* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 18.04.2017
% Judgment delivered on: 16.11.2017
+ W.P.(CRL) 374/2017 and Crl. M.A. No.2007/2017
KG ….. Petitioner
Through: Mr. Prabhjit Jauhar Ms. Ankita
Gupta, Advocates.
versus
STATE OF DELHI ANR ….. Respondents
Through: Mr. Rahul Mehra, Standing Counsel
(Crl.) and Mr. Tushar Sannu,
Advocate along with SI Pankaj
Kumar, PS-Vasant Kunj (South), for
the State.
Ms. Malavika Rajkotia, Ms. Arpita
Rai, Mr. Ranjay N. Ms. Saumya
Maheshwari, Advocates for and along
with respondent No.2 in person.
CORAM:
HON’BLE MR. JUSTICE VIPIN SANGHI
HON’BLE MS. JUSTICE DEEPA SHARMA
JUDGMENT
VIPIN SANGHI, J.
1. The petitioner herein has preferred the present writ petition seeking
issuance of a writ of Habeas Corpus for production of his minor daughter, M
G, who is presently three years eight months of age and is a permanent
resident and natural born citizen of USA. He is also seeking a direction for
return of M to the jurisdiction of the competent Courts in the United States
W.P.(CRL) 374/2017 Page 1 of 96
of America in compliance with the order dated 13.01.2017 passed by the
Circuit Court of Cook County, Illinois, USA. The child is presently under
the custody of her mother, Respondent No. 2.
Background
2. Petitioner is an Indian born citizen of USA since 2005. He is working
as the CEO of a company called GetSet Learning. Respondent No. 2 is the
wife of the petitioner and mother of M. She has the status of a US
Permanent Resident and is a ‘Green Card’ holder, who has also applied for
US Citizenship on 2.12.2016. She is a certified teacher in the State of
Illinois, and was employed as a Special Education Classroom Assistant in
Chicago Public Schools. The petitioner and respondent No. 2 got married on
31.10.2010 as per Sikh rites, i.e. Anand Karaj ceremony, and Hindu vedic
rites in New Delhi, India.
3. The petitioner submits that it was understood between both the parties
that the respondent no. 2 would come and live with the petitioner in the
USA. Respondent No.2 applied for and obtained a Fiancée Visa from the
US embassy, showing herself as “Single (Never Married)” and her name as
“K L” with her address as that of parents, in the DS-230 Form.
4. After obtaining the Fiancée Visa on 03.03.2011, the respondent no. 2
travelled to the USA and got married with the petitioner again on
19.03.2011 at Cook County Court in Chicago, Illinois. A reception was also
thrown for the couple in Ohio, USA by the family of the petitioner. Before
the marriage, the parties entered into a Prenuptial Agreement dated
W.P.(CRL) 374/2017 Page 2 of 96
20.10.2010, enforceable in accordance with the laws of the State of Illinois,
USA.
5. Respondent no. 2 adapted herself in her new home by changing her
surname; applying for a State of Illinois Teaching certificate, and; working
for gain as a teacher in Chicago Public Schools. She also secured a US
Permanent Citizen Green card.
6. Respondent no. 2 became pregnant with M towards end of July 2013,
and M was born on 15.02.2014. The petitioner submits that both the parties
wanted M to be born in USA and attain US citizenship. He submits that M is
a natural born US citizen and has been domiciled in the State of Illinois,
USA since her birth. He relies upon M’s US birth certificate dated
28.03.2014, and her passport issued by the US Department of State on
21.05.2014 as evidence of the same.
7. Until December 2016, M remained in Chicago with her parents. She
was being taken care of by not just her parents, but her paternal grandparents
as well when respondent no. 2 was working. M started pre-school from July
2016 onwards, and was scheduled to join a three year olds’ classroom w.e.f.
09.01.2017.
8. On 25.12.2016, petitioner along with the respondent no. 2 and M left
for New Delhi, India for a short trip. They stayed with respondent no. 2’s
parents. They were scheduled to head back to Chicago on 07.01.2017. The
petitioner submits that 11 hours before their departure on 07.01.2017, the
respondent no. 2 with their daughter went missing. He submits that he tried
looking for the two of them everywhere but could not find them. He spoke
W.P.(CRL) 374/2017 Page 3 of 96
to his in-laws about their whereabouts and even tried calling respondent no.
2 on her cell phone but got no response. Because he had already pre-booked
his flight to Chicago, he left.
9. Respondent no. 2 filed a petition under section 13(1) of Hindu
Marriage Act, HMA No. 27/17 seeking dissolution of marriage on the
ground of cruelty, along with an application under section 26 of HMA on
07.01.2017 seeking a restraint order against the petitioner from taking away
M from the jurisdiction of Indian Courts. Notice was issued to the petitioner
returnable on 11.01.2017 in the application under section 26 of HMA.
10. Subsequently, the petitioner moved an emergency petition for
temporary sole allocation of parental responsibilities and parenting time in
his favour, or in the alternative, an emergency order of protection for
possession of his minor daughter M G before the Circuit Court of Cook
County Illinois, USA on 09.01.2017. He submits that a notice of emergency
motion was served by e-mail upon the respondent no. 2, informing her of the
proposed hearing on 13.01.2017 in this matter.
11. On 11.01.2017, the Patiala House Family Court issued fresh notice to
the petitioner. At the same time, it passed ex-parte orders on the application
filed by respondent no. 2 under Section 151 CPC seeking an ad interim
order restraining the petitioner from removing the minor child from the
jurisdiction of the court, and restrained the petitioner ex-parte from
removing M from the jurisdiction of the court pending the return of
summons on 06.02.2017. However, during pendency of the present
petition, the said application was dismissed upon contest on 25.03.2017. A
W.P.(CRL) 374/2017 Page 4 of 96
copy of the said order has been tendered in Court by learned counsel for the
petitioner during the course of hearing. Consequently, there is no restraint
against the petitioner from taking M – his daughter, to the USA.
12. On 13.01.2017, the petitioner caused a missing persons complaint to
be filed before the SHO, Vasant Kunj (South) PS, New Delhi and on
14.01.2017, the complaint was acknowledged and registered by the PS
Vasant Kunj (South) vide DDR NO. 208.
13. On the same date, i.e. 13.01.2017, the Circuit Court of Cook County
ordered the following, while fixing the next date of hearing on 16.03.2017:
“1)The child M G born on Feb 15, 2014, in Chicago, Illinois
and having resided in Chicago solely for her entire life
(specifically at 360 East Randolph Street, Chicago, IL 60601) is
also a US citizen.
2) The child is a habitual resident of the state of Illinois, United
States of America having never resided anywhere else. Illinois
is the home state of the child pursuant to the Uniform Child
Custody Jurisdiction Enforcement Act.
3) K G is the natural father of the minor child and granted
interim sole custody of the minor child. Child is to be
immediately returned to the residence located in Cook County,
Illinois, USA by Respondent.
4) The Cook County, Illinois Court having personal and subject
matter jurisdiction over the parties and matter.
5) All further issues regarding visitation, child support are
reserved until further Order of Court.” (emphasis supplied)
14. Because the respondent no. 2 did not comply with the said order of
the Circuit Court, Cook County, the petitioner has preferred this petition for
W.P.(CRL) 374/2017 Page 5 of 96
production of his daughter M, and her return to the USA in view of the said
order. The petitioner has been able to communicate with the child through
Skype in the past few months. He flew to India to file the subject petition
and has, vide orders dates 09.02.2017, 14.02.2017 and 28.03.2017, been
able to see and spend time with the child in the presence of the respondent
no. 2 and her parents. The passport of the child is presently in the possession
of the petitioner.
Petitioner’s submissions
15. Learned counsel for the petitioner, Mr. Prabhjit Jauhar submits that
both the petitioner as well as his wife, respondent no. 2 – from even before
of M came into this world, had full intentions of their child being a US
citizen by birth. This is evident from the fact that both the parties are
domiciled and permanently residing in the State of Illinois, USA since their
marriage in 2011, and M was delivered in USA, though the parents of
respondent No.2 reside in India. He submits that the respondent no. 2 also
had clear intentions of staying in the USA, since she applied for citizenship
of the USA. He relies upon the e-mail communication of respondent No.2
dated 07.11.2016 sent to one Nancy Vizer, inter alia, stating “I wanted to let
you know that I have decided to take up US citizenship” a Form I-797C
dated 07.12.2016 received from the Department of Homeland Security, U.S.
Citizenship and Immigration Services, wherein the said department had
informed respondent no. 2 that her application for Naturalization was
received on 02.12.2016, and was being processed. He submits that the
respondent no. 2 had taken this step with a clear desire to renounce her
Indian citizenship, as India does not permit dual citizenship. She was
W.P.(CRL) 374/2017 Page 6 of 96
employed and was having separate bank accounts, health insurance,
membership in trade union, and pension/retirement accounts as well in the
USA. Learned counsel has referred to the reply filed by respondent No.2
before the Family Court to the petitioner’s application under Order 7 Rule
11 CPC, wherein she has stated:
“a. … … … It is not denied that the petitioner is a permanent
resident of USA as a Green Card Holder. It is submitted that
the Petitioner applied for citizenship of USA under duress, …
……
x x x x x x x x x x
x x x x x x x x x x
d. The contents of paragraph no.3(d) are false and denied,
and admitted only to the extent that the parties left for USA
after their marriage, and their matrimonial home is located in
Chicago, Illinois. It is not denied that the parties resided at
their matrimonial home, first at 512 N McClurg Court, Unit
2812, Chicago, IL-60611, USA, then at 512 N McClurg Court,
Unit 1410, Chicago, IL-60611, USA, and since 31.01.2014 at
360, East Randolph Street, Unit 2805, Chicago, Illinois-60611,
USA. The first two apartments were rented by the Parties, and
the third was a condo bought by the parties but legally
registered in the name of the Respondent and his father. It is
not denied that the petitioner was employed full-time in USA as
a Special Education Classroom Assistant with Chicago Public
Schools. However, the Petitioner was employed full-time only
from November 2012 to August, 2014 at James Otis Elementary
School, and then from September 2015 to January 2017. She
was not earning substantially well, and her monthly salary was
around 2200 USD until 2014 and 2300 USD until January
2017, as opposed to the monthly salary of the Respondent,
which was about 10,000 USD.
