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Shehzad Hemani vs Nadia Rashid on 13 April, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3367 OF 2018

SHEHZAD HEMANI .. PETITIONER
VERSUS
NADIA RASHID .. RESPONDENT

Mr.Venkatesh Dhond, Sr. Advocate with Mrs.Mrunalini
Deshmukh, Mr.Giriraj Subramanium, Mr.Vivek Vashi, Mr.Yusuf
Iqbal, Ms.Parinaz Vakil, Mr.Sidharth Singh and Mr.Utkarsha
Srivastav i/b Vashi and Vashi for the petitioner.

Mrs.Rajani Iyer, Sr. Advocate i/b Ms.Veena Gowda for the
respondent.

CORAM: SMT.BHARATI H. DANGRE, J
RESERVED : 23rd MARCH 2018
PRONOUNCED : 13th APRIL 2018

JUDGMENT:-

1 The petition revolves around a minor child

“Insiya” aged four years. Insiya is the daughter of the

petitioner, who is an Indian citizen and the respondent with

dual citizenship, being a citizen of Netherlands and also a

Pakistani National. The present petition is filed by the

petitioner father, being aggrieved by the order passed by the

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Family Court at Bandra on 29th January 2018, directing to

return the custody of Insiya to the respondent, who is

directed to remain present before the Family Court on 27 th

March 2018.

2 The petition, as any other custody petition has

been filed after going through an estranged legal battle

between the parties fought in India as well outside the

boundaries of India in the Dutch District Court, and has

travelled upto the High Court of Amsterdam and the Dutch,

Supreme Court. In order to appreciate the contention raised

in the petition and to deal with the same, it is necessary to

delve upon the chronology of events in a simplified

chronological manner, though the proceedings initiated by the

parties against one another would make a long synopsis of

events.

3 The petitioner is a Managing Director of a

Multinational Steel Manufacturing and Commodities Trading

Company, and has deep roots in the Indian society. The

petitioner and respondent got married on 29 th April 2011 in

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accordance with the Islamic rituals in India. The marriage

between the petitioner and the respondent was registered

under the Special Marriage Act, 1954. The respondent was

divorced prior to marrying the petitioner and from the earlier

marriage, she has a minor daughter Ms.Elvira Zeeshan

Choudhry, whose father is a Pakistani National. Post-

marriage, the petitioner and the respondent chose Bandra

(West), Mumbai, as their matrimonial home. The daughter

Insiya was born on 6th March 2014 in Netherlands and she is

a Dutch National. After the birth of Insiya, the respondent

returned to India and was accompanied by her elder daughter

Elvira, who came to be admitted to an American International

School in Mumbai. The respondent left India on 7 th

December 2014 and this is the beginning of the tussle

between the parties. According to the petitioner, the

respondent had taken Insiya and her elder daughter Elvira to

Netherlands for vaccination, whereas according to the

respondent, it was mutually decided between the parties that

they would relocate the family to Amsterdam and it was

decided that the respondent with the children would proceed

ahead, followed by the petitioner. The respondent did not

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return with the children and it is the specific case of the

petitioner that in the intervening period, he visited

Netherlands on 15 occasions to get in touch with the

respondent and his daughters, but he was granted a limited

access, which was strictly monitored. At this point of time,

the respondent made her intention clear to continue staying

in Netherlands and expressed her intention not to return to

India.

From this point onwards, commenced the journey

of the long rounds of litigation between the parties. On 23 rd

April 2015, the respondent instituted a Quia Timet

application for custody before the Dutch District Court and

also sent a divorce notice to the petitioner. On 7 th May 2015,

the respondent also instituted proceedings before the Dutch

High Court seeking dissolution of marriage. At the same

time, the petitioner also filed an action before the Hague,

District Court, alleging abduction and seeking return of Insiya

by invoking the International Child Abduction Act of 25 th

October 1980 (also referred to as “Convention”). The

petitioner alleged that the removal/retention of Insiyia

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without his permission attracted Article 3 of the Convention

and he alleged that said removal or non-return is in breach of

the custody Rights under the law of the State in which the

child was happily residing immediately before her removal.

The jurisdiction of the Hague District Court was invoked to

decide a dispute between the parties as to what was habitual

residence of Insiya before her unlawful removal by the

respondent, since the petitioner specifically asserted that

Insiya’s habitual place of residence before her removal, was

in India. The Hague District Court examined the issue and

held that Insiya’s habitual place of residence upto 7 th

December 2014, was in India, and thereafter, the mother

travelled to Netherlands with the children on 7 th December

2014, in order to allow Insiya to be vaccinated. The Hague,

District Court concluded that Insiya’s habitual place of

residence during the period from 8th December 2014 to 15th

April 2015 was moved from India to Netherlands, and

therefore, there was no case whatsoever of retention without

permission within the meaning of Article 3 of the Convention.

In this background, the District Court rejected the father’s

application for return of Insiya to India.

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4 Being aggrieved by the said order of the Dutch,

District Court, the petitioner preferred an Appeal to the

Hague Court of Appeal, and the appellate Court by an order

dated 19th August 2015 upheld the order passed by the Court

below. The Court of Appeal held that there was a case of

change of usual place of residence of Insiya due to action of

the parties, and it can be assumed from those actions that the

presence of Insiya in Netherlands was not temporary or

coincidental, and that the place of residence of the child

expresses a certain integration in social and familial

surroundings. The Court of Appeal agreed with the finding of

the Court below that there was unauthorized retention in

terms of the Hague Abduction Convention, and resultantly, it

confirmed that order passed by the Dutch, District Court on

6th July 2015.

5 The respondent wife who had filed an application

for custody of the daughter before the Dutch, District Court

along with the petition for divorce, resulted into an order

being passed on 1st March 2016 in form of preliminary relief.

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By the said order, the placement order came to be passed in

the backdrop that the respondent mother had always cared

for Insiya, and Insiya had lived with the mother, since they

came to Netherlands from India in December 2014 and

considering her young age, the District Court held that it is in

Insiya’s interest that she be placed with mother Nadia Rashid.

The District Court, therefore, directed that Insiya, born in

Municipality of Amsterdam on 6th March 2014, be placed with

Rashid i.e. the mother, and ordered to hand over the minor, if

she is not already in the hands of the mother.

