Source: Madhya Pradesh High Court  

Why in News? 

A bench of Justice Anand Pathak and Justice Rajendra Kumar Vani dismissed a habeas corpus petition filed by a father based in USA and stated that the petitioner has an alternated remedy under Section 13 and Section 14 of the Civil Procedure Code, 1908 (CPC). 

• The Madhya Pradesh High Court held this in the case of Vishnu Gupta v. State of Madhya Pradesh and others (2025). 

What was the Background of Vishnu Gupta v. State of Madhya Pradesh and others (2025) Case?   

• The petitioner (father) seeks issuance of a habeas corpus writ under Article 226, directing Respondent No. 1 (child’s custodian) to produce their son and hand him over to the petitioner, enforcing a U.S. court order dated 4th April 2023. 
• In the alternative, he asks Respondent No. 2 (the mother) to cooperate in arranging for the child’s travel to the U.S. with the petitioner or his appointee within a fixed timeframe. 
• The petitioner and Respondent No. 2 married on 1st February, 2013 in Vidisha, following which they moved to Austin, Texas, establishing their matrimonial home. 
• Their son, Agastya Gupta, was born on February 14, 2015. 
• Due to marital discord, the mother returned to India in July 2018 with the child and has since resided in Sehore, Madhya Pradesh. 
• The petitioner alleges the mother has obstructed all his efforts to contact or see the child, rejecting such attempts and ignoring reports from the U.S. Consulate and child‑protection agencies. 
• The petitioner instituted divorce and custody proceedings in the Superior Court of New Jersey; on 4th April 2023, the court granted divorce and awarded him sole physical and legal custody of Agastya. 
• Despite this U.S. court order, the child remains in India with the mother, prompting the petitioner to invoke habeas corpus before this Court. 
• The petitioner relies on Indian Supreme Court rulings to support the principle of enforcing foreign custody orders via habeas corpus in the child’s best interests. 
• The mother opposes the petition, arguing it is non‑maintainable—as it essentially seeks enforcement of a foreign judgment when domestic remedies (such as under the Code of Civil Procedure or Guardians and Wards Act, 1890) are available. 
• She contends that the petitioner’s allegations are false, asserts that their marriage failed due to his misconduct, and that her efforts to reconcile were ignored. 
• She refers to 18th December, 2024 co‑ordinate bench ruling that declined psycho‑social aid for the petitioner, indicating that guardianship matters are within civil jurisdiction, not writ jurisdiction. 
• A Family Court in Sehore also dismissed a 17th October , 2024 guardianship petition filed by the petitioner’s parents under Section 25 of the Guardians and Wards Act. 
• The mother additionally relies on Indian Supreme Court decisions which limit the scope of habeas corpus petitions in India for enforcing foreign custody orders. 

What were the Court’s Observations? 

• The Court reiterated that a writ of habeas corpus is a procedural remedy meant to address illegal or unlawful custody, particularly where the liberty of a person is in question. In child custody matters, this is not about legal rights but whether the current custody is illegal and contrary to the child’s welfare. 
•  Referring to Nithya Anand Raghavan v. State (NCT of Delhi) (2017) and other precedents, the Court emphasized that in habeas corpus petitions concerning minors, the sole and overriding consideration is the welfare and best interests of the child—not enforcement of foreign court orders. 
•  The Court held that merely because a foreign court (in this case, the U.S. court) has passed an order granting custody to one parent, it does not render the custody with the other parent (here, the mother) unlawful. Such foreign orders are only persuasive and not binding. 
•  Since the mother is the biological and natural guardian, the custody with her is presumed lawful unless exceptional circumstances warrant transferring custody. 
• The writ jurisdiction under Article 226 cannot be used to simply execute foreign court orders. The High Court cannot convert itself into a forum for enforcing such orders under habeas corpus. 
• The petitioner has other remedies under Indian law, including under: 
  • Section 44A of Civil Procedure Code, 1908 (CPC) (execution of foreign judgments), 
  • Sections 13 and 14 of CPC (recognition and exceptions to conclusiveness of foreign judgments), 
  • and under the Guardians and Wards Act, 1890. 
•  In light of these principles, and the fact that the child’s welfare is best served with the mother at present, the habeas corpus petition was dismissed. 
•  However, the Court noted that the father may still request to meet the child, and it is up to the mother (Respondent No. 2) to allow such interaction—personally or via video call—as a matter of personal discretion, not a legal command. 
• The Court preferred the reasoning in Nithya Anand Raghavan v. State (NCT of Delhi) and another (2017), Kanika Goel v. State of Delhi and another (2018), and Prateek Gupta v. Shilpi Gupta and others (2018), all of which caution against mechanical enforcement of foreign custody orders and prioritize the child's welfare. The Court found that the judgment in Yashita Sahu did not consider these earlier binding precedents. 
• The writ petition was disposed of with the above observations, without granting the relief sought by the petitioner. 

