (2001) 5
SCC 247& Ors.16 relied upon by the appellant). It is not
necessary to multiply the authorities on this proposition.
46. The High Court while dealing with the petition for issuance of
10a 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.
47. In a habeas corpus petition as aforesaid, the High Court
must examine at the threshold whether the minor is in lawful
or unlawful custody of another person (private respondent
named in the writ petition). For considering that issue, in a
case such as the present one, it is enough to note that the
private respondent was none other than the natural guardian
of the minor being her biological mother. Once that fact is
ascertained, it can be presumed that the custody of the minor
with his/her mother is lawful. In such a case, only in
exceptionable situation, the custody of the minor (girl child)
may be ordered to be taken away from her mother for being
11given to any other person including the husband (father of
the child), in exercise of writ jurisdiction. Instead, the other
parent can be asked to resort to a substantive prescribed
remedy for getting custody of the child.”
19. Besides that, custody of minor or welfare of child is of paramount
consideration and this aspect has been dealt with by the Apex Court
while relying upon the judgment rendered in the case of V. Ravi
Chandran (2) Vs. Union of India and Dhanwanti Joshi Vs.
Madhav Unde, (1998) 1 SCC 112. The Apex Court in the case of
Nithya Anand Raghavan (supra) discussed in para 41 as under:
“41. Notably, the aforementioned exposition has been quoted with
approval by a three-judge bench of this Court in Dr. V. Ravi
Chandran(supra) as can be discerned from paragraph 27 of the
reported decision. In that, after extracting paragraphs 28 to 30 of
the decision in Dhanwanti Joshi‘s case, the three-judge bench
observed thus:
“27……..However, in view of the fact that the child had lived
with his mother in India for nearly twelve years, this Court held
that it would not exercise a summary jurisdiction to return the
child to the United States of America on the ground that its
removal from USA in 1984 was contrary to the orders of US
courts. It was also held that 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 the
parties but on the sole and predominant criterion of what would
best serve the interest of the minor.” (emphasis supplied)
Again in paragraphs 29 and 30, the three-judge bench observed
12thus:-
“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 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 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 the 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 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 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 interests
of the child. The indication given in Mckee v. McKee that
there may be cases in which it is proper for a court in
one jurisdiction to make an order directing that a child
be returned to a foreign jurisdiction without
investigating the merits of the dispute relating to the care
of the child on the ground that such an order is in the
best interests of the child has been explained in L
(Minors), In re and the said view has been approved by
this Court in Dhanwanti Joshi. Similar view taken by the
Court of Appeal in H. (Infants), in re has been approved
by this Court in Elizabeth Dinshaw.” (emphasis
supplied)”
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20. While addressing the question whether an order passed by the
Foreign Court directing the mother to produce the child before it
would render the custody of the minor unlawful, Apex Court
discussed this question in following manner:
“48. The next question to be considered by the High Court would
be whether an order passed by the foreign court, directing the
mother to produce the child before it, would render the custody of
the minor unlawful? Indubitably, merely because such an order is
passed by the foreign court, the custody of the minor would not
become unlawful per se. As in the present case, the order passed
by the High Court of Justice, Family Division London on 8 th
January, 2016 for obtaining a Wardship order……………”
49. On a bare perusal of this order, it is noticed that it is an ex
parte order passed against the mother after recording prima facie
satisfaction that the minor Nethra Anand (a girl born on
07/08/2009) was as on 2nd July, 2015, habitually resident in the
jurisdiction of England and Wales and was wrongfully removed
from England on 2nd July, 2015 and has been wrongfully retained
in India since then. Further, the Courts of England and Wales have
jurisdiction in the matters of parental responsibility over the child
pursuant to Articles 8 and 10 of BIIR. For which reason, it has
been ordered that the minor shall remain a Ward of that Court
during her minority or until further order; and the mother
(appellant herein) shall return or cause the return of the minor
forthwith to England and Wales in any event not later than 22
January, 2016. Indeed, this order has not been challenged by the
appellant so far nor has the appellant applied for modification
thereof before the concerned court (foreign court). Even on a fair
14
reading of this order, it is not possible to hold that the custody of
the minor with her mother has been declared to be unlawful. At
best, the appellant may have violated the direction to return the
minor to England, who has been ordered to be a Ward of the court
during her minority and further order. No finding has been
rendered that till the minor returns to England, the custody of the
minor with the mother has become or will be treated as unlawful
including for the purposes of considering a petition for issuance of
writ of habeas corpus. We may not be understood to have said that
such a finding is permissible in law. We hold that the custody of
the minor with the appellant, being her biological mother, will
have to be presumed to be lawful.
