The facts as stated by the Court are as follows: The parties were of Indian origin and had married in India in 2010 but they had lived throughout their marriage in Virginia, USA. Their two children were both born in Virginia and had always lived in Virginia. They were U.S. citizens. The parents separated in 2014 in Virginia, with the children remaining with the mother in the marital residence. The father then employed what the Supreme Court described as “a nefarious strategy” to abduct the older child to India in early 2015.
The mother promptly filed an emergency motion in a Virginia court and obtained a temporary order giving sole custody of the child to her and ordering that the child be returned forthwith to Virginia.
A few days later, the father started a custody case in the High Court in New Delhi. The mother promptly appeared in that case and applied for a writ of habeas corpus to deliver the child to her so that she could return him to the USA. Almost a full year later, the High Court ruled in favor of the mother on the ground that the judicial comity required it to respect the right of the courts in the USA to make decisions concerning the welfare of the child.
The father appealed to the Supreme Court which permitted the child to remain in India pending the determination of the appeal. After more than 1½ years, the Supreme Court of India finally issued its ruling. It held that the child should stay in India in the sole custody of the father.
The basis of its decision was that the child had been in India for the previous 2½ years with his father and that the High Court ruling was not based on a plenary evaluation of the child’s best interests. The Court ruled that since the father was “the biological father” of the child, “his custody of the child can by no means in law be construed as illegal or unlawful” (even though the father’s conduct as described in the judgment was apparently felonious under U.S. federal law (18 U.S.C. 1204)).