[Cites 10, Cited by 0]
Delhi High Court
Yasir Ayaz vs State Of Nct Delhi & Anr on 11 March, 2026
Author: Navin Chawla
Bench: Navin Chawla
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 16th February, 2026
Pronounced on: 11th March, 2026
+ W.P.(CRL) 2988/2024 & CRL.M.A. 11271/2025, CRL.M.A.
11272/2025
YASIR AYAZ .....Petitioner
Through: Mr. Khalid Akhtar, Mr. Maaz
Akhtar, Mr. Abdullah Akhtar
and Ms. Sana Anwar, Advs.
versus
STATE OF NCT DELHI & ANR. .....Respondents
Through: Mr. Sanjay Lao, Standing
Counsel (Crl.) with Ms. Priyam
Aggarwal, Mr. Aryan Sachdeva
and Mr. Abhinav Kr. Arya,
Advs.
SI Deval Shalkhlan, PS
Bhajanpura
Mr. Colin Gonsalves, Sr. Adv.
with Mr. Manik Gupta, Mr. M.
S. Khan, Ms. Neha Khan, Mr.
Akbar Kaleem, Ms. Shaziya
and Mr. Yasir Khan, Advs. for
R-2.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
JUDGMENT
RAVINDER DUDEJA, J.
1. The present writ petition under Article 226 of the Constitution
of India is filed by the petitioner/husband seeking issuance of a writ of
Habeas Corpus directing Respondent No.2/mother of the minor
children, to produce the children before this Court and further seeks a
direction for their return to the United Kingdom in terms of orders
passed by the High Court of Justice, Family Division, London.
Brief Facts
2. The petitioner/father and Respondent No.2/mother met in the
United Kingdom in 2006 and after five years, they solemnized their
marriage as per Islamic law in 2011 in the Kingdom of Saudi Arabia
and registered their marriage in Swansea, United Kingdom in March
2012. Out of the wedlock, two sons were born- "AA" having DOB as
04th March, 2014 and "MM" having DOB as 30th August, 2018. Both
the children are British nationals, having been born in the United
Kingdom, and had been residing in the United Kingdom since their
birth. The petitioner, being of Pakistani origin, was granted British
Citizenship in 2016 and the Respondent No.2, in 2023, was granted
leave to live indefinitely in the United Kingdom.
3. On 31st August, 2023, with the consent of the petitioner,
Respondent No.2 travelled to India with the minor children allegedly
for a temporary visit/vacation on the false pretext of spending more
time with family and attending wedding. The Respondent No.2,
however, filed a custody petition bearing GP No. 47/2023 before the
Karkardooma Courts, Delhi, India on 03rd November, 2023.
4. Since the visa of the minor children was to expire on 06th/07th
November, 2023, the petitioner, on 08th November, 2023, acceded to
the request of the Respondent No.2 for extension of visa for three
months. The visa extension was granted, however, the Respondent
No.2, allegedly, thereafter wrongfully retained the children in India
and ceased communication with the petitioner.
5. The petitioner received summons from the learned Family
Court, Karkardooma Courts, Delhi on 29th January, 2024 to appear
before the Court. Pursuant to this, the petitioner, on 23rd February,
2024, moved an application before the High Court of Justice, Family
Division, London ["U.K. High Court"], seeking return of his children
to the United Kingdom, being British nationals.
6. The Respondent No.2, on 04th April, 2024, sent her statement as
reply to the U.K. High Court on the jurisdictional aspect of India
being the appropriate forum. The U.K. High Court, passed an order
dated 06th June, 2024 regarding jurisdiction and forum conveniens. On
14th August, 2024, the U.K. High Court, passed a detailed order
declaring that the children, who are British Passport holders, shall
remain 'wards' of the U.K. High Court.
7. The U.K. High Court, after final hearing, passed a return order
dated 16th August, 2024, directing that the minor children be returned
to the petitioner/father in United Kingdom by 01st September, 2024 on
the ground that they are British nationals and that their habitual
residence was in that jurisdiction. It was also observed that the
appropriate forum is United Kingdom, not India.