W.P.(CRL) 374/2017 Page 7 of 96
e. ……… It is not denied that since the birth, M G has
resided at the 360, East Randolph Street, Unit 2805, Chicago,
Illinois-60601, USA. It is not denied that she started going to
Lakeshore East, Chicago, Illinois, USA on 18.07.2016 on a two
day per week schedule and was on a five days per week pre-
school schedule from 17.08.2016. It is not denied that M G was
scheduled to move into the three years old classroom w.e.f.
09.01.2017.
x x x x x x x x x x
g. … … … It is admitted that the Respondent had booked
return tickets for the parties and their daughter. … … …”
16. Ld. Counsel submits that both the parents of the petitioner have
greatly contributed to M’s growth and well being. He submits that while the
respondent no. 2 was working as a teacher, the petitioner’s mother – who is
a pediatrician, travelled regularly to Chicago to take care of M. She did this
even when the petitioner’s father was recovering from prostate cancer
surgery. He submits that the petitioner had himself moved his company’s
office closer to his residence, in order to be able to attend to M. Petitioner
also employed a nanny to take care of M when her mother – after taking a
year long break from teaching, had decided to get back to teaching full time.
Ld. Counsel submits that the petitioner was the one who oversaw the entire
process of hiring the Nanny, including conducting reference checks,
negotiating the contract, calculating payments and also overlooking the care
provided by the Nanny through full-day interviews – when he watched the
candidates interact with M.
17. Ld. Counsel submits that M was sent to a pre-school in Chicago from
July 2016 onwards, and the petitioner was the one to have taken care of the
W.P.(CRL) 374/2017 Page 8 of 96
entire enrollment procedure along with paying the entire tuition fees. In this
respect reference is made by Mr. Jauhar to the certificate dated 11.01.2017
issued by “Bright Horizons Family Solutions”, inter alia, stating:
” M G has been enrolled at our preschool since July 18,
2016. She began her enrollment by attending the school two
days a week (Monday and Tuesday) and switched to a five day
schedule on August 17, 2016. M was enrolled in our two year
old classroom and was scheduled to move into the three year
old room effective January 9th, 2017.
M communicates her wants and needs effectively with
adults and is able to successfully communicate socially with her
peers. She appears to be happy at school and engages in
activities in the classroom.
M’s father, K G, is an active member of our school’s
Parent Partnership Group. This group meets once monthly to
discuss school events, community outreach opportunities, and
ways to promote parental involvement at the school. K has
offered to be a resource for other families (both enrolled and
perspective) that may have questions regarding enrollment at
the school and to share his overall experiences with Bright
Horizons.”
18. He further submits that the petitioner had also arranged for M’s
enrollment in a three year olds’ classroom, which she was to join from
09.01.2017 i.e. after their arrival from the planned trip to New Delhi in
December 2016.
19. Ld. Counsel submits that it is because of this involvement of the
petitioner in M’s life, that M and the petitioner are very close to each other.
He submits that this is evident from the skype calls that the father and
daughter have had, while she has been in her mother’s custody.
W.P.(CRL) 374/2017 Page 9 of 96
20. Ld. Counsel submits that respondent no. 2 had planned well in
advance to abduct and retain their daughter in India by vanishing from her
parents’ house on 07.01.2017 and, thus, she is guilty of inter-parental child
removal/abduction. He submits that her conduct has been completely
unresponsive since the said abduction. In this regard, he points out that the
respondent no. 2 despite notice of the emergency petition filed before the
Cook County, Circuit Court chose not to attend the said proceedings either
in person, or through a representative/lawyer. Further, inspite of giving an
undertaking to this Court – which was recorded by this court vide order
dated 14.02.2017, she did not let the petitioner speak with the child twice a
week on Skype. He submits that the reason behind her securing an ex-parte
favorable order dated 11.01.2017 from the Patiala House Court, against the
petitioner – restraining him from taking M away from the jurisdiction of this
Court, is because she concealed material facts from the Court, including the
fact that the child was a US born citizen. He places reliance upon the order
dated 25.03.2017 which dismissed the application dated 11.01.2017 of the
respondent no. 2 seeking ad-interim order for restraining the petitioner from
removing the minor child from the jurisdiction of this Court, and submits
that the Court noted that the respondent no. 2 has concealed the aforesaid
fact. The Court in the said order recorded that:
“6. ……It is apparent that the petitioner maliciously deceived
and hoodwinked the respondent by wrongfully retaining their
daughter at New Delhi. The petitioner disappeared on
07.01.2017 because on that date, she appeared before this
court to obtain interim orders behind the back of the
respondent. The petitioner knew that a guardianship petition
under the Guardian and Wards Act was not maintainable as the
minor child M G does not ordinarily reside in New Delhi,W.P.(CRL) 374/2017 Page 10 of 96
hence, intentionally, the application u/s 26 of the HMA was
filed only to avoid the bar of jurisdiction. The petition can not
be allowed to abuse the process of law in this way because
petition under HMA is not maintainable because the parties are
not domiciled in India since marriage i.e. 19.03.2011 ”
21. The Court further held:
“14. As per contents of application u/s 151 C.P.C. filed by the
petitioner, it was requested that the contents of application u/s
26 of HMA shall be read as part and parcel of this application.
The application U/S 26 of the HMA does not specify that the
child M G is an American citizen. It is also admitted that
respondent left India on 07.01.2017 at about 07:06 PM
whereas the impugned order dated 11.01.2017 was passed
around 02:30 PM by this court. It also admitted that presently
respondent is at USA. It was also admitted that petitioner was
working in Chicago, USA in a school on regular basis. It was
also admitted that the child M G was going to pre-school at
USA before coming to India. It is also admitted that returned
tockets for petitioner, respondent and the child were booked on
07.01.2017 for going back to USA. The only ground mentioned
in para 5 of the application was that respondent who is USA
citizen would take the child and leave the country without the
consent of the petitioner. It is admitted by petitioner that
respondent has left on 07.01.2017 whereas the present
application u/s 151 C.P.C. was filed on 11.01.2017. By this
time, the respondent has already left for USA by the
respondent. This becomes clear while obtaining the order dated
11.01.2017 the true facts were not brought before court. In view
of the above discussion the order passed by this court
11.01.2017 stands vacated and application is dismissed.”
22. Ld. Counsel submits that the most competent court to adjudicate upon
the marital disputes between the petitioner and respondent No.2, as well as
custody issues inter-se between the parties, is the Cook County Court in
Illinois, USA because of the following facts;
W.P.(CRL) 374/2017 Page 11 of 96
a. Respondent no. 2 and the petitioner are both permanent residents of
USA and domiciled there;
b. Respondent no. 2 and the petitioner were married in USA on
19.02.2011;
c. Their matrimonial home from 2011 onwards is in USA;
d. Their daughter M G was born in USA on 15.02.2014 and is a natural
born US citizen;
e. Both parties are working for gain full-time in USA;
f. The permanent, habitual and ordinary residence of the parties, as well
as the minor child M, is in Chicago, Illinois, USA.
23. In support of his submission that the Circuit Court of Cook County,
Illinois, USA is the Court having most intimate contact with the issue of
custody of the child, learned counsel places reliance upon Surya Vadanan
vs. State of Tamil Nadu, (2015) 5 SCC 450 wherein the Supreme Court had,
inter alia, observed that it is in accord with the “principle of comity” as well
as the welfare of the child – who is a foreign citizen, that the child returns
back to his/her native land from where the child has been removed, and that
the parties must establish their case before the court in the native state of the
child. The Court held that it is of primary importance to determine prima
facie if the foreign court has jurisdiction over the child – whose custody is in
dispute, based on the place of residence of the child vis-à-vis the territory
over which the foreign court exercises jurisdiction. If the foreign court does
W.P.(CRL) 374/2017 Page 12 of 96
have jurisdiction, the order of the foreign court should be given due weight
and respect.
24. Ld. Counsel submits that Circuit Court of Cook County is the
competent court of jurisdiction in view of the facts of the case, and the said
Court in the USA is seized of the matter. He submits that the relevant
evidence to decide the issues of matrimonial disputes and of custody of the
minor child M are also located in the USA. Ld. Counsel submits that it is no
longer res integra that in disputes/ matters relating to matrimony and
custody, the law of the place which has the closest and most intimate contact
with the well-being of the spouses, and welfare of the offspring of such
marriage, must govern any and all disputes related to such marriage and
offspring of such marriage. In this regard, he relies upon Aviral Mittal vs.
State Anr., 163 (2009) DLT 627, Arathi Bandi vs. Bandi Jagadrakshaka
Rao (2013) 15 SCC 790, Shilpa Aggarwal Vs. Aviral Mittal, (2010) 1 SCC
591, and V. Ravichandran (Dr.)(2) Vs. U.O.I Others, (2010) 1 SCC 174,
in this regard.
25. Ld. Counsel submits that the respondent No.2 is bound to comply
with the order dated 13.01.2017 passed by the Circuit Court, Cook Country
and, thus, the retention of child M in India is unlawful. The order directs
respondent no. 2 to return M to jurisdiction of the Circuit Court of Cook
County, Illinois USA.
26. Learned counsel submits that mere presence of the minor child for a
temporary holiday in New Delhi for 2 weeks cannot confer any jurisdiction
upon the Family Courts, Patiala House to deal with the issue of custody and
W.P.(CRL) 374/2017 Page 13 of 96
welfare of the minor child. Without prejudice to the abovementioned
submission, Ld. Counsel submits that, till date, no injunction has been
granted, restraining the petitioner from pursuing his remedy before the US
Court.
27. Ld. Counsel also submits that the Hindu Marriage Act, 1955 is not
applicable to the petitioner and respondent no. 2, as they are not domiciled
in India and have never been so since the beginning of their marriage.
