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Dr.Navtej Singh vs State Of Nct & Anr. on 6 March, 2018

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* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 27.10.2017

% Judgment delivered on: 06.03.2018

+ W.P.(CRL) 725/2017 and Crl. M.A. No.3947/2017

DR. NAVTEJ SINGH ….. Petitioner
Through: Mr. Anil Malhotra, Mr. Ranjeet
Malhotra Mr. Rajat Bhalla,
Advocates along with petitioner –
Dr.Navtej Singh, and Mr. Mohinder
Singh – in person.
versus

STATE OF NCT ANR. ….. Respondents
Through: SI Surender Kr., PS Hari Nagar, for
the State.
Ms. Malavika Rajkotia, Ms. Prianka
Rao Ms. Rytim Vohra, Advocates
for and along with respondent No. 2
in person.

CORAM:
HON’BLE MR. JUSTICE VIPIN SANGHI
HON’BLE MR. JUSTICE P.S.TEJI

JUDGMENT

VIPIN SANGHI, J.

1. The petitioner herein has preferred the present writ petition seeking
issuance of a writ of Habeas Corpus for production of his minor children,
Ishnoor Kaur and Paramvir Singh, who are presently of ages five years and

W.P.(CRL) 725/2017 Page 1 of 54
one year respectively. Ishnoor who was born in U.S.A on 27.08.2012 is a
permanent resident and natural born citizen of U.S.A, while the minor
Paramvir Singh was born in New Delhi on 12.09.2016. He is also seeking a
direction for return of Ishnoor and Paramvir to the jurisdiction of the
competent Courts in the United States of America (U.S.A.) in compliance
with the orders dated 17.11.2016 and 25.01.2017 passed by the Superior
Court, Judicial District Stamford/Norwalk at Stamford, Connecticut (CT),
U.S.A. The children are presently under the custody of their mother,
respondent No. 2.

Background

2. Petitioner is an Indian born citizen of U.S.A. Respondent No. 2 is the
wife of the petitioner and mother of Ishnoor and Paramvir respectively. She
is also an Indian born citizen of U.S.A. Both hold American Passports.

3. The petitioner and respondent No. 2 got acquainted while studying in
U.S.A in the year 2000. The petitioner was then pursuing a degree in
Mathematics, Computer Science and simultaneously completing his studies
in pre-medical. Respondent no. 2 was also pursuing a degree in Computer
Science from Hunter College, U.S.A. Both the petitioner and the respondent
No. 2 got enrolled in a dental school in the years 2003 and 2005
respectively. The petitioner and respondent no. 2 got married on 22.08.2006
in New York as per U.S. Civil laws and thereafter obtained a certificate of
registration of their marriage dated 22.08.2006 from the Marriage License
Bureau, The City of New York, U.S.A. The petitioner and respondent No. 2
subsequently, in a religious ceremony remarried on 23.12.2007 at New

W.P.(CRL) 725/2017 Page 2 of 54
Delhi (Delhi), India. The respondent no. 2 thereafter obtained the
citizenship of U.S.A. post her marriage with the petitioner. The petitioner
and the respondent no. 2 continued to reside in their permanent residence
and matrimonial home situated in Connecticut, U.S.A. from 22.08.2006
onwards.

4. The petitioner along with respondent no. 2, post obtaining degrees in
Doctor of Dental Surgery (DDS) Dental Science, set up a joint dental
practice under the name „South End Dental Centre, PC‟ (“organisation”) at
Stamford, CT, U.S.A. in 2011, under a professional business partnership.
The petitioner is working in the capacity of President and Secretary of the
said organisation, while the Respondent No. 2 is the Vice-President and
Treasurer of the same.

5. Ishnoor – the first child of the parties, was born on 27.08.2012 at
Stamford Hospital, Connecticut, U.S.A. The petitioner submits that Ishnoor
is a natural born US citizen and has been domiciled in the State of
Connecticut, USA since her birth.

6. The petitioner submits that since respondent no. 2 did not wish to
reside with his parents – who are also residing in U.S.A., a separate
accommodation was leased by her exclusively in her name at Stamford,
CT and later at Norwalk, CT, valid upto 21.12.2016. The petitioner submits
that the lease of the same property has currently been renewed by him and
up to 31.12.2017.

7. The petitioner along with respondent no. 2 and their daughter Ishnoor
arrived in Delhi on 26.01.2016 to attend the wedding of the brother of

W.P.(CRL) 725/2017 Page 3 of 54
Respondent No. 2 which was fixed for 21.02.2016. The petitioner submits
that they were all scheduled to return to U.S.A. on 04.03.2016 on a pre-
booked return flight. However, on the date of return, Respondent No. 2
refused to go back to U.S.A and thereafter he was left with no option but to
return alone to U.S.A. on 05.03.2016. He submits that despite his best
efforts to get in touch with the respondent via emails, phone calls, and
family requests, the Respondent No. 2 – without giving any reason or
justification, refused to return to U.S.A. The petitioner further submits that
their minor son – Paramvir was thereafter born in India on 12.09.2016. He
submits that the petitioner along with his father came to Delhi in August,
2016 and September, 2016 respectively to convince the Respondent No. 2 to
return to her matrimonial home in U.S.A, but all efforts were in vain.

8. Subsequently, the petitioner moved an application for emergency ex
parte order before the District Superior Court, Judicial District Stamford/
Norwalk, Connecticut, U.S.A. in June 2016 seeking custody of his daughter
Ishnoor Kaur. He submits that notice was issued on 04.10.2016 to
Respondent no. 2 to appear before the U.S. Court on 17.11.2016. He further
submits that vide email dated 11.10.2016, counsel for the Petitioner also
informed the Respondent No. 2 of the court hearing scheduled on
17.11.2016. However, Respondent No. 2 did not appear before the said
Court either in person, or through an Attorney and the proceedings were
undertaken exparte.

9. The Superior Court, Judicial District Stamford/Norwalk, passed
interim custody orders in favour of the petitioner on 17.11.2016. The same
is reproduced here:

W.P.(CRL) 725/2017 Page 4 of 54

―……….. That the father has sustained his burden of
establishing to this Court’s satisfaction that an ex parte order is
in order. The Court finds that it has jurisdiction because there
are provisions in the UCCJEA, which really don’t apply
internationally but it is a frame of reference that the child’s
home state is this state. So for whatever that’s worth, for the
benefit of further actions –

x x x x x x x x x x

….. — on this matter and in other jurisdictions, that’s what this
Court finds. Okay. To summarize, the Court finds that the
applicant father has sustained his burden of proof justifying the
entering of the follow emergency ex parte order of custody: that
temporary physical and legal custody is awarded to the father,
supervised visitation with the defendant mother in the State of
Connecticut is ordered, the defendant shall immediately
surrender the child’s passport to the plaintiff father, and the
defendant shall, upon notice of this order, immediately return
to the State of Connecticut bringing both children with her.

x x x x x x x x x x

… So this order extends to the mother to return with both
children, not just the one that’s on the application.‖ (emphasis
supplied)

10. The aforementioned interim order passed by the Superior Court,
Judicial District, Stamford/Norwalk was also communicated to the
Respondent No. 2 by the counsel for the Petitioner vide email dated
01.12.2016 wherein the next date of hearing, scheduled for 11.01.2017, was
also communicated.

11. Meanwhile, the respondent No. 2 filed a guardianship petition – GP
No. 64/2016 on 09.11.2016 before the Family court, Tis Hazari, New Delhi
under Sections 7, 9, 11 25 of the Guardians and Wards Act, 1980

W.P.(CRL) 725/2017 Page 5 of 54
(„GWA‟) r/w Section 6(a) of the Hindu Minority and Guardianship Act,
1956 („HMGA‟) seeking permanent and sole custody of the minor children
Ishnoor and Paramveer. The Petitioner moved a Miscellaneous Application
for rejection of the Respondent No. 2‟s Guardianship Petition, as being
barred by law. The Family Court, Tis Hazari allowed the application of the
Petitioner and vide order dated 26.12.2016, dismissed the guardianship
petition on the ground of jurisdiction. The Respondent No. 2, thereafter,
moved M.A.T. APP. (F.C.) 3/2017 before this Court to challenge the orders
of the Family Court dated 26.12.2016. During pendency of the present
petition, the said appeal was dismissed by the Division Bench on
19.09.2017. However, the Supreme Court has, vide order dated 20.02.2018,
set aside the judgment of the Division Bench in the aforesaid MAT APP
(F.C.) 3/2017. After quoting some of the observations made in Nithya
Anand Raghavan v. State of NCT, (2017) 8 SCC 454, the Supreme Court
has observed:

“(4) In view of above, principle of comity of courts or
principle of forum convenience alone cannot determine the
threshold bar of jurisdiction. Paramount consideration is the
best interest of child. The same cannot be subject-matter of
final determination in proceedings under Order VII Rule 11 of
the C.P.C.

(5) Accordingly, we set aside the impugned order. The
application under Order VII Rule 11 is dismissed”.

12. Meanwhile, based on the orders of this Court dated 10.01.2017, the
U.S. Court vide its order dated 11.01.2017 adjourned the matter till
25.01.2017. The same was communicated to the Respondent No. 2 vide
email dated 11.01.2017.

W.P.(CRL) 725/2017 Page 6 of 54

13. On 25.01.2017, the Superior Court of Judicial District of
Stamford/Norwalk, on account of non-compliance of the earlier orders by
Respondent No. 2 in Docket No. FST-FA-16-4029923 – S passed the
following directions:

―3. The Court finds that there is overwhelming evidence that
the Defendant-Mother has actual notice of the case, and of this
hearing, and has chosen to ignore it.

4. The Court finds that the Plaintiff-Father has complied with
the requirements of service of process in reference to this
custody proceeding.

5. The Court finds that the Plaintiff-Father has made every
effort to serve the Defendant-Mother notice of the January 25,
2017 hearing, and that the Defendant-Mother had actual notice
of these proceedings.