50. The High Court in such a situation may then examine whether
the return of the minor to his/her native state would be in the
interests of the minor or would be harmful. While doing so, the
High Court would be well within its jurisdiction if satisfied, that
having regard to the totality of the facts and circumstances, it
would be in the interests and welfare of the minor child to decline
return of the child to the country from where he/she had been
removed; then such an order must be passed without being fixated
with the factum of an order of the foreign Court directing return of
the child within the stipulated time, since the order of the foreign
Court must yield to the welfare of the child. For answering this
issue, there can be no strait jacket formulae or mathematical
exactitude. Nor can the fact that the other parent had already
approached the foreign court or was successful in getting an order
from the foreign court for production of the child, be a decisive
factor. Similarly, the parent having custody of the minor has not
resorted to any substantive proceeding for custody of the child,
cannot whittle down the overarching principle of the best interests
15
and welfare of the child to be considered by the Court. That ought
to be the paramount consideration.
57. Suffice it to observe that taking the totality of the facts and
circumstances into account, it would be in the interests of Nethra
to remain in custody of her mother and it would cause harm to her
if she returns to the U.K. That does not mean that the appellant
must disregard the proceedings pending in the U.K. Court against
her or for custody of Nethra, as the case may be. So long as that
court has jurisdiction to adjudicate those matters, to do complete
justice between the parties we may prefer to mould the reliefs to
facilitate the appellant to participate in the proceedings before the
U.K. Court which she can do through her solicitors to be
appointed to espouse her cause before that court. In the
concluding part of this judgment, we will indicate the modalities
to enable the appellant to take recourse to such an option or any
other remedy as may be permissible in law. We say so because the
present appeal arises from a writ petition filed by respondent no.2
for issuance of a writ of habeas corpus and not to decide the issue
of grant or non-grant of custody of the minor as such. In a
substantive proceeding for custody of the minor before the Court
of competent jurisdiction including in India if permissible, all
aspects will have to be considered on their own merit without
being influenced by any observations in this judgment.”
21. This three Judge Bench judgment of Nithya Anand Raghavan
(supra) later on relied upon in another three Judge Bench judgment
delivered in the case of Kanika Goel (supra) and in two Judge
Bench of Prateek Gupta (supra). Therefore, facts of the case as
unfolded in the case of Nithya Anand Raghavan (supra) appears to
16
be of same tenor and texture as that of the facts of the present case.
On the other hand, the judgment relied upon by the petitioner in the
case of Tejaswini Gaud and others (supra) moves in different
factual realm because there, custody of child was sought by the father
from maternal aunts of corpus. Here, the case is between husband and
wife and wife is having the custody of their son.
22. So far as the judgment in the case of Yashita Sahu (supra) is
concerned, it is a decision rendered by two Judge Bench and that
judgment has not taken into consideration earlier judgments rendered
by three Judge Bench of Apex Court in the case of Nithya Anand
Raghavan (supra), Kanika Goel (supra) and two Judge Bench in
the case of Prateek Gupta (supra).
23. Even otherwise, petitioner has alternative remedy as per different
provisions of CPC including Section 44A and Sections 13 and 14 of
CPC and if required and if law permits, may proceed under Guardians
and Wards Act, 1890. While doing so, petitioner has to satisfy the
exceptions carved out in Section 13 of CPC. Section 13 of CPC is
reiterated for ready reference:
“13: When foreign judgment not conclusive.- A foreign judgment
shall be conclusive as to any matter thereby directly adjudicated
upon between the same parties or between parties under whom
they or any of them claim litigating under the same title except-
17
(a) where it has not been pronounced by a Court of competent
jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded
on an incorrect view of international law or a refusal to recognise
the law of India in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are
opposed to natural justice;
(e) where it has been obtained by fraud; (f) where it sustains a
claim founded on a breach of any law in force in India.”
24. In the conspectus of facts and circumstances of the case, despite the
fact that petitioner is making efforts to meet his child, legal
provisions and judgments as referred above do not come to his
rescue. Thus, the petition fails.
However, looking to the nature of dispute and the fact that
petitioner being a father, may request respondent No.2 to meet his
son and if she feels so, it is her discretion to permit for meeting
personally or on video call. That is an expectation raised by the Court
and not issuing any command to comply. It is purely between the
couple and for respondent No.2 to decide.
25. Writ petition stands disposed of with aforesaid observations.
(ANAND PATHAK) (RAJENDRA KUMAR VANI) Anil* JUDGE JUDGE ANIL Digitally signed by ANIL KUMAR CHAURASIYA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH KUMAR COURT OF MADHYA PRADESH BENCH GWALIOR, 2.5.4.20=8512f40a1a9eaa50b6802d068 b51dae27e84c266b09d283f0799e67cd CHAURAS c7df50f, postalCode=474001, st=Madhya Pradesh, serialNumber=EC534CBB3B245F05011 9F06F4A296DD83C765A1E2ACC6EC7D IYA 8BD8CBCC9C2446E, cn=ANIL KUMAR CHAURASIYA Date: 2025.06.17 10:33:37 +05'30'