Chandan Mishra vs Union Of India & Ors. on 8 May, 2017

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On: 2nd February, 2017
Judgment Pronounced On: 8th May, 2017
+ W.P. (CRL) 1088/2015
CHANDAN MISHRA …. Petitioner
Through : Mr.Sanjeev Sahay, Mr.M.R. Ranjan
and Mr.Aditya Vardhan Sharma, Advs.
versus
UNION OF INDIA ORS. …. Respondents
Through : Mr.Anil Soni, CGSC for R-1/UOI
Mr.Rajesh Mahajan, ASC with
Mr.Peeyush Bhatia, Advs for R-2 and 3
along with SI Rajender, P.S. Malviya
Nagar
Mr.Mohit Kumar Shah and
Mr.Manjesh Kumar Jha, Advs. for R-
4/Radhika Sinha

CORAM:
HON’BLE MR. JUSTICE G.S.SISTANI
HON’BLE MR. JUSTICE VINOD GOEL

G.S.SISTANI, J.

1. Petitioner has filed the present writ petition under Article 226 of the
Constitution of India read with Section 482 of the Code of Criminal
Procedure seeking a writ in the nature of habeas corpus for production
of his minor son Archit Mukund Mishra and for returning him to the
jurisdiction of California, United States (USA).

2. The case of the petitioner as set out in the writ petition is that the
marriage between the petitioner and respondent no.4 was solemnized
on 20.04.2008 and started living together in California, USA from May,
2008. The respondent no.4 was a trained dental surgeon and sought
admission in a dental school to practice in the USA. She repeatedly sat

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for entrance examinations, but was unable to secure admission owing to
low scores. This led to a change in her behaviour as she became
abusive and used to blame the petitioner for scoring poorly in her exam.
Thereafter, respondent no.4 became pregnant in September, 2008 and
gave birth to Archit (hereinafter referred to as the „minor child‟) on
22.04.2009 by caesarean section. As per the petition, since respondent
no.4 was recuperating from her surgery, the sister of the petitioner
joined the couple and she along with the petitioner used to take care of
the minor child and housework.

3. It is the case of the petitioner that even after recovering, the respondent
no.4 neglected the welfare of the minor child and focussed only on
preparing for her entrance exams. The welfare of the minor child was
looked after by the petitioner and his mother. When the respondent
no.4 gave her second attempt at the entrance exams of dental school in
July, 2009, she scored even worse than before which led to her
behaviour deteriorating and she started taking out her anger on the
minor child on several occasions.

4. As per the petition in May-June, 2010, the respondent no.4 insisted that
she wanted to travel to India for her cousin‟s wedding. Since the minor
child did not have a passport, the respondent no.4 started pressurizing
the petitioner to arrange for one. Due to the erratic behaviour of the
respondent no.4 and concerned for the welfare of the child, the
petitioner succumbed to her demands. The respondent no.4 then
unilaterally booked tickets for herself and the minor child to travel to
India representing to the petitioner that she intended to return in
January, 2011.

5. Thereafter, the respondent no.4 left California on 26.10.2010 along
with the minor child, but did not return in January, 2011; on the

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contrary, she extended her ticket without the knowledge of the
petitioner. The petitioner insisted that she adhere to her promise of
returning to the US, but the respondent no.4 did not pay heed to such
requests. Thereafter, the respondent no.4 stopped answering the phone
calls of the petitioner and completely cut-off the petitioner from the
minor child.

6. It is the case of the petitioner that the respondent no.4 attempted to
sever all ties between the petitioner and his son. The petitioner made
frantic efforts to get in touch with the child. On one such attempt, he
informed the parents of respondent no.4 that he intended to come to
India and spend time with the minor child during summer vacations;
but the father of the respondent no.4 threatened him that incase the
petitioner came to India, false cases will be lodged against him and his
parents. As per the petition, the respondent no.4 also did not arrange a
single webcam session as promised by her under the pretext of a slow
internet connection.

7. Constrained by the actions of the respondent no.4, the petitioner filed a
petition seeking the custody of his son under the ambit of legal
separation petition before the Sunnyvale Superior Court (hereinafter the
„Foreign Court‟) in April 2011 titled Chandan Mishra v. Radhika
Sinha, 611FL006064. He also sought a direction to the respondent no.4
to return to USA immediately. It is the case of the petitioner that he
was unable to serve the summons issued by the Foreign Court as the
respondent no.4 kept jumping between cities. During this time, the
respondent no.4 and her parents had closed all lines of communication
and any attempt by the petitioner or his parents to approach them were
met with threats and abuses.

8. As per the petition, around January 2012, the petitioner managed to get

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in touch with the respondent no.4 and her parents. At this juncture, the
respondent no.4 started insisting that she wanted to return to US. The
petitioner claims that he could no longer endorse the visa of the
respondent no.4 as he had filed for legal separation and custody; at the
same time the respondent no.4 was fully competent to get a visa after
approaching the US Consulate in India. However, the respondent no.4
intentionally did not return to the USA and kept making false
allegations against the petitioner.

9. During this time, the petitioner repeatedly suggested that he be allowed
to meet the minor child in a third country where the respondent no.4
would have no visa issues; but his requests were turned down and the
respondent no.4 and her family contended that the petitioner would be
allowed to meet the child only if the custody proceedings before the
Foreign Court are withdrawn. The respondent no.4 also kept changing
cities between Bhagalpur, Patna, Chennai and Mumbai and concealed
the exact location and whereabouts of the minor child.

10. As per the petition, the respondent no.4 by her email dated 24.04.2013
finally agreed to take the minor child to a third country to meet with the
petitioner but later resiled from her commitment. Subsequently on
30.05.2013, the respondent no.4 filed her written response before the
Foreign Court and informed the petitioner that she does not want the
petitioner and the child to meet but instead wants the law to take its
own course.

11. The Foreign Court, vide its order dated 13.06.2013, granted the
petitioner full custody of the minor child and ordered the respondent
no.4 to return the child to the petitioner within 10 days; however, the
respondent no.4 refused to comply with the same.

12. As per the petition, during this period the respondent no.4 would

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occasionally allow the petitioner to talk to the minor child over the
telephone; but on many occasions, she would cut the call in the middle
of the conversation. Even during their conversations on Skype, the
respondent no.4 would cut the call in the middle of the conversation
whenever the petitioner would try to ask the child about the details of
his school.

13. It is the case of the petitioner that during a Skype conversation with the
child on 06.08.2014, the respondent no.4 was dropping him off to
school. During this conversation, the petitioner saw the sign of Delhi
Metro construction in the background and the minor child wearing the
uniform of Ryan International School. The petitioner claims to have
learnt about the school of the minor child and their residence from this
conversation. The petitioner, thereafter, by an email dated 09.10.2014,
requested the respondent no.4 to grant him access to his son; however,
the respondent no.4 immediately severed all access of the petitioner to
the minor child.

14. As per the petition, the petitioner sent a complaint via email to the
Commissioner of Police on 12.12.2014 seeking his assistance to locate
the minor child. Thereafter, the present petition has been filed on
07.05.2015.

15. On the other hand, the respondent no.4 has filed a detailed counter
affidavit. It is her case that after the solemnization of the marriage, the
relation between the couple was always turbulent and the petitioner
used to physically assault the respondent no.4. While residing at
Sunnyvale, California, the respondent no.4 was not even provided with
a mobile phone and the petitioner used to pick up quarrels on the issue
of talking on phone.

16. As per the counter affidavit, the respondent no.4 gave birth to the minor

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child on 22.04.2009 by caesarean section, however, the petitioner
neither called his mother nor sister who was residing in New Jersey, as
alleged in the petition. The respondent no.4 was also restrained from
spending any money even though her parents had transferred
substantial sums in the account of the petitioner. It was only later that
the mother of the petitioner joined the parties in their matrimonial
home, but then respondent no.4 was made to do all the housework
single-handedly; all the while facing sarcastic remarks and abuses from
her mother-in-law. The respondent no.4 was tortured and harassed by
the petitioner and his mother after the birth of her son.

17. It is the case of the respondent no.4 that she was forced to give a second
attempt to the entrance exam despite the fact that she was inadequately
prepared. When the respondent no.4 appeared for her entrance exam,
the petitioner locked all the books which led to her scoring even lower
than before. The mother of the petitioner neither took care of the child
nor bestowed any love upon him. Further, the behaviour of the
petitioner was also harsh towards the child.

18. After the birth of the minor child, the respondent no.4 wished to travel
to India to take blessings of her parents, however, no heed was paid to
by the petitioner. On the contrary, the petitioner and his parents started
pressurizing the respondent no.4 to leave the child in USA and go back
to India to prepare for her exams. On account of the adverse situation,
the respondent no.4 found it difficult to prepare for her exams and as
such, requested that she be permitted to go to India along with the
minor child to enable her to prepare. After much persuasion, the
petitioner and his family agreed to apply for a passport of the minor
child as also a six-month visa. In the meantime, the parents of the
petitioner joined the parties in USA in August, 2010.