28. Ld. Counsel submits that respondent no. 2’s inter-parental abduction
is causing major adverse consequences to the overall development and well-
being of the child M. He submits that the environment of the child has been
as it prevails in the USA, and she has adapted herself to the local culture/
environment of USA. She has made many friends and is very happy and
comfortable in the environment prevailing in the USA, and has thus
developed roots in the said society in the USA. This transplantation of the
minor child into an alien and unfamiliar environment will result in imminent
and long lasting mental and psychological harm and trauma to her. It will be
in her best interest that she is returned immediately to the jurisdiction of the
competent Court in USA. He submits that return of M is in her best interest,
as any delay may result in she being completely uprooted from her stable
and set life and culture in USA, which can cause permanent damage to her
personality and gravely affect her childhood. Her pre-school, paediatricians,
dentist and also the Chicago Children’s Museum – for which she has a
membership, are all located in the vicinity of her home in the USA. Thus, it
is in the minor child’s best interest for her to be returned to USA. Learned
counsel has placed reliance upon several photographs showing the child M
W.P.(CRL) 374/2017 Page 14 of 96
in the company of other children at her pre-school engaged in learning and
playful activities, and with her parents, etc. on her outings. He also refers to
and relies upon communications from several local people, known to the
family, in support of his contention that it is in the interest of M, that she
returns to the USA.
29. Ld. Counsel submits that the next term at M’s pre-school has already
commenced from 09.01.2017, and the said school is willing to take her at
this stage as well. He submits that because of respondent no. 2’s actions of
separating M from the love, protection, and care of her father viz. the
petitioner, M is being kept away from the educational, social and emotional
development that she would be receiving from one of the best pre-schools in
Chicago, Illinois, USA. She is also being denied the love, protection and
care of her paternal grandparents and family in the USA which she has been
experiencing since her birth; and from the comforts and joys of the only
home she has known since birth, which is full of toys, books, games and
love. He submits that M is irreparably suffering psychologically,
emotionally and educationally on a daily basis due to the actions of her
mother respondent no. 2.
Respondent No. 2’s submissions
30. The petition has been contested by respondent No.2. Ld. Counsel for
the respondent no. 2 Ms. Malvika Rajkotia submits that a writ of habeas
corpus is not maintainable in the facts and circumstances of this case. She
submits that it is settled law that a writ of Habeas Corpus is an urgent and
immediate relief, which can be issued in custody petitions only, when the
W.P.(CRL) 374/2017 Page 15 of 96
whereabouts of the person concerned are not known. However, in the
present case, where the petitioner has full knowledge and access – both
telephonic and through Skype to the child M, and the whereabouts of child
M and the respondent No.2 are known to the petitioner, the present petition
is not maintainable. She further submits that a writ of Habeas Corpus
cannot also be resorted to, to execute an order of a foreign court.
31. Ms. Rajkotia submits that the petitioner has failed to disclose that the
parties are battling a broken marriage, as a result of which, respondent No.2
has been constrained to return to India with her daughter and seek a divorce.
She submits that despite the respondent’s earnest efforts to concede to the
demands of the petitioner, the petitioner has subjected her to sex against her
wishes. He, along with his mother have imposed their fanatical views about
the need to strictly follow their religion i.e. Sikhism. The parents of the
petitioner have violated the parties’ privacy against the wishes of the
respondent. The petitioner has played no role in looking after the child and
the household chores; placing the entire responsibility of looking after the
child and performing household chores upon the respondent No.2. Ms.
Rajkotia submits that the petitioner has also concealed the fact that the he
has filed a petition for divorce before the foreign court after his return to US
from India. She submits that the present petition is only in retaliation to the
divorce petition filed by the respondent No.2, and does not arise out of any
love, affection or concern for the child, in whose life the petitioner has
barely been involved.
W.P.(CRL) 374/2017 Page 16 of 96
32. Ms. Rajkotia, in particular alleges the following conduct of both the
petitioner and his mother, which led her to leave for India with the child and
file for divorce:
a. Petitioner’s mother imposes her lifestyle on the couple. The mother-in-
law follows a strict eco-friendly lifestyle which she imposed on the
respondent, for example, sleeping on hard eco-friendly mattress, which
caused the respondent chronic backache; not using plastic products, etc.b. Interference by the mother-in-law into the privacy of the couple. The
mother-in-law used to track the parties schedules. She used to barge into
the bedroom of the parties when she and her husband visited the parties.
She kept a close tab on the menstrual cycle of the respondent when she
was expecting M. The name of the child was also chosen by the
petitioner’s mother.
c. Strict imposition of Sikh religion on respondent and her child. The
petitioner as well as his mother did not let the respondent celebrate Hindu
festivals. Respondent No.2 was prohibited from fasting during
Navrataras, and doing Diwali Pooja, worshipping idols of Hindu Gods
and Goddesses. She was also not allowed to go to the temple or celebrate
Karva Chauth. Their child, M was not allowed to speak in Hindi at home.
She could speak only in English or Punjabi. Thus M, inspite of living in a
community of ethnically and linguistically diverse people, was being
raised in and exposed to an ethnocentric view of life.
d. Minimal interest of petitioner in household affairs. The petitioner did not
object to the lifestyle imposed by his mother upon the respondent, even
W.P.(CRL) 374/2017 Page 17 of 96
though the respondent had expressed that she was uncomfortable with it.
His involvement in M’s life was limited to educational and semi-
educational activities such as visits to the zoo, aquarium, etc. only. It
was the respondent who looked after the child like cooking for her,
feeding her, doing her laundry, etc. The petitioner was not in favour of
the respondent working and, therefore, she hired a Nanny for M’s care,
since the petitioner refused to do so.
e. Pressure by the petitioner and his parents to expand the family. The
petitioner wanted the respondent to bear 3-4 children. In October 2014,
the respondent was diagnosed with Graves’ disease, a thyroid condition.
She was recommended medication to treat the disease. However, the
petitioner and his mother pressurized her to undergo surgery instead,
since it would have been difficult for her to conceive, if she were to opt
for medication. The petitioner threatened to divorce her and marry
someone if she would take the medicine, and not bear children. The
petitioner also coerced her into sexual intercourse against her wishes,
only so she may bear another child for him.
f. Restriction from visiting India. The respondent and her child were time
and again restricted from visiting India on the grounds that M will catch
an infection in India. Respondent was not even allowed to attend the
funeral of her maternal grandmother. The petitioner had hidden the
passport of M, forcing the respondent to miss the funeral.
33. This attitude of the petitioner and his family has, in Ms. Rajkotia’s
submission, caused mental and physical cruelty to the petitioner. She relies
W.P.(CRL) 374/2017 Page 18 of 96
upon the respondent’s e-mails to her friend to highlight her loneliness and
sense of alienation in USA. She submits that her loneliness is also reflected
by the letters filed by the petitioner from his friends to show that he is a
caring father, as she could not break into his circle of friends and they were
loyal to him, since they had known him for far longer time. She further
submits that because these letters do not mention the respondent, it
highlights the fact that the respondent was a non-entity to the petitioner and
his friends. The parties were not living as a happy family, and underwent
several counseling sessions.
34. Ms. Rajkotia submits that marriage between the parties took place in
India on 31.10.2010 and relies upon the wedding ceremony invitation card
sent by the family of the respondent. She submits that as per the Hindu
Marriage Act, it is not necessary for a marriage to be registered. However,
she has placed on record the marriage certificate from Guru Granth Sahib
Vidya Kender, New Delhi on 11.02.2013 to show that the marriage was
registered in India as well. She also submits that the reason behind having a
Fiancée Visa was the timing of the application of the visa. Because the
parties had to directly leave for the US after their marriage in India,
respondent No.2 could not apply for a spouse visa.
35. Ms. Rajkotia submits that respondent No.2 was coerced to apply for
citizenship of the USA because, had she not done so, the petitioner – in all
likelihood, would not have let her travel to India. She also submits that the
understanding between the parties was never to settle in USA. Rather they
decided to settle in India. She relies upon an email dated 11.03.2008 from
the petitioner, expressing his desire to return to India. She also relies upon
W.P.(CRL) 374/2017 Page 19 of 96
an e-mail exchanged between the respondent No.2 and her friends, wherein
she mentioned that she had planned to come back to India and her husband
viz. the petitioner, was also looking for opportunities to settle in India. Thus,
the respondent’s intention was always to come back to India. She denied
that both parties wanted the child to be a US citizen, since the respondent
was never given a choice to deliver the child in India.
36. She submits that the aforementioned pre-nuptial agreement was
signed by her under duress, and without awareness of the waiver of her legal
rights arising out of marriage, as the petitioner insisted that this was a
common practice in the USA. The agreement is, therefore, null and void.
She submits that the petitioner had paid for the legal representation of the
respondent vis-à-vis the pre-nuptial agreement, which shows that the
respondent’s counsel was not independent. She submits that the respondent
did not have the equal bargaining power while signing the agreement and,
therefore, the contract is vitiated. Ms. Rajkotia submits that a pre-nuptial
agreement is also not valid under the Hindu Marriage Act. This agreement
was signed only to deprive the respondent of her right to maintenance,
property etc. under Indian and Illinois family law. The respondent is, thus,
denied of her rights, including – ownership rights over her stridhan;
maintenance rights in the event of divorce or separation. She submits that
the quantum of alimony fixed – in the event of a divorce after five years of
marriage, is insignificant. She also submits that the agreement is silent on
any provision as to custody of the child. Ms. Rajkotia submits that in these
circumstances, if the respondent were to return to the USA, she would be
W.P.(CRL) 374/2017 Page 20 of 96
bound by an unfair agreement in a country where her means of survival are
minimal, and where she has no parental support.
37. Ms. Rajkotia submits that India is not a signatory to the Hague
Convention on the Civil Aspects of International Child Abduction. The
respondent and her child could only come to India by stealth, and thus she
was constrained to project to the petitioner that they were going to India for
a holiday. This was the only way she could escape the domestic violence
perpetrated upon her by the petitioner. She submits that the child has not
been illegally and unlawfully removed from the custody of the petitioner,
since the mother is the natural guardian of the child and is her primary care-
giver. Therefore, the residence of the child naturally follows that of the
mother. She submits that actions of the respondent were taken only in
furtherance of the best interests of the child.