6. The Court finds that it has subject matter jurisdiction and
that the children’s home state is Connecticut.

7. The Court orders the following:

a. The Defendant – Mother shall immediately return to
the State of Connecticut, bringing both children with her.

b. Sole, legal and physical custody of both minor children
is awarded immediately to the Plaintiff-Father, with
supervised visitation to the Defendant-Mother.
c. Counsel for the Plaintiff-Father shall email the
Defendant-Mother and her counsel in India in order to
give notice to the Defendant-Mother of the information
contained in “Plaintiff’s Proposed Findings of Fact and
Orders for January 25, 2017 Hearing” (Plaintiff’s Exhibit

6) from paragraph number two through paragraph number
six of the Plaintiff-Father’s Proposed Orders. Those
paragraphs two through six are not ordered by the Court

W.P.(CRL) 725/2017 Page 7 of 54
at this time. The Court wants to give the Defendant-
Mother an opportunity when she returns to the State of
Connecticut with the children to present her position and
discuss what the custodial arrangement should be and
any objections she has to its being requested by the
Plaintiff-Father.

d. For the future, orders shall be served upon the
Defendant-Mother and her attorney by email.‖ (emphasis
supplied)

14. The U.S. Court, as highlighted above, also recorded that it would give
the Respondent No. 2 a chance to be heard and on making an appearance in
Court, she would get due process and justice. The Court further recorded
that it would deal fairly with both parties when it has the evidence before it
from both the parties. Counsel for the Petitioner communicated this order of
the Court to the Respondent No. 2 vide email dated 30.01.2017.

15. Since the Respondent no. 2 has not returned to USA, the petitioner
has preferred this petition for production of the minor children Ishnoor and
Paramvir, and their return to U.S.A. This petition was filed by the petitioner
on 07.03.2017.

16. The petitioner has been able to communicate with the children
through Skype and phone in the past few months. He has visited Ishnoor in
August 2016, and after birth of Paramvir has visited both the children in the
months of September 2016 and March 2017 respectively. The passport of
Ishnoor is presently in the possession of the Respondent No. 2.

W.P.(CRL) 725/2017 Page 8 of 54

Petitioners’ Submission

17. Learned counsel for the petitioner submits that both the petitioner and
the Respondent No. 2 are naturalized citizens of U.S.A. He further submits
that Ishnoor is a citizen of U.S.A. by birth, while Paramvir, the second child
is also entitled to U.S. citizenship since both the parents are U.S. nationals
and have their matrimonial home, assets, bank accounts, and tax records
registered in U.S.A. He further submits that both the Respondent No. 2 and
the petitioner have been running a joint dental practice in U.S.A. The
petitioner has placed on record a host of documents to show that the
Respondent No. 2 was in active dental practice along with the Petitioner and
was deriving professional income and meeting her expenses. Some of the
material documents placed on record are, the US driving license of
Respondent No. 2 issued on 16.07.2014; Motor vehicle property tax bill
dated 04.11.2015 issued by the State of Connecticut, U.S.A. to Respondent
No. 2 at her U.S. residence; Demand notice dated 25.05.2016 for payment
for medical services rendered by Respondent No. 2; etc.

18. Learned counsel for the petitioner further submits that even though
the order dated 25.01.2017 passed by the Superior Court of Judicial District
of Stamford/Norwalk grants custody of both the minor children to the
petitioner, the Respondent No. 2 has also been granted an opportunity of
being heard and have a fair representation. He submits that it is in the
welfare of both the children that the Respondent No. 2 returns to U.S.A.
with both the minor children, which is their motherland, and of which they
are citizens. As citizens of USA, they enjoy all the rights of citizens of that
country; derive social security benefits, and; would – most importantly, be

W.P.(CRL) 725/2017 Page 9 of 54
able to get the love, affection and care of both the parents – even if the
petitioner and respondent No.2 decide not to live together and part ways.
Learned counsel submits that by remaining in India, respondent No.2 is
depriving the children of their right to, inter alia, receive the love, affection,
company, care and supervision of their father, i.e. the petitioner, which is in
their best welfare, as it will affect their growth and psychological
development.

19. The petitioner further submits that the Respondent No. 2 seeks
custody of both the children, only in order to extort money out of the
petitioner. The petitioner submits that the Respondent No. 2, along with her
brother – Ishmeet Singh, have siphoned off huge amounts of money from
the petitioner‟s account, without his consent or knowledge, in order to
enable him to run his business.

20. Learned counsel for the petitioner relies upon a report furnished by
one Ms. Marcia Geller – marriage and family counselor of both the parties in
Stamford, CT. The Petitioner submits that Ms. Geller counselled the parties
between 2012 and 2014. Relying on this report, the petitioner submits that
the Respondent No. 2 was suffering from Borderline Personality Disorder
and was advised medication for the same. The petitioner submits that the
Respondent No. 2 has an abnormal and psychotic behavior.

21. Ms. Geller concludes her report as follows:

―In my opinion Dr. Singh is more psychologically stable and
non-reactive and loving as a father than Dr, Kaur is as a
mother. Her personality disorder and poor impulse control and
distorted reality testing are likely to have a negative impact on

W.P.(CRL) 725/2017 Page 10 of 54
the children. I see myself as a child advocate, particularly in
this situation.‖

22. Learned counsel submits that looking at the psychological state of
respondent No.2, it is not even in the best interest of the children that they
should remain in the sole custody and care of respondent No.2, as their
safety, well being, and upbringing would be adversely impacted due to the
behaviourial and temporal abnormality from which respondent No.2 suffers.
The petitioner also places reliance on the statements of the employees
working at the Dental Clinic of the parties, to submit that respondent No.2
has abnormal behaviour.

23. In respect of Paramvir – the second child of both the parties, learned
counsel for the Petitioner submits that merely because the Respondent No. 2
has given birth to Paramvir in India, that does not change the nationality of
the said child. Even though the second child was born in India, he cannot
acquire Indian citizenship automatically, as neither of his parents are Indian
citizens, as defined under Section 3 of the Citizenship Act, 1955. He submits
that since both the parents are U.S. nationals, and permanently residing in
U.S.A. the nationality of Paramvir is also American.

24. Learned counsel for the petitioner submits that the custody of the
children with respondent No.2 is illegal and unauthorized, especially in view
of the manner in which they were removed from U.S.A. by the Respondent
No. 2. Learned counsel relies on the doctrine of „intimate contact‟ and
„closest concern‟. The submission is that the most intimate contact, and the
closest concern that the parties – including the minor children have, is with
the Courts in U.S.A., since the parties have spent their married life in USA;

W.P.(CRL) 725/2017 Page 11 of 54

the elder daughter Isnoor was born and brought up in USA, and; the younger
son Paramvir Singh is also an American citizen. Learned counsel submits
that the orders passed by the courts in U.S.A., directing the return of the
children to the custody of the petitioner should be complied with by the
Respondent No. 2. He emphasizes that the Respondent No. 2 has been
assured of the opportunity of a fair hearing, and should move back to U.S.A.
with both the minor children to resolve the matrimonial and custody
disputes in the competent courts of jurisdiction in the U.S.A.

25. Learned counsel for the petitioner seeks to place reliance upon several
provisions of the Juvenile Justice (Care Protection) Act, 2015 (JJ Act), to
explain the content and meaning of the expression “the best interest of
child”. The said expression – employed by Courts in determining the issue
whether the child should be directed to be returned to his country of origin,
or not, is legally defined in the JJ Act. The said statutory definition, it is
argued, can be useful in understanding the meaning of that expression even
for the present purpose. He specifically relies on Section 2 (9) and Sections
3 (iv), (v), and (xiii) of the JJ Act. Section 3(iv) of the JJ Act mandates that
all agencies should base their decisions in respect of a child on the primary
consideration that they are in the best interest of the child, and to help the
child to develop full potential. The best interest of the child is of paramount
consideration and should involve fulfillment of his/ her basic rights and
needs – socially, physically, and emotionally for overall development of the
child. He submits that one of the statutorily recognized fundamental
principle, as embodied in Section 3 (v) of the JJ Act is that “The primary
responsibility of care, nurture and protection of the child shall be that of the

W.P.(CRL) 725/2017 Page 12 of 54
biological family or adoptive or foster parents, as the case may be”.
Further, while referring to Section 3 clause (xiii) of the JJ Act, he submits
that under the principle of ―repatriation and restoration‖, every child has a
right to be re-united with his or her family at the earliest. The first and the
foremost step is to restore the child to the same social environment, in which
he was placed before, at the earliest.

26. Learned counsel for the petitioner also seeks to place reliance upon
the Convention on the Rights of the Child ratified on 11.12.1992 by the
Government of India as well as the National Charter for Children, 2003, to
emphasize on the aspects of „best interest‟ and „welfare of the child‟ as
spoken of in the said conventions. Learned counsel places reliance upon
Anuj Garg v. Hotel Association of India, AIR 2008 SC 663 to submit that
the domestic courts are under an obligation to give due regard to
International Conventions and norms while construing domestic laws in
Indian Courts.

27. Learned counsel for the Petitioner submits that Respondent No. 2 has
forsaken the welfare and best interest of the children by separating them, and
keeping them away from the petitioner, who is their father and natural
guardian, by remaining in India and not returning to USA, where the parties
had lived and made their home. The children have been deprived of the
love, care, attention, company and supervision of their father. They are
bound to suffer psychologically as they grow up, if they are kept away from
their father and paternal grandparents for long intervals. The need of the
children to be with their father, to fulfill their emotional, psychological,
behavioural and other requirements is not being met. Respondent no.2 –

W.P.(CRL) 725/2017 Page 13 of 54

being the mother, cannot play the role of the father, just as the petitioner
cannot play the role of respondent no.2 the mother. The needs of children
can be met only if both the minor children – Ishnoor and Paramvir, return to
U.S.A. with respondent no.2, and live in the social environment of U.S.A.,
of which they are actual ordinary citizens under the care and protection of
both their parents.

Respondent No.2’s Submission

28. Learned counsel for the Respondent No. 2 – Ms. Malvika Rajkotia,
contests this petition on the grounds that a writ of habeas corpus is not
maintainable in the facts of the present case. She submits that in the present
case, the petitioner has full knowledge of the whereabouts of both the
children.