6 The petitioner raised an issue of jurisdiction of

the Dutch, District Court, in entertaining the proceedings for

divorce and passing of order on 1 st March 2016 by way of an

ancillary order. The objection raised was that the Dutch,

District Court had no jurisdiction on the ground of Council

Regulation – (EC) No.2201/2003, concerning jurisdiction and

the recognition and enforcement of judgments in matrimonial

matters and the matter of parental responsibility (Brussels II

Bis), since the wife had not lived in Netherlands for six

months immediately prior to submitting her petition for

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divorce. Further, the petitioner also claimed that it involved

lis pendens because he had already instituted proceedings for

divorce on 5th May 2015 to the Indian Court and they had

commenced earlier than the proceedings filed by the

respondent in Netherlands. On consideration of the Brussels

II Bis in relation to the usual place of residence, the Dutch

District Court held that it did not have jurisdiction in law

under Article 3 of Brussels II Bis or on the ground of Article 4

and 5 of the Code of Civil Procedure.

The said matter was taken in appeal by the petitioner

before the High Court of Amsterdam. The High Court

considered the issue of jurisdiction and the law of Brussels II

Bis as well as Dutch Civil Procedure. The High Court also

dealt with the contention of the wife that she is unable to

attend the proceedings going on in India, and it is impossible

or unacceptable for her to attend the said proceedings, since

according to her, she apprehends an unfair trial and

inequality of arms at stake. The High Court ruled against the

wife and held that the Dutch Court had no jurisdiction to take

cognizance of the woman’s divorce petition and the same is

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applicable to ancillary reliefs requested by the wife. The

order passed by the Court below was thus set aside on the

ground that the Dutch Court had no jurisdiction to take

cognizance of the wife’s divorce petition with its ancillary

provisions. This order, however, came to be modified

subsequently at a much later point of time on 12 th January

2008, by the Dutch, Supreme Court by holding that the Dutch

Court had jurisdiction to decide ancillary matters of custody,

but not divorce.

7 The events took a sudden turn, when the

petitioner brought Insiya to India on 29th September 2016 and

the respondent alleged that Insiya was abducted by the

petitioner. The respondent, therefore, initiated the

proceedings resulting into the Interpol issuing a Diffusion

Notice against the petitioner and also issuing a Yellow Corner

notice against Insiya. Further, amber alert Europe was also

issued for Insiya. The petitioner instituted proceedings in the

Bombay High Court, claiming a restraint order against CBI

and the Bombay police from taking any coercive action

pursuant to the Diffusion Notice and Yellow Corner Notice

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and the interim protection was granted in favour of the

petitioner, ultimately resulting into the Interpol cancelling

Diffusion notice. Attempts were also made for extraditing the

petitioner from India and the Government of India

subsequently rejected the said Extradition Request by order

dated 5th May 2017.

The child Insiya continued to be in custody of the

petitioner from 29th September 2016. Amsterdam, under the

Hague Convention for return of Insiya. In a petition filed by

the husband under Guardians and Wards Act, 1890, before

the Family Court, the respondent wife put an appearance and

raised an objection on jurisdiction of the Court to decide of

custody on the ground that the child is a Dutch National and

her ordinary place of residence was at Netherlands at the time

of filing of the petition. The respondent alleged that the

petitioner abducted the child from Netherlands. The Family

Court, on an application for interim custody of the child filed

by the husband passed an order on 18th July 2017 continuing

the interim custody of Insiya with the petitioner till disposal

of the petition.

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8 The respondent wife moved a separate application

challenging the jurisdiction of the Court to grant such a relief.

The order dated 18th July 2017 came to be challenged before

the High Court by filing a writ petition by the respondent

wife. It was alleged that the said order was passed in absence

of petitioner and even her Advocate had withdrawn the

vakalatnama. It was also pointed out to the High Court that

she had moved an application before the Family Court seeking

reject/return of the petition and praying for direction to the

petitioner to return custody of the minor child Insiya to the

mother. The Court considered the grievance made by the

petitioner in the petition and after considering the tender age

of the child directed that it is appropriate that pending the

decision in respect of a larger issue of jurisdiction and

maintainability of the petition, the prayer (b) in respect of

custody of the child be decided without any delay. By consent

of the parties, it was agreed that the issue of custody of the

child would be decided, pending the issue of jurisdiction of

the Court. With this direction issued on 11th January 2018,

the Writ Petition came to be disposed of by this Court.

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9 In the mean time, the respondent moved an

application before the District Court, Amsterdam under the

Hague Convention of Child Abduction, praying for immediate

return of the minor child. The claim of the mother was based

on the Hague Convention of Civil aspects of International

Child Abduction on 25/10/1980(Convention). The said

application came to be decided by the District Court (Hague)

on 22nd December 2017 and the Court observed that

Netherlands is a party to the Convention, whereas India is not

a party to the Convention. However, by application of Article

2 of the International Child Abduction Implementation Act,

the law being applicable to the those cases of International

Child Abduction that are governed by the Treaty and in light

of provisions of Articles 2 13 of the Child Abduction

Implementation Act, the provisions of the Convention were

applied by analogy. The Court assumed the jurisdiction on the

basis of Article 11 under 1 of Implementation Act and held

that the Court of Hague had jurisdiction to hear all cases

regarding compulsory return of an Internationally Abducted

Child to the person entitled to its custody and return of such a

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child across the Dutch border. In furtherance of Article 12

under 1 of the Convention, the immediate return of a child is

to be ordered if less than one year has elapsed between the

removal or retention of the child, and the date of filing of the

request with the Court and since less than 1 year had elapsed

between removal of Insiya to India and the date when request

was filed, the Court does not get around to the question,

Whether Insiya has integrated in India, and in principle,

agreed that she must be immediately returned according to

the Convention. The Court, therefore, ordered immediate

return of the minor child Insiya to Netherlands and directed

the father to return the minor child to Netherlands and also

to hand over the necessary valid travel documents over to the

mother.

10 Proceedings before the Family Court at Bandra in

relation to the custody of the minor, were proceeded with as

directed by the High Court, and the issue of custody of the

child was taken up for hearing, keeping aside the issue of the

jurisdiction of the Family Court in Mumbai. The Family

Court, after hearing the application for custody, delved upon

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the entire chronology of events in the form of different

proceedings filed before different forums and also considered

the balance of convenience in favour of the petitioner and

respondent in the backdrop of the well accepted principle

that the child’s welfare be of paramount consideration. The

Family Court noted the present scenario where the child was

being educated in American School in India and proceeded to

decide the question as to whether at interim stage, the child

Insiya should be returned to her mother or whether she

should be retained by the father. The Judge, Family Court,

attempted to strike a balance between the claim made by the

father to maintain Insiya by showering her with all love,

affection, stability, security etc on one hand, and the love and

compassion of the mother on the other hand. The Court

however, observed that the petitioner has not disclosed as to

how the child was brought to India, in the back drop that she

was the citizen of Netherlands holding a passport of Kingdom

of Netherlands and her visa had expired. On due

consideration of the entire matter, the Family Court, Mumbai,

by order dated 29th January 2018, directed return of minor

child Insiya to the respondent and directed the respondent to

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remain present before the Family Court to seek custody of the

child.

