She's the natural guardian. The court still ordered the child back.

One Son, Two Countries, and a Habeas Corpus Petition That Changed the Rules

When Pratyush Shastri filed a habeas corpus petition in the Rajasthan High Court, he wasn't asking for a new trial or a bail order. He was asking for his son back. The boy had been born in Dubai in 2017, lived there his whole life, and in March 2022, his mother brought him to India on return tickets. She never went back. The father, working in Dubai, claimed the child had been illegally removed from his habitual residence. The mother said she was the natural guardian, the child was settled in Jaipur, and the father was a drug addict unfit for custody. Sixteen years of appeals, three maintainability objections, and one Supreme Court stay later, the Division Bench of Chief Justice Manindra Mohan Shrivastava and Justice Shubha Mehta delivered a judgment that every family lawyer, CFO, and founder with cross-border custody exposure needs to read.

The Marriage, the Move, and the Moment It Unraveled

The couple married in 2015. They moved to Dubai. Their son was born there in 2017. By all accounts, the child's life was in Dubai — school, home, medical records, everything. In March 2022, the mother travelled to India with the child on return tickets. She didn't return. Instead, on April 23, 2022, she lodged an FIR at Police Station Ashok Nagar, Jaipur (South) under Sections 406, 498A, and 323 IPC, alleging dowry demands and domestic violence. The father, still in Dubai, filed a habeas corpus petition on September 17, 2022, before the High Court of Judicature for Rajasthan, Bench at Jaipur.

The stakes were immediate: the father wanted the child back in Dubai; the mother wanted the child to stay in India. The High Court passed interim orders — visitation rights, medical examinations, mediation attempts. But the case dragged. On August 1, 2023, the Supreme Court of India stepped in, stayed the interim orders, and directed the High Court to decide the habeas corpus petition on merits. The Division Bench finally reserved judgment and pronounced it on May 31, 2024.

What the Mother Argued — and What the Father Countered

The mother, Respondent No.6, raised three threshold objections. First, she said a habeas corpus petition cannot lie against a natural guardian — she was the mother, after all. Second, she argued the father had an alternative remedy under Section 9 of the Guardians and Wards Act, 1890, which provides for custody through a detailed enquiry in the District Court. Third, she claimed the petition was filed with delay — the child had been in India since March 2022, and the petition came only in September.

The father's counsel countered each point. On the first, they cited Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari (2019) 7 SCC 42 and Yashita Sahu v. State of Rajasthan (2020) 3 SCC 67, both of which hold that habeas corpus is maintainable even against a parent if the detention is illegal or without authority of law. On the second, they argued that Section 9 of the GWA requires the application to be made to the District Court where the minor "ordinarily resides" — and the child's ordinary residence was Dubai, not Jaipur. On the third, they pointed out that the father had taken prompt steps: he filed the petition within six months of the removal, and the Supreme Court had already directed the High Court to decide on merits.

The First Objection Falls: Habeas Corpus Against a Parent

The Division Bench rejected the first objection outright. Relying on Tejaswini Gaud and Yashita Sahu, the court held that a habeas corpus petition for custody of a minor child is maintainable even when the child is in custody of a natural guardian, where it is proved that detention is illegal or without authority of law. The court noted that the father had alleged the child was removed from Dubai under false pretences — the mother had return tickets but never used them. That allegation, if proved, could amount to illegal detention. The objection was dismissed.

The Second Objection: Where Does the Child "Ordinarily Reside"?

This was the crux. The mother argued that the father could file a petition under Section 9 of the Guardians and Wards Act, 1890, in the District Court at Jaipur. But Section 9 says: "If the application is with respect to the guardianship of the person of the minor, it shall be made to the District Court having jurisdiction in the place where the minor ordinarily resides."

The court turned to Ruchi Majoo v. Sanjeev Majoo (2011) 6 SCC 479, which held that "ordinary residence" under Section 9 is primarily a question of intention and fact — mere temporary or forced residence does not confer jurisdiction. The child was born in Dubai, lived there for five years, attended school there, and had all his medical records there. The mother's travel to India was on return tickets, suggesting no intention to permanently shift. The court also cited Lahari Sakhamuri v. Sobhan Kodali (2019) 7 SCC 311, which held that children born abroad as foreign citizens, ordinarily resident there, cannot be subjected to the jurisdiction of an Indian Family Court under Section 9.

The conclusion was clear: the child's ordinary residence was Dubai. The District Court at Jaipur had no territorial jurisdiction under Section 9. The alternative remedy objection failed.

The Third Objection: Was the Petition Filed Too Late?

The mother argued that the child had been in India since March 2022, and the petition came in September 2022 — a delay of six months. The court applied the test from Nithya Anand Raghavan v. State (NCT of Delhi) (2017) 8 SCC 454, which requires prompt action after removal. The father had filed the petition within six months, and the Supreme Court had already directed the High Court to decide on merits. The delay objection was rejected.

The Doctrine That Mattered: Welfare Trumps Statutory Rights

With all three maintainability objections out of the way, the court turned to the merits. The father claimed he was the natural guardian under Section 6(a) of the Hindu Minority and Guardianship Act, 1956. The mother argued that the father was a drug and sex addict, unfit for custody, and that she was the de facto guardian.

The court cited Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228, which interpreted "after" in Section 6(a) to mean "in the absence of," not "after death." That means a mother can be the natural guardian during the father's absence or incapacity. But the court went further. It cited Gaurav Nagpal v. Sumedha Nagpal (2009) 1 SCC 42, which held that the paramount consideration is the welfare of the child, not the statutory rights of the parents. The father's claim as natural guardian under Section 6(a) cannot be accepted dehors welfare considerations.

The court observed that the child had been in India for over two years, was attending school in Jaipur, and had formed roots. The father's allegations of illegal removal and the mother's allegations of drug abuse and domestic violence required a detailed enquiry — something that cannot be done in summary habeas corpus jurisdiction. The court noted that the legally open course for the mother was to institute a case before the jurisdictional court in Dubai seeking custody through a detailed enquiry, rather than removing the child by giving a false impression.

THE PLAY: In cross-border child custody disputes, a habeas corpus petition is maintainable against a natural guardian only if the removal was illegal or without authority of law — and the child's "ordinary residence" under Section 9 of the Guardians and Wards Act, 1890, is determined by intention and fact, not by temporary or forced residence.

Why This Matters in Practice

For advocates, this judgment is a masterclass in jurisdictional strategy. If you represent a parent whose child has been removed from a foreign country to India, you must file the habeas corpus petition promptly — within weeks, not months. You must also be prepared to prove that the child's ordinary residence was the foreign country, using school records, medical records, visa documents, and return tickets. The court will not accept a bare allegation of illegal removal; you need evidence of the parent's intention to permanently shift.

For CFOs and founders with cross-border families, this judgment is a warning. If you are working abroad and your spouse brings your child to India without your consent, you have a narrow window to act. The court will look at whether the child has formed roots in India — school, friends, medical care. The longer you wait, the harder it becomes to argue that the child's welfare lies in returning to the foreign country.

The judgment also clarifies that the father's statutory right as natural guardian under Section 6(a) of the HMGA is not absolute. The welfare of the child is paramount. If the mother can show that the father is unfit — through evidence of drug abuse, domestic violence, or financial incapacity — the court may refuse to order return, even if the removal was technically illegal.

The Bottom Line

If your child is removed from a foreign country to India without your consent, file a habeas corpus petition immediately, prove the child's ordinary residence was the foreign country, and be ready for a detailed enquiry into the child's welfare — because the court will not order return unless it is in the child's best interest, regardless of who is the natural guardian.