38. Ms. Rajkotia submits that mothers are homemakers and primary
caregivers to their children, and would never abandon their children. She
submits that the best interest of children is served, with continuity with the
primary caregiver, i.e. the mother, and attachment between the mother and
child is always special. She relies upon ABC vs. State (NCT of Delhi), AIR
2015 SC 2569, wherein the Court had noted that “Avowedly, the mother is
best suited to care for her offspring , so aptly and comprehensively conveyed
in Hindi by the word ‘mamta’.”. She further submits that courts need to
assess and respect that a mother is the primary caregiver, and even though
the mother may not be financially empowered, her legal persona deserves
that her wishes be considered. She must not be enslaved to the role of
primary caregiver, with no financial or emotional succor.
W.P.(CRL) 374/2017 Page 21 of 96
39. Ms. Rajkotia submits that the child has made a home for herself
amidst the love and care of the respondent and her maternal grandparents in
Delhi. She has adjusted to life in Delhi and adapted to the lifestyle as well.
She has also started attending pre-school since March 2017 in Delhi. She
will suffer from psychological harm if she is sent back to live with the
petitioner to USA. She submits that the child’s repatriation solely to
maintain comity of courts, would not be in the child’s best interest.
40. Ms. Rajkotia submits that the foreign court is not the most competent
court to decide the issue of custody of the minor child. In this regard she
submits that the respondent – who is the primary caregiver and natural
guardian of the child, still holds an Indian passport and always had the
intention of coming back to India and settling in India. She states that that
the marriage of the parties also took place in India.
41. Ms. Rajkotia submits that the principle of comity of courts comes into
play only when there is a violation of a foreign court order. But it need not
be strictly applied in all situations, especially when a child’s welfare is at
stake and welfare of child should always prevail over comity of courts. In
this regard she relies upon, Sarita Sharma vs. Sushil Sharma 2000(3) SCC
14; Smt. Surinder Kaur Sandhu Vs. Harbax Singh Sandhu Anr., (1984)
3 SCC 698; Elizabeth Dinshaw vs. Arvind Dinshaw (1987) 1 SCC 42, and;
V Ravichandran v. State and Anr. (2010) 1 SCC 174. She submits that
courts in US and UK have also upheld the principle of child welfare over
comity of courts.
W.P.(CRL) 374/2017 Page 22 of 96
42. Ms. Rajkotia submits that the meaning of ‘intimate contact’ is not
limited to geography and schooling. Rather, it is a place of social,
psychological and emotional connect, and more than often this connect is
with the primary giver rather than a place. She submits that in custody
matters the courts should not diminish Parens Patriae jurisdiction and relies
upon Ruchi Majoo vs Sanjeev Majoo AIR 2011 SC 1952 in this regard.
43. Ms. Rajkotia further submits that it is the Family Court in India which
has jurisdiction over the matter, as the marriage was solemnized under the
provisions of the Hindu Marriage Act, in India. She submits that habitual
residence of the child should be determined on the basis of factors other than
the place of residence, such as the social and cultural milieu that she was
brought up in, the domicile of her primary caregiver, and so on.
44. She submits that under the Indian law, the foreign law will be
acceptable only if it is in consonance with Indian law. She submits that
Surya Vadanan (supra) gives credence to the first strike principle, and first
substantive order. She submits that in the facts of the present case, the first
substantive order had been secured by the respondent on 11.01.2017,
restraining the petitioner from removing M from the jurisdiction of the
Family Court. She submits that even though this order currently stands
vacated vide order dated 25.03.2017, this fact will not be of any adverse
consequence to the respondent, because there is an interim order of this
court dated 09.02.2017 restraining the petitioner from removing M from the
jurisdiction of this court.
W.P.(CRL) 374/2017 Page 23 of 96
45. Ms. Rajkotia relies upon Section 6(a) of the Hindu Minority and
Guardianship Act, 1956 to protect custody of the minor child with the
mother. India has obligations under the UN Child Rights Convention, which
mandates that best interests of the child must be the primary concern in
decisions that affect them.
46. In his rejoinder, learned counsel for the petitioner has stated that the
petitioner shall not seek to enforce the agreement against the respondent
no.2 in the American Courts. He has also left it to this Court to make such
arrangement.
Discussion and Decision
47. Before we proceed to decide the case keeping in view the facts and
circumstances thereof, it would be appropriate to examine how the Courts
have dealt with such like situations, from time to time, where one of the
parents has brought with him, or her, the minor child – who is a citizen of
and domiciled in a foreign country, to India, and the other parent has
petitioned the Court in India to seek custody of the minor child and/ or his/
her return to the foreign country. We will deal with the aforesaid cases in
chronology.
Surinder Kaur Sandhu (supra)
48. In this case the husband, Harbax Singh Sandhu and wife, Surinder
Kaur Sandhu got married in Faridkot, Punjab according to Sikh rites and
soon after their marriage moved to England. Both of them were Indian
citizens living as foreigners in England. They had a baby boy within one
W.P.(CRL) 374/2017 Page 24 of 96
year of their marriage. Eventually, the relationship between the parties got
sour to such an extent, that the husband attempted to cause his wife’s
murder. He was convicted and sentenced for his said conduct, but on his
wife’s intervention – was let out on probation. After his release on
probation, he removed their child from England and brought him to India.
The wife, on the day of removal itself, procured an order under which the
boy became the Ward of the Court. She came to India and filed a petition
under Section 97 CrPC before the Judicial Magistrate 1st class. However,
the petition was dismissed on the Court’s agreement with the husband’s
reliance on Section 6 of Hindu Minority and Guardianship Act, 1956, and on
acceptance of his contention that the father is the natural guardian. She
subsequently obtained an order from the foreign Court, directing the child to
be handed over into the custody of the mother. Armed with this order, the
mother/wife came back to India and filed a writ petition in the High Court of
Punjab and Haryana seeking production and custody of the child.
49. The petition was dismissed on the ground that the mother’s status in
England was that of a foreigner; she was a factory worker, and; she had no
relatives in England, as opposed to the father who was living in an affluent
atmosphere consisting his parents and a welcoming environment, after his
traumatic experience of conviction of a criminal charge.
50. The Supreme Court applied, firstly, the principle of ‘welfare of the
child’ and, secondly, of the Comity of Courts, in deciding the appeal. It did
not agree with the High Court that the welfare of the child was with the
father – a man who had offered solicitation for the commission of his wife’s
murder. The father had, even after his wife’s magnanimous intervention of
W.P.(CRL) 374/2017 Page 25 of 96
letting him out on probation, abused her said gesture by running away with
the child. He had also procured a duplicate passport by an untrue
representation that the original passport was lost, while the same was with
his wife. In these circumstances, the court observed that the mother’s
custody was in the child’s best interest. The Court, inter alia, observed:
“8. … … … On the whole, we are unable to agree that the
welfare of the boy requires that he should live with his father
or with the grandparents. The father is a man without a
character who offered solicitation to the commission of his
wife’s murder. The wife obtained an order of probation for him
but, he abused her magnanimity by running away with the boy
soon after the probationary period was over. Even in that act,
he displayed a singular lack of respect for law by obtaining a
duplicate passport for the boy on an untrue representation that
the original passport was lost. The original passport was, to his
knowledge, in the keeping of his wife. In this background, we
do not regard the affluence of the husband’s parents to be a
circumstance of such overwhelming importance as to tilt the
balance in favour of the father on the question of what is truly
for the welfare of the minor. At any rate, we are unable to
agree that it will be less for the welfare of the minor if he lived
with his mother. He was whisked away from her and the
question is whether, there are any circumstances to support the
view that the new environment in which he is wrongfully
brought is more conducive to his welfare. He is about 8 years of
age and the loving care of the mother ought not to be denied to
him. The father is made of coarse stuff. The mother earns an
income of £100 a week, which is certainly not large by English
standards, but is not so low as not to enable her to take
reasonable care of the boy.
9. Section 6 of the Hindu Minority and Guardianship Act, 1956
constitutes the father as the natural guardian of a minor son.
But that provision cannot supersede the paramount
consideration as to what is conducive to the welfare of theW.P.(CRL) 374/2017 Page 26 of 96
minor. As the matters are presented to us today, the boy, from
his own point of view, ought to be in the custody of the
mother.
10……. The boy is a British citizen, having been born in
England, and he holds a British passport. It cannot be
controverted that in these circumstances, the English Court had
jurisdiction to decide the question of his custody. The modern
theory of Conflict of Laws recognizes 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 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. (See International Shoe
Company v. State of Washington, 90 L Ed 95 (1945) : 326 US
310, which was not a matrimonial case but which is regarded
as the fountainhead of the subsequent developments of
jurisdictional issues like the one involved in the instant case) It
is our duty and function to protect the wife against the burden
of litigating in an inconvenient forum which she and her
husband had left voluntarily in order to make their living inW.P.(CRL) 374/2017 Page 27 of 96
England, where they gave birth to this unfortunate boy.”
(emphasis supplied)
Elizabeth Dinshaw (supra)
51. In this case, the wife Elizabeth Dinshaw was a citizen of United States
of America. She was employed for the State of Michigan. She was also a
student at the Northern Michigan University. Arvand M. Dinshaw – who
was an Indian citizen, was a student at Northern Michigan University. They
fell in love and got married in US in February, 1972. Both were working for
gain in Michigan State of USA, with the husband maintaining a permanent
immigration visa. A baby boy was born to them in August, 1978.
Differences arose between the parties within 3 years of their child being
born. The wife had moved to a women’s shelter with the son and obtained a
decree of divorce from the Michigan Circuit Court in April, 1982. The Court
also directed that the care, custody and control of the minor child shall be
with the mother until he turns 18 years of age, or until further orders of the
court. The Court had granted the father visitation rights which included
custody over the weekends. So far as travel outside the United States was
concerned, the Court directed and adjudged that should the
defendant Arvand M. Dinshaw, wish “to travel with the minor child outside
the territorial limits of the United States, he shall bring a petition before this
Court, setting forth the conditions under which he intends to leave the
country with the minor child. The court shall then make a determination as
to whether such travel is in the best interests of the minor child, and what
conditions shall be set forth to ensure the child’s return”.
