WHETHER THE PRESENT WRIT PETITION IS NOT MAINTAINABE UNDER

ARTICLE 32 OF THE INDIAN CONSTITUTION IN THE SUPREME COURT?

It is humbly submitted by the respondents that :-

1. That the writ petition filed is not maintainable in the supreme court
2. That the petitioner has enough remedies left instead of directly coming to the supreme
court.
3. That the foreign court order is not binding.

1. that the writ petition is not maintainable

Article 32 of the Indian Constitution provides for the writ jurisdiction of the Supreme Court.
However, this provision is limited to the enforcement of fundamental rights and not for private
disputes between parties. In this case, there is a dispute between two private parties(the
respondent and the petitioner) hereinafter referred as petitioner and respondent over the custody
of a child, which falls under the jurisdiction of the family court. Therefore, the Supreme Court
does not have the territorial jurisdiction to hear this case.Since the petitioner is seeking the
enforcement of a British court order of joint custody, it can be argued that the Supreme Court of
India does not have jurisdiction over the matter. The British court's order was issued in
accordance with their laws and regulations, and it falls outside the purview of the Indian
Constitution.
M. Siddiq (D) Thr. Lrs. v. Mahant Suresh Das & Ors. 1 establishes that the Supreme Court of
India states that it has limited jurisdiction and cannot enforce orders issued by foreign courts
unless there is a specific provision or treaty enabling such enforcement.the petitioner's petition
does not involve any violation of fundamental rights as guaranteed by the Indian Constitution.
As already stated ,The custody of a child is a private dispute between two parties and the
enforcement of a foreign court order does not fall under the ambit of fundamental rights.
Therefore, the writ jurisdiction of the Supreme Court is not applicable in this case.There is no
specific treaty or provision in Indian law that enables the enforcement of foreign court orders in
matters of custody.

1
M. Siddiq (D) Thr. Lrs. v. Mahant Suresh Das & Ors., (2019) 9 SCC 1
 The Hague Convention on the Civil Aspects of International Child Abduction 2, to which India is
a signatory, allows for the return of children who have been wrongfully removed from one
country to another. the Indian Constitution provides for the exclusive jurisdiction of Indian
courts in matters relating to the custody of children. Therefore, the enforcement of a foreign
court order would be a breach of the sovereignty of India. As mentioned earlier, the custody of a
child falls under the jurisdiction of the family court. Therefore,the petitioner should approach the
family court for any relief regarding custody. The Supreme Court cannot bypass the hierarchy of
courts and directly hear a petition regarding custody without exhausting all available remedies.
In conclusion, the petition is not maintainable as it does not involve any violation of fundamental
rights, lacks territorial jurisdiction, and falls under the exclusive jurisdiction of the family court.
Additionally, the enforcement of a foreign court order may be a breach of the sovereignty of
India, and there is no specific provision or treaty enabling such enforcement.

2. That the petitioner has enough remedies left instead of directly coming to supreme court
.
It is humbly submitted that the petitioner should have exhausted all available remedies within the
Indian legal system before approaching the Supreme Court. The petitioner had other options as
legal avenues in the English courts or utilized international legal mechanisms for the
enforcement of the British court order.the petitioner has already approached the Delhi High
Court and obtained an order allowing visitation rights to the father. Therefore, thepetitioner has
not exhausted all available remedies before approaching the Supreme Court. The writ
jurisdiction is extraordinary and should only be invoked in exceptional circumstances where no
other remedy is available. The petitioner cannot bypass the hierarchy of courts by directly
approaching the Supreme Court.State of U.P. v. Mohd. Nooh (1958): 3 This case emphasizes the
principle of exhaustion of remedies, stating that a person must pursue all available legal remedies
within the Indian legal system before approaching the Supreme Court under Article 32 of the
Indian Constitution.

2
Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670,
1343 U.N.T.S. 89 (1983).
3
Supreme Court.State of U.P. v. Mohd. Nooh AIR 1958 SC 86.
Instead of approaching the Supreme Court, the petitioner could have utilized alternative legal
avenues such as arbitration or mediation to resolve the custody dispute. International legal
mechanisms such as the Hague Convention or the United Nations Convention on the Rights of
the Child could also have been explored for the enforcement of the British court order.The
Hague Convention on the Civil Aspects of International Child Abduction governs the return of
children who have been wrongfully removed from their country of habitual residence. Signatory
countries are bound to follow the provisions of the Convention for the resolution of cross-border
custody disputes. In conclusion, the petitioner should have exhausted all available legal remedies
within the Indian legal system before approaching the Supreme Court. The principle of
exhaustion of remedies ensures that the legal system is not bypassed and the hierarchy of courts
is respected. Additionally, alternative legal avenues such as arbitration or mediation could have
been explored, and international legal mechanisms such as the Hague Convention could have
been utilized for the enforcement of the British court order.