What is Section 13 of CPC? 

• Section 2(6) of the Code of Civil Procedure, 1908 (CPC) defines foreign Judgement. It states that foreign Judgement means the Judgement of a foreign Court. 
• As per Section 2(5) of CPC, a foreign Court means a Court situated outside India and not established or continued by the authority of the Central Government. 
• Section 13 of CPC states that a foreign Judgement shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except— 
  (a) where it has not been pronounced by a Court of competent jurisdiction; 
  (b) where it has not been given on the merits of the case; 
  (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable; 
  (d) where the proceedings in which the Judgement was obtained are opposed to natural justice; 
  (e) where it has been obtained by fraud; 
  (f) where it sustains a claim founded on a breach of any law in force in India. 
• This section provides that a foreign Judgement may operate as res judicata except in the aforementioned six clauses. 

(a) Foreign Judgement Not by a Competent Court 

• A Judgement of a foreign court to be conclusive between the parties must be a Judgement pronounced by a court of competent jurisdiction. 
• A competent court implies a court having jurisdiction over the parties and the subject matter. 
• The court of a foreign country has jurisdiction in the following cases: 
• Where at the time of the commencement of the action the defendant was resident or present in such country, so as to have the benefit and be under the protection of laws. 
  • Where the defendant is at the time of the Judgement in action, subject or citizen of such country. 
  • Where the party objecting to the jurisdiction of the courts of such country has by his own conduct, submitted to such jurisdiction by 
    • Appearing as plaintiff in the action or counterclaiming, or 
    • Voluntarily appearing as defendant in such action, or 
    • Having expressly or impliedly contracted to submit to the jurisdiction of such courts. 
• In the case of Bharat Nidhi Limited v. Megh Raj Mahajan (1964), it was held that a foreign Judgement has to be passed only by a foreign court of competent jurisdiction to operate as res judicata in the Indian courts. 

(b) Foreign Judgement Not on Merits 

• In order to be conclusive, the foreign Judgement must be on the merits i.e., which involves the application of the mind of the court to the truth or falsity of the case. 
• The Actual test for deciding whether the Judgement has been given on merits or not is to see whether it was merely passed as a matter of course, or by way of penalty of any conduct of the defendant or is based upon a consideration of the truth or falsity of the plaintiff's claim. 

(c) Foreign Judgement Against Indian or International Law 

• A Judgement based upon an incorrect view of international law or a refusal to recognize law of India where such law is applicable is not conclusive. 
• The mistake must be apparent on the face of the proceeding. 

(d) Foreign Judgement Opposed to Natural Justice 

• The Judgement must observe the minimum requirements of natural justice, that is it must give reasonable notice to the parties to the dispute and afford each party adequate opportunity of presenting his case. 
• It may be noted that the mere fact that the foreign court did not follow the procedure of Indian courts will not invalidate a foreign Judgement on the ground of proceedings being opposed to natural justice. 
• In the case of Sankaran v. Lakshmi (1974), the Supreme Court held that the expression natural justice relates to the irregularities in procedure rather than to the merits of the case. 

(e) Foreign Judgement Obtained by Fraud 

• It is a well settled principle of Private International Law that if foreign Judgements are obtained by fraud, it will not operate as res judicata. 
• Fraud in any case, bearing on jurisdictional facts, vitiates all judicial acts. 
• The fraud may be either fraud on the party invalidating a foreign Judgement in whose favor the Judgement is given or fraud on the court pronouncing the Judgement. 
• In the case of Satya v. Teja Singh (1975), the Supreme Court held that the plaintiff had misled the foreign court as to its having jurisdiction over the matter, although it could not have had the jurisdiction, the Judgement and decree was obtained by fraud and hence inconclusive. 

(f) Foreign Judgement founded on Breach of Indian Law 

• Section 13(f) does not require that the procedure of the foreign court should be identical with or similar to the procedure of the courts in India. 

However, when a foreign Judgement is founded on a breach of any law in force in India, it would not be enforced in India.