W.P.(CRL) 374/2017 Page 28 of 96
52. Taking advantage of the visitation rights, the father fled with the child
to India without intimating the Court about his intention to take the child
outside the jurisdiction of the court and the country. The wife/mother
complained against the violation of the terms of the divorce decree, and an
arrest warrant was issued against the father/husband in this regard. The
mother flew to India and filed a petition before the Supreme Court for
seeking custody of her child in terms of the order deciding the custody of the
child by the foreign court.
53. The Court observed that taking the child from the custody of the
person to whom it had been entrusted by the Court, was undoubtedly most
reprehensible and the explanation offered by the father/ husband – that
coming back to India was because of his father’s illness, was far from
convincing and a gross violation and contempt of the order of the Circuit
Court, Michigan. The Court, relying upon the principle of welfare of the
child and best interest of the child, directed the child to be returned back to
the US. It observed:
“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 parties but on the sole and
predominant criterion of what would best serve the interest
and welfare of the minor. We have twice interviewed Dustan in
our Chambers and talked with him. We found him to be too
tender in age and totally immature to be able to form any
independent opinion of his own as to which parent he should
stay with. The child is an American citizen. Excepting for the
last few months that have elapsed since his being brought to
India by the process of illegal abduction by the father, he has
spent the rest of his life in the United States of America and
he was doing well in school there. In our considered opinionW.P.(CRL) 374/2017 Page 29 of 96
it will be in the best interests and welfare of Dustan that he
should go back to the United States of America and continue
his education there under the custody and guardianship of the
mother to whom such custody and guardianship have been
entrusted by a competent Court in that country. We are also
satisfied that the petitioner who is the mother, is full of genuine
love and affection for the child and she can be safely trusted to
lookafter him, educate him and attend in every possible way to
his proper upbringing. The child has not taken root in this
country and he is still accustomed and acclimatized to the
conditions and environments obtaining in the place of his
origin in the United States of America. The child’s presence in
India is the result of an illegal act of abduction and the father
who is guilty of the said act cannot claim any advantage by
stating that he has already put the child to some school in Pune.
The conduct of the father has not been such as to inspire
confidence in us that he is a fit and suitable person to be
entrusted with the custody and guardianship of the child for the
present.” (emphasis supplied)
54. Ms. Rajkotia, in regard to these two cases, submits that the courts
while citing the principle of comity of courts, made an independent
assessment on child’s welfare and premised their decisions primarily on that
consideration. She submits that these cases can be differentiated from the
present one, since the fleeing parties had not pleaded domestic violence as
their reason for fleeing with the child, whereas in the present case, the
respondent has alleged the same against the petitioner.
Sarita Sharma (supra)
W.P.(CRL) 374/2017 Page 30 of 96
55. In this case the husband, Sushil Sharma and the wife, Sarita Sharma
were living in Texas, USA. They had two children out of the wedlock.
Because of the differences between the parties, the husband had initiated
divorce proceedings before the District Court of Tarrant County, Texas,
USA in 1995. The Court passed an order for putting the children in the care
of the father, and the wife was only given visitation rights. Inspite of this
order, the wife, without obtaining any order from the American Court,
brought the two children with her to India. Warrants of her arrest were
issued. Subsequent to her departure, the Court passed the divorce decree
while declaring that the sole custody shall be with the father. The wife was
denied visitation rights.
56. The husband/father filed a writ petition in Delhi High Court seeking
production of his children and permission to take them to the US. The wife
raised the issue of welfare of children and submitted that the father was not a
suitable parent, since he was an alcoholic and violent.
57. The writ petition of the husband was allowed by the High Court.
58. However, the Supreme Court allowed the appeal of the wife, again on
the principle of ‘welfare of the child’. The Court observed:
“6. Therefore, it will not be proper to be guided entirely by the
fact that the appellant Santa had removed the children from
U.S.A. despite the order of the Court of that country. So also,
in view of the facts and circumstances of the case, the decree
passed by the American Court though a relevant factor, cannot
override the consideration of welfare of the minor children. We
have already stated earlier that in U.S.A. respondent Sushil is
staying along with his mother aged about 80 years. There is noW.P.(CRL) 374/2017 Page 31 of 96
one else in the family. The respondent appears to be in the
habit of taking excessive alcohol. Though it is true that both
the children have the American citizenship and there is a
possibility that in U.S.A. they may be able to get better
education, it is doubtful if the respondent will be in a position
to take proper care of the children when they are so young.
Out of them one is a female child. She is aged about 5 years.
Ordinarily, a female child should be allowed to remain with
the mother so that she can be properly locked after. It is also
not desirable that two children are separated from each other.
If a female child has to stay with the mother it: will be in the
interest of both the children that they both stay with the mother.
Here In India also proper care of the children is taken and they
are at present studying in good schools. We have not found the
appellant wanting in taking proper care of the children. Both
the children have a desire to stay with the mother. At the same
time it must be said that the son, who is elder than daughter,
has good feelings for his father also. Considering all the
aspects relating to the welfare of the children, we are of the
opinion that in spite of the order passed by the Court in U.S.A.
it was not proper for the High Court to have allowed the
Habeas Corpus writ petition and directed the appellant to
hand over custody of the children to the respondent and
permit him to take them away to U.S.A. What would be in the
interest of the children requires a full and thorough inquiry
and, therefore, the High Court should have directed the
respondent to initiate appropriate proceedings in which such
an inquiry can be held. Still there is some possibility of mother
returning to U.S.A. in the interest of .the children. Therefore we
do not desire to say anything more regarding entitlement of the
custody of the children. The chances of the appellant returning
to U.S.A, with the children would depend upon the joint efforts
of the appellant and the respondent to get the arrest warrant
cancelled by explaining to the court in U.S.A. the circumstances
under which she had left U.S.A. with the children Without
taking permission of the Court. There is a possibility that: both
of them may thereafter be able to approach the Court which
passed the decree to suitably modify the order with respect to
W.P.(CRL) 374/2017 Page 32 of 96
the custody of the children and visitation rights.” (emphasis
supplied)
Aviral Mittal (supra)
59. In this case, the husband and wife were permanent residents in the UK
and a girl child was born to them in England. She acquired a British
passport. The parties were having differences with each other. They
separately travelled to India. When the date for return of the wife and the
minor child arrived, she refused to travel back to the UK. The husband,
consequently, initiated proceedings before High Court of Justice, Family
Division, U.K. seeking an order that the minor be made a ward of the Court,
and a direction to the wife to return the child back to the UK. An interim
order was passed by the foreign court directing return of the child, and
forbidding the wife from removing the child from the UK, without obtaining
permission regarding the same.
60. Since the wife did not oblige, the husband filed a writ petition for
habeas corpus. The child was about three and a half years old when the
matter was considered by the Division Bench. This Court allowed the
petition. The Court held that since the parties had made the UK their
matrimonial home, and there were serious allegations by both parties against
each other, the UK courts were better equipped to decide the issue of
custody of the child on the basis of the evidence, which was available in the
UK. The Court further observed:
“15……The parties continued to live, cohabit, work for gain
and bring up the child together in the U.K. The child is holding
a British passport and both the parents have permanentW.P.(CRL) 374/2017 Page 33 of 96
resident status in the U.K. In such a situation, it can hardly be
said that any court other than the courts in the U.K. would best
serve the ends of justice for determining the allegations and
counter allegations between the parties.
16. We are conscious of the fact that in view of the
observations made by the Supreme Court and judgments
referred to aforesaid, it is the interest of the child which is
paramount. The interest of the child is always to have the
benefit of company of both the parents. However, where such
an ideal situation is not possible, the question would arise as to
which of the parents is in a better position to look after the
child. It is no doubt true that the child in the present case is a
female child and as observed by the Supreme Court in Sarita
Sharma v. Sushil Sharma’s case (supra) and by a Division
Bench of this Court in Paul Mohinder Gahun v. State of NCT of
Delhi and Ors’s case (supra), normally a child may be better
taken care of by the mother, but then this in turn depends on the
conduct of the parents. The facts in the present case, to some
extent, are akin to the facts of Smt. Surinder Kaur
Sandhu v. Harbax Singh Sandhu case (supra) where both the
parties were settled in England and the child was born and
brought up in England and had British citizenship. In the facts
of that case also, a plea was advanced on behalf of the mother
that she had no relatives in England and the child would have
to live alone and in dismal surroundings in England. However,
since the parents set up their matrimonial home in England
where both the husband and wife were working, it was held that
courts in England would best determine the aspect of custody of
the child. We can draw strength from the observations made in
the aforesaid judgment that in matters relating to matrimony
and custody, the law of that place must govern the parties
which has the closest connection with the well-being of the
spouses and the welfare of the offsprings of marriage. The
present case is not one where the wife is an uneducated lady,
who is married and has just gone to a foreign country where
she has been unable to settle down. Both the parties are well-
educated and were gainfully employed though the mother may
have give up her job subsequently. The child is a BritishW.P.(CRL) 374/2017 Page 34 of 96
citizen by birth. The allegations and counter allegations of the
parties against their personal conduct have all happened in
the U.K. and thus it is in those courts that interest of the
parties would be best taken care of.
17. It is no doubt true that the visit of the mother and the child
to India was with the consent of the petitioner. The custody of
the child with the mother is not illegal. However, this visit was
on the premise of a return to the U.K. in November, 2008 which
did not materialize. Once the High Court of Justice has directed
that the child be produced, in our considered view, the
retention of the child in India would be unlawful though it may
not have been illegal at the inception.” (emphasis supplied)
Shilpa Aggarwal (Ms.) (supra)
61. This decision was rendered by the Supreme Court in the appeal
preferred by Shilpa Aggarwal, the wife from the judgment of the Division
Bench of this Court in Aviral Mittal (supra). Thus, the facts need not be
restated. The submission of the appellant mother that the High Court had
“lost sight of the fact that the interest of the minor is of paramount
importance in matters relating to custody and particularly in this case
where the minor was a girl child and was just about 3 ½ years old”. The
appellant also relied upon Section 6 of the Hindu Minority and Guardianship
Act whereunder the mother is entitled to retain custody of the minor child
under the age of five years. The appellant also questioned the jurisdiction of
the High Court to issue a writ in the nature of mandamus to a private
individual to submit to the jurisdiction of a Foreign Court in a habeas corpus
proceeding. Strong reliance was placed by the appellant on Sarita Sharma
(supra).