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19. It is the case of the respondent no.4 that the petitioner and his mother
conspired to throw out the respondent no.4 from USA and keep back
the child. The minor child was forcefully sent to a daycare to enable
him to learn to live independently, but the child could not adjust and
was withdrawn.

20. As per the counter affidavit, the parents of respondent no.4 arranged
her air tickets to India with return tickets for the month of January,
2011. This was done with the consent and knowledge of the petitioner
and his family. Accordingly, on 25.10.2010, respondent no.4 was
dropped at the airport by the petitioner and the petitioner handed over
US $100 after withdrawing the same from a nearby ATM. While the
respondent no.4 was in India, the petitioner used to avoid calling her
and did not even try to make any contact with the minor child.

21. The respondent no.4 claims to have learnt the plan of the petitioner and
his parents when her time to return came inasmuch as she was
prevented by the petitioner and his father to return back to USA by
refusing to furnish the requisite visa papers despite several requests.
Initially, the respondent no.4 extended her flight tickets till 25.10.2011;
but as the petitioner failed to provide the requisite documents to enable
her to get a visa, forcing her to cancel the tickets. Owing to her being
prevented to return to US, the respondent no.4 was also unable to
appear for her exams scheduled for 23.04.2011. To substantiate her
submissions, the respondent no.4 has placed on record emails sent by
her to the petitioner. At the same time, the petitioner started coercing
the respondent no.4 to drop the minor child to the home of his parents
at Bokaro; however, considering the fact that the two year old minor
child could not be left anywhere without his mother, the respondent
no.4 refused.

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22. As per the counter affidavit, the petitioner or his parents seldom
received phone calls of respondent no.4 or her parents. Few meetings
took place between the parents of the respondent no.4 and the petitioner
between 2011 to 2013 to resolve the issue, but failed to make any
headway. All attempts thereafter by the parents of the respondent no.4
were met by abuses and reprimands. Meanwhile, father of the
petitioner expressed his view of performing the mundan ceremony of
the minor child at Deoghar Temple. Accordingly, the mundan
ceremony took place on 12.03.2012 in the presence of the parents of the
petitioner, but the petitioner desisted from participating in the
ceremony. However, at the end of the ceremony, the mother of the
petitioner disclosed her mind that there would not be any compromise.

23. As to the residence of the respondent no.4, it is stated in the counter
affidavit that after the respondent no.4 came to India in the month of
October, 2010, she went to Bhagalpur, i.e. the residence of her parents,
for a brief period and then came to Patna where her parents also have a
house and started living there. Since the chances of a compromise were
foreclosed, the respondent no.4 filed an application under Section 7 of
the Guardians and Wards Act, 1890, being Guardianship Case
No.27/2012 before the Family Court, Patna (hereinafter the „Indian
Court‟) inter alia praying that she be declared as the guardian of the
minor child and protection from the child being removed from her
custody and taken to USA. At the same time, the respondent no.4 also
filed an application under S.22 of the Special Marriage Act, 1954
seeking restitution of conjugal rights.

24. The respondent no.4, thereafter, in the second half of 2012 decided to
take admission in K.J. Somaya College, Bombay in MBA (F) Course.
The minor child was admitted to Pyramids Kids School in the month of

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August, 2012 and later admitted in Ryan International School at
Bombay in the month of March, 2013. After completion of her MBA
Course in the month of April, 2014, the respondent no.4 and the minor
child moved to Delhi where the respondent no.4 got a job and the minor
child was admitted to Pre-primary class in the Delhi Branch of Ryan
International School. The respondent no.4 and the minor child have
ever since resided in Delhi.

25. When the present petition came up for hearing on 17.07.2015, the
parties were referred to the Mediation and Conciliation Centre of this
Court, but no settlement could be arrived at. Accordingly, we proceed
to decide the petition on its merits.

SUBMISSIONS OF THE PETITIONER

26. Mr.Sahay, learned counsel for the petitioner, has submitted as under:
26.1 It is submitted that the petitioner herein has been residing in the United
States since 1998 and got married to respondent no.4 on 20.04.2008.
The respondent no.4 is an Indian citizen and while the petition was
pending, the petitioner has acquired a Green Card (permanent residence
permit) of the US. The minor child was born in the USA and is a US
citizen. On 26.10.2010, the respondent no.4 came to India with the
minor child holding a return ticket. Learned counsel submits that
though the petitioner had filed a petition seeking custody in the year
2011, the summons could only be served in the year 2013 as the
respondent no.4 repeatedly kept changing her residence. The petitioner
only learnt of the whereabouts of the respondent no.4 and the minor
child on 06.08.2014 during a Skype conversation. Mr.Sahay submits
that Indian Courts have repeatedly respected on ex parte orders of
Foreign Courts. He also submits that there is no need for this Court to

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venture into an elaborate enquiry and may simply allow the petition,
enabling the parties to contest the matter on merits before the Foreign
Court. Mr.Sahay relies upon the decisions in Anand Raghavan v. State
of Delhi Anr
., 231 (2016) DLT 596 (paragraph 59); and Shilpa
Aggarwal v. Aviral Mittal and Anr
., (2010) 1 SCC 591 (paragraph 4).
26.2 The first contention of Mr.Sahay is that the respondent no.4 having
submitted to the jurisdiction of the Foreign Court cannot be allowed to
disregard its order at this stage. It is submitted that the respondent no.4
could not be served as her whereabouts were unknown and as she
shifted 5 times in a short time interval. Therefore, the petitioner was
forced into carrying out publication of the summons of the Foreign
Court and only then the respondent no.4 surfaced and filed her written
response. Learned counsel submits that by filing the written response
before the Foreign Court, the respondent no.4 has unequivocally
submitted to the jurisdiction of the Foreign Court. Relying upon the
judgment in Shilpi Gupta v. Union of India Ors.,
MANU/DE/1014/2016 (paragraph 36), counsel submits that where the
orders have been passed on endorsement of an objection by the
respondent, the courts have relied on such orders.

26.3 Learned counsel next submits that it would be in the best interests of
the minor child if he is returned to his father/petitioner. Mr.Sahay
submits that there is no allegation of adverse influence of the petitioner
upon the minor child nor any ground has been made out to show that
the return of the child to the USA would be detrimental to the interests
of the minor child. He contends that the minor child has not developed
roots in India as the respondent no.4, admittedly, was living the life of a
vagabond shifting between 5 cities being Patna, Bhagalpur, Bombay,
Delhi and Chennai. The only reason the petitioner was unable to come

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to India to visit the minor child was owing to the threats of the
respondent no.4 and her family members of implicating him in false
cases. Otherwise the conduct of the petitioner clearly shows that the
welfare of the child would be ensured if he is sent back to the USA
with the petitioner. He relies upon Surya Vadanan v. State of Tamil
Nadu Ors
., (2015) 5 SCC 450 (paragraphs 31 and 58) and Shilpa
Aggarwal (Supra) (paragraph 21) to submit that in the present
proceedings, the welfare of the child is of paramount importance. He
submits that the petitioner has made all efforts to meet the child for five
years, while the respondent no.4 has created numerous obstacles in
order to hinder full interaction between the petitioner and the minor
child. He submits that the respondent no.4 is treating the minor child as
a chattel and denying the petitioner opportunities of meeting him which
is clearly against the welfare and the overall development of the child.
26.4 Mr.Sahay, learned counsel for the petition, submits that the principle of
„first strike‟ is also in favour of the petitioner herein. The petitioner
was the first to move the appropriate court of jurisdiction at the United
States to seek custody of the minor child. The Foreign Court was the
first to pass an order granting interim custody to the petitioner herein.
He substantiates his contention by placing reliance on paragraph 56 of
Surya Vadanan (Supra). He submits that no effective order has been
passed by the Indian Court. Mr.Sahay also states that though the
petition for restitution of conjugal rights has been served on the
petitioner, the application under the Guardians and Wards Act has not
even been served. It has also been submitted that the filing of the
guardianship petition at Patna should not be taken into account as the
same has been filed at a place where the child does not reside and even
otherwise, the Indian Court has no jurisdiction to entertain the petition.

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26.5 The learned counsel for the petitioner next contends that the Foreign
Court has the most intimate contact with the issues arising in this case
as (1) the minor child is a citizen of the United States; (2) he was
illegally removed from the USA and brought to India; (3) the petitioner
has the capacity to fund the higher education of the minor child; (4) the
child has a bright future in the USA; and (5) the petitioner himself
having studied from IIT and Wharton is best suited to guide and advice
the minor child. Learned counsel relying upon the decisions in Smt.
Surinder Kaur Sandhu v. Harbax Singh Sandhu and Anr
., AIR 1984
SC 1224: (1984) 3 SCC 698 (paragraph 10); V. Ravichandran (Dr.)
(2) v. Union of India and Others, (2010) 1 SCC 174 (paragraph 16)
and Surya Vadanan (Supra) (paragraph 53 and 68) submits that the
Foreign Court has correctly exercised its jurisdiction in the present
matter.