29. Learned counsel for the Respondent No. 2 submits that the custody of
the minor children with respondent No.2 – who is the biological mother, can
by no means be construed as illegal or unlawful, and thus this writ
proceeding is not maintainable. She submits that the petitioner has been in
regular touch with both the children – not only over telephone and through
Skype, but has also flown down from U.S.A. to meet both the children in
person. She submits that the Respondent No. 2 has never objected to, and
has never obstructed the meeting of the children with their father – the
Petitioner.

30. She submits that, even if a child is brought to India in breach of orders
of a foreign Court, the Courts in India would not direct return of the child to
foreign jurisdiction, if it is not in the best interest and welfare of the child.

W.P.(CRL) 725/2017 Page 14 of 54

The welfare of the child prevails over the principle of comity of courts and
the doctrine of „closest connect‟. In this regard, reliance is placed upon
Sarita Sharma v. Sushil Sharma, (2000) 3 SCC 14; V. Ravi Chandran v.
Union of India Ors., (2010) 1 SCC 174; and Ruchi Majoo v. Sanjeev
Majoo, (2011) 6 SCC 479; and Nithya Anand Raghavan (supra).

31. The counsel for the Respondent No. 2 also relies upon Section 6 of
the Hindu Minority and Guardianship Act. Strong reliance is placed upon
Nil Ratan Kundu Anr. V. Abhijit Kundu, (2008) 9 SCC 413.

32. Learned counsel further submits that the orders passed by the Courts
in USA are not relevant, and the welfare of the minor children is of
paramount importance. She submits that the “Comity of Courts” principle
has been rejected by the Supreme Court in Nithya Anand Raghavan
(supra). She submits that while exercising its jurisdiction in a case like the
present, the Court exercises the parens patriae jurisdiction and, therefore, it
is the duty of the Court to examine the case on the touchstone of the
paramount welfare of the minor children – for whose return the petition is
preferred.

33. Learned counsel for the respondent submits that the order dated
25.01.2017 passed by the Superior Court, Judicial District, Norwalk,
Connecticut, U.S.A., whereby custody of both the children was awarded to
the petitioner, is illegal as it is ex-parte and does not take into account any of
the relevant considerations, such as, the tender age of the minor children; the
fact that Paramvir is an infant; the adverse impact that the children‟s
psychology would suffer, and the emotional trauma that they would suffer if

W.P.(CRL) 725/2017 Page 15 of 54
they are separated from their mother, and; the welfare and interest of the
children. She submits that the Respondent No. 2 has been the primary
caretaker of Ishnoor since her birth, and she is now taking good care of both
the minor children.

34. Learned counsel submits that Ishnoor – after her coming to India, has
been admitted in a school and is now accustomed to the environment in
India. Moving her back to U.S.A. now would mean that she would again
have to adjust to new surroundings, which would impact Ishnoor in a harsh
way. She submits that, in the facts of the present case, the „intimate contact‟
of the two children is with their mother, i.e. respondent No.2 and with their
present surroundings in India, and not with the Court in USA.

35. The respondent has placed on record school documents and pictures
of Ishnoor to show that Ishnoor has started her schooling in India, and has
developed contact with the Indian culture. Thus, she is now well settled and
entrenched in the Indian environment, set up, and culture. She submits that
even though the Respondent No. 2 has obtained citizenship of USA, her
roots are based in India where she feels more comfortable and well settled in
the presence of parents and family.

36. She submits that when the child – Ishnoor was brought to India, she
was barely 3½ years, by which time she had not become accustomed and
adapted to the lifestyle in her surroundings in U.S.A. In support of her
submission that the welfare of the child is the paramount consideration for
Courts while dealing with a writ of habeas corpus, she relies upon Surjeet
Singh v. State Anr., 189 (2012) DLT 460; Syed Saleenmuddin v. Dr.

W.P.(CRL) 725/2017 Page 16 of 54
Rukhsana Ors., (2001) 5 SCC 247; Gaurav Nagpal v. Sumedha Nagpal,
(2009) 1 SCC 42; Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC
840; Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, (1982) 2
SCC 544; and Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3
SCC 698; Nithya Anand Raghavan (supra).

37. Ms. Rajkotia submits that the Petitioner and the Respondent No. 2
have a failed marriage, as a result of which Respondent No. 2 retuned to
India with her daughter and filed a petition for a decree of divorce. It is
further submitted that respondent No. 2 was subjected to domestic violence
and tortured on a regular basis, which aggravated after the birth of the first
child Ishnoor. She submits that the respondent No. 2 was continuously
harassed and humiliated.

38. The respondent submits that she has suffered grave mental and
emotional abuse by the petitioner and his family at the residence of the
parent‟s of the petitioner. Respondent No. 2 lived in constant fear from the
cruelty and violence being perpetrated upon her by the petitioner and his
family. She further submits that the petitioner was engaged in availing escort
services in U.S.A. She submits that the Petitioner also has extramarital
affairs. She submits that it is this conduct of the petitioner that drove the
Respondent No. 2 to her parent‟s home in India.

39. Ms. Rajkotia submits that the petitioner has procured a one-sided and
biased certificate from Ms. Geller. She has issued the said communication
on aspects she had no knowledge of, and had no concern with, only on the
dictation of the petitioner. The said communication, thus, is not credible

W.P.(CRL) 725/2017 Page 17 of 54
and cannot be relied upon. Similarly, reliance placed on statements of the
employees at the Dental Clinic cannot be relied upon, since the said
employees are working under the control and supervision of the petitioner,
and have issued one-sided and self-serving statements at the petitioner‟s
behest.

Discussion and Decision

40. We have considered the rival submission of the parties and the
materials placed on record.

41. The submission of Ms. Rajkotia that this Court has no jurisdiction to
entertain the present writ petition, has no merit. No doubt, the custody of
the minor children with respondent No.2 – who is their biological mother,
cannot be construed as illegal or unlawful. However, the fact remains that
the petitioner and respondent No.2 are both citizens of USA; got married in
USA; made their matrimonial home in USA; had their first child Ishnoor in
USA, and; the second child Paramvir is also an American citizen.

42. It is well-settled that while dealing with a writ of habeas corpus in
such like situations, the Court exercises jurisdiction as parens patriaes as
held in Nithya Anand Raghavan (supra). The Court may undertake a
summary inquiry to determine the issue whether it would be in the best
interest of the minor child(ren) to direct their return within the jurisdiction of
the Court with which they have the closest connection and most intimate
contact, or the Court may undertake an elaborate inquiry into the issue as to
in whose custody the child(ren) should remain. In Nithya Anand Raghavan
(supra), the Supreme Court, inter alia, observed as follows:

W.P.(CRL) 725/2017 Page 18 of 54

―28. The present appeal emanates from a petition seeking a
writ of habeas corpus for the production and custody of a minor
child. This Court in Kanu Sanyal v. District Magistrate,
Darjeeling [Kanu Sanyal v. District Magistrate, Darjeeling,
(1973) 2 SCC 674 : 1973 SCC (Cri) 980] , has held that habeas
corpus was essentially a procedural writ dealing with
machinery of justice. The object underlying the writ was to
secure the release of a person who is illegally deprived of his
liberty. The writ of habeas corpus is a command addressed to
the person who is alleged to have another in unlawful custody,
requiring him to produce the body of such person before the
court. On production of the person before the court, the
circumstances in which the custody of the person concerned has
been detained can be inquired into by the court and upon due
inquiry into the alleged unlawful restraint pass appropriate
direction as may be deemed just and proper. The High Court in
such proceedings conducts an inquiry for immediate
determination of the right of the person’s freedom and his
release when the detention is found to be unlawful. In a
petition for issuance of a writ of habeas corpus in relation to
the custody of a minor child, this Court in Sayed
Saleemuddin v. Rukhsana [Sayed Saleemuddin v. Rukhsana,
(2001) 5 SCC 247 : 2001 SCC (Cri) 841] , has held that the
principal duty of the court is to ascertain whether the custody
of child is unlawful or illegal and whether the welfare of the
child requires that his present custody should be changed and
the child be handed over to the care and custody of any other
person. While doing so, the paramount consideration must be
about the welfare of the child. In Elizabeth [Elizabeth
Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42 : 1987 SCC
(Cri) 13] , it is held that in such cases the matter must be
decided not by reference to the legal rights of the parties but
on the sole and predominant criterion of what would best
serve the interests and welfare of the minor. The role of the
High Court in examining the cases of custody of a minor is on
the touchstone of principle of parens patriae jurisdiction, as
the minor is within the jurisdiction of the Court [see Paul
Mohinder Gahun v. State (NCT of Delhi) [Paul Mohinder

W.P.(CRL) 725/2017 Page 19 of 54
Gahun v. State (NCT of Delhi), 2004 SCC OnLine Del 699 :
(2004) 113 DLT 823] relied upon by the appellant]. It is not
necessary to multiply the authorities on this proposition.

29. The High Court while dealing with the petition for
issuance of a writ of habeas corpus concerning a minor child,
in a given case, may direct return of the child or decline to
change the custody of the child keeping in mind all the
attending facts and circumstances including the settled legal
position referred to above. Once again, we may hasten to add
that the decision of the court, in each case, must depend on the
totality of the facts and circumstances of the case brought
before it whilst considering the welfare of the child which is of
paramount consideration. The order of the foreign court must
yield to the welfare of the child. Further, the remedy of writ of
habeas corpus cannot be used for mere enforcement of the
directions given by the foreign court against a person within its
jurisdiction and convert that jurisdiction into that of an
executing court. Indubitably, the writ petitioner can take
recourse to such other remedy as may be permissible in law for
enforcement of the order passed by the foreign court or to
resort to any other proceedings as may be permissible in law
before the Indian Court for the custody of the child, if so
advised.‖ (emphasis supplied)

43. Thus, the submission of Ms. Rajkotia that the present petition is not
maintainable since the custody of the minor child(ren) with respondent No.2
cannot be said to be illegal, has no merit. In such circumstances, in our
view, the petitioner is entitled to maintain the present petition to seek a writ
of habeas corpus for return of the minor children to their country of origin.

