He had a US custody order. The Supreme Court still rejected his habeas petition.

Two daughters, one US order, and a father who lost his case before it began

Rohan Rajesh Kothari wanted his two daughters back. He had a Family Court order from Minnesota, USA, granting him temporary custody. The girls were in India, living with their mother. So Rohan did what any parent in his position might: he filed a habeas corpus petition before the Gujarat High Court, asking it to produce the children and hand them over. The High Court dismissed his petition in January 2024. He then approached the Supreme Court of India. On August 5, 2024, a two-judge Bench of Justice Surya Kant and Justice Ujjal Bhuyan dismissed his Special Leave Petition — but not before making two things crystal clear: the US order was not binding in India, and no Indian authority should ever try to enforce it.

What the father actually wanted

Rohan Rajesh Kothari and his wife had two daughters. At some point, the mother and children moved to India. The father stayed in the United States. In July 2023, a Family Court in Minnesota passed an order granting Rohan temporary custody of the children. Armed with that order, Rohan filed a Special Criminal Leave Application (SCRLA No. 12059/2023) before the High Court of Gujarat at Ahmedabad, seeking a writ of habeas corpus. His argument was simple: the children were being illegally detained by their mother, and the US court order proved his right to custody.

The Gujarat High Court did not agree. On January 5, 2024, it dismissed the petition. Rohan then filed a Special Leave Petition (SLP Crl. No. 1722/2024) before the Supreme Court of India.

The problem with using habeas corpus for child custody

The Supreme Court did not mince words. A writ of habeas corpus, the Bench observed, is not an appropriate remedy to secure temporary custody of minor children — especially girls who are living with their mother. The Court was categorical: the remedy of habeas corpus is meant to secure release from unlawful detention, not to adjudicate custody disputes between parents. When children are with their mother, there is no presumption of illegal detention. The mother is not a kidnapper. She is a parent.

This is not a new principle, but the Court applied it with unusual clarity. The father had tried to convert a custody battle into a criminal law remedy. The Court shut that door firmly.

Why the father did not have clean hands

But the deeper problem was Rohan's conduct. The Supreme Court found that he had not approached either the US courts or the Indian courts with clean hands. The judgment does not spell out every detail of his conduct, but the implication is clear: the father had either suppressed facts, misrepresented his position, or acted in a manner that undermined the bona fides of his petition. In a habeas corpus proceeding — where the petitioner seeks the extraordinary writ of liberty — clean hands are non-negotiable. The Court held that Rohan lacked bona fides in approaching both US and Indian courts.

This finding alone was enough to dismiss the SLP. But the Court went further.

The US order that was never binding in India

The Minnesota Family Court order of July 2023 was the centrepiece of Rohan's case. He argued that the US court had granted him temporary custody, and that Indian courts should respect that order under principles of comity. The Supreme Court rejected that argument outright.

The Court invoked Section 13(f) of the Code of Civil Procedure, 1908. That provision states that a foreign judgment is not conclusive if it is founded on a breach of Indian law. The Court held that the Minnesota order was violative of Indian law — and therefore, it was not binding between the parties. Indian courts were not obliged to follow it.

THE PLAY: If you hold a foreign custody order, do not assume Indian courts will enforce it. Section 13(f) CPC gives Indian courts the power to disregard any foreign judgment that violates Indian law — and in custody matters, Indian law prioritises the welfare of the child, not the winner of a foreign litigation.

The Court did not stop at declaring the order non-binding. It issued a specific direction: no Indian authority or Indian court — except the Supreme Court itself — shall attempt to affect the status of the children or their mother in purported compliance with the Minnesota order. This is an obiter dictum, but it carries the weight of a Supreme Court direction. It creates a protective shield around the mother and children. Any attempt by a lower court, a police station, or a government department to enforce the US order would be a violation of this direction.

What happens next

The Supreme Court dismissed the SLP on merits. But it did not leave the children in legal limbo. The Court directed that the interim arrangements it had put in place during the pendency of the SLP shall continue as an interim measure — until the custody issue is resolved by a court of competent jurisdiction in India. In other words, the status quo remains. The children stay with their mother, under the protection of the Supreme Court's interim order, until a family court or a High Court in India decides the custody dispute on its merits.

The Court also disposed of all pending interlocutory applications.

Why this matters for practitioners

This judgment is a sharp reminder of three things. First, habeas corpus is not a shortcut for custody battles. If the child is with a parent — especially the mother — the presumption of unlawful detention does not arise. The remedy lies in family court, not in a criminal writ.

Second, foreign custody orders are not automatic tickets to enforcement in India. Section 13(f) CPC gives Indian courts the power to disregard any foreign judgment that violates Indian law. And in custody matters, Indian law is clear: the welfare of the child is paramount. A foreign order that does not account for that principle — or that was obtained without full disclosure — will not be enforced.

Third, clean hands matter. A petitioner who approaches the court with suppressed facts or misrepresentations will not get relief — even if he holds a foreign court order. The Supreme Court did not hesitate to call out Rohan's lack of bona fides. That finding alone was fatal to his case.

The bottom line

If you are a parent holding a foreign custody order and seeking enforcement in India, do not file a habeas corpus petition. Do not assume the foreign order will be enforced. And above all, do not approach the court without full disclosure. The Supreme Court has made it clear: the welfare of the child, not the winner of a foreign litigation, will decide the outcome in India.