26.6 The next submission of Mr.Sahay is that the Principle of „Comity of
Courts‟ should be factored in by this Court and the order of the Foreign
Court should be honoured. Counsel substantiates his arguments by
relying upon the judgments in Shilpa Aggarwal (Supra) (paragraph

27) and Surya Vadanan (Supra) (paragraph 54 and 55). He also
submits that the order of the Foreign Court is merely an interim order
and nothing prevents the respondent no.4 from going there and
contesting the matter.

SUBMISSIONS OF THE RESPONDENT NO.4

27. Per contra learned counsel for the respondent no.4 has sought to belie
all the submissions of Mr.Sahay and submitted on the following lines:
27.1 Mr.Shah submits that most of the allegations levelled against the
respondent no.4 are false and baseless. He submits that it was infact
the petitioner who had abandoned his wife and the minor child to fend

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for themselves. Learned counsel has drawn the attention of the Court
to emails placed on record to show that the respondent no.4 was always
ready and willing to return to USA on the return tickets booked for
January, 2011. It was the petitioner who failed to provide the requisite
information and documents to enable the respondent no.4 to extend her
US visa which led the respondent no.4 to extend her return tickets and
subsequently left with no choice to cancel them. It is submitted that
except the US $100 handed over at the airport while the respondent
no.4 and the minor child were departing, not a single penny or any sort
of monetary support has been extended by the petitioner either for the
respondent no.4 or the minor child.

READ  Unni Krishnan, J.P. And Ors. Etc. vs State Of Andhra Pradesh And Ors. on 4 February, 1993

27.2 In response to the contention that the respondent no.4 had submitted to
the jurisdiction of the Foreign Court by filing her written response,
learned counsel states that the reply was sent from India explaining the
situation of the respondent no.4 and without any appearance on behalf
of the respondent no.4, the same can by no means be treated as
submission to the jurisdiction of the Foreign Court. The reply is merely
a narration of facts. Infact in the written response, the respondent no.4
has stated that petitioner has prevented her to travel to USA and is not
providing visa papers. Further in paragraph 4.3 she has stated that she
has been prevented to visit the petitioner with the child. In paragraph 5
it has been stated that the petitioner has deliberately disregarded his
duties and failed to enable her to obtain a visa for USA. Respondent
no.4 had also shown her keenness for restitution of conjugal rights.
27.3 Even otherwise, the respondent no.4 submits that the order of the
Foreign Court would not be enforceable in India as being in
contravention of the mandate of Section 13 of the Code of Civil
Procedure, 1908 (briefly the „Code‟). Mr.Shah, learned counsel for the

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respondent no.4 submits that the Foreign Court has completely ignored
the principles of natural justice while passing order dated 13.06.2013.
The order is clearly and evidently ex parte in nature as the respondent
no.4 was never given an opportunity to be heard nor the response filed
by her was considered. Any order, decree or judgment passed that is
ignoring the principles of natural justice cannot be considered to have
delivered justice in any manner and such an order passed without
compliance of the principles of natural justice is not a valid order and
consequently, unenforceable in India in view of Section 13 (d) of the
Code
. Further, the order of the Foreign Court is not an order on merits
since the said order nowhere reflects that the court has gone through
and considered the case of the respondent no.4, hence, the said order
cannot be enforced in India in view of Section 13 (b) of the Code.
Additionally, India is not a signatory to The Hague Convention on
Child Abduction; therefore, the order of the Foreign Court cannot be
enforced in India. The order specifically mentions that the order can be
enforced only in countries that are signatories to The Hague
Convention on Child Abduction.

27.4 Learned counsel submits that the order of the Foreign Court being
interim in nature has no bearing on the present lis as allowing the
present writ petition would virtually be a finality. The petitioner is not
keen on facilitating the visa process for the respondent no.4 to travel to
USA; thus, it would be near to impossible for her to travel to USA to
present her case before the Foreign Court. As on date, the respondent
no.4 is the wife of the petitioner and therefore, she will need his
facilitation in order to get a valid visa to travel to USA.
27.5 Mr.Shah submits that the submission of the learned counsel for the
petitioner that the respondent no.4 was leading the life of a vagabond is

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misplaced. Respondent no.4 has never jumped from one city to
another, as alleged, with a view to keep the petitioner in dark about her
address; on the contrary the petitioner was regularly informed about the
whereabouts of respondent no.4. Respondent no.4 had upon return
from USA gone to Bhagalpur, Bihar where her parents were working as
Lecturers; and then, after few months, she shifted to Patna seeking
better career prospects, where her parents also have a house. She
stayed in Patna from January, 2011 to July, 2012. Thereafter, upon
getting admission in the masters course, she had shifted to Mumbai in
August, 2012; and then after completing the MBA course, came to
Delhi in April, 2014; where she continues to reside till date. In respect
of Chennai, Mr.Shah submits that the sister of the respondent no.4
resides there and the respondent no.4 had gone to meet her for a short
while. Learned counsel has drawn the attention of this Court to the
written response filed before the Foreign Court to show that the address
of her college has clearly been mentioned. Any submission of
Mr.Sahay that the petitioner was unaware of the whereabouts of the
respondent no.4 is clearly contradictory to the record and a patently
false and misleading averment has been made in the writ petition.
Learned counsel submits that it is the petitioner who has kept the
respondent no.4 in the dark about his whereabouts and not the other
way around. He submits that even the address mentioned in the present
petition is false, inasmuch as, when the summons from the Indian Court
were sent at the said address, the same was returned back with a noting
that the said address belongs to a post office. Learned counsel has also
drawn attention of this Court to an email filed by the petitioner dated
20.08.2014, wherein even after the order of the court, the petitioner has
refused to provide his travel plans.

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27.6 It is next contended that it is a well settled law that the doctrine of most
intimate contact the doctrine of closest concern will prevail over the
principles of First Strike and Comity of Courts. He submits that even
though the petitioner was the first to approach a court of law and get a
favourable order in his favour, but since the child has been within the
jurisdiction of this Court for a considerable time and is well-settled in
India, such considerations will take precedence. Mr.Shah relies upon
the judgments in the cases of Ruchi Majoo v. Sanjeev Majoo, (2011) 6
SCC 479 (paragraphs 54, 55, 63, 64 and 65); Dhanwanti Joshi v.
Madhav Unde
, (1998) 1 SCC 112 (paragraphs 3, 4, 18, 29 to 35, 32
and 33); Surya Vadanan (Supra) (paragraphs 55, 56 and 64); and Smt.
Surinder Kaur Sandhu (Supra) (paragraph 10).

27.7 Mr.Shah submits that it is well-settled law that the well-being of the
child is of paramount importance and the court has to consider as to
which country would best serve the interest and welfare of the minor
child. Reliance is placed on Mrs. Elizabeth Dinshaw v. Arvand M.
Dinshaw
, AIR 1987 SC 3 (paragraph 8); Ruchi Majoo (Supra); and
V. Ravichandran (2) (Supra) (paragraphs 29, 32 and 34). Moreover, it
is the court within whose jurisdiction the child is which will have the
most intimate contact with the issues and consequently, will have
jurisdiction to decide as to whether the child has to be sent out of India
or the child has to stay in India, without being influenced by the order
of the foreign court. The child in question has been with the respondent
no.4 all throughout and it is the respondent no.4 who has single-
handedly raised and nurtured the minor child. At this stage, separating
the child from the mother and taking him to a completely different
environment, which would be alien if not hostile, would adversely
affect the psychology of the minor child and would be detrimental to

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his growth. The minor child has adapted to this lifestyle and is living in
a healthy environment where he is taken care of constantly. Learned
counsel submits that the minor child is well adjusted to the atmosphere,
has become accustomed to the day to day routine of life, is doing well
in academics as well as in extra curriculum activities and has got his
routes embedded in India, hence, separating him from his mother and
forcefully sending him to USA will have an adverse effect on the
mental and physical well-being of the minor child.

28. In his rejoinder arguments, Mr.Sahay, learned counsel for the petitioner
has sought to rebut the contentions of the respondent no.4 by
submitting on the following lines:

28.1 Learned counsel submits that the present writ petition is maintainable
as the Supreme Court as well as this Court has repeatedly allowed
habeas corpus petitions based upon interim orders of foreign courts.
He contends that the order of the Foreign Court conforms to Section 13
of the Code as it (1) has been passed by a court of competent
jurisdiction; (2) is based upon the merits of the case; (3) the Foreign
Court has taken a correct view of International Law; (4) complies with
principles of natural justice; (5) is not obtained by fraud; and (6) does
not sustain a claim on a breach of any law in force in India. In response
to the submissions that the order of the Foreign Court was passed
without affording an opportunity to the respondent no.4 to present her
case, it is submitted that the respondent no.4 was issued summons by
the Foreign Court. Pursuant thereto a written response was filed by the
respondent no.4. Respondent no.4 was granted opportunity to present
her case in person or through phone/video-conference. It has been
submitted that the US embassies and consulates routinely approve visas
of litigants looking to attend court proceedings in the US. Thus, the

W.P. (C rl)1088/2015 Page 17 of 47
proceedings by the Foreign Court were in consonance with the
principles of natural justice as respondent no.4 was provided ample
opportunity by the court to defend her case. Mr.Sahay has also drawn
the attention of this Court to Section 3012 of the California Family
Code, which reads as under:

“3012. (a) If a party‟s deportation or detention by the United
States Immigration and Customs Enforcement of the
Department of Homeland Security will have a material effect on
his or her ability, or anticipated ability, to appear in person at a
child custody proceeding, the court shall, upon motion of the
party, allow the party to present testimony and evidence and
participate in mandatory child custody mediation by electronic
means, including, but not limited to, telephone, video
teleconferencing, or other electronic means that provide remote
access to the hearing, to the extent that this technology is
reasonably available to the court and protects the due process
rights of all parties.