44. In Nithya Anand Raghavan (supra), the Supreme Court, inter alia,
held that the fact that a Court in foreign jurisdiction has passed orders
granting custody of the child(ren) to one of the parents, and has directed the
return of the minor child(ren) within its jurisdiction, would not inhibit the

W.P.(CRL) 725/2017 Page 20 of 54
Court in India to form its opinion, one way or another, on the aspect of
return of the child(ren) within the jurisdiction of the Court which has the
closest concern and most intimate contact, and which may have passed such
orders. This Court, while exercising its jurisdiction under Article 226 of the
Constitution of India and dealing with a writ of habeas corpus, does not
function as an Executing Court, to enforce such like orders of a foreign
court. This Court would independently examine, as parens patriaes the
focal issue as to what is in the best interest of the minor child(ren), and only
on that basis, pass directions one way or another. This position is clearly
borne out from Nithya Anand Raghavan (supra). The concept of comity of
Courts, i.e. where the Court in one jurisdiction acts in deference to the
orders passed by a Court in another foreign jurisdiction, and influenced by
the order passed by the Court in foreign jurisdiction, passes orders in the lis
before it to direct return of the minor child within the jurisdiction of the
foreign court, was rejected by the Supreme Court in Nithya Anand
Raghavan (supra) by placing reliance on Dhanwanti Joshi (supra). We are
extracting a portion of para 24 of the judgment in Nithya Anand Raghavan
(supra) herein below:

―24. We must remind ourselves of the settled legal position that the
concept of forum convenience has no place in wardship
jurisdiction. Further, the efficacy of the principle of comity of
courts as applicable to India in respect of child custody matters
has been succinctly delineated in several decisions of this Court.
We may usefully refer to the decision in Dhanwanti
Joshi v. Madhav Unde [Dhanwanti Joshiv. Madhav Unde, (1998)
1 SCC 112] . In paras 28 to 30, 32 and 33 of the reported decision,
the Court observed thus: (SCC pp. 124-27)

W.P.(CRL) 725/2017 Page 21 of 54
―28. The leading case in this behalf is the one rendered
by the Privy Council in 1951,
in McKee v. McKee [McKee v. McKee, 1951 AC 352
(PC)] . In that case, the parties, who were American
citizens, were married in USA in 1933 and lived there till
December 1946. But they had separated in December
1940. On 17-12-1941, a decree of divorce was passed in
USA and custody of the child was given to the father and
later varied in favour of the mother. At that stage, the
father took away the child to Canada. In habeas corpus
proceedings by the mother, though initially the decisions
of lower courts went against her, the Supreme Court of
Canada gave her custody but the said Court held that the
father could not have the question of custody retried in
Canada once the question was adjudicated in favour of
the mother in the USA earlier. On appeal to the Privy
Council, Lord Simonds held that in proceedings
relating to custody before the Canadian Court, the
welfare and happiness of the infant was of paramount
consideration and the order of a foreign court in USA
as to his custody can be given due weight in the
circumstances of the case, but such an order of a
foreign court was only one of the facts which must be
taken into consideration. It was further held that it was
the duty of the Canadian Court to form an independent
judgment on the merits of the matter in regard to the
welfare of the child. The order of the foreign court in
US would yield to the welfare of the child. “Comity of
courts demanded not its enforcement, but its grave
consideration.‖ This case arising from Canada which
lays down the law for Canada and UK has been
consistently followed in latter cases. This view was
reiterated by the House of Lords in J. v. C. [J. v. C., 1970
AC 668 : (1969) 2 WLR 540 (HL)] This is the law also in
USA (see 24 American Jurisprudence, para 1001) and
Australia. (See Khamis v. Khamis [Khamis v. Khamis,
(1978) 4 Fam LR 410 (Full Court, Australia)] .) … … ….‖
(emphasis supplied)

W.P.(CRL) 725/2017 Page 22 of 54

45. Thus, the fact that the petitioner has obtained orders for custody of the
minor children in his favour from the Superior Court, Judicial District,
Stamford, Norwalk, which have been extracted hereinabove, cannot be a
decisive factor, but can only act as one of the factors to be considered, in
deciding this petition.

46. Recently a Division Bench of this Court in K.G. Vs. State of Delhi,
W.P. (Crl.) No.374/2017 decided on 16.11.2017 had occasion to consider
several decisions of the Supreme Court relevant on the subject, including the
decision in Nithya Anand Raghavan (supra) in a similar background. In
that case as well, the father of the minor child had preferred the writ petition
to seek a writ of habeas corpus for return of his minor daughter, who had
remained with the mother in India, since the mother chose not to return to
USA with her child at the end of the vacation in India taken by the couple
and the minor child. In its judgment (authored by one of us Vipin Sanghi,
J.), the Division Bench, after analysis of the earlier decisions of the Supreme
Court, held as follows:

―93. What emerges from an analysis of all the above discussed
decisions, including the latest decision in Nithya Anand
Raghavan (supra), is that the paramount consideration in
such like cases is the welfare of the minor child – in respect of
whom the habeas corpus writ petition is preferred by one, or
the other, parent. The other considerations – like comity of
courts; orders passed by a foreign Court having jurisdiction in
the matter regarding custody of the minor child; citizenship of
the parents and the child; the ―intimate connect‖; the manner
in which the child may have been brought to India i.e., even if it
is in breach of an order of a competent court in the foreign
jurisdiction, cannot override the consideration of the child’s
welfare, since it is the responsibility of the Court – which

W.P.(CRL) 725/2017 Page 23 of 54
exercises the parens patriae jurisdiction, to ensure that the
exercise of the extra ordinary writ jurisdiction is in the best
interest of the child, and the direction to return the child to the
foreign jurisdiction does not result in any physical, mental,
psychological, or other harm to the child.

94. Thus, if it is not in the best interest and welfare of the
minor child that he/ she should be returned to the foreign
jurisdiction, and giving of such a direction would harm his
interest and welfare, other considerations and principles,
which persuade the Court to take a view in favour of directing
the return of the minor child to the foreign Court’s
jurisdiction, shall stand relegated and the Court would not
direct the return of the child to the place falling within the
jurisdiction of the foreign Court. The aforesaid principles were
culled out from the earlier precedents as would become
apparent from the earlier decisions taken note of hereinabove.

95. Thus, in Surinder Kaur Sandhu (supra) even though the
minor child would have been materially better placed if his
custody had continued with the father in India- since the father
lived in an affluent setting as opposed to the mother, who was a
factory worker in England, the Supreme Court invoked the
principle of welfare of the child to direct that the child be
returned to the custody of the mother, since the father was a
convict who had attempted to cause his wife’s murder and was
let off on probation due to the intervention of his wife. He had
also procured a duplicate passport by making false
representations. The Supreme Court held that the influence of
such a father on the child would not be in his best interest.
The Supreme Court also invoked the principle of comity of
courts in this case. However, perusal of the decision shows that
the primary reason that swayed the Court was the welfare of
the child, which the Supreme Court held would be better served
if his custody is returned to the mother.

96. In Elizabeth Dinshaw (supra), once again, the Supreme
Court emphasized that whenever a question arises before the
Court pertaining to the custody of the minor child, the matter

W.P.(CRL) 725/2017 Page 24 of 54
is to be decided-not on considerations of the legal rights of
parties, but on the sole and predominant criterion as to what
would best serve the interest and welfare of the child. The
Supreme Court observed that in its considered opinion, it would
be the best interest and welfare of the child Dustan, that he
should go back to the U.S.A and continue his education in the
custody and guardianship of the mother. The Supreme Court
also observed that the child- who was an American citizen, had
not taken roots in this country, since not much time had elapsed
from the time that he had been brought by the father into India
in breach of the order of the American Courts.

97. In Sarita Sharma (supra), even though the mother had
brought the two children into India-in breach of the order
passed by the competent Court in U.S.A. giving custody to the
father and only visitation rights to the mother, the Supreme
Court allowed the appeal preferred by the mother/ wife against
the decision of this Court directing the mother to take back the
children to the U.S.A., by holding that it would not be proper to
be guided entirely by the fact that the mother had removed the
children from U.S.A. despite the order of the competent Court
in that country. The Supreme Court held that it was not in the
best interest of the children to direct return of their custody to
the father, who was found to be in the habit of taking
excessive alcohol. The Supreme Court was conscious of the
possibility, that in the U.S.A. the two children would get better
education. However, considering the age of the children – one
of whom was a minor female child aged about 5 years, the
Supreme Court felt that the direction to return the child to the
U.S.A. was not justified. It also held that, what would be in the
best interest of the children would require a full and thorough
inquiry, and that the High Court should have directed the writ
petitioner/ father to initiate appropriate proceedings in which
such an inquiry could be held.

98. In Aviral Mittal (supra), the decision of the High Court was
primarily based on considerations, such as, intention of the
parties to make U.K. as their matrimonial home; the law of
U.K. having the closest connection with the parties, and should

W.P.(CRL) 725/2017 Page 25 of 54
govern their relationship and considerations of welfare of the
children.

99. The Supreme Court in Shilpa Aggarwal (Ms.) (supra)
dismissed the appeal preferred by the mother from the decision
in Aviral Mittal (supra), after noticing the order that had been
passed by the High Court of Justice, Family Division, U.K. This
was because, all that the said Court in U.K. had ordered, was
to insist that the minor be returned to its jurisdiction. The
English Court did not intend to separate the child from the
appellant mother until a final decision was taken with regard to
the custody of the child. The Supreme Court had observed that
the ultimate decision in that regard has to be left to the English
Courts having regard to the nationality of the child, and the
fact that both the parents had worked for gain in the U.K and
had also acquired permanent resident status in the U.K. From
this decision in Shilpa Aggarwal (Ms.) (supra), it appears that
the facts presented before the Supreme Court did not contra-
indicate that it was not in the welfare of the minor child for
her to return to the U.K. with the mother.