11 It is in the backdrop of this factual matrix, the

parties were represented by their respective counsel. I have

extensively heard the learned senior counsel Mr.Venkatesh

Dhond appearing on behalf of the petitioner. Mr.Dhond

would invite attention of the Court to the chronology of

events and would submit that the paramount consideration in

the matter, should be the welfare of the child. He would

submit that from 29th June 2016, the child was with the

petitioner and she is admitted in an International School in

Mumbai. He would submit that the child has developed deep

roots in India, and the father and his family including grant

parents are taking care of the child. In contrast, he would

submit that the surrounding in which the respondent mother

was staying is not conducive to the healthy growth of the

child, and he would specifically refer to the statement of the

mother in the pleadings reflecting that the mother is not

financially sound and is dependent on the support from the

State and she is residing in a house funded by the State. His

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emphasis is also on the fact that the mother has a dual

citizenship, being of Pakistan and Netherlands. The learned

Senior counsel would express his apprehension if the child is

taken by the mother to Pakistan, he would be losing the child

forever, and in such circumstances, he would submit that the

Family Court has grossly erred in granting custody to the

mother by way of an interim relief. The learned counsel

would also submit that in light of the proceedings initiated by

the petitioner in Netherlands, it is not possible for him to step

into Netherlands to meet his daughter and avail any access.

The learned senior counsel would also submit that when the

child was brought to India on 29th September 2016, she was

barely two years and was not following any language, but

now she is conversant with the language spoken in the

country and she do not speak or understand Dutch language,

which would make it difficult for her to settle and develop

any ties in Netherlands and this would be nothing short than

uprooting a child at this age. He would heavily criticize the

order passed by the Judge, Family Court, who has made the

entire situation irreversible in nature, and according to him,

the interim order has virtually resulted grant of final relief,

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rendering his petition for custody, infructuous. He would

conclude and assert that the Family Court has fallen into a

gross error in granting the relief.

He would rely upon the judgment of the Hon’ble

Apex Court in the case of Pratik Gupta Vs. Shilpi Gupta1

dealing with somehow similar situation, where the Hon’ble

Apex Court continued the custody of the child with the father.

He would submit that in the peculiar facts of the case, the

child who was approximately 5 years and spent half of his life

in India, the Apex Court has held that it would be difficult for

him to have social, physical, psychological, cultural and

academic environment which would be totally upturned by a

transition which would result into his inherent potential and

faculties getting a set back. He would also place reliance on

the judgment of the Apex Court in case of V. Ravi Chandran

Vs.Union of India ors2 to emphasize the course to be

adopted by the Courts of a recipient country.

1 (2018) 2 SCC 309
2 (2010) 1 SCC 174

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12 As against this, the learned senior counsel

Ms.Rajani Iyer appearing for the respondent would submit

that the moot question is how the petitioner has brought

Insiya to India and she alleges that in breach of the judgments

delivered by the Court in Netherlands, he had kidnapped the

child and brought her to India. According to the learned

senior counsel, the assertion of the father has been

disbelieved by the Dutch Court and it was the conduct of the

father which had disentitled him from availing access to the

daughter, as in fact, according to the learned counsel, on 16 th

October 2015, in the divorce petition filed by the respondent,

permission was granted to the petitioner to meet Insiya at a

neutral venue. However, it is the petitioner who lost this

availment by his conduct. The learned counsel would

question the circumstances in which little Insiya was

transported into India without any documents. The learned

counsel would submit that based on this conduct of the

petitioner, the state has foisted an action of kidnapping and

abduction against the petitioner, since it was an offence

against the State and he is therefore, not entitled to visit

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Netherlands, apprehending his arrest and stern action. As

regards the contention of Mr.Dhond that the petitioner would

provide a more healthy and conducive atmosphere to India,

the learned counsel would submit that the said claim is false

and pretentious and she would invite attention of this Court

to the service report placed on record with the report of the

bailiff and his statement reflecting that the mother of the

petitioner had refused to accept the notice on his behalf when

an attempt was made to serve the notice at the address

mentioned by the petitioner in the petition, by stating that he

had no connection with the son and he was not staying there.

Learned counsel for the respondent would submit that mother

is a natural and the preferential guardian as far as the

daughter is concerned, and in support of the said argument,

she would rely upon the judgment of the Apex Court in the

case of Vivek Singh Vs. Romani Singh1. Learned counsel

would also submit that the father has been declared as

fugitive, and she poses a question as to whether a daughter

would be safe with such a father. The learned senior counsel

would also pose a question by pointing out to the chronology

1 (2017) 3 SCC 231

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of events that if it is the case of the petitioner that the wife

along with the daughter had moved to Netherlands in May

2014, but if he was so concerned about the child and desirous

of the custody, why did he wait till he filed a petition for

custody in the Court in Mumbai only on 5 th May 2015.

According to the learned counsel, it is the specific case of the

respondent and for demonstrating it, she has placed reliance

on the various emails exchanged between the petitioner and

the respondent that the petitioner had an inclination to stay

in Netherlands and in fact, attempts were made to secure a

job for her. However, since he backed out, the respondent

was left with no option, she being a citizen of Netherlands to

select the said country as her place of abode along with her

minor daughter. In all such circumstances, the learned senior

counsel would support the impugned order passed by the

Family Court and would submit that the said order is a well

reasoned order and focused on the conduct of the petitioner

by taking into consideration in the circumstances in which the

child was brought to India.

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13 In the backdrop of the factual matrix involved in

the matter, it is apparent that the parties have invoked the

jurisdiction of the Courts situated beyond the limits of this

country and some proceedings are also instituted in India.

The husband has initiated the proceedings seeking custody of

the daughter under the Guardian and Wards Act, 1890 by

filing petition invoking provisions under Section 9, 17, and 25

of the Act.

In order to determine the jurisdiction of the Court

to deal with the issue which the petitioner has agitated in

Petition No.D-40 of 2015, it would be necessary to refer to the

law prevailing in the country, dealing with the custody of a

minor child. Section 9 of the Guardian and Wards Act which

determine the jurisdiction of the Court where the petition in

relation to custody of a child can be filed, reads thus :

            9    Court having jurisdiction to entertain
application--

(1) If the application is with respect to the
guardianship of the person of the minor, it shall
be made to the District Court having jurisdiction
in the place where the minor ordinarily resides.