(b) This section does not authorize the use of electronic
recording for the purpose of taking the official record of these
proceedings.”

(Emphasis Supplied)

28.2 Closely connected to the previous submission, is the contention of
Mr.Sahay that it was never the intent of the respondent no.4 to return to
the US. The petitioner never denied her the visa to the USA and it was
her voluntary decision to separate the minor child from the father. He
reiterated his contention that the respondent no.4 is treating the minor
child like chattel and thus, is not acting in the interest of the welfare of
the child.

28.3 Mr.Sahay submits that neither Dhanwanti Joshi (Supra) nor Ruchi
Majoo (Supra) have any bearing on the present matter as both the
cases were not of habeas corpus petitions. He further submits that in
the present case, it was the petitioner who approached the competent

W.P. (C rl)1088/2015 Page 18 of 47
court of law in the first instance and obtained a favourable order and
therefore, the present petition should be allowed. He fortifies his
argument by relying upon paragraphs 36, 50, 51 and 52 of the judgment
in Surya Vadanan (Supra).

29. We have heard the learned counsel for the parties and carefully
considered their rival contentions.

30. Prior to dealing with the rival contentions of the parties, we deem it
appropriate to analyse the judicial precedents upon the subject.

31. In the often-cited judgment of the Supreme Court in Smt. Surinder
Kaur Sandhu (Supra), the parties got married in 1975 and were living
in England, where the child was born. The father/respondent therein
had previously offered solicitation for the commission of his wife‟s
murder and had been sentenced to a term of three years for the offence.
Interestingly, the wife/appellant therein had been magnanimous and
secured the probation order of her husband. While the husband was out
of jail, he abused his freedom and brought the minor child of about 8
years of age to India. The mother after obtaining a favourable custody
order from the High Court of Justice (Family Division), filed a writ
petition before the High Court seeking the production and custody of
the minor child. The High Court dismissed the petition and the mother
approached the Supreme Court. The Division Bench of the Supreme
Court set-aside the order of the High Court after considering the
welfare of the child and the principle of „most intimate contact‟.
Chandrachud C.J., giving the opinion for the bench, observed as under:

“10. … The modern theory of Conflict of Laws recognises and,
in any event, prefers the jurisdiction of the State which has the
most intimate contact with the issues arising in the case.
Jurisdiction is not attracted by the operation or creation of
fortuitous circumstances such as the circumstance as to where
the child, whose custody is in issue, is brought or for the time

W.P. (C rl)1088/2015 Page 19 of 47
being lodged. To allow the assumption of jurisdiction by
another State in such circumstances will only result in
encouraging forum-shopping. Ordinarily, jurisdiction must
follow upon functional lines. That is to say, for example, that in
matters relating to matrimony and custody, the law of that place
must govern which has the closest concern with the well-being
of the spouses and the welfare of the offsprings of marriage.
The spouses in this case had made England their home where
this boy was born to them. The father cannot deprive the
English Court of its jurisdiction to decide upon his custody by
removing him to India, not in the normal movement of the
matrimonial home but, by an act which was gravely detrimental
to the peace of that home. The fact that the matrimonial home of
the spouses was in England, establishes sufficient contacts or
ties with that State in order to make it reasonable and just for
the courts of that State to assume jurisdiction to enforce
obligations which were incurred therein by the spouses. …”

(Emphasis Supplied)

32. The Supreme Court in Mrs. Elizabeth Dinshaw (Supra) was faced
with the unsavoury situation wherein one of the spouses had brought
the child to India in contravention of an order of the competent foreign
court. The spouses before the Court were divorced and the custody of
the child had been granted to the mother/petitioner therein. The father,
who was granted visitation rights to the child, took advantage of one
such visit and brought the child to India. This was done in
contravention of a direction of the foreign court that if the father wished
to travel outside of US, he shall seek the permission of the court. The
mother filed a petition before the Apex Court seeking the issuance of
the writ of habeas corpus for production of the child and handing over
his custody as per the order of the foreign court. The court observed
that:

“Whenever a question arises before Court pertaining to the
custody of a minor child, the matter is to be decided not on
considerations of the legal rights of the parties but on the sole

W.P. (C rl)1088/2015 Page 20 of 47
and predominant criterion of what would best serve the interest
and welfare of the minor.”

33. Even though the word used is „sole‟, it is clear that the Supreme Court
did not reject or intend to reject other principles at play [See Surya
Vadanan (Supra) (footnote 11)]. The Court first ascertained welfare
of the child and came to the conclusion that the child has not taken root
in this country and he is still accustomed and acclimatized to the
conditions and environment prevailing in the place of his origin, i.e.
United States. The Court, relying upon the judgment in In Re H.

(infants), (1966) 1 All ER 886, went on to hold that “it was the duty of
the courts in all countries to see that a parent doing wrong by removing
children out of their country did not gain any advantage by his or her
wrongdoing.” The Court held that it will be in the best interests of the
minor that he is sent back to the US with the mother, the Court
ultimately repatriated the child.

34. The factual matrix of Dhanwanti Joshi (Supra) is quite chequered to
say the least, as the spouses therein were involved in multiple
litigations against each other. Both parties had been fighting tooth and
nail for the custody of their child. Though the Supreme Court was
dealing with two appeals, we are only concerned with the one
pertaining to the custody of the child. The mother/appellant therein had
won the first two rounds of litigation, i.e. a habeas corpus petition
before the Bombay High Court in 1986 and another proceeding under
S.13 of the Guardians and Wards Act, which had gone upto the
Supreme Court. Thereafter, a second round of custody proceedings
was initiated by the respondent father taking advantage of an
observation in the order of the Supreme Court. In the second round, the
father succeeded before the Family Court and the High Court. This led

W.P. (C rl)1088/2015 Page 21 of 47
to the mother filing an appeal before the Supreme Court. The Apex
Court reiterated the paramount consideration of the welfare of the child
and went on to hold that any court in which the child has been removed
could conduct (1) a summary enquiry or (2) an elaborate enquiry. The
relevant portion of the order reads as under:

29. …In the case of (a) a summary inquiry, the court would
return custody to the country from which the child was removed
unless such return could be shown to be harmful to the child. In
the case of (b) an elaborate inquiry, the court could go into the
merits as to where the permanent welfare lay and ignore the
order of the foreign court or treat the fact of removal of the
child from another country as only one of the circumstances.
The crucial question as to whether the Court (in the country to
which the child is removed) would exercise the summary or
elaborate procedure is to be determined according to the child’s
welfare. The summary jurisdiction to return the child is invoked,
for example, if the child had been removed from its native land
and removed to another country where, maybe, his native
language is not spoken, or the child gets divorced from the
social customs and contacts to which he has been accustomed,
or if its education in his native land is interrupted and the child
is being subjected to a foreign system of education, — for these
are all acts which could psychologically disturb the child.
Again the summary jurisdiction is exercised only if the court to
which the child has been removed is moved promptly and
quickly, for in that event, the Judge may well be persuaded that
it would be better for the child that those merits should be
investigated in a court in his native country on the expectation
that an early decision in the native country could be in the
interests of the child before the child could develop roots in the
country to which he had been removed. Alternatively, the said
court might think of conducting an elaborate inquiry on merits
and have regard to the other facts of the case and the time that
has lapsed after the removal of the child and consider if it
would be in the interests of the child not to have it returned to
the country from which it had been removed. In that event, the
unauthorised removal of the child from the native country
would not come in the way of the court in the country to which
the child has been removed, to ignore the removal and

W.P. (C rl)1088/2015 Page 22 of 47
independently consider whether the sending back of the child to
its native country would be in the paramount interests of the
child. (See Rayden Jackson, 15th Edn., 1988, pp. 1477-
79; Bromley, Family law, 7th Edn., 1987.) In R. (minors)
(wardship : jurisdiction), Re [ (1981 2 FLR 416 (CA)] it has
been firmly held that the concept of forum conveniens has no
place in wardship jurisdiction.

30. … Be that as it may, the general principles laid down
in McKee v. McKee [1951 AC 352 : (1951) 1 All ER 942]
and J v. C [1970 AC 668 : (1969) 1 All ER 788 : (1969) 2 WLR
540] 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.