100. As observed by the Supreme Court in Nithya Anand
Raghavan (supra), this decision was rendered after a summary
inquiry into the facts of the case, and it did not whittle down
what has been expounded in Dhanwanti Joshi (supra), i.e. the
duty of the Court to consider the overarching welfare of the
child. The Supreme Court drew a distinction with Shilpa
Aggarwal (Ms.) (supra), while deciding Nithya Anand
Raghavan (supra) by, inter alia, observing:

―40. … … In the present case, the minor is born in
India and is an Indian citizen by birth. When she
was removed from the UK, no doubt she had, by
then, acquired UK citizenship, yet for the reasons
indicated hitherto dissuade us to direct return of
the child to the country from where she was
removed‖.

W.P.(CRL) 725/2017 Page 26 of 54

101. As aforesaid, the Supreme Court in Nithya Anand
Raghavan (supra) has re-emphasised the need to place the
welfare of the child at the highest pedestal while considering
the issue whether the minor child should be directed to be
returned to the country of which he is a citizen, and/or where
he may have mostly lived with his parents – or one of them.
The determination of the said issue may be undertaken by the
Indian Court either summarily or in an elaborate manner. On
this aspect, in Nithya Anand Raghavan (supra), the Supreme
Court places reliance on V. Ravi Chandran (supra) which, in
turn, follows the earlier three Judge bench decision in
Dhanwanti Joshi (supra). ‖ (emphasis supplied)

47. What then, is in the best interest and welfare of the two children,
namely Ishnoor and Paramvir? It goes without saying that, unless there are
some other limiting features or circumstances, it is in the best interest of a
minor child that he/she should be in the company of both his/her parents.
This position is well recognised in statutory provisions dealing with the
welfare of children as well as in international treaties.

48. In K.G. (supra), this Court has held that the expression “best interest
of child” used by the Supreme Court in its decisions is wide in its
connotation. It cannot be read as being only the love and care of the primary
care giver, i.e. the mother in the case of an infant, or a child who is only a
few years old. In K.G. (supra), this Court also considered the provisions of
the Juvenile Justice (Care Protection) Act, 2015 and the treaties/
conventions above referred to relied upon by the petitioner. The relevant
discussion in K.G. (supra) on the aforesaid aspect, reads as follows:

“120. At this stage, we may look at some of the provisions of
the Juvenile Justice (Care Protection) Act, 2015 (JJ Act),
which throw some light on the issue as to what is the content of

W.P.(CRL) 725/2017 Page 27 of 54
―best interest of the child‖. We are conscious of the fact that
the provisions of the JJ Act may not strictly apply to the present
fact situation. However, the said provisions certainly would
throw light on the concept of ―best interest of the child‖, as
understood by the Parliament in India.

121. Firstly, the preamble to the JJ Act takes note of the fact
that ―the Government of India has acceded on the 11th
December, 1992 to the Convention on the Rights of the Child,
adopted by the General Assembly of United Nations, which has
prescribed a set of standards to be adhered to by all State
parties in securing the best interest of the child;‖. Thus, it
would be seen that the JJ Act has been enacted by the
Parliament to implement its obligations under the Convention
on the Rights of the Child, which has been acceded to by India.
Consequently, it is the bounden obligation of all State actors –
which would include the Courts in India, to implement in letter
spirit the said Convention on the Rights of the Child.

122. Section 2(9) of the JJ Act explains the meaning of ―best
interest of child‖ to mean ―the basis for any decision taken
regarding the child, to ensure fulfilment of his basic rights and
needs, identity, social well-being and physical, emotional and
intellectual development;‖. Thus, to determine the best interest
of the child, his/ her basic rights and needs, identity, social
well-being and physical, emotional and intellectual
development have to be addressed.

123. Section 3 of the JJ Act lays down the fundamental
principles which the Central Government, the State
Government, the Board created under the said Act, and other
agencies should be guided by while implementing the
provisions of the said Act. Clauses (iv), (v) (xiii) of Section 3
are relevant and they read as follows:

―3. x x x x x x x

(iv) Principle of best interest: All decisions
regarding the child shall be based on the primary
consideration that they are in the best interest of

W.P.(CRL) 725/2017 Page 28 of 54
the child and to help the child to develop full
potential.

(v) Principle of family responsibility: The primary
responsibility of care, nurture and protection of
the child shall be that of the biological family or
adoptive or foster parents, as the case may be.

x x x x x x x x

(xiii) Principle of repatriation and restoration:
Every child in the juvenile justice system shall
have the right to be re-united with his family at the
earliest and to be restored to the same socio-

economic and cultural status that he was in, before
coming under the purview of this Act, unless such
restoration and repatriation is not in his best
interest.‖

124. Thus, all decisions regarding the child should be based
on primary consideration that they are in the best interest of the
child and to help the child to develop to full potential. When
involvement of one of the parents is not shown to be detrimental
to the interest of the child, it goes without saying that to develop
full potential of the child, it is essential that the child should
receive the love, care and attention of both his/ her parents, and
not just one of them, who may have decided on the basis of his/
her differences with the other parent, to re-locate in a different
country. Development of full potential of the child requires
participation of both the parents. The child, who does not
receive the love, care and attention of both the parents, is
bound to suffer from psychological and emotional trauma,
particularly if the child is small and of tender age. The law
also recognizes the fact that the primary responsibility of care,
nutrition and protection of the child falls primarily on the
biological family. The ―biological family‖ certainly cannot
mean only one of the two parents, even if that parent happens to
be the primary care giver.

W.P.(CRL) 725/2017 Page 29 of 54

125. The JJ Act encourages restoration of the child to be re-
united with his family at the earliest, and to be restored to the
same socio-economic and cultural status that he was in, before
being removed from that environment, unless such restoration
or repatriation is not in his best interest. … … …

x x x x x x x x x x

127. We may also take note of some of the provisions of the
Convention on the Rights of the Child adopted by the General
Assembly of the United Nations on 20.11.1989, which was
ratified by the Government of India on 11.12.1992. The
Preamble to the said Convention sets out the basis on which the
same has been framed. The relevant paragraphs from the said
Preamble, which are relevant, read as follows:

―Convinced that the family, as the fundamental
group of society and the natural environment for
the growth and well-being of all its members and
particularly children, should be afforded the
necessary protection and assistance so that it can
fully assume its responsibilities within the
community,
Recognizing that the child, for the full and
harmonious development of his or her personality,
should grow up in a family environment, in an
atmosphere of happiness, love and understanding,

x x x x x x x x
Bearing in mind that, as indicated in the
Declaration of the Rights of the Child, “the child,
by reason of his physical and mental immaturity,
needs special safeguards and care, including
appropriate legal protection, before as well as
after birth”,

x x x x x x x x

W.P.(CRL) 725/2017 Page 30 of 54
Taking due account of the importance of the
traditions and cultural values of each people for
the protection and harmonious development of the
child,

Recognizing the importance of international co-
operation for improving the living conditions of
children in every country, in particular in the
developing countries,‖ (emphasis supplied)

128. Article 3 (1) (2) of this Convention read as follows:

―Article 3

1. In all actions concerning children, whether
undertaken by public or private social welfare
institutions, courts of law, administrative
authorities or legislative bodies, the best interests
of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such
protection and care as is necessary for his or her
well-being, taking into account the rights and
duties of his or her parents, legal guardians, or
other individuals legally responsible for him or
her, and, to this end, shall take all appropriate
legislative and administrative measures.‖

129. Article 5 of this Convention reads as follows:

―Article 5

States Parties shall respect the responsibilities,
rights and duties of parents or, where applicable,
the members of the extended family or community
as provided for by local custom, legal guardians
or other persons legally responsible for the child,
to provide, in a manner consistent with the
evolving capacities of the child, appropriate
direction and guidance in the exercise by the child

W.P.(CRL) 725/2017 Page 31 of 54
of the rights recognized in the present
Convention.‖ (emphasis supplied)

130. Article 6 (1) of this Convention reads:

―Article 6

1. States Parties recognize that every child has the
inherent right to life.‖

131. The inherent right to life, in our view, is wide enough to
be understood as the right to a family life, i.e. with the parents
and immediate family of the child.

132. Articles 7 8 of the Convention reads as follows:

―Article 7

1. The child shall be registered immediately after
birth and shall have the right from birth to a name,
the right to acquire a nationality and. as far as
possible, the right to know and be cared for by his
or her parents.

2. States Parties shall ensure the implementation
of these rights in accordance with their national
law and their obligations under the relevant
international instruments in this field, in particular
where the child would otherwise be stateless.
(emphasis supplied)

Article 8

1. States Parties undertake to respect the right of
the child to preserve his or her identity, including
nationality, name and family relations as
recognized by law without unlawful interference.

2. Where a child is illegally deprived of some or
all of the elements of his or her identity, States
Parties shall provide appropriate assistance and

W.P.(CRL) 725/2017 Page 32 of 54
protection, with a view to re-establishing speedily
his or her identity.‖ (emphasis supplied)

133. Article 9 (1) (3) of the Convention read as follows:

―Article 9

1. States Parties shall ensure that a child shall not
be separated from his or her parents against their
will, except when competent authorities subject to
judicial review determine, in accordance with
applicable law and procedures, that such
separation is necessary for the best interests of the
child. Such determination may be necessary in a
particular case such as one involving abuse or
neglect of the child by the parents, or one where
the parents are living separately and a decision
must be made as to the child’s place of residence.

x x x x x x x x

3. States Parties shall respect the right of the child
who is separated from one or both parents to
maintain personal relations and direct contact
with both parents on a regular basis, except if it is
contrary to the child’s best interests.‖ (emphasis
supplied)

134. Article 10 of the Convention reads as follows:

―Article 10

1. In accordance with the obligation of States
Parties under article 9, paragraph 1, applications
by a child or his or her parents to enter or leave a
State Party for the purpose of family reunification
shall be dealt with by States Parties in a positive,
humane and expeditious manner. States Parties
shall further ensure that the submission of such a

W.P.(CRL) 725/2017 Page 33 of 54
request shall entail no adverse consequences for
the applicants and for the members of their family.