W.P.(CRL) 374/2017 Page 35 of 96
62. The Supreme Court rejected all the submissions of the appellant
including the ones taken note of herein above. The Supreme Court observed
that “between two contrasting principles of law which we are required to
balance keeping in mind the interests of a 3½ year old minor girl child. Of
the two principles, the High Court has placed greater reliance upon the
theory of comity of nations and comity of judgments of the courts of two
different countries in deciding the matter”.
63. The High Court of Justice, Family Division (U.K.) was also in seisin
of the matter and had passed an interim order of restraint. The High Court
had also taken into consideration the interest of a 3½ year old minor girl
child directing the custody of the child be made over to the father in
England. The Supreme Court further observed as follows:
“31. Although Mr Shishodia relied heavily on the decision
in Surinder Kaur case[(1984) 3 SCC 698 : 1984 SCC (Cri)
464] , it cannot be ignored that the said case has duly
considered the principle that the interest of the minor is
paramount in any decision relating to custody. It is but natural
that in a matrimonial tussle both the parents would want the
custody of the minor child. In this tussle, we have to decide who
would be more suited to have custody of the child. In our view,
the High Court appears to have taken the correct approach in a
matter like this.
32. Although, on first impression, it would appear that the
interests of the minor child would be best served if she is
allowed to remain with the appellant, we cannot lose sight of
the order dated 26-11-2008, passed by the High Court of
Justice, Family Division, UK, which admittedly is an ex parte
order and, inter alia, reads as follows:
“IT IS ORDERED THAT:
W.P.(CRL) 374/2017 Page 36 of 96
1. The minor, Elina Mittal (date of birth 20-2-
2006), shall remain a ward of court during her
minority or until further order;
2. The defendant mother, Shilpa Aggarwal, do
within 14 days of service of this order upon her
cause the said minor to be returned to the
jurisdiction of England and Wales;
3. Following the return of the said minor to
England and Wales, the defendant mother shall
thereafter be forbidden (whether by herself or by
instructing or encouraging any other person) from
causing or permitting the minor to be removed
from the jurisdiction of England and Wales
without the permission of a High Court Judge;
4. Within 72 hours of the return of the said minor
to England and Wales, the defendant mother must
deliver up to the plaintiff father’s solicitors, Messrs
Lyons Davidson of Victoria House, 51 Victoria
Street, Bristol BS1 6AD all passports and
international travel documents for the child on the
basis that those documents will be held by that
firm to the order of the Court and will not be
released to either party without the permission of a
High Court Judge;
5. Within 72 hours of the return of the said minor
to England and Wales, the defendant mother must
provide the plaintiff father’s solicitors, Messrs
Lyons Davidson of Victoria House, 51 Victoria
Street, Bristol BS1 6AD with full details in writing
of any address at which she intends to reside with
the child and a contact telephone number for
herself; she must also provide to the father’s
solicitors in writing full details of any new address
to which she intends to move with the child prior to
such move taking place;
W.P.(CRL) 374/2017 Page 37 of 96
6. There be liberty to the defendant mother to
apply to vary or discharge any provision of this
order upon giving 24 hours’ notice to the plaintiff
father’s solicitors, Messrs Lyons Davidson of
Victoria House, 51 Victoria Street, Bristol BS1
6AD (of PMM/CLP; Telephone No.
01179046000); any such application shall be
supported by a sworn affidavit;
7. The application shall be adjourned and listed at
risk for further directions before a High Court
Judge sitting at the Royal Courts of Justice, Strand
London at 10.30 a.m. on 15-12-2009 (time
estimate ½ hour);
8. The costs of this application be reserved:
AND NOW THEREFORE this Court respectfully invites
all judicial and administrative bodies in the
Republic of India to render assistance in ensuring
that the minor Elina Mittal is returned as soon as
possible to the jurisdiction of England and Wales.”
33. It is evident from the aforesaid order that except for
insisting that the minor be returned to its jurisdiction, the
English Court did not intend to separate the child from the
appellant until a final decision was taken with regard to the
custody of the child. The ultimate decision in that regard has
to be left to the English courts having regard to the nationality
of the child and the fact that both the parents had worked for
gain in the UK and had also acquired permanent resident
status in the UK.
34. The High Court has taken note of the fact that the English
Court has not directed that the custody of the child should be
handed over to the respondent father but that the child should
be returned to the jurisdiction of the courts in the UK which
would then proceed to determine as to who would be best suited
to have the custody of the child. In our view, the approach of
the High Court takes into consideration both the questionsW.P.(CRL) 374/2017 Page 38 of 96
relating to the comity of courts as well as the interest of the
minor child, which, no doubt, is one of the most important
considerations in matters relating to custody of a minor child.
It has been rightly observed by the High Court following the
decision in Surinder Kaur case [(1984) 3 SCC 698 : 1984 SCC
(Cri) 464] that it was the English courts which had the most
intimate contact with the issue in question to decide the same.
35. The fact that the minor child has been declared a ward of
the English Court till she attains majority, is also a matter of
considerable importance in considering whether the impugned
order of the High Court should be interfered with or not.
36. We are satisfied from the materials produced before us and
the submissions made on behalf of the parties that the High
Court did not commit any error in relying on the doctrine of
comity of courts since the question of what is in the interest of
the minor still has to be considered by the UK Court and the
interim order passed in the proceedings initiated by
Respondent 1 is only of an interim nature with a view to
return the child to the jurisdiction of the said Court”.
(emphasis supplied)
V. Ravi Chandran (supra)
64. In this case, the husband Dr. V. Ravi Chandran was an American
citizen who married the respondent – an Indian citizen in Tirupathi, Andhra
Pradesh, India in the year 2000. They had a baby boy in the US in July,
2002. The wife had approached the New York State Supreme Court for
divorce in July 2003, wherein the Court passed a consent order granting
joint custody of the child to both parties in April, 2005. They were ordered
to keep each other informed about the whereabouts of the child. In July,
2005 a separation agreement was entered into between the parties for
distribution of marital properties, maintenance for the spouse and support
W.P.(CRL) 374/2017 Page 39 of 96
for the child. The parties agreed for joint custody, as already ordered in
April 2005. The marriage between the parties was dissolved in September,
2005. In June, 2007, the Family Court in USA, by consent, devised the
mechanism for the joint custody and upbringing of the minor child.
65. The wife brought the child with her to India in June, 2007, while
informing the husband that she will stay with her parents in Chennai. In
August, 2007, the husband then filed a petition for modification of the
custody order, and violation of the order of the Family Court. As a result,
the husband was granted temporary and sole custody of the minor child.
The wife was ordered to return the child immediately to the father. Non-
bailable warrants were also issued against the wife.
66. In the aforesaid background, the father preferred the writ petition
before the Supreme Court to seek a writ of Habeas Corpus for production of
minor child and for a direction that he be handed over to the petitioner
father. The child and his mother were located after two years effort. The
Supreme Court, in this background, examined the issue with regard to return
of the custody of the minor child to the father.
67. In the course of its decision, the Supreme Court considered several
decisions of foreign courts. One of the decisions taken note of by the Court
was in L (Minors) in re, (1974) 1 All ER 913 (CA). In this case, the Court
of Appeal was concerned with the custody of the foreign children who were
removed from foreign jurisdiction by one parent. A German national –
domicile and resident of Germany married an English woman. Their
matrimonial home was Germany and two children were born out of the said
W.P.(CRL) 374/2017 Page 40 of 96
wedlock and brought up in Germany. The lady, not being happy with her
married life, in August 1972, brought her children to England with an
intention to permanently establish herself and the children in England. The
children were admitted to the school in England. The mother instituted an
originating summons making them wards of Court. The Trial Judge held
that the children being foreign nationals, who had been moved out of their
foreign home, their life should continue in what were their natural
surroundings – unless it appeared to the Court that it would be harmful to the
children if they were returned. Keeping in view the arrangements which the
father could make for them, the Trial Judge concluded that the children
would not be harmed by being returned. Accordingly, he directed that the
children be returned to Germany and they remain in their father’s custody
until further orders. The mother appealed, contending that in every case the
welfare of the child was the first and paramount consideration and that the
welfare of the children would be best served by staying with their mother in
England. The Court of Appeal, speaking through Buckley, L.J, inter alia,
observed:
“… Where the court has embarked [on] a full-scale
investigation of [that] facts, the applicable principles, in my
view, do not differ from those which apply to any other
wardship case. The action of one party in kidnapping the child
is doubtless one of the circumstances to be taken into account
any may be a circumstance of great weight; the weight to be
attributed to it must depend [on] the circumstances of the
particular case. The court may conclude that notwithstanding
the conduct of the ‘kidnapper’ the child should remain in his
or her care: see McKee v. McKee [1951 AC 352 : (1951) 1 All
ER 942 (PC)] ; E(D) (An infant), In re [1967 Ch 287 : (1967) 2
WLR 445 : (1967) 1 All ER 329] and T.A. (Infants), InW.P.(CRL) 374/2017 Page 41 of 96
re [(1972) 116 Sol Jo 78] , (where the order was merely
interim); or it may conclude that the child should be returned to
his or her native country or the jurisdiction from which he or
she has been removed: T. (Infants), In re. [1968 Ch 204 :
(1968) 3 WLR 430 : (1968) 3 All ER 411 (CA)] Where a court
makes a summary order for the return of a child to a foreign
country without investigating the merits, the same principles, in
my judgment, apply, but the decision must be justified on
somewhat different grounds.