8. Despite the return order, the Respondent No.2/mother along
with the minor children has continued to reside in India with her sister
and father and the children are stated to be presently enrolled in a
school at Delhi.
9. Since the Respondent No.2 refused to return to United Kingdom
along with the children in compliance of orders of the U.K. High
Court, the petitioner, on 24th September, 2024, filed the present writ
petition before this Court.
Submissions on behalf of Petitioner/Husband
10. Learned counsel for the petitioner submitted that the couple had
been residing in the United Kingdom for a considerable period and
had two children out of the wedlock. Their children are British
nationals who were born, raised, and educated in United Kingdom-
making it their habitual residence. It was stated that the Respondent
No.2 travelled to India with the children only for a temporary visit but
thereafter refused to return back to the United Kingdom, thereby
disrupting their settled environment and depriving the petitioner
access to his children by retaining them in India. It was further
submitted that denial of access of children to the father prejudices the
paternal relationship and the children's welfare.
11. It was contended that such retention is without the petitioner's
consent and in breach of binding orders of the U.K. High Court
categorically directing the children's return to the United Kingdom.
The learned counsel submitted that the U.K. High Court has already
exercised jurisdiction over the minor children, who are British
passport holders, and declared the children as wards of the U.K. High
Court and directed their return back to the United Kingdom. It was
contended that principle of comity of courts require Indian courts to
enforce the said order.
12. It was stated that the Respondent No.2, having avoided
proceedings before U.K. High Court, has filed custody petition in
district court of India to create a parallel jurisdiction in India, despite
the children not being ordinary resident here. Hence, it was prayed
that the present petition be allowed and the minor children be returned
to United Kingdom. In support of his submissions, the learned counsel
for the petitioner placed reliance on the judgment of this Court in
Sunaina Rao Kommineni Vs. Abhiram Balusu, 2025:DHC:4483-
DB, and of the Supreme Court in Yashita Sahu Vs. State of
Rajasthan & Ors., (2020) 3 SCC 67; and Kanika Goel Vs. State of
Delhi & Anr., (2018) 9 SCC 578.
Submissions on behalf of Respondent No.2/Wife
13. Per contra, learned Senior Counsel for Respondent No.2
submitted that the writ petition is misconceived and amounts to an
attempt to bypass the statutory remedies available under the Guardians
and Wards Act, 1890. It was contended that the custody of the minor
children with their mother is lawful and in their best interest, and
cannot be characterised as illegal detention so as to justify the issuance
of a writ of Habeas Corpus.
14. It was further submitted that upon arriving in India, Respondent
No.2 promptly initiated appropriate legal proceedings, seeking
guardianship and custody from the competent court, thereby invoking
the jurisdiction of Indian courts in accordance with law. Learned
counsel emphasized that these proceedings are pending and that the
Family Court has already entertained the matter, thereby recognizing
its jurisdiction. Furthermore, the petitioner's application under Order
VII Rule 11 of the Code of Civil Procedure, 1908 ["CPC"] has been
rejected by the learned Family Court, Karkardooma Courts, Delhi vide
order dated 29th January, 2026 and the same has not been challenged
by the petitioner.
15. It was contended that the children are now settled at Delhi, are
living in a supportive family environment and are attending Birla
Brainiacs International School via online mode. It was argued that
uprooting them from their present surroundings and compelling their
return to United Kingdom would cause them severe emotional and
psychological distress.
16. Learned counsel contended that the return order passed by the
U.K. High Court cannot be enforced mechanically and that this Court
must independently consider the welfare of the children. It was prayed
that the writ petition be dismissed. In support, the learned Senior
Counsel for Respondent No. 2 has placed reliance on the judgment of
the Supreme Court in Nithya Anand Raghavan Vs. State (NCT of
Delhi) & Anr., (2017) 8 SCC 454 and Somprabha Rana & Ors. Vs.
The State of Madhya Pradesh & Ors., 2024 INSC 664.
Court Reasoning and Analysis
17. We have considered the submissions made by the learned
counsel for the parties and carefully perused the material on record.