2. A child whose parents reside in different States
shall have the right to maintain on a regular basis,
save in exceptional circumstances personal
relations and direct contacts with both parents.
Towards that end and in accordance with the
obligation of States Parties under article 9,
paragraph 1, States Parties shall respect the right
of the child and his or her parents to leave any
country, including their own, and to enter their
own country. The right to leave any country shall
be subject only to such restrictions as are
prescribed by law and which are necessary to
protect the national security, public order (ordre
public), public health or morals or the rights and
freedoms of others and are consistent with the
other rights recognized in the present
Convention.‖ (emphasis supplied)

135. Article 18 of the Convention reads as follows:

―Article 18

1. States Parties shall use their best efforts to
ensure recognition of the principle that both
parents have common responsibilities for the
upbringing and development of the child. Parents
or, as the case may be, legal guardians, have the
primary responsibility for the upbringing and
development of the child. The best interests of the
child will be their basic concern.

2. For the purpose of guaranteeing and promoting
the rights set forth in the present Convention,
States Parties shall render appropriate assistance
to parents and legal guardians in the performance
of their child-rearing responsibilities and shall

W.P.(CRL) 725/2017 Page 34 of 54
ensure the development of institutions, facilities
and services for the care of children.

3. States Parties shall take all appropriate
measures to ensure that children of working
parents have the right to benefit from child-care
services and facilities for which they are eligible.‖
(emphasis supplied)

136. Article 20 of the Convention reads as follows:

―Article 20

1. A child temporarily or permanently deprived of
his or her family environment, or in whose own
best interests cannot be allowed to remain in that
environment, shall be entitled to special protection
and assistance provided by the State.

2. States Parties shall in accordance with their
national laws ensure alternative care for such a
child.

3. Such care could include, inter alia, foster
placement, kafalah of Islamic law, adoption or if
necessary placement in suitable institutions for the
care of children. When considering solutions, due
regard shall be paid to the desirability of
continuity in a child’s upbringing and to the child’s
ethnic, religious, cultural and linguistic
background.‖ (emphasis supplied)

137. We may also refer to a Resolution passed by the
Government of India and issued by the Ministry of Human
Resource Development vide Resolution No.6-15/98-C.W., dated
09.02.2004 framing the ―National Charter for Children, 2003‖.
The said Charter has been framed by the Government of India
―to reiterate its commitment to the cause of the children in
order to see that no child remains hungry, illiterate or sick‖.
The Preamble to the said Charter, inter alia, reads:

W.P.(CRL) 725/2017 Page 35 of 54

―Whereas we affirm that the best interest of
children must be protected through combined
action of the State, civil society, communities and
families in their obligations in fulfilling children’s
basic needs.

Whereas we also affirm that while State, Society,
Community and Family have obligations towards
children, these must be viewed in the context of
intrinsic and attendant duties of children, and
inculcating in children a sound sense of values
directed towards preserving and strengthening the
Family, Society and the Nation.

x x x x x x x x
Underlying this Charter is our intent to secure for
every child its inherent right to be a child and
enjoy a healthy and happy childhood, to address
the root causes that negate the healthy growth and
development of children, and to awaken the
conscience of the community in the wider societal
context to protect children from all forms of abuse,
while strengthening the family, society and the
Nation.‖ (emphasis supplied)

138. Thus, best welfare of the child, normally, would lie in
living with both his/ her parents in a happy, loving and caring
environment, where the parents contribute to the upbringing of
the child in all spheres of life, and the child receives emotional,
social, physical and material support – to name a few. In a
vitiated marriage, unfortunately, there is bound to be
impairment of some of the inputs which are, ideally, essential
for the best interest of the child. Then the challenge posed
before the Court would be to determine and arrive at an
arrangement, which offers the best possible solution in the facts
and circumstances of a given case, to achieve the best interest
of the child.”

W.P.(CRL) 725/2017 Page 36 of 54

49. We now turn to the facts of the present case to decide as to what
would be in the best interest of the children Ishnoor and Paramvir.

50. Both the parties are highly educated professionals and well placed in
life. They elected to leave India and travelled to USA as adolescents, much
before they got married. They acquired American citizenship. They made a
life in USA; acquired professional degrees there; met each other and
formalized their matrimonial alliance in USA. They elected to set up joint
dental practice and their matrimonial abode in USA, and rear their offspring
in that environment. The conduct of the parties amply demonstrated that
they had abandoned their domicile of origin.

51. It is also evident from the record that both the petitioner and
respondent No. 2 were financially independent, having professional income
from their dental clinic when they were residing in USA. Both of them have
their social, professional and service providers networks in place in USA,
and have established their roots in that country. They are acquainted with,
accustomed to, and well aware of the systems and environment which
prevails in that country, and are in a position to go about their tasks in that
environment without any handicap, which a new comer or stranger would
encounter. They have taken to the system and environment prevalent in
USA, like fish takes to water. Both parties and their child Ishnoor were
ordinarily residing in USA, when they came to India to attend a wedding on
27.01.2016. Pertinently, they came to India on round trip air tickets, which
demonstrate the intent and understanding of the parties that they were to
return to USA at the end of their visit. It appears, that only after arriving in

W.P.(CRL) 725/2017 Page 37 of 54
India, respondent no.2 had a change of mind and she decided to stay on with
Ishnoor.

52. Ishnoor is undoubtedly an American citizen by birth. Even Paramvir
is an American citizen, though born in India. Section 3(1) of the Citizenship
Act, 1955, inter alia, provides that every person born in India on or after the
commencement of the Citizenship (Amendment) Act, 2003 shall be a citizen
of India, where both of his parents are citizens of India.

53. Since both the Petitioner and the Respondent No. 2 are naturalized
citizens of U.S.A., neither of them can be deemed to be Indian citizens under
the Citizenship Act. Both the petitioner and respondent no.2 renounced
their citizenship of India upon acquiring American citizenship. In this
regard, we may refer to Article 9 of the Constitution of India, which reads:

―9. Persons voluntarily acquiring citizenship of a foreign State
not to be citizens.– No person shall be a citizen of India by
virtue of article 5, or be deemed to be a citizen of India by
virtue of article 6 or article 8, if he has voluntarily acquired the
citizenship of any foreign State.‖

54. The minor child of a person who ceases to be a citizen of India, also
ceases to be a citizen of India by virtue of Section 8(2) of the Citizenship
Act. The said sub-section, inter alia, reads:

―8. Renunciation of citizenship.―
x x x x x x x x

(2) Where [a person] ceases to be a citizen of India under sub-

section (1), every minor child of that person shall thereupon
cease to be a citizen of India: ………….‖

W.P.(CRL) 725/2017 Page 38 of 54
Thus, the two children are entitled to all the rights, privileges, social
and financial securities and protections that American citizens are entitled
to.

55. When the couple came to India in January, 2016 along with their child
Ishnoor, she was 3½ years of age. She is five years of age as of date. Thus,
she has spent more time of her formative years in USA than in India. When
she came to India, she was completely alive to, and conscious about her
surroundings and relationships. A child of that age knows his or her parents,
and by that time has developed strong emotional and psychological bonds
with both the parents, particularly if they are living together. A child who is
about 3 ½ years of age reposes complete faith and trust in his/her parents,
and looks to both of them for his or her needs, protection, care and comfort.
The child knows that all his needs and wants would be met by his parents.
At that age, the child hardly ever takes any independent action or decision,
and is normally obedient – knowing fully well that his/her parents are there
to protect him/her. By the age of 3½ years, the child is talking,
communicative and develops his/her inter-personal skills. He/she develops
fondness for the close relatives in the family like, uncles aunts,
grandparents, caregivers like nannys, servants and maids, friends – who are
other children of the same age in the family, neighbourhood, playschool,
children of other friends and acquaintances of the parents, etc. The child
also develops a bond with the instructors/teachers if the child has been
exposed to formal/informal schooling. The child begins to understand and
absorb from the surroundings, such as his/her home, market places, homes
of others that the child may visit and media – such as television, cinema

W.P.(CRL) 725/2017 Page 39 of 54
shows/ performances etc. The child, from the beginning, starts to learn the
do‟s and don‟ts of the system and the environment in which he/she lives.
The child also begins to develop likes and dislikes for people, foods,
extracurricular activities, games, and sports to which the child may be
exposed in his/her environment.

56. Thus, to say that the child Ishnoor – having been removed from the
environment and system prevalent in USA, since January, 2016, is not
accustomed to that system and environment, or that she would find it
difficult to re-adjust herself in that environment, would not be correct.
Children of this age are the first and quickest to adapt to a new system, even
if they were to be suddenly plucked out from their existing system and
environment into a new one. However, in the present case, Ishnoor already
has sufficient exposure to the systems and environment prevalent in USA
and, therefore, we cannot accept the submission of Ms. Rajkotia that it
would be very difficult for her to get back to the same system and
environment as is prevalent in USA, or that it would not be in the interest of
Ishnoor to get back to that system and environment. We cannot accept the
submission that it would cause trauma to Ishnoor, if she were to be now sent
back to USA – which is her country of origin and motherland.

57. So far as Paramvir is concerned, he was born in India on 12.09.2016.
Thus, he is about 16 months of age. A child that young would not have
developed his full vocabulary, and is not verbally inter-active, though, he
would communicate by his gestures, facial expressions and a few words that
he may have learnt. He is still an infant and would necessarily need his
mother i.e. respondent No.2. Therefore, Paramvir would have to remain

W.P.(CRL) 725/2017 Page 40 of 54
with his mother-respondent No.2, unless it is found that it would not be in
his interest that he remains with respondent No.2. Paramvir‟s world
primarily revolves around his immediate caregiver who, in the present
circumstances, is respondent No.2. Therefore, it really makes no difference
to him, even if he were to move to USA with his mother. In fact, in USA,
he would be able to spend time and bond with his father on a regular basis.
This is something that would normally be good for any child.