***
… 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 than that he should spend in this
country the period which must necessarily elapse before all
the evidence can be assembled for adjudication here. Anyone
who has had experience of the exercise of this delicate
jurisdiction knows what complications can result from a child
developing roots in new soil, and what conflicts this can
occasion in the child’s own life. Such roots can grow rapidly.
An order that the child should be returned forthwith to the
country from which he has been removed in the expectation
that any dispute about his custody will be satisfactorily
resolved in the courts of that country may well be regarded as
being in the best interests of the child.” (emphasis supplied)
68. The Supreme Court, commented on L (Minors) in re as follows:
“24. In L (Minors), In re [(1974) 1 WLR 250 : (1974) 1 All
ER 913 (CA)] the Court of Appeal has made a distinction
between cases where the court considers the facts and fully
investigates the merits of a dispute, in a wardship matter in
which the welfare of the child concerned is not the only
consideration but is the first and paramount consideration,
and cases where the court does not embark on a full-scale
investigation of the facts and makes a summary order for the
return of a child to a foreign country without investigating theW.P.(CRL) 374/2017 Page 42 of 96
merits. In this regard, Buckley, L.J. noticed what was
indicated by the Privy Council 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”. (emphasis supplied)
69. The Supreme Court also referred to Dhanwanti Joshi v. Madhav
Unde, (1998) 1 SCC 112. In Dhanwanti Joshi (supra), the Supreme Court
had considered the earlier foreign decisions including the decision of the
Court of Appeal in L (Minors) in re (supra) Mckee (supra). The relevant
observations from Dhanwanti Joshi (supra) taken note of by the Supreme
Court read as follows:
“27. … ….
29. However, there is an apparent contradiction between the
above view and the one expressed in H. (Infants), In re [(1966)
1 WLR 381 (Ch CA) : (1966) 1 All ER 886 (CA)] and in E(D)
(An infant), In re [1967 Ch 761 : (1967) 2 WLR 1370 : (1967) 2
All ER 881 (CA)] to the effect that the court in the country to
which the child is removed will send back the child to the
country from which the child has been removed. This apparent
conflict was explained and resolved by the Court of Appeal in
1974 in L. (Minors), In re [(1974) 1 WLR 250 : (1974) 1 All
ER 913 (CA)] and in R. (Minors), In re [(1981) 2 FLR 416
(CA)] . It was held by the Court of Appeal in L. (Minors), In
re [(1974) 1 WLR 250 : (1974) 1 All ER 913 (CA)] that the
view in McKee v. McKee [1951 AC 352 : (1951) 1 All ER 942
(PC)] is still the correct view and that the limited question
which arose in the latter decisions was whether the court in
the country to which the child was removed could conduct (a)
a summary inquiry or (b) an elaborate inquiry on the question
of custody. In the case of (a) a summary inquiry, the courtW.P.(CRL) 374/2017 Page 43 of 96
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 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), In re [(1981) 2 FLR 416 (CA)]W.P.(CRL) 374/2017 Page 44 of 96
it has been firmly held that the concept of forum conveniens has
no place in wardship jurisdiction”. (emphasis supplied)
70. In the light of the decisions taken note of by the Supreme Court
including the decision in L (Minors) in re (supra), the Supreme Court in
Ravi Chandran (supra) held as follows:
“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
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 oneW.P.(CRL) 374/2017 Page 45 of 96
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)
71. The Supreme Court then proceeded to consider the issue whether the
facts of the case before it warranted an elaborate inquiry into the question of
custody of the minor and should the parties be relegated to the said
procedure before an appropriate forum in India. The Supreme Court
concluded that in its judgment it was not necessary to relegate the parties to
an elaborate procedure in India. Its reasons are found in paras 32 to 35,
which read as follows:
“32. Admittedly, Adithya is an American citizen, born and
brought up in the United States of America. He has spent his
initial years there. The natural habitat of Adithya is in the
United States of America. As a matter of fact, keeping in view
the welfare and happiness of the child and in his best interests,
the parties have obtained a series of consent orders concerning
his custody/parenting rights, maintenance, etc. from the
competent courts of jurisdiction in America. Initially, on 18-4-
2005, a consent order governing the issues of custody and
guardianship of minor Adithya was passed by the New York
State Supreme Court whereunder the court granted joint
custody of the child to the petitioner and Respondent 6 and it
was stipulated in the order to keep the other party informed
about the whereabouts of the child. In a separation agreementW.P.(CRL) 374/2017 Page 46 of 96
entered into between the parties on 28-7-2005, the consent
order dated 18-4-2005 regarding custody of minor son Adithya
continued.
33. In 8-9-2005 order whereby the marriage between the
petitioner and Respondent 6 was dissolved by the New York
State Supreme Court, again the child custody order dated 18-4-
2005 was incorporated. Then the petitioner and Respondent 6
agreed for modification of the custody order and, accordingly,
the Family Court of the State of New York on 18-6-2007
ordered that the parties shall share joint legal and physical
custody of the minor Adithya and, in this regard, a
comprehensive arrangement in respect of the custody of the
child has been made.
34. The fact that all orders concerning the custody of the minor
child Adithya have been passed by the American courts by
consent of the parties shows that the objections raised by
Respondent 6 in the counter-affidavit about deprivation of basic
rights of the child by the petitioner in the past; failure of the
petitioner to give medication to the child; denial of education to
the minor child; deprivation of stable environment to the minor
child; and child abuse are hollow and without any substance.
The objection raised by Respondent 6 in the counter-affidavit
that the American courts which passed the order/decree had no
jurisdiction and being inconsistent with Indian laws cannot be
executed in India also prima facie does not seem to have any
merit since despite the fact that Respondent 6 has been staying
in India for more than two years, she has not pursued any legal
proceeding for the sole custody of the minor Adithya or for
declaration that the orders passed by the American courts
concerning the custody of minor child Adithya are null and void
and without jurisdiction. Rather it transpires from the counter-
affidavit that initially Respondent 6 initiated the proceedings
under the Guardians and Wards Act, 1890 but later on
withdrew the same.
35. The facts and circumstances noticed above leave no manner
of doubt that merely because the child has been brought toW.P.(CRL) 374/2017 Page 47 of 96
India by Respondent 6, the custody issue concerning minor
child Adithya does not deserve to be gone into by the courts in
India and it would be in accord with principles of comity as
well as on facts to return the child back to the United States of
America from where he has been removed and enable the
parties to establish the case before the courts in the native State
of the child i.e. the United States of America for modification of
the existing custody orders. There is nothing on record which
may even remotely suggest that it would be harmful for the
child to be returned to his native country.
72. Despite the fact that the minor child Adithya had remained in India
for over two years, the Supreme Court concluded that it could not be said
that the he had developed his roots in India. The Supreme Court directed
the respondent mother to take the child, of her own, to the USA and to
report before the Family Court of the State of New York. The Supreme
Court also imposed the condition on the petitioner that he shall bear all the
travelling expenses of the mother and the minor child and make
arrangements for their residence in the USA till further orders are passed by
the competent Court. He was also directed to request the authorities that the
warrants issued against the mother be dropped and he was directed not to
file or pursue any criminal charge for violation by the mother of the consent
order in USA.
Surya Vadanan (supra)
73. In this case, the husband and wife both were of Indian origin but the
husband became a resident and citizen of the UK. Parties got married in
India and had two daughters in UK. The wife had acquired British
citizenship and a British passport as well. Both parties were working for
gain in the UK. The parties started having some matrimonial problems as a
W.P.(CRL) 374/2017 Page 48 of 96
result of which the wife came back to India with her two daughters. The
wife filed a petition under Section 13(1)(i-a) of the HMA seeking divorce in
the Family Court, Coimbatore. Subsequently, the husband filed a petition in
the High Court of Justice in UK for making the children wards of the court.
The High Court made the children wards of the court during their minority,
or until further orders of the court and the wife was directed to return the
children to the jurisdiction of the foreign court. Because the wife did not
obey the orders of the foreign court, the husband filed a writ petition of
habeas corpus seeking production of his children and their return to the UK
in the Madras High Court. The High Court dismissed the petition. The
Supreme Court discussed the law on custody of children and observed the
following:
“46. The principle of the comity of courts is essentially a
principle of self-restraint, applicable when a foreign court is
seized of the issue of the custody of a child prior to the domestic
court. There may be a situation where the foreign court though
seized of the issue does not pass any effective or substantial
order or direction. In that event, if the domestic court were to
pass an effective or substantial order or direction prior in point
of time then the foreign court ought to exercise self-restraint
and respect the direction or order of the domestic court (or vice
versa), unless there are very good reasons not to do so.
47. From a review of the above decisions, it is quite clear that
there is complete unanimity that the best interests and welfare
of the child are of paramount importance. However, it should
be clearly understood that this is the final goal or the final
objective to be achieved–it is not the beginning of the exercise
but the end.
48. Therefore, we are concerned with two principles in a case
such as the present. They are:
W.P.(CRL) 374/2017 Page 49 of 96
(i) the principle of comity of courts; and
(ii) the principle of the best interests and the welfare of
the child.
These principles have been referred to as “contrasting
principles of law” [Shilpa Aggarwal v. Aviral Mittal, (2010) 1
SCC 591 : (2010) 1 SCC (Civ) 192] but they are not
“contrasting” in the sense of one being the opposite of the
other but they are contrasting in the sense of being different
principles that need to be applied in the facts of a given case.