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(2) If the application is with respect to the
guardianship of the property of the minor, it may
be made either to the District Court having
jurisdiction in the place where the minor
ordinarily resides or to a District Court having
jurisdiction in a place where he has property.

(3) If an application with respect to the
guardianship of the property of a minor is made
to a District Court other than that having
jurisdiction in the place where the minor
ordinarily resides, the Court may return the
application if in its opinion the application would
be disposed of more justly or conveniently by any
other District Court having jurisdiction.

14 It is evident from the statements and pleadings of

the parties that after marriage, the parties have mutually

started residing in India and till the respondent wife moved to

Netherlands, which according to the petitioner, is on the

pretext of vaccination of the child, the parties were residing in

India. It is also not in dispute that the elder daughter came to

be admitted in an International School in Mumbai. The core

of dispute between the parties lies in what circumstances, the

respondent-wife left India along with the child and both the

parties have their own version. According to the petitioner

husband, the wife had travelled temporarily only for a limited

purpose for vaccination, with no intention to leave the place

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of ordinary residence which was in India, whereas according

to the respondent wife, it was mutually agreed between the

parties that they intended to shift to Netherlands and the

husband encouraged the wife to travel initially along with the

children so that he could subsequently follow.

The test for determining the jurisdiction of the

Court under Section 9 of the Guardians and Wards Act is the

"ordinary residence of the minor" and the expression used is

"where the minor ordinarily resides". Whether the minor is

ordinarily residing at a given place, is primarily a question of

intention of the parties and is to be tried as a question of fact.

On occasions, it can be a mixed question of fact and law, but

unless the jurisdictional facts are admitted, it can never be a

pure question of law capable of being answered in law in the

backdrop of factual aspect of the controversy. The word

'resides' definitely has a wider amplitude than the mere

temporary stay or a casual stay at a particular point of time.

The petitioner and respondent have invited attention to this

Court to several e-mail communications in support of their

respective contentions to determine the ordinary place of

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residence of child Insiya. However, the facts reveal that after

solemnization of the marriage in April 2011 till 7 th December

2013, the parties resided in Mumbai, except when the wife

had been to Netherlands on a short visit for giving birth to

Insiya, who was born in Netherlands on 6th March 2014. The

elder daughter of the respondent wife Elvira was admitted to

an American International School in Mumbai, reflecting an

indication of the parties to settle in India. However, it is

possible that the wife never intended to settle in India, as she

was a citizen of Netherlands and obviously, she had an

intention to move to Netherlands and this intention was not

divulged to the petitioner husband. However, once she left

along with the children and was in Netherlands, she made her

intention clear, not to return back to India. In any

contingency, the intention of the parties in order to determine

"ordinary place of residence" is a matter of evidence and

would be dealt by the Court below during the proceedings

when the custody petition would be tried.

15 The issue involved in the petition crossed the

boundaries of the country, and therefore, has to be looked at

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with an international perspective by applying the principle of

"Comity of Courts". The principle of 'Comity of Courts' is

derived and is deducible from the principle of 'Comity of

Nations'. According to the Blacks Law Dictionary, the

jurisdictional Comity which can be understood as 'Comity of

Courts' is a principle, in accordance with which the Courts of

one State or jurisdiction will give effect to the laws and

decisions of another, not as a matter of obligation, but out of

deference and where foreign decrees would get preference

while deciding the case. The principle of Comity is an

important doctrine applied in the interest of maintaining

harmonious relations among nation and it is a informal and

voluntary recognition by the Courts of one jurisdiction of the

law and judicial decision of another.

The Hon'ble Apex Court in case of Ruchi Majoo

Vs. Sanjeev Majoo1 has held that a jurisdiction of Court is not

barred in cases involving child custody and removal of a child

by a parent from a foreign country to India in contravention

to the orders of the Court where the parties had set up their

1 (2011) 6 SCC 479

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matrimonial home. Just because some proceedings have

been instituted, or are pending in a foreign court, or are

decided, would not be sufficient for Indian Courts to shut

their jurisdiction simply because a foreign court has taken a

particular view of any aspect concerning the welfare of a

child. The Courts in the country cannot shut out the

independent consideration of the matter. The matter will

have to be considered objectively and the Court in the country

would not merely succumb to the orders passed by the

foreign courts and would not surrender their jurisdiction in

favour of the Courts outside the country deciding the issue.

This however, should not be meant or construed to lead to an

inference that an order passed by a foreign court is not even a

factor to be kept in mind, but it is thing to consider the

foreign judgment to be conclusive and another to treat it as a

factor or consideration that would go into making of a final

decision.

A Full bench of this Court was lately called upon

to answer an issue as to whether conviction of an Indian by a

foreign court for the offence committed in that country can be

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taken notice of by the courts or authorities in India, and as to

whether such conviction would be binding while exercising

judicial and quasi judicial powers. On an in-depth

consideration of the principle of Comity of Courts, the Hon'ble

Full Bench observed thus :

27] In the light of the aforesaid discussion, it
appears to be a settled principle of law laid down
by English Court that, though the decrees of penal
laws of foreign country cannot be enforced in
United Kingdom, the laws of foreign countries and
especially the countries with which the United
Kingdom has friendly relations, cannot only be
looked into but on the principle of comity are
required to be given due recognition.

34] We are of the considered view that, if
we accept the argument that judgment and order of
conviction and acquittal passed by the foreign
Court cannot at all be looked into by Indian Courts
is accepted, it would have devastating result, of
depriving a person of his right under Article 20(2)
and under Section 300 of Cr.P.C.

36] We further find that the said
argument, if accepted, would also be against the
public policy and principle of comity of Nations.

Let us consider an illustration. An Indian citizen
while residing in a foreign nation commits a crime
involving moral turpitude and is sentenced for that
offence by a foreign court and after undergoing
sentence, he returns to India and desires to
contest elections, for which conviction for an
offence involving moral turpitude is a
disqualification. If the argument of the Appellant
that the judgment and order of conviction cannot

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be looked into is to be accepted, not only it would be
contrary to public policy of not permitting a person
convicted for offence involving moral turpitude to
contest elections, it would also be against the
breach of the comity which should exist between the
countries. As observed by Lord Salmon in
Oppenheimer (cited supra), it would have an effect
of embarrassing Indian Sovereign in its relations
with other Sovereign States, whose independence it
recognizes and with whom it has and hoped to
maintain normal friendly relations.

37] In any event, English Courts in the
cases of Regazzoni (supra), Oppenheimer (supra)
and Euro-Diam Ltd. (supra) have consistently
taken a view that, though English Courts would
not enforce a penal decree of foreign nation, they
are not precluded from taking into consideration
the foreign penal laws. Not only that, it is their
consistent view that, in order to avoid breach of
comity, such penal laws should be given due
recognition by English Courts also.