58. We have examined the host of the documents filed by the petitioner in
support of his submissions. They show that respondent no.2 is
professionally competent; financially independent, and; well entrenched in
the American eco-system and way of life. Thus, she is capable – in every
which way, to return to USA with the children and resume her life
independently, even if she does not wish to return to her matrimonial home
because of her disputes with the petitioner, or work in the same Dental
Clinic as the petitioner. These documents – to mention a few, include the
U.S. marriage certificate of the parties, the lease documents of the
residential property, the US driving license of respondent no.2, the US
income tax returns of the income derived by respondent no.2, the US dental
license of respondent no.2- which shows that she is licensed to practice
dentistry in USA, the US birth certificate and medical records of Ishnoor.
Further, in the „Organization and First Report‟ issued by the Secretary of
State of Connecticut, the name of the Respondent No. 2 has been mentioned
under the title of “Vice-President” and “Treasurer”. Thus, it is established
that the parties were running a joint dental practice in U.S.A. and deriving a
professional income from the same. The circumstances taken note of herein

W.P.(CRL) 725/2017 Page 41 of 54
above show that there is no impediment or down side – as it were, in
respondent no.2 returning to USA with the two minor children. By directing
respondent no.2 to do so, would not expose either respondent no.2 or the
two minor children to any adversity, risks or dangers that they would not
face in India. On the other hand, the children would get a better upbringing,
care and love of both the parents – to which they are entitled as a matter of
right in the country of which they were citizens. The love, care and
attention of both the parents is essential for the overall development of the
two children.

59. Even though the mother remains the primary care-giver for children
of such tender age as Ishnoor and Paramvir, the environment required for a
wholesome upbringing can only be brought about in a ‗family’. The term
‗family’ as defined in the Black‟s Law Dictionary, 8th Ed., includes ―……… a
group consisting of parents and their children…………‖. The term ‗parent’
has been understood as ‗1. The lawful father or mother of someone • In
ordinary usage, the term denotes more than responsibility for conception
and birth. The term commonly includes (1) either the natural father or the
natural mother of a child, ……………….‖.

60. Pertinently, it is not the case of respondent No. 2 that petitioner is a
bad influence on the two children. She may have running disputes with the
petitioner in respect of her matrimonial relationship but that, by itself, does
not make the petitioner an irresponsible or undesirable father. It is not even
her case, that the petitioner resorted to violence or any other objectionable
conduct qua either of the two children at any point of time. In fact, she
herself states in her counter affidavit/reply that the petitioner has been

W.P.(CRL) 725/2017 Page 42 of 54
allowed free access to the children, whenever he is in India. The reply filed
by respondent No.2 shows that the reason for her return to India with
Ishnoor was her matrimonial dispute with the petitioner. The reason for her
return to India was not to save Ishnoor from any threat or danger that the
petitioner posed. Thus, while deciding to remain in India and not to return
to USA in January, 2016, the respondent No.2 did not base her decision on
the consideration, as to what is in the best interest of Ishnoor. The decision
of the Respondent No. 2 not to return to U.S.A. is her own decision, not
taken in consideration of the welfare of both the children. By separating the
children from the Petitioner – the father, the Respondent No. 2 has acted
only in her self interest, keeping in mind only her welfare and not that of
both the minor children. She remained in India and did not return to USA as
scheduled, only on account of the fact that she had a matrimonial dispute
with the petitioner and she found her comfort zone in her parental home and
with her brother.

61. Both the children have a right to be brought up by both the natural
parents together as a family in the country of their origin. Since, the best
welfare of the children lies in living with both the parents, we are of the
opinion that the Respondent No. 2 should return to U.S.A. along with both
the minor children. Respondent No. 2 is accustomed to living in
Connecticut, U.S.A. and was working at the jointly run dental clinic. Thus,
we do not believe there to be any difficulty for the Respondent No. 2 to
return to U.S.A., where she has spent many years – as a student; a
professional; as a spouse, and; as a parent.

W.P.(CRL) 725/2017 Page 43 of 54

62. So far as the allegations of respondent no.2 with regard to the
behaviour and conduct of the petitioner are concerned, apart from the bare
averments made by respondent no.2, there is no material placed on record by
her to lead this court to infer that the petitioner habitually indulges in any
such inappropriate conduct, or displays inappropriate behaviour, which
could be said to be a bad or harmful influence on the minor children. The
matrimonial discord between the petitioner and respondent no.2 arose in
USA. They both worked their relationship as husband and wife in the
American environment. All the witnesses and evidences in respect of their
individual and collective behaviour and conduct would be available in USA.
This court has no material evidence before it to judge the conduct of the
parties and fix the blame on one or the other party. That is not the issue
before this court. This court is not required to judge the reasons for the two
parties falling apart, and to find out as to who is responsible for the same –
assuming that only one party is so responsible. We are not suggesting that
respondent no.2 should return to her matrimonial home in USA, or that she
should resume co-habitation with the petitioner. If she does not wish to do
so, she may live and work separately from the petitioner in the same town in
USA.

63. We are not impressed by the certificates produced by the petitioner,
which he claims to have obtained from the marriage and family counsellor
of the parties Ms. Geller, and the employees at his Dental Clinic. A perusal
of the certificate issued by Ms. Geller in its entirety shows that Ms. Geller
has issued the same on the asking of the petitioner, and she appears to have
commented even on those aspects about which professionally she had no

W.P.(CRL) 725/2017 Page 44 of 54
personal knowledge or information. In our view, the credibility of the
certificate issued by Ms. Geller is doubtful and we, therefore, reject the
same. Similarly, the certificate of the employees at the Dental Clinic cannot
be given any credence.

64. After we had reserved judgment in the present case, the same was
mentioned by learned counsel for the respondent no.2 and a recent decision
rendered by the Supreme Court in Prateek Gupta v. Shilpi Gupta Ors.,
Crl A No.968/2017, decided on 06.12.2017, was tendered for our
consideration while deciding the present petition. In this case, the appellant
father had been directed to hand over the custody of the child Master
Aadvik, aged about 5 years to his mother Shilpi Gupta by this court vide its
judgment dated 29.04.2016. The parties had got married at New Delhi on
20.01.2010 and thereafter shifted to USA. The appellant father was already
residing and gainfully employed in USA prior to the marriage. The parties
had two sons- Aadvik being the elder one. The mother preferred a writ
petition before the High Court alleging the taking over of illegal and
unlawful custody of Aadvik by the father in violation of the order passed by
the Juvenile and Domestic Relations Court of Fairfax County dated
28.05.2015 and 20.10.2015, whereby directions were issued to the appellant
to return the child to the Commonwealth of Virginia and to the custody and
control of the mother Shilpi Gupta. The parties separated around
15.11.2014. Thereafter, the appellant returned to India, only to go back to
USA. He kept making visits to India and on one such occasion, on
24.01.2015, he took with him Aadvik on the pretext of taking him to a mall.
However, the child was brought to India without the prior information, or

W.P.(CRL) 725/2017 Page 45 of 54
permission, or consent of the mother. In the proceedings initiated by the
respondent mother, the Court in USA passed the aforesaid orders. The
father also initiated proceedings under Section 9 of the Hindu Marriage Act
for restitution of conjugal rights in the Court of the Principal Judge, Family
Courts, Rohini. He also sought a declaration that he was the sole and
permanent guardian of the child. He also instituted a civil suit in the High
Court of Delhi to assail the proceedings initiated by the respondent mother
in the courts in USA. The High Court while allowing the writ petition of the
respondent mother, placed reliance on the decision of the Supreme Court in
Surya Vadanan (supra) and after subscribing to the principle of “Comity of
Courts” and the doctrine of “most intimate contact” and “closest concern”
held that in the facts of the case, the Domestic Court (i.e. the Indian Court)
had much less concern with the child as against the Foreign Court which had
passed the order prior in point of time.

65. On behalf of the appellant father, it was contended before the
Supreme Court that the parties are Indian nationals and citizens having
Indian passports, and they were only residents of USA having temporary
work visa. The respondent mother was alone in USA with the younger child
on temporary work visa, which was to expire in 2017. Her parents and other
family members are all in India. The age at which the child was brought to
India (2 ½ years) could not be considered to have made him accustomed and
adapted to the lifestyle in USA for application of the doctrine of “most
intimate contact” and “closest concern” with the court of that country. After
his return to India, the child had been admitted to a reputed school and had
got accustomed to a congenial family environment, informed with love and

W.P.(CRL) 725/2017 Page 46 of 54
affection, amongst others, of his grandparents and it would be extremely
harsh to extricate him from the Indian city and to lodge him in an alien city.
The same would adversely impact the process of his overall grooming.

66. The Supreme Court referred to Nithya Anand Raghavan (supra),
which had disapproved the decision in Surya Vardhan (supra), inter alia, on
the aspect of importance attached to the doctrine of “Comity of Courts” in
the said decision. The Supreme Court noted that the parties were Indian
citizens, married in India as per Hindu rites and customs. Thereafter, they
shifted to USA. The Supreme Court in para 21 and 32 of the decision
observed as follows:

“21. Thus the state of law as approved in Nithya Anand
Raghavan4 is that if a child is brought from a foreign country,
being its native country to India, the court in India may conduct

(a) summary enquiry, or (b) an elaborate enquiry on the
question of custody, if called for. In the case of a summary
enquiry, the court may deem it fit to order the return of the
child to the country from where he/she has been removed unless
such return is shown to be harmful to the child. Axiomatically
thus, even in case of a summary enquiry, it is open to the court
to decline the relief of return of the child to the country from
where he/she has been removed irrespective of a pre-existing
order of return of a child by a foreign court, in case it
transpires that its repatriation would be harmful to it. On the
other hand, in an elaborate enquiry, the court is obligated to
examine the merits as to where the paramount interest and
welfare of the child lay and take note of the pre-existing order
of the foreign court for the return of the child as only one of the
circumstances. As a corollary, in both the eventualities whether
the enquiry is summary or elaborate, the court would be guided
by the pre-dominant consideration of welfare of the child
assuredly on an overall consideration on all attendant facts and
circumstances. In other words, the principle of comity of courts

W.P.(CRL) 725/2017 Page 47 of 54
is not to be accorded a yielding primacy or dominance over the
welfare and well-being of the child which unmistakeably is of
paramount and decisive bearing‖.

