SUMAN K SHRIVASTAVA
By the time the case reached the Jharkhand High Court, it had already travelled thousands of kilometres—across continents, across legal systems, and across the invisible fault lines that divide modern families. At its centre was not a question of law alone, but a six-year-old child whose life had been shaped by migration, ambition, and rupture.
Shahnawaz Alam was a senior banking professional in Dubai, employed with the National Bank of Dubai. His life, by all outward measures, reflected success in a globalised world: financial stability, professional stature, and the privileges that accompany expatriate life in the Gulf. His wife, Aabshar Ummul Khair Imam, was no less accomplished. An IIT Kharagpur graduate, she had pursued an academic career, later teaching as a professor at Amity University in Dubai before returning to India and securing a faculty position at NIT Jamshedpur.
They were married in Jamshedpur in 2016, but their marriage, like many of their generation, truly unfolded elsewhere. Dubai became their shared home. Their daughter was born there in January 2019. Her early childhood was shaped by the ordered routines of expatriate life—nursery schools, health insurance with international coverage, and the promise of elite global education. She was enrolled in some of Dubai’s best institutions, her future imagined as borderless.
But domestic lives, however global, are still vulnerable to intimate collapse.
By 2023, the marriage had fractured beyond repair. When Aabshar travelled to India with the child, what Shahnawaz believed to be a temporary visit quietly turned permanent. He returned to Dubai alone. The distance between them grew, first emotionally, then legally.
A Foreign Order Arrives in an Indian Courtroom
Shahnawaz approached the Dubai Primary Court, seeking restitution of conjugal rights and custody of his daughter. The court directed Aabshar to return to Dubai with the child and resume cohabitation. From the perspective of the Dubai court, the order was logical. The family’s habitual residence was Dubai. The father had not been declared unfit. The child’s material prospects there were indisputably superior.
But the law does not move freely across borders without friction.
When Shahnawaz came before the Jharkhand High Court, invoking Article 226 of the Indian Constitution, he did not merely ask for enforcement of a foreign decree. He sought a writ of habeas corpus—arguing that his daughter was being unlawfully restrained in India and must be restored to him and returned to her habitual residence abroad.
The case was placed before a Division Bench comprising Justice Rongon Mukhopadhyay and Justice Ambuj Nath, judges acutely aware that international custody disputes demand restraint as much as resolution.
Justice Rongon Mukhopadhyay and Justice Ambuj Nath Confront a Modern Dilemma
From the outset, the court clarified an important point: a habeas corpus petition is maintainable in child custody matters. Indian courts have long recognised that the extraordinary jurisdiction of constitutional courts may be invoked where a child’s welfare is at stake—even when the child is with a natural guardian.
But maintainability was only the threshold. The real question lay deeper.
The Mother’s World, Rebuilt
Aabshar did not present herself as a defiant spouse ignoring a lawful order. She presented herself as a mother who had chosen separation over submission. She spoke of emotional cruelty, broken assurances, and a marriage that had become psychologically unsafe. In Jamshedpur, she had rebuilt a life with remarkable speed and competence. She was employed as a faculty member at NIT. Her daughter was admitted to Hill Top School, among the city’s best. Stability had returned, quietly but firmly.
The child, now six and a half, had spent nearly two years continuously in India. Her daily life—school, friendships, routines—had taken root. This was no longer a transient phase. It was a settled existence.
Why Welfare Matters More Than Geography
Why the Dubai Judgment Could Not Decide the Case
Justice Mukhopadhyay and Justice Nath approached the foreign judgment with respect, but not reverence. Under Section 13 of the Code of Civil Procedure, a foreign judgment is conclusive only if it does not violate Indian law, natural justice, or public policy.
More importantly, India is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. This legal reality carries profound consequences. Unlike jurisdictions that mandate prompt return to the country of habitual residence, Indian courts must conduct a full welfare inquiry on the merits.
The court emphasised that foreign custody orders are relevant, but never binding. They are one voice in the room—not the final word.
The judges turned to Indian legal principles that have remained consistent across decades: under Muslim personal law, read with the Guardians and Wards Act, custody of a minor female child ordinarily lies with the mother until puberty, unless compelling reasons suggest otherwise. But even this rule, the court noted, is subordinate to the ultimate consideration—the welfare of the child.
Welfare Over Wealth
Shahnawaz’s counsel argued that Dubai offered superior education, healthcare, and financial security. The court did not dispute this. But it rejected the premise that welfare can be reduced to opportunity alone.
The judges noted that Aabshar was not financially dependent, not incapable, not neglectful. She was an educated professional, gainfully employed, and deeply involved in her child’s upbringing. The child was doing well in school. She was emotionally secure.
To remove her now, the court observed, would risk a “calamitous effect” on her mental health.
The law, the judges reminded, has never treated superior financial capacity as a decisive factor. Childhood stability, emotional continuity, and the presence of a primary caregiver matter more than the promise of elite institutions abroad.
A Refusal That Redefined the Debate
In the end, the court declined to direct the child’s repatriation to Dubai. The writ petition was dismissed.
But this was not a rejection of international law, nor a dismissal of the father’s pain. It was a refusal to treat a child as an object of legal symmetry. Justice Mukhopadhyay and Justice Nath affirmed a principle that continues to shape Indian custody jurisprudence: foreign judgments may travel, but they do not command.
This case contributes quietly but firmly to a larger debate unfolding across jurisdictions. In an age of global families, the temptation to prioritise habitual residence and swift return is strong. Indian courts, however, continue to resist that pull when it collides with a child’s lived reality.
The judgment does not deny the father’s love, nor does it glorify separation. Instead, it places the child at the centre—where the law insists she must remain.
In doing so, the court reaffirmed something profoundly human: in custody battles that cross borders, justice is not about where a child should be, but where she is safest to grow.
And sometimes, the most powerful legal act is not enforcement—but restraint.