In the result, the Court held that the conviction by

Foreign Court for an offence punishable in that country can

be taken notice of though it would not be binding on the

Courts and authorities in India and exercise its judicial and

quasi judicial functions.

16 However, it is amply clear that the Comity of

Courts demands consideration of any such order issued by the

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Foreign Courts, though it may not necessarily call for its

enforcement. In any contingency, the principle of Comity of

Courts would not superimpose the interest and welfare of a

minor, which is the paramount consideration in dealing with

the issues of custody of minor child. In such circumstances,

the Court of competent jurisdiction in the country is duty

bound to deal with the matter, independently, in accordance

with the law applicable in its country, and while doing so, it is

expected to take into account any judgment/decree/order

passed by a Foreign Court. The Code of Civil Procedure in

Section 13 has made it imperative to recognize the decrees

and orders passed by the Foreign Courts, though it would not

bind the Courts in this country, and simply because the

Foreign Court has taken a particular view is not an enough

reason to deprive the Court in this country from exercising its

jurisdiction over the issues, which fall within its territorial

limits, and this Court would be at liberty to decide the said

issues.

17 A this stage, it would be useful to refer to the law

laid down by the Hon'ble Apex Court deciding with the

principle of Comity of law in relation to custody matter.

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 Tilak                                  30/55                      WP-3367-18(J)

18 The Hon'ble Apex Court in case of V. Ravi

Chandran Vs.Union of India ors,1 while dealing with a

Habeas Corpus Petition under Article 32 of the Constitution

for production of the minor child on a petition filed by the

husband of Indian origin and a citizen of United States of

America and dealing with the allegations that the wife had

taken the minor child, dealt with the issue about the Comity

of Courts. Their Lordships of the Apex Court observed thus in

paragraph 29 and 30.

29 While dealing with a case of custody of a
child removed by a parent from one country to
another in contravention to the orders of the
court where the parties had set up their
matrimonial home, the court in the country to
which child has been removed must first
consider the question whether the court could
conduct an elaborate enquiry on the question of
custody or by dealing with the matter summarily
order a parent to return custody of the child to
the country from which the child was removed
and all aspects relating to child's welfare be
investigated in a court in his own country.
Should the court take a view that an elaborate
enquiry is necessary, obviously the court is bound
to consider the welfare and happiness of the
child as the paramount consideration and go
into all relevant aspects of welfare of child
including stability and security, loving and

1 (2010) 1 SCC 174

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understanding care and guidance and full
development of the child's character, personality
and talents. While doing so, the order of a
foreign court as to his custody may be given due
weight; the weight and persuasive effect of a
foreign judgment must depend on the
circumstances of each case.

30 However, in a case where the court decides
to exercise its jurisdiction summarily to return
the child to his own country, keeping in view the
jurisdiction of the Court in the native country
which has the closest concern and the most
intimate contact with the issues arising in the
case, the court may leave the aspects relating to
the welfare of the child to be investigated by the
court in his own native country as that could be
in the best interest of the child. The indication
given in McKee v. McKee2 that there may be
cases in which it is proper for a court in one
jurisdiction to make an order directing that a
child be returned to a foreign jurisdiction
without investigating the merits of the dispute
relating to the care of the child on the ground
that such an order is in the best interest of the
child has been explained in re. L (minors)6 and
the said view has been approved by this Court in
Dhanwanti Joshi. Similar view taken by the
Court of Appeal in re. H5 has been approved by
this Court in Elizabeth Dinshaw.

19 The Hon'ble Apex Court in the case of Ruchi

Majoo Vs. Sanjeev Majoo,1 while dealing with such a conflict

operating in the international scenario has observed thus :

1 (2011) 6 SCC 479

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We do not propose to burden this judgment by
referring to a long line of other decisions which have
been delivered on the subject, for they do not in our
opinion state the law differently from what has been
stated in the decisions already referred to by us. What,
however, needs to be stated for the sake of a clear
understanding of the legal position is that the cases to
which we have drawn attention, as indeed any other
case raising the question of jurisdiction of the court to
determine mutual rights and obligation of the parties,
including the question whether a court otherwise
competent to entertain the proceedings concerning the
custody of the minor, ought to hold a summary or a
detailed enquiry into the matter and whether it ought
to decline jurisdiction on the principle of comity of
nations or the test of the closest contact evolved by this
Court in Smt. Surinder Kaur Sandhu v. Harbax
Singh Sandhu and Anr. (1984) 3 SCC 698 have arisen
either out of writ proceedings filed by the aggrieved
party in the High Court or this Court or out of
proceedings under the Guardian Wards Act.
Decisions rendered by this Court in . (1987) 1 Mrs.
Elizabeth Dinshaw v. Arvand M. Dinshaw and Anr
SCC 42, Sarita Sharma's case (supra), V. Ravi
Chandran's case (supra), Shilpa Aggarwal's case
(supra) arose out of proceedings in the nature of
habeas corpus. The rest had their origin in custody
proceedings launched under the Guardian Wards
Act.

The said judgment was delivered in a petition

where proceedings were instituted in the nature of Habeas

Corpus. In the peculiar facts of the case, the Court observed

that though the Habeas Corpus proceedings are summary in

nature, where the legality of detention is the alleged

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detriment, is examined on the basis of the affidavits placed by

the parties, nothing prevents the High Court from embarking

upon a detailed inquiry in cases where welfare of a minor is

in question, which is the paramount consideration of the

Court while exercising its parens patriae jurisdiction. The

Hon'ble Apex Court also held that under the Guardians and

Wards Act, it is open to hold a summary inquiry into the

matter and pass an appropriate order if it is otherwise

competent to entertain the petition for custody of minor

under Rule 9(1) of the Act. Their Lordships observed further

as under :-

"Having said that we must make it clear that no
matter a Court is exercising powers under the
Guardian Wards Act it can choose to hold a
summary enquiry into the matter and pass appropriate
orders provided it is otherwise competent to entertain a
petition for custody of the minor under Section 9 (1) of
the Act. This is clear from the decision of this Court in
Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC 112,
which arose out of proceedings under the Guardian
Wards Act. The following passage is in this regard
apposite:

"We may here state that this Court in Elizabeth Dinshaw
v. Arvand M. Dinshaw (1987) 1 SCC 42 while dealing
with a child removed by the father from USA contrary to
the custody orders of the US Court directed that the child
be sent back to USA to the mother not only because of

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the principle of comity but also because, on facts, --
which were independently considered -- it was in the
interests of the child to be sent back to the native State.
There the removal of the child by the father and the
mother's application in India 46 were within six months.
In that context, this Court referred to H. (infants), Re
(1966) 1 ALL ER 886 which case, as pointed out by us
above has been explained in L. Re (1974) 1 All ER 913,
CA as a case where the Court thought it fit to exercise its
summary jurisdiction in the interests of the child. Be that
as it may, the general principles laid down in McKee v.
McKee (1951) 1 All ER 942 and J v. C (1969) 1 All ER
788 and the distinction between summary and elaborate
inquiries as stated in L. (infants), Re (1974) 1 All ER 913,
CA are today well settled in UK, Canada, Australia and
the USA. The same principles apply in our country.
Therefore nothing precludes the Indian courts from
considering the question on merits, having regard to the
delay from 1984 -- even assuming that the earlier orders
passed in India do not operate as constructive res
judicata."