―32. The gravamen of the judicial enunciation on the issue of
repatriation of a child removed from its native country is
clearly founded on the predominant imperative of its overall
well-being, the principle of comity of courts, and the doctrines
of ―intimate contact and closest concern‖ notwithstanding.
Though the principle of comity of courts and the
aforementioned doctrines qua a foreign court from the territory
of which a child is removed are factors which deserve notice in
deciding the issue of custody and repatriation of the child, it is
no longer res integra that the ever overriding determinant
would be the welfare and interest of the child. In other words,
the invocation of these principles/doctrines has to be judged on
the touchstone of myriad attendant facts and circumstances of
each case, the ultimate live concern being the welfare of the
child, other factors being acknowledgeably subservient thereto.
Though in the process of adjudication of the issue of
repatriation, a court can elect to adopt a summary enquiry and
order immediate restoration of the child to its native country, if
the applicant/parent is prompt and alert in his/her initiative and
the existing circumstances ex facie justify such course again in
the overwhelming exigency of the welfare of the child, such a
course could be approvable in law, if an effortless discernment
of the relevant factors testify irreversible, adverse and
prejudicial impact onits physical, mental, psychological, social,
cultural existence, thus exposing it to visible, continuing and
irreparable detrimental and nihilistic attentuations. On the
other hand, if the applicant/parent is slack and there is a
considerable time lag between the removal of the child from the
native country and the steps taken for its repatriation thereto,
the court would prefer an elaborate enquiry into all relevant
aspects bearing on the child, as meanwhile with the passage of
time, it expectedly had grown roots in the country and its
characteristic milieu, thus casting its influence on the process
of its grooming in its fold”.

W.P.(CRL) 725/2017 Page 48 of 54

67. The Supreme Court found that the child Aadvik had spent half of his
life in USA, and half in India. The Supreme Court also held that there was
no convincing material on record to show that the continuation of the child
in India in the custody of the appellant would be irreparably prejudicial to
him. The court also took into account the environment in which the child
was growing up in India.

68. In respect of the decision in Prateek Gupta (supra), we may, firstly,
observe that the same extensively relies upon Nithya Anand Raghavan
(supra), which is a larger bench (three judges) decision. We are conscious
of the said decision and rely upon the same for our view. The material
factual dissimilarity between the present case and Prateek Gupta (supra)
are:

i) In Prateek Gupta (supra), the parties had got married in India
and thereafter they moved to USA, whereas in the present case the
parties had acquired American citizenship and married in USA. They
even had their first child in USA and the second child, though born in
India is also an American citizen, and not an Indian citizen. Thus, the
nationality of both the children in the present case in American.

ii) In Prateek Gupta (supra), the High Court while deciding the
writ petition preferred by the mother Shilpi Gupta heavily placed
reliance on Surya Vardhan (supra), which has not been approved of
in Nithya Anand Raghavan (supra). The High Court had relied upon
the doctrine of “Comity of Courts” while granting relief to the mother
Shilpi Gupta, and the decision was not founded upon the sole

W.P.(CRL) 725/2017 Page 49 of 54
consideration of the welfare of the minor child Aadvik. However, we
have the benefit of Nithya Anand Raghavan (supra) and we are not
guided, in our decision, by the doctrine of “comity of courts”. We are,
primarily, guided by the principle that this court is acting as parens
patriaes of the two minor children Ishnoor and Paramvir, and we are
basing our decision on the consideration, as to what is in the best
interest of the two children.

iii) In Prateek Gupta (supra), the parties were only having
temporary work permits to work in USA, and were not citizens of
USA. They were Indian citizens having Indian passports. As opposed
to that, in the present case both the petitioner and respondent no.2 as
well as the two minor children are American citizens, and are entitled
to live and work in USA as American citizens. They enjoy all the
rights, privileges, protections and securities – social and financial, in
USA like all American citizens. The petitioner and respondent No.2
have been working, and can continue to work in USA as a matter of
right. They are professionally qualified and experienced in their field,
in the American environment.

Thus, Prateek Gupta (supra) does not advance the case of
respondent no.2 in any measure whatsoever.

69. Accordingly, we direct the respondent No. 2 to return to U.S.A. with
both Ishnoor and Paramvir. At the same time, we are concerned that
respondent No.2, when she lands on the shores of USA, is not faced with
any adversity or hostility at the hands of the petitioner or the American legal

W.P.(CRL) 725/2017 Page 50 of 54
or law enforcement machinery. We are also concerned that when she lands
in USA with the two minor children, she is adequately provided for, since
she will take some time to pick up the threads and get back on her own two
feet. Thus, the direction to respondent No.2 to return to USA with the two
children is conditional on the following conditions being complied with by
the petitioner.

70. The petitioner shall move the Superior Court, Judicial District,
Stamford/ Norwalk for recall of the orders dated 17.11.2016 and 25.01.2017
insofar as they direct respondent no.2 to grant temporary physical and legal
custody, and the sole legal and physical custody, of the two minor children
to the petitioner. So far as the direction to respondent no.2 to return to the
State of Connecticut with the two children is concerned, since we are
passing the same directions, the said direction issued by the Superior Court,
Judicial District, Stamford, Norwalk may be maintained. Thus, when
respondent No.2 lands in USA with the two minor children, they shall not be
removed from her custody. It shall be open to the petitioner to inform the
said competent court of our decision, and that the recall of the orders of
temporary/ sole legal and physical custody of the minor children is being
sought in terms of the present decision. Once the orders to the aforesaid
effect are obtained, certified/ authenticated copies of the same shall be
placed on our record.

71. The two minor children shall continue to remain in the custody of
respondent no.2 even after she returns to USA, till so long as the competent
court in USA passes fresh orders on the aspect of temporary/ permanent
custody of the aforesaid two minor children after granting adequate

W.P.(CRL) 725/2017 Page 51 of 54
opportunity of hearing to both the parties. The petitioner shall not make any
attempt to take the minor children out of the custody of respondent no.2 by
force. The petitioner shall, however, be entitled to meet the children and
spend time with them as may be mutually agreed between him and
respondent No.2. In case there is no understanding/ agreement arrived at
between them on this aspect mutually, he may seek interim orders for
visitation rights in respect of the two minor children from the competent
court in USA till the issue of custody is determine by the said court and a
final determination on the aspect of custody/ visitation is made by the said
court.

72. The petitioner shall undertake, to not initiate any criminal/ contempt
proceedings against the respondent No. 2 in U.S.A. on account of
respondent No.2 not returning to USA with the two minor children in terms
of the aforesaid orders dated 17.11.2016 and 25.01.2017 passed by the
Superior Court, Judicial District, Stamford, Norwalk. The petitioner shall
also undertake, to not initiate any criminal proceedings against respondent
No.2 in USA in relation to the alleged transfer of funds made by respondent
No.2 into the account of her brother. Any pending criminal complaint or
proceeding pending against the respondent No. 2 shall immediately be
withdrawn. The petitioner shall file an affidavit disclosing the criminal
proceedings, if any, already initiated against respondent No.2; the orders
evidencing withdrawal of such proceedings, if any, and containing an
undertaking that he shall not initiate criminal proceedings against
respondent No.2 in relation to the aforesaid disputes.

W.P.(CRL) 725/2017 Page 52 of 54

73. There can be no doubt that the return of respondent No.2 with the
minor children should be at the expense of the petitioner; their initial stay in
USA, should also be entirely funded and taken care of by the petitioner by
providing a separate furnished accommodation (with all basic amenities
facilities such as water, electricity, internet connection, etc.) for them in the
vicinity of the matrimonial home of the parties, wherein they have lived till
they undertook their trip to India in January, 2016. Thus, it shall be the
obligation of the petitioner to provide reasonable accommodation sufficient
to cater to the needs of respondent No.2 and the minor children. Since
respondent No.2 came to India in January, 2016 and, therefore, would take
time to restart her practice, the petitioner should also meet all the expenses
of respondent No.2 and the minor children, including the expenses towards
their food, clothing and shelter, at least for the initial period of six months,
or till such time as respondent No.2 finds a suitable job for herself, or
restarts her professional career. Even after respondent No.2 were to find a
job, it should be the responsibility of the petitioner to share the expenses of
the minor children, including the expenses towards their schooling, other
extra-curricular activities, transportation, Attendant/ Nanny and the like.
The petitioner should also arrange a vehicle, so that respondent No.2 is able
to move around to attend to her chores and responsibilities.

74. Considering that the petitioner had initiated proceedings in USA and
the respondent No.2 has been asked to appear before the Court to defend
those proceedings, the petitioner should also meet the legal expenses that
respondent No.2 may incur, till the time she is not able to find a suitable job
for herself. However, if respondent no.2 is entitled to legal aid/ assurance

W.P.(CRL) 725/2017 Page 53 of 54
from the State, to the extent the legal aid is provided to her, the legal
expenses may not be borne by the petitioner.

75. Once the aforesaid arrangements are in place, in our view, respondent
No.2 can possibly have no objection to return to USA with the minor
children. The comfort that we have sought to provide to respondent No.2, as
aforesaid, is to enable her to have a soft landing when she reaches the shores
of USA, so that the initial period of, at least, six months is taken care of for
her, during which period she could find her feet and live on her own, or
under an arrangement as may be determined by the competent Courts in
USA during this period. It would be for the Courts in USA to eventually
rule on the aspect concerning the financial obligations and responsibilities of
the parties towards each other and towards the minor children – for their
upbringing, uninfluenced by the directions issued by this Court in this
regard.

76. The petitioner is directed to file his affidavit of undertaking in terms
of paras 70 to 74 above within ten days with advance copy to the
respondents. The matter be listed on 19.03.2018 for our perusal of the
affidavit of undertaking, and for passing of further orders.

(VIPIN SANGHI)
JUDGE

(P.S. TEJI)
JUDGE
MARCH 06, 2018

W.P.(CRL) 725/2017 Page 54 of 54

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