33. So far as non-Convention countries are concerned, or where
the removal related to a period before adopting the Convention,
the law is that the court in the country to which the child is
removed will consider the question on merits bearing the
welfare of the child as of paramount importance and consider
the order of the foreign court as only a factor to be taken into
consideration as stated in McKee v. McKee [1951 AC 352 :
(1951) 1 All ER 942] unless the Court thinks it fit to exercise
summary jurisdiction in the interests of the child and its prompt
return is for its welfare, as explained in L., Re[(1974) 1 All ER
913, CA] . As recently as 1996-1997, it has been held in P (A
minor) (Child Abduction: Non-Convention Country), Re [(1996)
3 FCR 233, CA] : by Ward, L.J. [1996 Current Law Year Book,
pp. 165-166] that in deciding whether to order the return of a
child who has been abducted from his or her country of habitual
residence — which was not a party to the Hague Convention,
1980, — the courts’ overriding consideration must be the child’s
welfare. There is no need for the Judge to attempt to apply the
provisions of Article 13 of the Convention by ordering the
child’s return unless a grave risk of harm was established. See
also A (A minor) (Abduction: Non-Convention Country) [Re,
The Times 3-7-97 by Ward, L.J. (CA) (quoted in Current Law,

W.P. (C rl)1088/2015 Page 23 of 47
August 1997, p. 13]. This answers the contention relating to
removal of the child from USA.”

(Emphasis Supplied)

35. Ultimately, the Supreme Court after considering the fact that the minor
child had lived with his mother in India for 12 years, went ahead with
an elaborate enquiry and held that the welfare of the child outweighed
the fact that the child had been removed in contravention of an order of
a foreign court.

36. We may note another aspect considered in Dhanwanti Joshi (Supra).

READ  Premiya @ Prem Prakash Vs. State Of Rajasthan on 22 September, 2008

The Supreme Court noticed that the Family Court and the High Court
had based their decisions on the “sole circumstance regarding the
financial capacity of the father to give better education to the boy in
USA.” This reasoning did not find favour with the Division Bench of
the Supreme Court, which opined as under:

“22. We shall next consider the point which solely appealed to
the Family Court and the High Court in the present proceedings
namely that the respondent is financially well off and can take
care of the child better and give him superior education in USA.
Lindley, L.J. in McGrath (infants), Re[(1893) 1 Ch 143 : 62 LJ
Ch 208] Ch at p. 148 stated that:

“… the welfare of the child is not to be measured by money
alone nor by physical comfort only. The word „welfare‟ must
be taken in its widest sense. The moral and religious welfare
must be considered as well as its physical well-being. Nor
can the ties of affection be disregarded.”

23. As to the “secondary” nature of material considerations,
Hardy Boys, J. of the New Zealand Court said
in Walker v. Walker Harrison [1981 New Ze Recent Law
257] (cited by British Law Commission, Working Paper No. 96,
para 6.10):

“Welfare is an all-encompassing word. It includes material
welfare, both in the sense of adequacy of resources to
provide a pleasant home and a comfortable standard of
living and in the sense of an adequacy of care to ensure that

W.P. (C rl)1088/2015 Page 24 of 47
good health and due personal pride are
maintained. However, while material considerations have
their place they are secondary matters. More important are
the stability and the security, the loving and understanding
care and guidance, the warm and compassionate
relationships, that are essential for the full development of
the child’s own character, personality and talents.”

24. From the above, it is clear that the High Court in the case
before us was clearly in error in giving sole or more importance
to the superior financial capacity of the husband as stated by
him in his evidence. Assuming that his financial capacity is
superior to that of his wife, that in our opinion cannot be the
sole ground for disturbing the child from his mother’s custody.
As of today, the child is getting good education and is doing
well in his studies. The proposal of an immediate American
education which the father is prepared to finance cannot, in our
opinion, be a sufficient ground for shifting the child to the
father’s custody, ignoring the fact that for the last more than 12
years, the child has been in the mother’s custody. …”

(Emphasis Supplied)

37. A Full Bench of the Supreme Court in V. Ravi Chandran (Supra) was
once again confronted with a matter in which mother had brought the
child to India in clear violation of a consent order of the Family Court
of the State of New York. The New York Court had taken strong
notice of such transgression and immediately granted sole custody to
the father. The father/petitioner had approached the Supreme Court by
filing a petition seeking the writ of habeas corpus. The Apex Court
once again discussed the law as to when an elaborate enquiry is
warranted and when the courts are justified in holding a summary
enquiry. R.M. Lodha, J., giving the opinion for the bench, concluded
as under:

“29. While dealing with a case of custody of a child removed by
a parent from one country to another in contravention of the
orders of the court where the parties had set up their

W.P. (C rl)1088/2015 Page 25 of 47
matrimonial home, the court in the country to which the 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 the 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 the child including stability and security,
loving and 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 interests of the child. The indication given
in McKee v. McKee [1951 AC 352 : (1951) 1 All ER 942 (PC)]
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 interests of the child has been explained
in L (Minors), In re [(1974) 1 WLR 250 : (1974) 1 All ER 913
(CA)] and the said view has been approved by this Court
in Dhanwanti Joshi [(1998) 1 SCC 112] . Similar view taken by
the Court of Appeal in H. (Infants), In re [(1966) 1 WLR 381
(Ch CA) : (1966) 1 All ER 886 (CA)] has been approved by
this Court in Elizabeth Dinshaw [(1987) 1 SCC 42 : 1987 SCC
(Cri) 13] .”

(Emphasis Supplied)

38. The Full Bench went on to hold that an elaborate enquiry was not

W.P. (C rl)1088/2015 Page 26 of 47
warranted in the case, in view of the fact that the order of the foreign
court which was violated, was a consent order; the courts were moved
promptly by the father; the mother was repeatedly changing cities
which was sole reason for delay of two years and it further restrained
the child from developing roots in India. The court adhered to the
principle of comity of courts and directed the child to be returned to his
native jurisdiction.

39. The mother (appellant before the Supreme Court) in Shilpa Aggarwal
(Supra) had brought the minor child to India from the United Kingdom
with an intent to return, but she cancelled her tickets just two days prior
to the scheduled return. Prior to the incident, the spouses were residing
in the UK and had set-up their matrimonial home there. The father
promptly moved before the foreign court and obtained an interim order
in his favour. The father filed a petition seeking the writ of habeas
corpus before this Court, which directed the mother to return to the
jurisdiction of the foreign court and join the proceedings there. The
mother preferred an appeal before the Supreme Court, which found
itself between two „contrasting principles‟, i.e. the interest of the child
and the principle of „comity of courts‟. The Apex Court concurred with
the decision of the High Court that it was the foreign court which was
closest to the issue owing to the fact that the parties had set-up their
matrimonial home there, both the parties were working there, the minor
child held a British passport, the parents had acquired permanent
residence status and that the foreign court had taken into consideration
the welfare of the child. It also took note of the fact that the order of
the foreign court was merely an interim order directing the mother to
return to its jurisdiction; it did not even separate the child from the
mother until a final decision was taken with regard to the custody.

W.P. (C rl)1088/2015 Page 27 of 47

Taking these factors into consideration, the Court directed the parties to
return to the United Kingdom.

40. The spouses engrossed in litigation in Ruchi Majoo (Supra), who were
staying in US and had parted ways while on a vacation in India. The
father/respondent went back to US, while the mother/appellant
remained in India. Both Indian and foreign court exercised jurisdiction
in custody petitions and passed contradictory orders. In this
background, the order of the Indian Guardian Court was challenged by
the father before this Court, which quashed the proceedings before the
Indian Guardian Court on the sole ground that it lacked jurisidiction in
the matter. The mother appealed to the Supreme Court. Three
questions were framed by the Court; we are only concerned with the
second, i.e. “whether the High Court was right in declining exercise of
jurisidiction on the principle of comity of courts.” The Court reiterated
the principle that the welfare of the minor was of paramount
importance and the order of the foreign court was to be taken only as an
input. The relevant paragraphs read as under:

47. Recognition of decrees and orders passed by foreign courts
remains an eternal dilemma inasmuch as whenever called upon
to do so, courts in this country are bound to determine the
validity of such decrees and orders keeping in view the
provisions of Section 13 of the Code of Civil Procedure, 1908
as amended by the Amendment Acts of 1999 and 2002. The duty
of a court exercising its parens patriae jurisdiction as in cases
involving custody of minor children is all the more onerous.
Welfare of the minor in such cases being the paramount
consideration; the court has to approach the issue regarding
the validity and enforcement of a foreign decree or order
carefully. Simply because a foreign court has taken a particular
view on any aspect concerning the welfare of the minor is not
enough for the courts in this country to shut out an independent
consideration of the matter. Objectivity and not abject
surrender is the mantra in such cases. That does not, however,

W.P. (C rl)1088/2015 Page 28 of 47
mean that the order passed by a foreign court is not even a
factor to be kept in view. But it is one thing to consider the
foreign judgment to be conclusive and another to treat it as a
factor or consideration that would go into the making of a final
decision. Judicial pronouncements on the subject are not on
virgin ground. A long line of decisions of the Court has settled
the approach to be adopted in such matters. The plentitude of
pronouncements also leaves a cleavage in the opinions on
certain aspects that need to be settled authoritatively in an
appropriate case.

