Complete Violation of Human Rights’: Supreme Court Criticises Foreign Court's Travel Ban Order on Minor Child
Sanchayita Lahkar
The Supreme Court on Thursday expressed serious concern over a foreign court’s order that imposed a travel ban on a minor child in the context of a matrimonial dispute between his parents. A Bench comprising Justice Surya Kant and Justice N. Kotiswar Singh was hearing a habeas corpus petition filed by the father seeking custody of his son.
The petitioner, a Ghanaian national residing in Dubai, alleged that his ex-wife had taken their son from their residence in Dubai to India without his knowledge or consent. In response, he had obtained an order from a Dubai court restraining the child’s movement.
During the hearing, Justice Surya Kant raised concerns over the nature and impact of the Dubai court’s order. Addressing the petitioner’s counsel, the Court observed:
"This is where she was virtually being kept in solitary confinement, then you secured an order from a Court because those Courts are well-known for passing this kind of atrocious orders. It’s a complete violation of human rights… That you are not allowed to move out of the country… This amounts to confining or putting in jail in the residence. This is known as house arrest."
The Court questioned whether any court could impose such restrictions in the absence of a finding of guilt, and noted that such an order would be impermissible under Indian law.
Despite its criticism of the foreign court order, the Supreme Court issued limited notice in the present matter to consider visitation rights and ancillary reliefs sought by the petitioner.
The Bench also examined the basis of the Dubai court’s jurisdiction in the matrimonial proceedings. When the petitioner’s counsel submitted that the parties were residing in Dubai, the Court responded that jurisdiction cannot be conferred by consent alone. It was noted that both parties were Christians and not governed by Shariah law. Justice Kant observed:
“There was no question of that Court entertaining the divorce petition.”
The Court indicated that before granting relief, it would consider the petitioner’s conduct and the child’s welfare, including aspects such as education and well-being.
Prior to approaching the Supreme Court, the petitioner had filed a writ of habeas corpus before the Karnataka High Court in 2022, seeking custody of his minor son. He alleged that after returning to India, his ex-wife had ceased communication with him and denied him access to the child. He contended that the Dubai Court’s decree, which granted him custody in April 2022, had not been complied with.
In her response, the mother asserted that her departure from Dubai was with the petitioner’s knowledge and consent. She further alleged emotional, psychological, and physical abuse by the petitioner, which, she claimed, affected both her and the child. The respondent also argued that the travel ban imposed on the child was contrary to UAE law and alleged that she was coerced into withdrawing a divorce petition she had earlier filed in Dubai.
The respondent relied on precedents affirming that custody of minor children generally favours the mother and that the welfare of the child must take precedence over foreign decrees or questions of jurisdiction.
The High Court noted that the child was with the mother, who had also filed custody proceedings before the Family Court in Bengaluru. It held that a writ of habeas corpus was not appropriate in the circumstances and that the custody matter should proceed before the Family Court. The High Court observed:
“We are of the opinion that the pending child custody case in the Bangalore Family Court must proceed to determine the child’s best interest. It is clear that the petitioner – father is perfectly well aware that the child is in the custody of the mother. The child is aged less than five years and there is no concern raised as to the safety of the child in the hands of the mother. It is also clear that the matter is pending consideration before the Family Court.”
The High Court concluded that all contentions of the parties could be raised and addressed before the Family Court, which would adjudicate the matter in the child’s best interest.
The petitioner and respondent were married in 2018 under the Foreign Marriage Act, 1969, and registered their marriage at the Consulate General of India in Dubai. A child was born in 2019. The family resided in Dubai until March 2021. The respondent left Dubai with the child in April 2021 and returned to India in November that year.
In 2022, a Dubai court granted a decree of divorce in favour of the petitioner and awarded him custody of the child. Thereafter, the petitioner approached the Karnataka High Court seeking enforcement of the foreign court’s order and custody of the child through a writ of habeas corpus.
The Supreme Court has issued limited notice in the matter, confining the scope of the proceedings to visitation rights and related reliefs. The Court indicated that it would assess the petitioner's conduct and consider the welfare of the child before passing any final orders.
Advocates Representing the Parties:
For the Petitioners: Mr. Nikhil Goel, Senior Advocate; Mr. Alex Joseph, Advocate-on-Record; Ms. Dhruvi Sikarwar, Advocate; Ms. Sidhi Gupta, Advocate; Ms. Ridhi Jain, Advocate; Mr. Adithya K Roy, Advocate
Case Title: XXX v. The State of Karnataka & Ors.
Case No.: SLP (Crl.) No. 5523/2025
Bench: Justice Surya Kant and Justice Nongmeikapam Kotiswar Singh
