PRATEEK GUPTA versus SHILPY GUPTA & ORS.

Citation: [2017] 13 S.C.R. 230 · Decided: 06-12-2017 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · cites 6 · see the full citation network in Lexace

Judgment (excerpt)

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(2017] 13 S.C.R. 230 
PRATEEK GUPTA 
v. 
SHILPY GUPTA & ORS. 
(Criminal Appeal No. 968 of2017) 
DECEMBER 06, 2017 
[DIPAK MISRA, CJI AND AMITAVA ROY, J.] 
Child and Family Welfare: Custody of child - Principles of 
"comity of courts". "intimate contact"' and "'closest concern"' -
Invocation of - Held: Invocation of these principles/doctrines has 
to he judged on the touchstone of myriad attendant facts and 
circumstances of each case, the paramount concern being the 
welfare of the child - These doctrines are of persuasive relevance 
only when the child is uprooted from its native country and taken to 
a place to encounter alien environment. language. custom etc. with 
the portent of mutilative hearing on the process of its overall growth 
and grooming - It is thus imperative that unless. the continuance of 
child in the country to which it has been removed. is unquestionably 
harmful. when judged on the touchstone of overall perspectives. it 
ought not to be dislodged and extricated from the environment 
and setting to which it had got adjusted for its we/I-being -
Doctrines/Principles. 
Child and Family Welfare: 
Writ of habeas corpus - Writ 
petition file(i by respondent-mother seeking custody of child from 
appellant-father - The parties were residing in US with two sons -
In view of irreconcilable marital issues. parties started living 
separately since 2014 - The children were US citizens by birth -
The case of re,pondent-mother before the High Court was that the 
child. who is the subject matter of the /is and custody. was barely 
20 years old when appellant took him to India and had been staying 
in India since then -- The child is a little over 5 years old now -
High Court directing appellant-father to hand over custody of child 
to respondtmt-mother - Challenge against - Held: The child has 
spent half of his life at this age, in India - His infant yem. · of stay 
in US was too little for his required integration with the social, 
physical, psychological, cultural and academic environmelll of US 
tu get totally upturned by his transition to India. so much so that 
230 
PRATEEK GUPTA v. SHILPI GUPTA & ORS. 
231 
unless he is immediately repatriated, his inherent potentials and A 
faculties would suffer an immeasurable set back - The respondent-
mother is also disinclined to restore her matrimonial home - The 
younger son is with her - There is no convincing material on record 
that the continuation of the child in the company and custody of the 
appellant in India would be irreparably prejudicial to him - The 
e-mails exchanged by the parties suggested that they had been in 
touch since the child was brought to India - In the e-mails, they 
have fondly and keenly referred to both the sons staying in each 
others company, expressing concern about their illness and general 
well-being as well - As has been claimed by the appellant, the child 
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is growing in a congenial environment in the loving company of his 
grand-parents and contrary to the nuclear family environment in 
US, he is exposed to a natural process of grooming in the association 
of his elders, friends, peers and playmates, which is irrefutably 
indispensable for comprehensive development of his mental and 
physical faculties - Immediate restoration of the child is called for 
only on an unmistakable discernment of the possibility of immediate 
and irremediable harm to it and not otherwise - High Court did 
not at all apply itself to examine the facts and circumstances and 
the other materials bearing on the issue of welfare of the child which 
are unmistakably of paramount significance and instead seemed to 
have been impelled by the principle of comity of courts and the 
doctrines of "intimate contact" and "closest concern" de hors 
thereto - The appellant being the biological father, his custody of 
the child can by no means in law be construed as illegal or unlawful 
drawing the invocation of a superior Courts jurisdiction to issue a 
writ in the nature of habeas corpus. 
Allowing the appeal, the Court 
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HELD: 1. The gravamen of the judicial enunciation on the 
issue of repatriation of a child removed from its native country is 
clearly founded on the predominant imperative of its overall well-
being, the principle of comity of courts, and the doctrines of G 
"intimate contact and clo.sest concern" notwithstanding. Though 
the principle of comity of courts and the aforementioned doctrines 
qua a foreign co

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