20 Subsequently in a judgment delivered by the Apex

Court in case of Nithya Anand Raghavan Vs State (NCT of

Delhi) and Anr1, the Hon'ble Apex Court re-iterated its earlier

view and observed that High Court should undertake

elaborate inquiry by considering the question on merits,

bearing in mind the welfare of a child as of a paramount

importance and reckoning order of Foreign Court only as a

factor to be taken into consideration, unless it thinks it fit to

exercise summary jurisdiction. Their Lordships on

1 (2017) 8 SCC 454

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consideration of the earlier law laid down on the said point

observed thus :

"The Court has noted that India is not yet a
signatory to the Hague Convention of 1980 on
"Civil Aspects of International Child Abduction".

As regards the non-convention countries, the law
is that the Court in the country to which the
child has been removed must consider the
question on merits bearing the welfare of the
child as of paramount importance and reckon the
order of the Foreign Court as only a factor to be
taken into consideration, unless the Court thinks
it fit to exercise summary jurisdiction in the
interests of the child and its prompt return is for
its welfare. In exercise of summary jurisdiction,
the Court must be satisfied and of the opinion
that the proceeding instituted before it was in
close proximity and filed promptly after the child
was removed from his/her native state and
brought within its territorial jurisdiction, the
child has not gained roots here and further that
it will be in the child's welfare to return to his
native state because of the difference in language
spoken or social customs and contacts to which
he/she has been accustomed or such other
tangible reasons. In such a case the Court need
not resort to an elaborate inquiry into the merits
of the paramount welfare of the child but leave
that inquiry to the foreign Court by directing
return of the child. Be it noted that in exceptional
cases the Court can still refuse to issue direction
to return the child to the native state and more
particularly inspite of a pre-existing order of the
foreign Court in that behalf, if it is satisfied that
the child's return may expose him to a grave risk
of harm. This means that the Courts in India,
within whose jurisdiction the minor has been
brought must "ordinarily" consider the question
on merits, bearing in mind the welfare of the

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child as of paramount importance whilst
reckoning the pre-existing order of the foreign
Court if any as only one of the factors and not get
fixated therewith. In either situation - be it a
summary inquiry or an elaborate inquiry - the
welfare of the child is of paramount
consideration. Thus, while examining the issue
the Courts in India are free to decline the relief
of return of the child brought within its
jurisdiction, if it is satisfied that the child is now
settled in its new environment or if it would
expose the child to physical or psychological
harm or otherwise place the child in an
intolerable position or if the child is quite mature
and objects to its return. We are in respectful
agreement with the aforementioned exposition.

21 In the light of the aforesaid judgment and the

observations made by the Hon'ble Apex Court therein, it is

clear that while determining the issue of custody of a child,

the option with the Court exercising the jurisdiction is either

to conduct a summary adjudication or to proceed with an

elaborate inquiry, the situations in which either of the option

can be exercised, being distinct in nature. While deciding the

question of transmitting the custody to either of the parents

forthwith, the Court should take an immediate decision by

conducting a summary inquiry, but if in view of the lapse of

considerable time gap, if the Court is considering the issue as

to the entitlement of either parent for custody of the child, it

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can be done in form of elaborate inquiry, keeping in mind that

the welfare of the child. While doing so, the Court will also

have to take into consideration the affiliation which the child

has developed to the new environment and whether removing

a child from such environment would expose the child to

physical or psychological harm. There is no denial to the fact

that the act of the parents unilaterally uprooting a child from

a habitual residence and thereby preventing access to the

parent can prove to be traumatic experience for the child with

potential deleterious effects on his/her psychological and

sociological well being. In any contingency, the matter will

have to be decided by the Court on the sole and predominant

criteria of what would be the best interest of the child and

what arrangement would subserve such an interest. The

elaborate inquiry would also take into account the relevant

factors including the stability and security of the child and

arranging for an atmosphere/environment conducive to his

development of character, personality, talent. In contrast to

this, in a summary manner. the Court may deem it fit to

return the child to a country from where the child was

removed, but that is the stage which has to be undertaken

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immediately and by a summary inquiry. The Court may refuse

a relief of returning a child to the country from where the

child was removed, irrespective of a pre-existing order of

return of child by a Foreign Court.

This mechanism in either form is recognized as a

well known mode to deal with the custody matters which are

falling within the jurisdiction of the Courts in India.

Whenever the jurisdiction of the competent court in the

country is invoked, by filing proceedings, it is open for the

Court in the country to which the child has been brought to

first determine as to whether it would conduct an elaborate

inquiry on the question of custody of the child, or it would

deal with the matter summarily to return the child to the

country from which the child was removed, and let the Court

of the country from which the child was removed, investigate

the various aspects of the child's welfare according to its own

law. When once the Court decides to exercise a jurisdiction in

a summary manner, the Court would leave the aspects

relating to the welfare to be investigated by the Court in his

own native country which would best sub-serve the interest of

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the child. However, when the Court decides to conduct

elaborate inquiry, then it would be required to go into the

relevant aspects of the welfare of the child, including his

security, his developing bonds with the environment in which

the child is presently to be found, and the possibility of the

child developing as a good human being, by recognizing that,

the child has developed roots in the country in which he has

been removed and his ties with the country from which he

was removed, has been severed. It is to be noted that under

the Indian Law, a removal of a child from the matrimonial

home by one of its parents without consent of another, in

absence of an order of the Court, is not an offence. India is

not even a signatory to the Hague Convention of Civil Aspects

of International Child Abduction (October 25, 1980)

(Convention) which has come into effect from 1983 and 87

countries have contracted to the same. However, India being

not a signatory to the said convention, and since procuring

the custody of a child by a natural father is not a crime,

Courts in India are duty bound to decide the issue of custody

of the child by invoking the doctrine of parens partiae.

