Delhi High Court news: The Delhi High Court, in a cross-border custody dispute involving a child born in the US, has held that while orders from foreign courts deserve respect, they are not the “sole determining factor” when a child has already established “deep roots” in India.

Justices Navin Chawla and Ravinder Dudeja were hearing two petitions filed by the girl’s estranged parents seeking custody of their minor daughter.

“Merely because the child by birth is a citizen of the USA or had stayed there for a few years as her parents were there, cannot alone be the determining factor for determining the welfare of the child,” the Delhi High Court said in its April 1 order. 

The court noted that the daughter is 11 years old now and is studying and living with her mother, who got divorced from her husband in 2022 by the Superior Court of New Haven. 

The high court unfolded the matter and found that the couple got married to each other in August 2011, and it was registered the next month. The wife, in her plea, alleged various acts of sexual and physical violence against her husband. 

It was placed on record that the daughter was born in 2015 in the US and is, therefore, a US citizen by birth. 

The wife claimed that in April 2017, she had reason to suspect that her husband had sexually abused her daughter during her second birthday celebrations. 

She alleged that she was a witness to other acts of sexual assault by her husband on the daughter. While in the US, after alleging physical assaults, the wife had called the police in 2017 by dialling 911 and also reported the incidents of sexual assault by her husband on the daughter.

It was also mentioned that the husband was arrested, and a protection order of 2017 was passed. Later, the husband filed a case of divorce before the Superior Court of New Haven in April, 2019.

The Superior Court in May 2022 granted a divorce to the couple and also passed a direction of joint-parenting for the minor daughter. Subsequently, the wife claimed that her father was unwell, because of which she had to urgently travel to India on June 9, 2022, along with her daughter. She claimed to have informed her estranged husband of the same by way of an email dated June 11, 2022.

However, the wife claimed that in retaliation, the husband again approached the Superior Court, and the court modified that joint parenting order. 

Meanwhile, the Delhi High Court – based on a plea filed by the wife – passed an ad interim order in September 2022 and stayed the operation of the order passed by the US Superior Court. The husband also filed a special leave petition before the Supreme Court of India, which disposed of the same by an order in February 2025, observing that the present petition in this high court can be disposed of at the earliest.

During the pendency of the plea filed by the wife, the husband filed another petition seeking directions to get the custody of his daughter from the estranged wife. 

Appearing for the woman, advocate Jai Anant Dehadrai submitted that there are serious allegations of sexual assault on the daughter at the hands of the estranged husband, for which he was even arrested in the USA. 

He submitted that such sexual assaults have had a psychological effect on the daughter, as would be evident from the report of the US psychotherapist appointed in the matter.

It is not in the welfare of the child to be taken back to the USA, he added. It was claimed that since the child has been in India for almost four years, and therefore, again it would not be in the interest of the child to be uprooted. 

Talking about the judgment from the US Superior Court, he further argued that merely because the husband had obtained a judgment from that court, the same cannot be a ground to ignore the welfare of the child, which should be the sole governing factor for this high court. 

On the contrary, the estranged husband’s counsel, advocate Shadan Farasat, submitted that the US court found no merit in the allegations of sexual assaults made by the wife against the husband. He added that the US court even found that the wife had been tutoring the minor child against her husband. 

The US court, on holistic consideration of the evidence, had directed a joint parenting plan which was subject to further modifications with the passage of time, the counsel said. He submitted that the estranged wife illegally removed the child from the US on a false pretext and brought her to India without the permission of the court or the husband. 

He added that these circumstances forced the husband to move an application before the US Superior Court seeking an emergency order of custody of his daughter.  He submitted that, considering the case, the petition filed by the wife is liable to be dismissed, while that filed by the husband is entitled to be allowed. 

In a previous case, the Gujarat High Court pointed out that the standard of living in Canada is “obviously better” than that in India and directed the father to hand over his 5-year-old son to his mother in Canada.

Justices N S Sanjay Gowda and M Vyas observed that the minor is accustomed to life in Canada and the displacement to India would be ‘traumatic’ for him.

The bench was hearing the plea of the mother seeking the custody of her son from her dentist husband, who took the 5-year-old against the orders of the Canadian court.

The high court further said that if a child is brought up in a particular educational system, such as Canada in this case, moving the child to another educational system would be disruptive and would affect the child’s educational upbringing.