Natural guardian. Secret flight. Supreme Court still ordered return.

The father who flew ahead, the children who vanished, and the writ that brought them back

Rajeswari Chandrasekar Ganesh married in 2008, moved to the USA, had two children—a daughter born in 2009, a son in 2013. By 2019, the marriage was over. The father had lost jobs repeatedly. The mother filed for divorce and custody in Ohio. What happened next—a secret flight to India, a violated parenting plan, and a habeas corpus petition before the Supreme Court of India—would test the limits of a parent's right to remove a child from a foreign jurisdiction.

The stakes were brutal: two children, aged 13 and 9, taken from their mother without warning, hidden somewhere in India. The mother could not find them. She approached the Supreme Court under Article 32 of the Constitution, seeking a writ of habeas corpus to compel their return to the USA. The father argued he was their natural guardian, that Indian courts owed no deference to Ohio orders, and that the children were now settled in India.

The Supreme Court had to decide: when a parent secretly removes children from a foreign country in violation of that country's court orders, does habeas corpus lie in India? And if it does, what test governs the return of the children?

The Ohio proceedings that the father ignored

The story begins in the Court of Common Pleas, Division of Domestic Relations, Cuyahoga County, Ohio. On June 17, 2019, that court granted the mother temporary custody and restrained both parents from removing the children from the USA. The father was present. He knew the order.

Over the next two years, the Ohio court oversaw the divorce and custody battle. On May 12, 2021, a shared parenting plan was agreed upon and adopted by the court. Both parents were granted joint custody. The plan included a detailed visitation schedule and passport restrictions. The children could not be taken out of the country without the other parent's consent or a court order.

The father had other plans.

In August 2021, he told the mother he was travelling to India with the children on a specific date. He booked tickets accordingly. Two days before that declared date, he secretly took both children and flew to India. The mother discovered the children were gone. She could not locate them. The Ohio court, on February 9, 2022, terminated the shared parenting plan, designated the mother as the sole residential parent and legal custodian, suspended the father's visitation, and ordered the children returned to the USA.

But the children were in India. The Ohio order could not reach them.

The habeas corpus petition: a mother's last resort

The mother filed a writ petition under Article 32 before the Supreme Court of India. She argued that the father's removal of the children was in flagrant violation of the Ohio court's orders, that the shared parenting plan had been breached, and that the children's welfare required their return to the USA—their country of habitual residence, where they had lived their entire lives, attended school, and had their social and medical networks.

The father countered with a familiar argument: he was the natural guardian under Section 6 of the Hindu Minority and Guardianship Act, 1956. His custody of his own children could not be "illegal" or "unlawful" so as to attract habeas corpus. He argued that India is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction, and therefore foreign court orders are not binding on Indian courts. The children, he claimed, were now settled in India and it would be traumatic to uproot them.

The Supreme Court had to cut through these arguments. It did.

The welfare test that trumps everything

Justice J.B. Pardiwala, writing for the two-judge bench that included Justice A.M. Khanwilkar, began by examining the nature of habeas corpus in child custody disputes. The Court relied on Kanu Sanyal v. District Magistrate, Darjeeling (1973) 2 SCC 674, which held that habeas corpus is essentially a procedural writ—its object is to secure release from illegal restraint of liberty.

But in child custody cases, the Court noted, the inquiry goes beyond mere legality of detention. The Court must also consider the welfare of the child. This is not a mechanical exercise. The Court cited Syed Saleemuddin v. Dr. Rukhsana (2001) 5 SCC 247, which held that in habeas corpus for child custody, the principal consideration is whether the custody is unlawful and whether the child's welfare requires a change.

The father's argument that his custody as natural guardian could never be "unlawful" was squarely rejected. The Court held that custody by a natural guardian can be illegal if it is held in violation of valid court orders and against the child's welfare. The Ohio court's orders were not irrelevant—they were evidence of what a competent foreign court had determined to be in the children's best interests.

The Court then turned to the paramountcy of child welfare. Relying on Nithya Anand Raghavan v. State (NCT of Delhi) (2017) 8 SCC 454, the Court held that the welfare of the child is the paramount consideration in habeas corpus proceedings for child custody. Comity of courts and foreign court orders cannot override child welfare. But the Court also noted that the welfare inquiry is not a roving one—it must be anchored in the facts of each case.

THE TEST: In a habeas corpus petition for return of a child removed from a foreign jurisdiction, the court must ask: (1) Was the removal in violation of a lawful order of a competent foreign court? (2) Is the child's welfare best served by returning to the jurisdiction of habitual residence? (3) Would the child suffer serious harm if not returned? The father's status as natural guardian does not immunise his custody from scrutiny.

The parens patriae power: beyond statutes

The Court went further. It held that the employment of habeas corpus in child custody cases is independent of any statute. It rests on the court's inherent equitable powers exercised as parens patriae—the state as parent—for the protection of its minor ward. This is a crucial doctrinal move. It means that even if the father's custody is not "illegal" under the Hindu Minority and Guardianship Act or the Guardians and Wards Act, the court can still intervene if the child's welfare demands it.

The Court cited Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (2019) 7 SCC 42, which held that habeas corpus is maintainable where detention by parents is illegal and without authority of law, and that the extraordinary remedy is available when ordinary remedies are unavailable. The mother had no ordinary remedy in India—she could not file for custody in a family court because the children had been removed from the USA without her consent and in violation of court orders. Habeas corpus was her only recourse.

What the Court did not say—but what matters

The judgment is notable for what it does not do. It does not mechanically order the return of the children to the USA. It does not treat the Ohio court's orders as binding. It does not hold that India must follow the Hague Convention. Instead, it lays down a flexible, welfare-centric test that gives Indian courts the discretion to evaluate each case on its merits.

The Court observed, in obiter, that India is not a signatory to the Hague Convention, but this does not preclude courts from exercising jurisdiction in child welfare matters. This observation may inform future legislative debate on India acceding to the Convention, but for now, the Court's message is clear: Indian courts will not be bound by foreign orders, but they will give them due weight, especially when the removal of the child was surreptitious and in violation of those orders.

The Court also expanded the definition of "welfare" beyond material well-being. Welfare, the Court said, is an all-encompassing word. It includes material welfare, but more important are stability, security, loving and understanding care, and warm compassionate relationships essential for the child's full development. This formulation—drawn from the obiter—will likely be cited in every future custody dispute.

Why this judgment matters for practitioners

For advocates handling cross-border custody disputes, this judgment is a game-changer. It confirms that habeas corpus is a viable remedy even when the child is with a natural guardian. It establishes that the father's status as natural guardian does not make his custody automatically lawful. And it gives courts the flexibility to order the return of children to their country of habitual residence without being bound by the Hague Convention.

For CFOs and founders who may have international families or who may be involved in cross-border custody disputes, the takeaway is practical: if you remove a child from a foreign jurisdiction in violation of that country's court orders, you cannot hide behind the argument that you are the natural guardian. Indian courts will scrutinise your conduct and the child's welfare. The safest course is to comply with foreign court orders and seek relief in the appropriate Indian forum.

The judgment also signals that Indian courts will not tolerate parental abduction. The father in this case did not just violate the Ohio court's orders—he lied to the mother about his travel plans and secretly removed the children two days early. That conduct weighed heavily against him.

The bottom line

If you are a parent who has removed a child from a foreign jurisdiction in violation of that jurisdiction's court orders, you cannot rely on your status as a natural guardian to defeat a habeas corpus petition in India. The court will examine the welfare of the child, the circumstances of the removal, and the orders of the foreign court. If the removal was surreptitious and the child's welfare requires return, the court will order it.