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 Tilak                                40/55                    WP-3367-18(J)

22 If this test has to be applied, then the chronology

of events in the present litigation are of great relevance. The

child was born in Netherlands on 6th March 2014, but the

child along with the mother continued to stay in India from

20th April 2014 to 7th December 2014. It is from this date that

the child resided in Netherlands along with his mother.

Amidst the proceedings which were instituted in the Dutch

Court by the wife and the proceedings for custody instituted

by the husband in the Family Court in Mumbai, on 29th

September 2016, the child was brought to India and since

then, the child is in India which is approximately a period of

about 18 months. When the child was taken by the mother

on 7th February 2014, the child was barely 8 months old and

was not even a toddler. The child was brought to India by the

father when she was 1 year 5 months old, and now the child

is approximately 4 years.

Perusal of the impugned order passed by the

Family Court, would reveal that the order came to be passed

on an application preferred by the wife, praying that the

Court should reject/return the petition filed by the husband,

and the Court be pleased to direct the husband to return the

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custody of the minor child Insiya to the mother. A specific

case was put up before the Court by the respondent wife that

the child Insiya was abducted by the petitioner from

Netherlands, and removed illegally from the custody of the

mother, and the child was transported illegally without any

travel documents. The Court noted that the petition was filed

on 5th May 2015 and after more than a year, the respondent

had filed a written statement, and thereafter, she did not

appear in the matter. The Family Court took note of the fact

that on 10th November 2016, the father had moved the Court

vide Exhibit-18 to retain the custody of the minor child Insiya,

on the basis that Insiya was in his custody from 29th

September 2016, and the Court passed an order on 18 th July

2017, retaining the custody of the child with the petitioner.

The Judge, Family Court proceeded to decide the application

filed by the wife, seeking return of custody of child Insiya, in

terms of the directions issued by the Hon'ble High Court on

11th January 2018, by which the Court had directed the

Family Court to decide the interim custody of the minor child

within a period of two weeks from the date of the order. This

is how the Court proceeded to deal with the issue of custody

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of the minor.

After making a reference to the proceedings

instituted between the parties, and the various orders passed

therein, the Court noted that the matter has not reached the

stage of evidence and the petitioner husband had filed a

compilation of documents reflecting how Insiya is happily

leading a life of a settled childhood in India, and he

attempted to demonstrate that she would be deprived of good

education in Netherlands, since in view of the poor financial

condition, the child would be required to put in a Free

Government School for underprivileged children. Further, the

father also attempted to demonstrate that English language is

a medium of education in India, and now, Insiya will suffer

disabilities to communicate in Dutch language as she has not

learnt the said language. In reference to the said submissions

advanced, the Judge, Family Court observed that these are

the factors which would be taken into consideration at the

time of evidence and the limited question before the Court

was "whether the custody of the child Insiya should be

returned to her mother or it should be retained with the

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petitioner?"

The Court then observed that Insiya is a Dutch

citizen and holding a Dutch passport and her visa had expired

on 6th April 2015. By making reference to certain orders

passed by the District Court, Northern Holland on 16 th

October 2015, the Court proceeds to observe that the

petitioner is silent as to how the child was brought in India,

and that he cannot benefit from his wrongful deed. The

Court then also observed that the husband had no order of

any competent court to travel to India with Baby Insiya. In

this backdrop, the Court observed that Insiya is Dutch

National by birth and Indian National by descent, and no

doubt, the father is a natural guardian of Insiya. The Court

then proceeds to observe that the welfare of the child is to be

considered at an interim stage and therefore, was of the

opinion that the custody of the minor child be directed to be

handed over to the mother by way of an interim direction.

23 In the result, by the impugned order, the prayer as

regards the jurisdiction issued raised by the wife in her

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application was kept pending. However, prayer clause (b)

granting custody came to be allowed, and the child is directed

to be handed over to the mother on 27th March 2018 who was

directed to remain present to receive the child.

The approach of the Family Court, in light of the

decision of the Hon'ble Apex Court and in light of the

principle of parens patriae appears to be totally erroneous.

The Family Court appears to have been influenced by the

manner in which the child was brought to India in ignorance

of the orders passed by the Court of Hague in case

C/09/539394 dated 22nd December 2017 and also the order

passed by the District Court, Northern Holland on 16 th

October 2015 where the Courts had directed and permitted

the wife to retain the custody of Insiya and also release the

passport of Insiya to the lawyer of the woman. The impugned

order is therefore, based on the conduct of the petitioner, and

the Court has made it clear that his conduct will not benefit

him in retaining the custody, and that the respondent wife

was having a legal custody of baby Insiya.

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 Tilak                                45/55                     WP-3367-18(J)

24 The learned Family Court has erred in not

considering that the application which was being decided was

an interim application moved by the wife, pending the issue

of jurisdiction of the Family Court to grant relief. The Court

has failed to take into consideration that the child Insiya was

removed away from the legal custody of the father under the

alleged pretext of vaccination and ultimately, while deciding

the petition for custody, the Family Court would be dealing

with the manner in which the child was removed from India

to Netherlands and as to what was the intention of the

parties. The matter has not yet reached the stage of evidence

and it is in the proceedings filed before the Family Court

claiming custody of the minor child, all these issues would be

gone into by adducing evidence. The Family Court, on an

application filed by the husband (Exhibit-19), had passed an

order on 18th July 2017 permitting him to retain the custody

of the child. While issuing the said order, no doubt the wife

was not represented, but while passing impugned order, the

Court took note of the earlier order where the Family Court

had observed that the petitioner being father and natural

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guardian of the minor child, could not be charged with

offence of kidnapping. However, on directions from the High

Court by order dated 11th January 2018 and on

reconsideration of the issue, the Court by an interim order,

directed the child Insiya to be handed over to the mother.

25 The impugned order completely ignores the fact

that the child Insiya is in India for last 1 ½ years and is

admitted in a school. The father had tendered on record the

photographs of the child in the company of his grand-mother,

and have also tendered on record the progress of the child in

the school. The Court failed to take into consideration that if

the child at this stage is to be settled in the new environment,

she would be exposed to the physical or psychological harm,

since the child has gained roots in India. The child is not

conversant with Dutch language and would feel completely

uprooted if transferred to Netherlands and is made to live in

an atmosphere where the child is left only to the mother,

whereas in India, the child is in the company of the grand-

parents with lot of love and affection being showered on the

child. The Judge, Family Court has failed to take into

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consideration that by an interim order, if an attempt is made

to uproot the child and transfer the child into a new

environment, and if on final decision on a custody petition,

the court arrives at a conclusion, on consideration of the

evidence adduced before it, that the father is entitled to the

custody of the child, the child will have to be again uprooted

from Netherlands and to be placed back in an environment

with which she would totally alienate herself during the

intervening period. In the peculiar circumstances, since the

Family Court is required to deal with the matter of custody, by

conduct of an elaborate inquiry, in order to work out the

welfare of the child and then, to determine whether the father

is entitled for custody of Insiya, by way of an interim order,

the relief of repatriation of the child to the father is not in the

interest of the child and would rather affect the physical,

psychological, emotional and sociological well being and

growth of the child at this stage.

