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6.21 Learned Advocate for the petitioner submitted that the Hon'bie Supreme Court in Shilpa Aggarwal v. Aviral Mittal reported in (2010) 1 SCC 591 a three year old minor daughter, who was a U.K. citizen and the parents were holding Indian Passports, the minor daughter was repatriated to U.K. by exercising the summary jurisdiction and the issues regarding the custody and welfare of the minor child were left to be investigated by the competent court in UK.

6.22 Learned Advocate for the petitioner submitted that as per the latest Judgment of the Hon'ble Supreme Court in Lahari Sakhamuri v. Shobhan Kodali (2019) 7 SCC 311 it has been held that two minor children aged 7 and 5 years respectively, who were U.S. citizens were directed to be repatriated to U.S. by exercising the Writ of Habeas Corpus and it was observed that the best interest of the children being of paramount importance will be served if they return to U.S. and enjoy their natural environment with love, care and attention of their parents. It was further held that the direction to return the children to foreign jurisdiction would not result in any physical, mental and psychological or other harm to the NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined children.

6.24 Learned Advocate for the petitioner submitted that it is no longer res integra that even if orders of custody are passed by the Native Country after the child is brought in India, even in that eventuality, keeping in mind the interest and welfare of the child and the nationality of the child, the Hon'ble Supreme Court and various other Courts have repatriated the minor child back to their Native Country. The Petitioner seeks reliance upon the pronouncements of Shilpa Agarwal Vs Aviral Mittal reported in (2010) 1 SCC 592, Surya Vadanan Vs State of Tamil Nadu & Ors. reported in (2015) 5 SCC 450, Lahari Sakhamuri Vs Sobhan Kodali reported in (2019) 7 SCC 311, Yashita Sahu Vs State of Rajasthan & Ors. reported in (2020) 3 SCC 67.

10.3 In case of Aviral Mittal v/s. State and another reported in 2009 (112) DRJ 635, which was before the High Court of Delhi. The petitioner before the High Court was father and respondent was mother, who had set up their matrimonial home in UK, where the child was born and was three and half years old and by birth had acquired British passport, whereas the parents continued to hold Indian passport. Family came to India where the petitioner father left for UK after visit and was to be shortly joined by the respondent-mother and the child later on. However, later on mother refused to join the father on account of their internal NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined matrimonial disputes. The Delhi High Court had observed that allegation against each other in the petition and counter Affidavits were serious in nature to the extent that mother was lacking in taking care of the child, as she was doing job. At the same time, mother had made allegations against father regarding neglect as husband and as father of the child.

The Court ultimately, found that allegations reflected that it is no holds barred fight in respect of the conduct of the parties, while residing in UK for 5 years and therefore, to determine truth in this allegations, would be necessary while considering the aspect of custody of minor child and these allegations having been made against each other in UK applying principles of Comity directed the respondent No.2 to join proceedings in UK along with the child.

10.4 Aforesaid judgment was the subject matter of scrutiny in case of Shilpa Aggarwal v/s. Aviral Mittal and another reported in (2010) 1 SCC 591, wherein the judgment of the Delhi High Court was upheld. Approving the decision of the Delhi High Court, the Apex Court held that the High Court had taken note of the fact that the English Court has not directed that the custody should be handed over to the father, but only to the extent that the child should be returned to the jurisdiction of UK Court, which would then proceed to determine as to who would be best suited to have custody of the child. Therefore, according to the Apex Court, the High Court had taken into consideration both the questions relating to the Comity of Courts as well as interest of the minor child, which even according to the Apex Court is one of the most important consideration in the matters relating to custody of minor child. The Apex Court being satisfied from the material produced before the Court, did not interfere with the order of the Delhi High Court, as the issue of the NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined paramount interest of the child was yet to be considered and it was only by way of interim arrangement, the child was returned to the jurisdiction of the said Court.