57. 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 obligations 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 Surinder
Kaur Sandhu v. Harbax Singh Sandhu
[(1984) 3 SCC 698 : 1984
SCC (Cri) 464] 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 Guardians and Wards Act. The decisions
rendered by this Court in Elizabeth Dinshaw v. Arvand M.
Dinshaw
[(1987) 1 SCC 42 : 1987 SCC (Cri) 13] , Sarita
Sharma case [(2000) 3 SCC 14 : 2000 SCC (Cri) 568] , V. Ravi
Chandran case [(2010) 1 SCC 174 : (2010) 1 SCC (Civ) 44]
and Shilpa Aggarwal case [(2010) 1 SCC 591 : (2010) 1 SCC
(Civ) 192] arose out of proceedings in the nature of habeas
corpus. The rest had their origin in custody proceedings
launched under the Guardians and Wards Act.

58. Proceedings in the nature of habeas corpus are summary in
nature, where the legality of the detention of the alleged detenu
is examined on the basis of affidavits placed by the parties.
Even so, nothing prevents the High Court from embarking upon

W.P. (C rl)1088/2015 Page 29 of 47
a detailed enquiry in cases where the welfare of a minor is in
question, which is the paramount consideration for the Court
while exercising its parens patriae jurisdiction. A High Court
may, therefore, invoke its extraordinary jurisdiction to
determine the validity of the detention, in cases that fall within
its jurisdiction and may also issue orders as to custody of the
minor depending upon how the Court views the rival claims, if
any, to such custody.

59. The Court may also direct repatriation of the minor child to
the country from where he/she may have been removed by a
parent or other person; as was directed by this Court in Ravi
Chandran [(2010) 1 SCC 174 : (2010) 1 SCC (Civ) 44]
and Shilpa Aggarwal [(2010) 1 SCC 591 : (2010) 1 SCC (Civ)
192] cases or refuse to do so as was the position in Sarita
Sharma case [(2000) 3 SCC 14 : 2000 SCC (Cri) 568] . What is
important is that so long as the alleged detenu is within the
jurisdiction of the High Court no question of its competence to
pass appropriate orders arises. The writ court’s jurisdiction to
make appropriate orders regarding custody arises no sooner it
is found that the alleged detenu is within its territorial
jurisdiction.

63. … What needs to be examined is whether the High Court
was right in relying upon the principle of comity of courts and
dismissing the application. Our answer is in the negative. The
reasons are not far to seek. The first and foremost of them being
that “comity of courts” principle ensures that foreign
judgments and orders are unconditionally conclusive of the
matter in controversy. This is all the more so where the courts
in this country deal with matters concerning the interest and
welfare of minors including their custody. Interest and welfare
of the minor being paramount, a competent court in this country
is entitled and indeed duty-bound to examine the matter
independently, taking the foreign judgment, if any, only as an
input for its final adjudication. The decisions of this Court
in Dhanwanti Joshi [(1998) 1 SCC 112] , and Sarita
Sharma [(2000) 3 SCC 14 : 2000 SCC (Cri) 568] cases clearly
support that proposition.”

(Emphasis Supplied)

41. The Court went on to hold that the interest of the minor would be better

W.P. (C rl)1088/2015 Page 30 of 47
served if he continued in the custody of the mother. While coming to
this decision, the factors playing in the mind of the Court were that
there was no violation of the foreign order; the child had been studying
in an Indian school for nearly three years and was well settled; the only
real concern of the father was that the child be educated in US and not
his actual custody.

42. In Arathi Bandi v. Bandi Jagadrakshaka Rao, (2013) 15 SCC 790,
the Supreme Court once again reiterated the principle that the courts
may deny relief to a person who comes to India in defiance of orders of
the foreign court. Interestingly, the mother had not even complied with
the orders of the High Court which led to the High Court issuing non-
bailing warrants against the mother. The Supreme Court declined to
intervene and further held that it was the duty of the courts in all
countries to see that a parent doing wrong by removing a child out of
the country does not gain any advantage of his wrongdoing.

43. The Supreme Court has reiterated the principles at play in such matters
recently in the case of Surya Vadanan (Supra). The father therein had
approached the Apex Court aggrieved by the refusal by the Madras
High Court to issue a writ of habeas corpus to order the return of his
two minor daughters to the UK. Both the minor daughters were British
citizens and the mother had also acquired British citizenship after
marriage. The mother had brought the daughters along with her to
India and surreptiously initiated divorce proceedings, though no
effective orders were passed therein. The father promptly moved
before the High Court of Justice in UK, which made the children wards
of the court and directed the mother to return the children to its
jurisdiction. It is pertinent to note that the interim order of the foreign
court merely directed the children to be returned to its jurisdiction, but

W.P. (C rl)1088/2015 Page 31 of 47
did not decide the issue of interim custody, which was to remain with
the mother. Since the mother did not return to UK, the father filed a
writ petition before the Madras High Court, which dismissed the
petition. The Division Bench of the Supreme Court, after considering
the recent pronouncements, concluded as under:

(i) That the interest and the welfare of the child are of paramount
importance.

(ii) The major contrasting principles before the Court are the
principle of „comity of courts‟ and the best interest and the
welfare of the minor.

(iii) The „most intimate contact‟ doctrine and the „closest concern‟
doctrine are alive and the domestic court should not take upon
itself the onerous task of ascertaining the welfare of the minor
child when the foreign court may have the most intimate contact
and closest concern with the child. In such circumstances, the
foreign court would be better equipped and perhaps best suited to
appreciate the social and cultural milieu in which the child had
been brought up.

(iv) The principle of „comity of courts‟ should not be jettisoned
except for special and compelling reasons. Interim or
interlocutory order of a foreign court may be ignored in very few
situations.

(v) If the jurisdiction of the foreign court is not in doubt, the „first
strike‟ principle would be applicable, i.e. due weight is to be
given to an order prior in point of time.

(vi) Defiance of an interim or interlocutory order should be viewed
strictly as the same will have widespread deleterious effects upon
the authority of the courts. This is so owing to the nature of the

W.P. (C rl)1088/2015 Page 32 of 47
order itself, as it is subject to modification or vacation by the
court that passes the order, i.e. there is no finality attached to the
order.

(vii) The courts may choose to have a summary enquiry without going
into the merits of the dispute and repatriate the child or may
conduct an elaborate enquiry into the welfare and the best
interests of the child. If there is a pre-existing order of the
foreign court, the domestic court may conduct an elaborate
enquiry only for special reasons taking into consideration the
nature and effect of the foreign court; existence of special
reasons; repatriation should not cause any moral or physical or
social or cultural or psychological harm to the child nor should
any legal harm come upon the parent; and finality the alacrity
with which the foreign court was moved.

44. Considering the above factors, the Apex Court found that the foreign
court had the most intimate contact with the children; the mother had
taken no serious efforts in obtaining an order in India; the principle of
„first strike‟ was in favour of the father/appellant; the order of the
foreign court was only interim or interlocutory; and that no prejudice
would be cause to the children or to the mother in subjecting them to
the jurisdiction of the foreign court. Consequently, the Supreme Court
refused to conduct an elaborate enquiry into the matter as it found that
it would be in the best interests of the children that such an enquiry was
undertaken by the foreign court.

45. We may also note two decisions of a coordinate bench of this Court, of
which one of us (G.S. Sistani, J.) was a member, in Anand Raghavan
(Supra) and Shilpi Gupta (Supra). In the former, the spouses had
after marriage made their marital home in UK; had taken up vocations

W.P. (C rl)1088/2015 Page 33 of 47
there; the child was born there and even the mother had taken
permanent residency. The mother came to India with the minor child
and severed all contact with the father/petitioner therein. The father
had approached this Court seeking a writ of habeas corpus after
obtaining a custody order from the foreign court. This court finding
that there were no special reasons for ignoring the concept of „comity
of courts‟ and that the foreign court had the most intimate contact and
the closest concern with the issues directed the repatriation of the child.
At the same time, the Court found that the best interest of the child
would be in her repatriation. We may also note that the mother has
preferred a petition by special leave before the Supreme Court [SLP
(Crl.) 5751/2016] and the judgment has been reserved in the same.

46. Similarly in Shilpi Gupta (Supra), this Court repatriated the son, who
had been brought to India by the father, to the jurisdiction of the US
finding no reason to jettison the principle of „comity of courts‟ and that
the foreign court had the most intimate contact and the closest concern
with the issues. The factual matrix therein was also similar to Anand
Raghavan (Supra) as the spouses had made the US their home, both
were employed there and both the children were also foreign citizens
having been brought up there. This judgment has also been challenged
before the Supreme Court in SLP (Crl.) 3743/2016 and the judgment
has been reserved.

READ  Indian Council Social Welfare And vs State Of A.P. And Ors. on 14 July, 1999

47. From the aforegoing discussion, it is clear that while deciding matters
wherein the question of the custody of a minor child is involved and
one spouse is armed with an order of the foreign court, the court must
consider numerous factors and may not blindly adhere to the order of
the foreign court. The first aspect to be considered is whether the
domestic court has the jurisdiction to entertain the matter, which in the

W.P. (C rl)1088/2015 Page 34 of 47
case of a petition seeking the writ of habeas corpus arises as soon as it
is found that the minor is within its jurisdiction.