3. that the foreign court order is not binding.

The British court order cannot be automatically enforced in India as India is a sovereign nation
with its own legal system. The principle of comity of courts allows foreign court orders to be
recognized and enforced in India only if they are not contrary to Indian law and public policy.
Therefore, the order of the Delhi High Court granting custody to the mother is binding and
enforceable in India.The principle of comity of nations is a recognized principle in international
law. It promotes cooperation and mutual respect among nations by giving due recognition to the
legal acts and decisions of foreign courts. However, it is not an absolute rule and can be limited
by the laws and public policy of the country where enforcement is sought. In this case, the Indian
courts can argue that the British court order granting joint custody of Veer was not in the best
interest of the child according to Indian laws and public policy.
Hague Convention on the Civil Aspects of International Child Abduction is an international
treaty that aims to protect children from the harmful effects of international child abduction and
to secure their prompt return to their habitual residence. However, if it is demonstrated that there
is a grave risk that returning the child would expose him to physical or psychological harm or
place him in an intolerable situation, the court may refuse to order the child's return. In this case,
the Indian court can argue that Veer's return to England would be against his best interests and
well-being, considering the alleged violent behavior of the petitioner.
Each country has its own laws and public policy considerations that govern matters of child
custody and welfare. The Indian court can argue that the British court order granting joint
custody does not align with the principles and policies outlined in Indian law, which prioritize
the best interests of the child. The court can assert that it has the authority to make decisions
based on its own laws and policies, irrespective of the foreign court order.
The Indian court can assert its jurisdiction over the matter, emphasizing that it has the authority
to make decisions regarding the custody of Veer as he is currently residing in India. The court
can argue that the British court's jurisdiction may not extend to the current circumstances and
that the order may not be applicable or enforceable in India.
The court can consider the changed circumstances since the issuance of the British court order in
December 2019. The fact that Veer has been living in India for a significant period of time, has
enrolled in a school, and the respondent has secured a lucrative job can be presented as factors
that have influenced Veer's current environment and well-being. The court may argue that
disrupting Veer's settled life in India and uprooting him to return to England would not be in his
best interests.
Sunil Mehta v. Sneha Mehta (2019)4 The Supreme Court of India, in this case, emphasized that
the welfare of the child is of utmost importance and that foreign court orders cannot be
mechanically enforced in India. The court held that the Indian court has the authority to examine
the best interests of the child and make appropriate decisions regarding custody, irrespective of
foreign court orders.
V. Ravi Chandran v. Union of India (2010)5The Supreme Court of India, in this case, held that
the Indian court is not bound by foreign court orders in matters of child custody. It stated that the
court has the jurisdiction to independently examine the best interests of the child and make
appropriate decisions, taking into consideration the child's welfare and the laws of India.
n conclusion, the arguments presented indicate that the foreign court order in this case may not
be binding on the Indian court. The principles of comity of nations, the Hague Convention,
domestic laws, public policy considerations, jurisdiction, changed circumstances, and relevant

4
Sunil Mehta v. Sneha Mehta (2019)3 SCC 716
5
V. Ravi Chandran v. Union of India (2010)9 SCC 211
case laws support the contention that the Indian court has the authority to independently examine
and decide matters of child custody based on the best interests of the child.
The paramount consideration in such cases is the welfare and well-being of the child. The Indian
court has the discretion to evaluate the circumstances, including the alleged violent behavior of
the petitioner, Veer's settled life in India, his education, and the respondent's employment
opportunities. The court can determine that uprooting Veer from his current environment and
relocating him to England would not be in his best interests.
Additionally, the Indian court can consider that the British court order may not align with Indian
laws and public policy, which prioritize the welfare of the child. The court can assert its
jurisdiction over the matter, stating that it has the authority to make decisions regarding Veer's
custody while he resides in India.