18. The petitioner seeks issuance of a writ of Habeas Corpus for
production of his minor children and also seeks directions regarding
their custody and return to the United Kingdom. The dispute, in a nut-
shell, is a custody battle between the parents.
19. It is not in dispute that the minor children are presently residing
with Respondent No.2, that is, their biological mother at Delhi.
Custody with a natural guardian, particularly the mother, cannot
ordinarily be termed illegal so as to justify the issuance of a writ of
Habeas Corpus. The extraordinary jurisdiction under Article 226 of
the Constitution is discretionary and is not intended to supplant
statutory remedies. The writ of Habeas Corpus in custody matters is
maintainable only where detention of the minor is illegal or without
authority of law.
20. The Supreme Court in Veena Kapoor Dr. (Mrs.) Vs. Varinder
Kumar Kapoor, (1981) 3 SCC 92 emphasized that in matters of
custody of minor child, the welfare of the child is the paramount
consideration and it will override the legal right of either party/parent.
In the said case, the issue of custody of child was between the natural
guardians who were not living together. Veena, the mother of the
child, filed the Habeas Corpus petition seeking custody of the child
from her husband alleging that her husband was having illegal custody
of one and a half year old child. The Supreme Court directed the
District Judge concerned to take down evidence, adduced by the
parties, and send a report to the Supreme Court on the question
whether considering the interest of the minor child, its mother should
be given its custody.
21. In Sarita Sharma Vs. Sushil Sharma, (2000) 3 SCC 14, the
tussle over the custody of two minor children was between their
separated mother and father. The Family Court of USA while passing
the decree of divorce gave custody rights to the father. When the
mother flew to India with the children, the father approached the High
Court by filing a Habeas Corpus petition. The High Court directed the
mother to handover the custody to the father. The Supreme Court in
appeal, while dismissing the writ petition observed that when a minor
child is in the custody of the mother, such custody cannot be
considered unlawful merely because the father seeks custody, and that
the High Court should instead of allowing the Habeas Corpus petition
should have directed the parties to initiate appropriate proceedings
where a thorough enquiry regarding the interest of children could be
made. The relevant para of the judgment reads as under:-
"6. ...... Considering all the aspects relating to the welfare of the
children, we are of the opinion that in spite of the order passed by
the Court in U.S.A. it was not proper for the High Court to have
allowed the habeas corpus writ petition and directed the appellant
to hand over custody of the children to the respondent and permit
him to take them away to U.S.A. What would be in the interest of
the children requires a full and thorough inquiry and, therefore,
the High Court should have directed the respondent to initiate
appropriate proceedings in which such an inquiry can be held.
Still there is some possibility of the mother returning to U.S.A. in
the interest of the children. Therefore, we do not desire to say
anything more regarding entitlement of the custody of the children.
The chances of the appellant returning to U.S.A. with the children
would depend upon the joint efforts of the appellant and the
respondent to get the arrest warrant cancelled by explaining to the
Court in U.S.A. the circumstances under which she had left U.S.A.
with the children without taking permission of the Court. There is a
possibility that both of them may thereafter be able to approach the
Court which passed the decree to suitably modify the order with
respect to the custody of the children and visitation rights."