48. Thereafter, it is settled law that the interests and welfare of the child are
of paramount importance. Then the courts must ascertain as to whether
an elaborate enquiry into the welfare of the minor is called for or to
repatriate the minor and the spouses to contest before the foreign court.
If there is already an order of the foreign court, the enquiry may only be
conducted for special and compelling reasons as stated in Surya
Vadanan (Supra) (paragraph 56). We also note that the Indian Courts
have taken a strong stand against removal of minor in violation of court
order, that is to say, when the child was removed from the jurisdiction
of a foreign court, there was already an existing order (interim or
otherwise) of a foreign court. In such circumstances, the Courts must
ensure that the violator of the law should not advantage by such
violation [See Mrs. Elizabeth Dinshaw (Supra) and Arathi Bandi
(Supra)].

49. The next principle at play is the „most intimate contact‟ doctrine and
„closest concern‟ doctrine. These doctrines are components of the
modern theory of Conflict of Laws, in as much as, a court which has
the most closest concern and most intimate contact with the issues
arising in the case, may fruitfully exercise its jurisdiction in the case.
The other court, which is far distant from the issues, may not take upon
itself the onerous task of ascertaining the welfare of the child. This
self-restraint by the court, less connected with the issues, would be in
the best interests of the minor himself.

50. In cases where both the parents have initiated proceedings in their
respective countries, the principle of „first strike‟ comes into the fray
provided the jurisdiction of the Foreign Court is not in doubt. The

W.P. (C rl)1088/2015 Page 35 of 47
substantive order which was passed prior in point of time should be
given due respect and weight over the subsequent order.

51. The nature of the foreign order should also be taken into consideration.

The Courts have taken a lenient view in matters wherein the foreign
order was an interim order merely directing the spouse, who had come
to India, to return to its jurisdiction. This is because the question of
interim custody also remains open to be contested once both the parties
appear before the foreign court.

52. Moreover, if the Indian Court based on the facts of the case has come to
the conclusion that an elaborate enquiry is called for taking into the
order of the foreign court as only one of the inputs for the same, the
Court is duty-bound to consider the interests and welfare of the minor
child.

53. Accordingly, the present petition is also to be decided upon the
touchstone of the aforegoing principles. Upon considering the rival
contentions of the parties and going through the pleading and
documents filed by the parties, the following facts emerge:
53.1 The petitioner and the respondent no.4 got married on 20.04.2008 and
since May, 2008 resided in California, USA. The respondent no.4
acquired H4 visa, being the dependent family member of the petitioner
herein. The marriage of the parties was quite turbulent to say the least.
The minor child was born on 22.04.2009 and is a natural born US
citizen.

53.2 While in USA, the respondent no.4 appeared in the entrance exams for
the dental course on two occasions but was unable to secure admission
to any institute.

53.3 On 25.10.2010 or 26.10.2010, the respondent no.4 along with the minor
child came to India while holding return tickets for the month of

W.P. (C rl)1088/2015 Page 36 of 47
January, 2011. It was the petitioner who dropped the respondent no.4
and the child to the airport and handed her US $100 after withdrawing
the same from a nearby ATM. While in India, the H4 visa of the
respondent no.4 expired. Consequently, the respondent no.4 started
requesting the petitioner to send the requisite documents to get her visa
extended, but the petitioner ignored all such requests. Owing to this
factor, the respondent no.4 was unable to return to the USA in the
month of January, 2011. The respondent no.4 kept extending her
tickets in the hope that the visa will be sponsored by the petitioner but
as the petitioner did not send the necessary documents for her visa, she
was left with no option but to cancel the same. The respondent no.4
also claims to have filled the form for her third attempt at the entrance
exams scheduled on 23.04.2011, which she missed as she was unable to
travel to the US. We deem it appropriate to reproduce the emails
placed on record, which read as under:

Email dated 01.04.2011 sent by the respondent no.4 to the petitioner:

“chandan,

I have been making calls on your cell phone since the last two
days and you are avoiding it.i even left voice message on your
phone.

Today is 1st of april and my ticket is for the 13th of april 2011
to US .i have informed you about this much before. My exams
are scheduled for the 23rd of april(i took the date only after you
agreed with the date). my ticket is valid only till the 25th of
april.

i came to india to prepare for exams with everybody‟s
permission. tension in the family was brewing up regarding my
NBDE exams and u are well aware of it.

just let me know what is your stand on my coming back to usa
and also regarding my exam.

hope you will reply to this email.

W.P. (C rl)1088/2015 Page 37 of 47

radhika”

(Emphasis Supplied)

Email dated 08.04.2011 sent by the respondent no.4 to the petitioner:

“chandan
why do u stop taking the call and how is it going to resolve
issues.

neither are you sending archits birth certificate nor are you
sending your papers so that i can schedule an interview and get
my visa re-stamped.

instead u are resorting to immature act of bringing this issue in
public.

can u just reply as why are you delaying in sending the papers.

radhika”

(Emphasis Supplied)

Email dated 10.04.2011 sent by the respondent no.4 to the petitioner:

“you are not taking the call . you didn‟t even send any papers. r
u in CA? at least respond to the email.

i have been calling the home phone also. r u somewhere else.

radhika”

(Emphasis Supplied)

Email dated 05.09.2011 sent by the respondent no.4 to the petitioner:

“chandan,

when will u send the papers so that i can get my H4 visa re-
stamped?

radhika”

(Emphasis Supplied)

Email dated 20.10.2011 sent by the respondent no.4 to the airlines:

“Hi,

This is to inform you that due to visa constraints I would like to
cancel my ticket to SFO bearing reference number MD3W5L.

W.P. (C rl)1088/2015 Page 38 of 47

Thanks,
Radhika”

(Emphasis Supplied)

Reply email dated 20.10.2011 sent by the airlines to the respondent
no.4:

“Dear Ms Sinha

This is with reference to your email below.
Please advise if you want us to release the booking held for 24
Oct 11.

Refund would need to be processed by your ticketing agent in
US.

Appreciate your quick revert.

Thanks and regards

Shampa
SIA Kolkata”

Reply sent on the same date by the respondent no.4 to the airlines:

“Yeah kindly release the booking. As said in the previous mail I
don‟t have a visa to travel at this point of time.I will check for
refund when I reach US later.

Thanks,
Radhika”

(Emphasis Supplied)

53.4 The aforegoing emails clearly show that it was the intention of the
respondent no.4 to return to the USA all the while and was prevented
only owing to the denial by the petitioner to sponsor her visa.

53.5 Not only did the petitioner not respond to the Emails sent by his
wife/respondent no.4, the petitioner also showed no interest in the
return of his minor son. The Emails also reflect the fact that the
petitioner was not interested to interact with his minor son which is
evident from the fact that despite the respondent no.4 pleading to her

W.P. (C rl)1088/2015 Page 39 of 47
husband to respond, the petitioner maintained cold silence and was
busy consulting lawyers in the USA.

53.6 Meanwhile in April 2011, the petitioner initiated proceedings before
the Foreign Court seeking the custody of the minor child. He was
unable to serve the respondent no.4 allegedly owing to the fact that she
kept changing her residence. When the respondent no.4 returned to
India, she initially lived with her parents in Bhagalpur; later she moved
to Patna from January, 2011 to July, 2012. She briefly went to Chennai
to live with her sister. Since by this juncture, the respondent no.4 had
decided to move on with her life, she took admissions in K.J. Somaya
College, Bombay in MBA (F) Course and accordingly, shifted to
Mumbai in August, 2012. The minor child was admitted in a Pre-
school in Mumbai and later in Ryan International School, Mumbai.
After finishing her studies, she shifted to Delhi in April, 2014 along
with the minor child. The minor child has since been admitted to Ryan
International School, Delhi.

53.7 It has been the stand of the respondent no.4 that the petitioner was kept
aware about the whereabouts of the minor child. This submission
seems to be true as it has been admitted that the parents of the
petitioner attended the mundan ceremony of the minor child held on
12.03.2012 at Deoghar Temple. The petitioner has also innocuously
placed an email conversation with the respondent no.4 on 14.05.2012
on record with his rejoinder affidavit, wherein the respondent no.4 had
clearly informed the petitioner that she was currently in Thoraipakkam
area in Chennai and any communications to her can be sent to her
parents‟ residence. All the while, the respondent no.4 did not sever
access between the petitioner and the minor child as, admittedly,
between July 2013-August 2014, the petitioner was in touch with the

W.P. (C rl)1088/2015 Page 40 of 47
child on Skype and telephone.

53.8 The respondent no.4 has also initiated proceedings before the Family
Court, Patna seeking restitution of conjugal rights as well as a petition
inter alia with a prayer to be declared the sole guardian of the minor
child. Ironically, it is the case of the respondent no.4 that she was
unable to serve the petitioner as he never disclosed his whereabouts.
Communications have also been placed on record to show that the
respondent no.4 kept asking for the residential address of the petitioner
to no avail. No effective orders have been passed by the Indian Court
till date.