The issue as to in what manner Insiya was

brought to India, is of no significance since the parties in the

petition before Family Court have independently instituted

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proceedings in furtherance of the Hague Convention of 1980

"Civil Aspects of International Child Abduction. As noted

above, India is not yet a signatory of the said Convention and

as regards the non-convention countries, the Court in that

country to which the child has been brought must consider

the question on merits, wherein the welfare of the child and

dealing with the order of the Foreign Courts only as a fact, to

be taken into consideration. The Family Court is duty bound

to consider the issue of Insiya's custody by adopting an

elaborate procedure, bearing in mind her welfare and being

not bound by the orders of the Foreign courts, the Family

Court which is a Court of competent jurisdiction in India to

decide the custody of the child, and is at liberty to decide the

said issue on its merits. No doubt, the Court would be duty

bound to note the judgments of the Court in Amsterdam and

the Dutch Court, though it is not duty bound to enforce the

said judgments. Insiya has been admitted in a school in India

and is blossoming from a toddler to a sensible child, and is

standing at an age where she is capable of reacting to

environment around her, and it is not the case of the

respondent that the father is not taking care of the child,

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Tilak 49/55 WP-3367-18(J)

except the term used by the learned Senior counsel Ms.Iyer,

that the father is a fugitive. From perusal of the proceedings,

it is clear that both the mother and father have instituted

proceedings against one another, and which are being dealt

internationally and even the Embassies and Consulates of the

countries are involved. However, at this stage, the

righteousness of either party is not of any relevance except to

the extent as to what would better sub-serve the welfare of

the child.

Though the Comity of Courts is a principle of

International acceptance, it would not partake the guiding

principle in the custody matters being the welfare of the child

to be of paramount importance. The Family Court has

completely lost sight of the said fact and was more influenced

by the custody orders passed by the Courts abroad and

without either interviewing the child, or taking into

consideration the surrounding circumstances produced by the

father on record, and without balancing the said

circumstances, by way of an interim order, has chosen to pass

the custody to the mother. The said order is completely

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Tilak 50/55 WP-3367-18(J)

passed in ignorance of the principle of welfare and interest of

the minor child and the consequences of shifting the custody

after a period of eighteen months when the child has gained

roots in the Indian scenario. The Court ought to have taken

into consideration the existence of special circumstances in

not repatriating the child to the jurisdiction of the Foreign

Courts, which, in view of her bonding with the father and his

family and with the country for last 18 months, would cause

tremendous mental and psychological harm to the child, who

is at the age of receiving love and affection and reciprocating

the same.

26 The aforesaid view is fortified by the decision of

the Hon'ble Apex Court in the case of Pratik Gupta Vs. Shilpi

Gupta (Criminal Appeal No.968 of 2017) where the Hon'ble

Apex Court dealt with the factual matrix of the matter

somehow similar to the present case where a writ in the

nature of habeas corpus was issued by the Delhi High Court,

directing the father to hand over the custody of a child, aged

5 years, to the mother. The parties in the said petition had

shifted to the United States of America and the child was

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Tilak 51/55 WP-3367-18(J)

residing in United States. However, in the backdrop of the

marital issues, the child was brought in India without any

prior permission of the mother. Proceedings came to be filed

in the Court in United States of America in form of

"Emergency Motion for return of minor child as established

temporary custody" resulting into an order directing the

father to return the custody of the child to the mother. At the

same time, the appellant husband instituted the proceedings

for restitution of conjugal rights under the Hindu Marriage

Act before the Family Court at Delhi, seeking a decree for

restitution of conjugal rights and a declaration that he was a

sole and permanent guardian of the child. He also filed

proceedings in the High Court of Delhi, seeking a peculiar

declaration that the proceedings filed by the wife in the Court

of U.S, are nullis juris.

Their Lordships, on consideration of the whole

gamet of facts involve, and a specific refusal of the wife to

return back to India observed thus :

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Tilak 52/55 WP-3367-18(J)

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 on its
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

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Tilak 53/55 WP-3367-18(J)

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.

33. The doctrines of intimate contact and closest
concern are of persuasive relevance, only when
the child is uprooted from its native country and
taken to a place to encounter alien environment,
language, custom etc., with the portent of
mutilative bearing on the process of its overall
growth and grooming.

34. It has been consistently held that there is no
forum convenience in wardship jurisdiction and
the peremptory mandate that underlines the
adjudicative mission is the obligation to secure
the unreserved welfare of the child as the
paramount consideration.

27 With the aforesaid observations, the Hon'ble Apex

Court observed that the stay of the infant in United States was

too little for the required inclination of his social, physical,

psychological, cultural and academic environment of United

States, and the Court observed that it is not the case of

upturning the transitions, unless he was immediately

repatriated and his inherent potentials and faculties would

suffer an immature set back. The Hon'ble Apex Court

observed that there is no convincing material on record that

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the continuation of the child in the company of the father in

India, would be irreparably prejudicial to him. It was also

observed that immediate restoration of a child is called for

only on an unmistakable discernment of the possibility of

immediate and irremediable harm to it and not otherwise. In

this background, the Apex Court concluded that on being the

biological father of the child, his custody by no means in law

can be construed as illegal or unlawful and no writ of of

habeas corpus could be issued. In the result, the judgment

delivered by the Hon'ble High Court was quashed and set

aside.

28 In light of the facts and circumstances and

discussions above, the impugned order dated 29th January

2018 passed by the Family Court, cannot be sustained, and is

liable to be set aside and is accordingly set aside.

Though by the impugned order the mother was

directed to remain present in the Court on 27th March 2018 to

take over the custody of child Insiya, the learned counsel for

the respondent wife had informed, during the course of

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hearing of the petition, that the mother is not in a position to

remain present on the said date and the date is required to be

postponed.

However, considering the expediency of the

situation, the Family Court, Bandra is directed to decide the

custody petition filed by the petitioner husband and also deal

with the objection raised by the wife in respect of the

jurisdiction of the Family Court to deal with the custody

petition and the proceedings are directed to be completed

within a period of one year from today.

Writ Petition is allowed.

Rule is made absolute accordingly.

(BHARATI H. DANGRE, J)

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