22. Similarly, in the landmark judgment of Tejaswini Gaud & Ors.
Vs. Shekhar Jagdish Prasad Tewari & Ors., (2019) 7 SCC 42, the
Supreme Court reiterated that a writ of Habeas Corpus in child
custody matters is maintainable only where the custody is unlawful or
without authority of law. Even in such cases, the Court must be guided
by the paramount consideration of the welfare of the child rather than
the legal rights of the parties. The Apex Court further held that in
child custody matters, the ordinary remedy lies only under the Hindu
Minority and Guardianship Act, 1956 or the Guardians and Wards
Act, 1890. If the court believes that the matter requires a thorough
examination of facts, it may choose not to use its extraordinary
jurisdiction and instead instruct the parties to seek relief before a civil
court. Only in rare and exceptional circumstances will the court decide
custody rights through its extraordinary jurisdiction on a habeas
corpus petition. The relevant paras of the judgment read as under:-
"19. Habeas corpus proceedings is not to justify or examine the
legality of the custody. Habeas corpus proceedings is a medium
through which the custody of the child is addressed to the
discretion of the court. Habeas corpus is a prerogative writ which
is an extraordinary remedy and the writ is issued where in the
circumstances of the particular case, ordinary remedy provided by
the law is either not available or is ineffective; otherwise a writ will
not be issued. In child custody matters, the power of the High Court
in granting the writ is qualified only in cases where the detention of
a minor by a person who is not entitled to his legal custody. In view
of the pronouncement on the issue in question by the Supreme
Court and the High Courts, in our view, in child custody matters,
the writ of habeas corpus is maintainable where it is proved that
the detention of a minor child by a parent or others was illegal and
without any authority of law.
20. In child custody matters, the ordinary remedy lies only under
the Hindu Minority and Guardianship Act or the Guardians and
Wards Act as the case may be. In cases arising out of the
proceedings under the Guardians and Wards Act, the jurisdiction
of the court is determined by whether the minor ordinarily resides
within the area on which the court exercises such jurisdiction.
There are significant differences between the enquiry under the
Guardians and Wards Act and the exercise of powers by a writ
court which is of summary in nature. What is important is the
welfare of the child. In the writ court, rights are determined only on
the basis of affidavits. Where the court is of the view that a detailed
enquiry is required, the court may decline to exercise the
extraordinary jurisdiction and direct the parties to approach the
civil court. It is only in exceptional cases, the rights of the parties
to the custody of the minor will be determined in exercise of
extraordinary jurisdiction on a petition for habeas corpus."
23. In Kanika Goel (supra), the Supreme Court held that in petition
seeking the writ of habeas corpus, the High Court must examine at the
threshold whether the minor is in the lawful custody of another person
(private respondent named in the writ petition). Where the custody is
with the mother, the Court may not make any further enquiry or, resort
to a summary or elaborate enquiry to determine the welfare of the
child.
24. The Supreme Court in Nithya Anand (supra), has categorically
held that the High Court, when hearing a Habeas Corpus petition
involving a minor child, may either order the child's return or refuse
to alter custody based on the specific facts and circumstances of the
case, with the child's welfare being the paramount consideration.
Orders of foreign courts are subordinate to the child's welfare and
cannot be enforced through Habeas Corpus as if the High Court were
executing a foreign decree. However, the petitioner remains free to
pursue other legal remedies available under the law to enforce the
foreign court's order or to seek custody before an appropriate Indian
court. The relevant portion of the judgment reads as under:-
"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."
25. The Supreme Court further held that foreign custody orders are
only one of the factors to be considered and that the Indian court must
independently examine whether returning the child would be in his or
her best interest. The welfare of the child is of paramount importance.
The relevant portion of the judgment reads as under:-
"66. The invocation of first strike principle as a decisive factor, in
our opinion, would undermine and whittle down the wholesome
principle of the duty of the Court having jurisdiction to consider
the best interests and welfare of the child, which is of paramount
importance. If the Court is convinced in that regard, the fact that
there is already an order passed by a foreign Court in existence
may not be so significant as it must yield to the welfare of the child.
That is only one of the factors to be taken into consideration. The
interests and welfare of the child are of paramount consideration.
The principle of comity of courts as observed in Dhanwanti Joshi's
case (supra), in relation to non-convention countries is that the
Court in the country to which the child is removed will consider the
question on merits bearing the welfare of the child as of paramount
importance and consider the order of the foreign Court as only a
factor to be taken into consideration. While considering that
aspect, the Court may reckon the fact that the child was abducted
from his or her country of habitual residence but the Court's
overriding consideration must be the child's welfare.