53.9 The respondent no.4 also filed a written response before the Foreign
Court on 30.05.2013 highlighting her plight that she had been denied
documents to enable her to travel to the USA and that arrangements
could be made for both the mother and child to return together. On
13.06.2013, the Foreign Court ordered that the child be returned to the
USA and granted the custody to the petitioner herein with supervised
visitation rights to the respondent no.4. We also note that none of the
submissions made by the respondent no.4 in her written response have
been considered by the Foreign Court.

53.10 The petitioner claims to have been requesting the respondent no.4 to
comply with the order ever since, but the respondent no.4 refused to
comply with the same. It is claimed that it was only on 06.08.2014 that
the petitioner learnt about the whereabouts of the respondent no.4 and
the minor child. He sent a complaint to the Commissioner of Police,
Delhi on 12.12.2014 and later initiated the present proceedings on
07.05.2015.

54. From the aforegoing, it is patent that it was the petitioner who was the
first to approach a court of law seeking the custody of the minor child

W.P. (C rl)1088/2015 Page 41 of 47
and secure a favourable order. We also note that the order of the
Foreign Court is an interim order subject to variations. No doubt the
principles of „comity of court‟ and „first strike‟ weigh in favour the
petitioner, but we find certain special reasons for not repatriating the
child.

55. Though the order of the Foreign Court is interim in nature and subject
to variation; but effectively, the order has sealed the fate of the
respondent no.4. Without a visa to travel to the USA, it would be
impossible for the respondent no.4 to return. Any attempt might lead to
her being separated from her child, who she has brought up single-
handedly from 2010 onwards if not from birth, and at the same time
face detention being an illegal immigrant. This would cause serious
legal harm upon her. We may also note that the child has never stayed
away from his mother and atleast since 2010 been taken care of by her.

56. The present proceedings reveal certain unpleasant facts which would
incline us towards the need for an elaborate enquiry. The pleadings and
the documents on record reveal that it was the petitioner who deserted
the respondent no.4 in India. The respondent no.4 was all along
interested in returning to the US, but was unable to do so owing to the
refusal of the petitioner to provide her with the requisite documents to
renew her visa. The petitioner, all the while, attempted to ensure the
return of the minor child to the USA and isolate the respondent no.4 in
India. There seems to be credence in the submission of Mr.Shah that
the petitioner was acting upon a unholy plan to isolate the respondent
no.4 in India and keep the minor child with himself. It is clear that it
was the petitioner who did not act in the best interests of the child and
dealt with him like a ball to be bounced around between the mother and
the father.

W.P. (C rl)1088/2015 Page 42 of 47

57. It seems the petitioner was uninterested during the crucial years of the
development of the child when the mother/respondent no.4 had single
handedly taken care of the child in the absence and cold silence from
the end of the father/petitioner who did not even respond to the Email
and telephone calls from the respondent no.4. The dismal attitude and
the lack of interest of the petitioner in his own child is writ large on the
fact that he did not even attend the mundan ceremony of the child,
which is an important ceremony in the life of any child, even though his
parents were present. The only explanation forthcoming for his
conspicuous absence is his fear that coming to India would lead to him
being falsely implicated in a criminal case. This is clearly an
afterthought as the conduct of the respondent no.4 would betray any
apprehensions which might have harboured in the mind of the
petitioner. The respondent no.4, who has brought up the child alone
initially with no source of income and without claiming maintenance in
India, has not initiated any criminal proceedings till date and has also
made an application under S.22 of the Special Marriage Act, 1954
seeking restitution of conjugal rights.

58. Prima facie we feel that incase the petitioner had love and concern for
his son, he would have voluntarily provided financial support but, on
the contrary, it seems that he was least concerned with the upbringing
of the child; who was brought up by his wife/respondent no.4 with the
help of her parents, both of whom are teachers. Love and concern for
the welfare of the child seem to have suddenly sprung up in the mind of
the petitioner.

59. The petitioner even failed to approach the courts with any alacrity
raising serious doubt upon his sincerity. Admittedly, the Foreign Court
had passed the custody order on 13.06.2013, while the petitioner had

W.P. (C rl)1088/2015 Page 43 of 47
approached the authorities in India in December, 2014 and this Court in
May, 2015. The only explanation for such delay is that until the Skype
conversation on 06.08.2014, the petitioner did not know the
whereabouts of the respondent no.4 and the child. This same did not
hinder his capacity to move to the Supreme Court seeking a pan-India
search. Additionally, the written response filed by respondent no. 4
before the Foreign Court clearly states that the respondent no.4 was
residing at Tilaknagar, Mumbai.

60. Learned counsel for the petitioner had contended that the respondent
no.4 had submitted to the jurisdiction of the Foreign Court by filing her
written response; but we are unable to accept this submission. Upon
going through the response, it is patent that the same cannot be said to
be a submission to the jurisdiction of the Foreign Court as the
respondent no.4 had merely highlighted her precarious position and
requested the assistance of the Foreign Court to participate in the
proceedings. Admittedly, she was unable to participate in the
proceedings, which led to the passing of the order dated 13.06.2013.
Thus, the filing of the response can, by no means, be said to be a
submission to the jurisdiction of the Foreign Court.

61. Thus, we proceed to analyse where the welfare of the child lies. The
child is settled in India since 2010. We have also gone through the
academic and co-curricular record of the minor child. The records
show that good care is being taken care of the minor child. Quality
education is being provided to the child and has adjusted to the lifestyle
in India. He has been learning tennis, karate, football and cricket.
Thus, we are of the opinion that prima facie it appears that the child has
developed roots in India.

62. To handover the custody of the child, who has spent the past 6 years in

W.P. (C rl)1088/2015 Page 44 of 47
the care of the mother/respondent no.4, to the petitioner to be taken to a
foreign land with no familiar face, unfamiliar surroundings, culture,
festivals would do much harm to the child and in our view, would not
be in the interest of the welfare of the child. Further to send the child to
the land where his mother cannot even enter in the absence of a visa,
which was denied by the petitioner himself would not only be cruel to
the child, but also to the mother/respondent no.4. Any contest in a
foreign court between the petitioner, who holds a Green Card
(permanent residence permit), secured job and backing of family and
friends in addition to being armed with the order of the Foreign Court,
on one hand; and the respondent no.4 without a visa, job, funds,
security and familial support on the other hand would inevitably tilt the
scales of justice unfairly on one side placing her on an unequal footing.

63. The child has been in India for a considerable period of time and was
less than 2 years of age when he was brought to India. He has had all
his education in India and turned 8 on 22.04.2009. He is well taken
care of by the respondent no.4, without any support from the petitioner.
Thus, it is clear that the domestic courts in India would have much
closer concern and intimate contact with the minor child and the issues
arising than the US Courts.

64. Even the contentions of Mr.Sahay as to the welfare of the child circle
around the financial capacity of the petitioner and brighter prospects of
the minor child in the USA. It cannot be forgotten that „welfare‟ is an
all-encompassing term, it cannot be measured by financial means or
superior education alone. Such specious arguments have already been
rejected by the Supreme Court in Dhanwanti Joshi (Supra) and Ruchi
Majoo (Supra). We also find that the submission of Mr.Sahay that the
said judgments do not come to the aid of the respondent no.4 is

W.P. (C rl)1088/2015 Page 45 of 47
misplaced as, even though both the judgments were not petitions of
habeas corpus, the same does not reduce the precedential value of the
same as to the factors to be considered for ascertaining the welfare of
the minor child.

65. In the light of all these circumstances, repatriation of the minor child
pursuant to a summary enquiry does not seem feasible in the interest of
the welfare of the minor child. An elaborate enquiry is called for. At
this juncture, we are faced by two alternatives: first, to conduct an
elaborate enquiry ourselves and second, to relegate the parties to the
Family Court. Though there is no legal bar in conducting the enquiry
by this Court in a petition seeking the writ of habeas corpus, at the
same time, this Court might not be the best forum to ascertain the
welfare of the minor, which would be better adjudged by a Family
Court. We have already held that the principle of „comity of courts‟
does not seem to be a viable option to be exercised at this juncture and
prima facie the welfare of the child would be better served if he
continued in the custody of the respondent no.4/mother, especially
when it was the petitioner who has repeatedly acted contrary to the best
interests of the minor.

66. Thus, having regard to the best interests and welfare of the child, the
present writ petition is dismissed. The minor child shall continue to
remain in the custody of the mother. An elaborate enquiry is called for,
which can be best conducted by a Family Court. Accordingly, the
parties are at liberty to get the question of guardianship and custody
decided before a competent family court within India pursuant to an
elaborate enquiry to ascertain where the welfare of the minor would be
best served.

67. The writ petition is dismissed with costs. The legal fee of the counsel

W.P. (C rl)1088/2015 Page 46 of 47
for the respondent no.4 is fixed at Rs.25,000/- to be paid by the
petitioner within 4 weeks.

68. Further, both parties are directed to disclose their present addresses by
filing an affidavit within 2 weeks.

G.S.SISTANI, J.

VINOD GOEL, J.

th
MAY 8 , 2017
//

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