67. xxx xxx xxx
68. xxx xxx xxx
69. We once again reiterate that the exposition in the case of
Dhanwanti Joshi (supra) is a good law and has been quoted with
approval by a three-judge bench of this Court in V. Ravi Chandran
(supra). We approve the view taken in Dhanwanti Joshi (supra),
inter alia in paragraph 33 that so far as non-convention countries
are concerned, the law is that the Court in the country to which the
child is removed while considering the question must bear in mind
the welfare of the child as of paramount importance and consider
the order of the foreign Court as only a factor to be taken into
consideration. 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."
26. Applying the aforesaid principles to the present case, the
custody of the children with mother/Respondent No.2 cannot per se be
characterized as illegal. The petitioner's grievance pertains to
entitlement to custody, which is a matter requiring detailed
adjudication rather than summary determination in writ proceedings.
27. It is an admitted position that Respondent No.2 has instituted a
petition under the Guardians and Wards Act, 1890 seeking custody
and guardianship of the minor children before the Family Court at
Karkardooma, Delhi, being GP No. 47/2023. The said Guardianship
Petition is presently pending adjudication before the competent court.
The existence and pendency of the said proceedings is crucial. The
Guardians and Wards Act, 1890 provides a comprehensive statutory
framework for determination of custody disputes on the basis of
evidence and welfare considerations. The Family Court, exercising
parens patriae jurisdiction, in our opinion, is the appropriate forum to
evaluate the competing claims of the parents.
28. The petitioner herein had challenged the maintainability of the
said Guardianship Petition by filing an application under Order VII
Rule 11 CPC seeking rejection of the same on the ground that the
Indian courts lacked territorial jurisdiction. The learned Family Court,
by order dated 29th January, 2026, dismissed the said application,
holding that the petition was maintainable and that the court had
jurisdiction to entertain the matter. Once the competent court has
rejected the petitioner's challenge to maintainability, it would be
inappropriate for this Court to entertain the present writ petition
which, in effect, seeks to circumvent the pending proceedings before
the Family Court.
29. In Sunaina Rao (supra), the wife had filed the guardianship
petition after the husband had already approached the Arizona Court
and that Court had passed a detailed order on joint custody of the
child. Further, the Guardianship Petition filed by the wife in India had
been returned by the learned Family Court, finding lack of territorial
jurisdiction. The said judgment therefore, has no application to the
facts of the present case. Similarly, in Yashika Sahu (supra), the wife
brought the child into India in violation of orders of the jurisdictional
court in USA.
30. The petitioner has placed reliance on orders passed by the
foreign court, that is, the U.K. High Court directing return of the
children. While such orders are entitled to due regard, they cannot be
enforced automatically through Habeas Corpus proceedings,
especially when the welfare of the children is required to be
independently assessed by the court within whose jurisdiction they
presently reside.
31. Coming back to the present case, the material on record
indicates that the minor children are presently residing with their
mother /Respondent No.2 in Delhi, are attending school, and are
living in a family environment since last more than two years.
Uprooting them abruptly and directing their removal from the
jurisdiction without a detailed inquiry into their welfare would not be
appropriate.
32. The issues raised by the petitioner involve disputed questions of
fact, including the circumstances under which the children came to
India, their present well-being, and the competing claims of the parties
regarding custody. Such issues cannot be satisfactorily resolved in
summary writ proceedings and require evidence.
33. In our opinion, the present writ petition seeks to convert this
Court into an executing forum for a foreign order, which is
impermissible in custody matters. We feel it pertinent to point out that
the petitioner has an efficacious alternate remedy before the Family
Court where the Guardianship Petition is already pending and where
the parties are free to lead evidence and pursue their claim for custody
and visitation. Entertaining the present petition would result in parallel
proceedings and may prejudice the adjudication before the learned
Family Court.
34. In view of the foregoing discussion, this Court is not inclined to
exercise its extraordinary discretionary jurisdiction in the present Writ
Petition, while leaving it open to the parties to avail of their alternative
remedies in accordance with law. It is made clear that no observation
made in the present order shall in any manner prejudice either of the
parties in such alternate proceedings.
35. The writ petition is accordingly disposed of.
RAVINDER DUDEJA, J.
NAVIN CHAWLA, J.
11th March, 2026/AK/RM