49. What then are some of the key circumstances and factors to
be taken into consideration for reaching this final goal or final
objective? First, it must be appreciated that the “most intimate
contact” doctrine and the “closest concern” doctrine
of Surinder Kaur Sandhu [Surinder Kaur Sandhu v. Harbax
Singh Sandhu, (1984) 3 SCC 698 : 1984 SCC (Cri) 464] are
very much alive and cannot be ignored only because their
application might be uncomfortable in certain situations. It is
not appropriate that a domestic court having much less
intimate contact with a child and having much less close
concern with a child and his or her parents (as against a
foreign court in a given case) should take upon itself the
onerous task of determining the best interests and welfare of
the child. A foreign court having the most intimate contact
and the closest concern with the child would be better
equipped and perhaps best suited to appreciate the social and
cultural milieu in which the child has been brought up rather
than a domestic court. This is a factor that must be kept in
mind.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
52. What are the situations in which an interim or an
interlocutory order of a foreign court may be ignored? There
are very few such situations. It is of primary importance to
determine, prima facie, that the foreign court has jurisdiction
over the child whose custody is in dispute, based on the fact of
the child being ordinarily resident in the territory over whichW.P.(CRL) 374/2017 Page 50 of 96
the foreign court exercises jurisdiction. If the foreign court does
have jurisdiction, the interim or interlocutory order of the
foreign court should be given due weight and respect. If the
jurisdiction of the foreign court is not in doubt, the “first
strike” principle would be applicable. That is to say that due
respect and weight must be given to a substantive order prior in
point of time to a substantive order passed by another court
(foreign or domestic).
53. There may be a case, as has happened in the present
appeal, where one parent invokes the jurisdiction of a court but
does not obtain any substantive order in his or her favour and
the other parent invokes the jurisdiction of another court and
obtains a substantive order in his or her favour before the first
court. In such an event, due respect and weight ought to be
given to the substantive order passed by the second court since
that interim or interlocutory order was passed prior in point of
time.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
55. Finally, this Court has accepted the view [L. (Minors), In
re, (1974) 1 WLR 250 : (1974) 1 All ER 913 (CA)] that in a
given case, it might be appropriate to have an elaborate inquiry
to decide whether a child should be repatriated to the foreign
country and to the jurisdiction of the foreign court or in a given
case to have a summary inquiry without going into the merits of
the dispute relating to the best interests and welfare of the child
and repatriating the child to the foreign country and to the
jurisdiction of the foreign court.” (emphasis supplied)
74. Thus, it would be seen that while paragraph 49 recognised the well-
settled principle/ doctrine of “most intimate contact” and the “closest
concern” doctrine, paragraphs 47, 52 53 emphasized the doctrine of
comity of Courts and the first strike principle. Even before stating the
aforesaid principles, in paragraph 47, the Court observed that there is
W.P.(CRL) 374/2017 Page 51 of 96
complete unanimity that the best interests and welfare of the child are of
paramount importance.
75. The Court allowed the appeal on the ground that the UK court had
passed an effective and substantial order declaring the children of the parties
as wards of that court and also that the UK court has the most intimate
contact with the welfare of the children.
76. Ms. Rajkotia submits that the principles espoused by the Supreme
Court in Surya Vadanan (supra) are not applicable here, because in the said
case the parents were both UK citizens, and had established their residence
in the UK for a long period of time. She distinguished Surya Vadanan
(supra) from the present case by submitting that the respondent is an Indian
citizen and is in intimate contact with her country of birth. Her family
resides in India with her parents having made a loving home for M. But, as
aforementioned, she relied upon the case on the principle of first strike/first
substantive order. Her submission is that the first order in this case is of the
Family Court, Patiala House, Delhi dated 11.01.2017 and as a result, the
courts in India should deal with issue of custody.
77. After we had reserved judgment in the case on 18.04.2017, the
Supreme Court rendered its decision in Nithya Anand Raghavan v. State
(NCT of Delhi), 2017 SCC Online SC 694 dated 03.07.2017. Consequently,
learned counsel mentioned the case and tendered a copy of the said decision.
Both counsels also filed their respective submissions premised on the said
decision. We have considered this decision and the submission of the
parties regarding this decision as well.
W.P.(CRL) 374/2017 Page 52 of 96
78. Nithya Anand Raghavan (supra) was a tussle between an estranged
couple, involving a seven year old girl child Nethra, who suffered from a
cardiac disorder. Respondent no.2 – the husband, was the writ petitioner
before this Court, whose writ petition was allowed and directions issued to
the appellant wife to take the child to U.K.
79. The parties had got married on 30.11.2006 at Chennai; thereafter they
shifted to U.K. in early 2007 and lived there as husband and wife; disputes
erupted between the parties – according to the appellant they were often
violent and she was physically, mentally and psychologically abused; the
appellant got a job in London in 2008 earning close to 25,000 (GBP) pounds
per annum; appellant conceived in December 2008; she came to New Delhi
in June 2009 to be with her parents; she gave birth to a girl child – Nethra,
on 07.08.2009 at Delhi; respondent no.2 – the husband joined them soon
thereafter in India; they went back to U.K. in March 2010; in August, 2010
appellant and her daughter came back to India after several incidents with
respondent no.2; legal correspondence ensued setting out the differences
which had arisen between the parties, whereafter the appellant and her
daughter went back to London in December 2011 – more than a year after
they had come to India; in January 2012, Nethra was admitted to and
attended a nursery school in U.K.; in September 2012, application was filed
for daughters citizenship of U.K.; in December Nethra was granted
citizenship of U.K.; in January 2013, respondent no.2 was also granted
citizenship of U.K.; respondent no.2 bought another home in U.K. to which
the family shifted; in September 2013 Nethra was admitted to a primary
school in U.K.- when she was around four years old; in July 2014 appellant
W.P.(CRL) 374/2017 Page 53 of 96
returned to India, owing to certain health related problems, and brought
Nethra with her; a month later she returned to U.K. with Nethra; from late
2014 to early 2015 Nethra was taken ill and diagnosed with a cardiac
disorder; on 02.07.2015 the appellant came back to India with Nethra
because of the alleged violent behavior of respondent no.2; she sent emails
to Nethra’s school – firstly stating that she had left due to “family medical
reasons”, and thereafter stating that Nethra would remain in India for an
extended duration and, finally, stating that Nethra would not be returning to
U.K. due to her own well being and safety; on 16.12.2015 the appellant filed
a complaint against respondent no.2 at the CAW Cell, New Delhi which
issued notice to respondent no.2 and his parents; neither of them appeared;
respondent no.2 filed custody/ wardship petition on 08.01.2016 in U.K. to
seek return of Nethra; on 23.01.2016 respondent no.2 filed the habeas
corpus petition in the Delhi High Court, which was allowed by this Court on
08.07.2016.
80. The Supreme Court recapitulated the earlier precedents on the
subject- most of which we have referred to herein above. The submission of
the appellant was that Shilpa Aggarwal (supra) and Surya Vadanan (supra)
had deviated from the established principle of putting the welfare of the
child above all other considerations. The appellant contended that in these
two decisions the parens patriae jurisdiction. The appellant contended that
the “intimate contact” principle cannot be applied “where the child returns
to a country where he/ she has been born and brought up in, like in the
present case”. The appellant contended that Surya Vadnan (supra) gives
precedence to the principle of comity of courts over the welfare of the child.
W.P.(CRL) 374/2017 Page 54 of 96
The appellant contended that Surya Vadnan (supra) was in conflict with
Ravi Chandran (supra) – a three judge bench decision, where the Supreme
Court held that under no circumstances, can the principle of welfare of the
child be eroded, and that the child can seek refuge under the parens patriae
jurisdiction of the Court.
81. On the other hand, the thrust of the submission of respondent no.2-
husband was the necessity to comply with the direction issued by the foreign
Court against the appellant-wife to produce the daughter before the U.K.
Court – where the issue regarding wardship was pending consideration. The
husband contended that the U.K. Court alone could adjudicate that issue.
He contended that comity of courts must be respected.
82. The Supreme Court referred to its decision in Dhanwanti Joshi
(supra) which, in turn referred to Mckee (supra), where the Privy Council
held that “The order of the foreign court in US would yield to the welfare of
the child. “Comity of courts demanded not its enforcement, but its grave
consideration””.
83. The Supreme Court emphasized the decision in L.Minors (supra)
which resolved the apparent conflict between McKee (supra) on the one
hand, and H. (infants) (supra) and E (an infant) (supra) on the other hand.
These later decisions held that the Court in the country to which the child is
removed, will send back the child to the country from which the child was
removed. In L.Minors (supra) and R (Minors) (supra) the Court held that
the view in McKee (supra) is still the correct view, and that the limited
question which arose in the latter decisions was whether the Court in the
W.P.(CRL) 374/2017 Page 55 of 96
country to which the child was removed could conduct: (a) a summary
inquiry, or, (b) an elaborate enquiry on the question of custody. 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. The Supreme Court highlighted the extract from
Dhanwanti Joshi (supra) which we have already noticed in para 69 above.
84. The Supreme Court also extracted paras32 and 33 from Dhanwanti
Joshi (supra), which reads as follows:
“32. In this connection, it is necessary to refer to the Hague
Convention of 1980 on “Civil Aspects of International Child
Abduction”. As of today, about 45 countries are parties to this
Convention. India is not yet a signatory. Under the Convention,
any child below 16 years who had been “wrongfully” removed
or retained in another contracting State, could be returned
back to the country from which the child had been removed, by
application to a central authority. Under Article 16 of the
Convention, if in the process, the issue goes before a court, the
Convention prohibits the court from going into the merits of the
welfare of the child. Article 12 requires the child to be sent
back, but if a period of more than one year has lapsed from the
date of removal to the date of commencement of the
proceedings before the court, the child would still be returned
unless it is demonstrated that the child is now settled in its new
environment. Article 12 is subject to Article 13 and a return
could be refused 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. In England, these aspects are covered by the Child
Abduction and Custody Act, 1985.
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 whichW.P.(CRL) 374/2017 Page 56 of 96
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
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. As recently as 1996-1997, it has
been held in P (A minor) (Child Abduction: Non-Convention
Country), 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, August 1997, p. 13]. This answers the contention
relating to removal of the child from USA. (emphasis supplied)”
(emphasis supplied)
85. The Supreme Court, then, in para 25 of the decision in Nithya Anand
Raghavan (supra), held as follows:
“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/herW.P.(CRL) 374/2017 Page 57 of 96
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 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.”
(emphasis supplied)
86. The Supreme Court also quoted extracts from Ravi Chandran (supra)
and went on to observe in paras 28, and 30 to 32 as follows:
“28. The consistent view of this court is that if the child has
been brought within India, the Courts in India may conduct
(a) summary inquiry or (b) an elaborate inquiry on the
question of custody. In the case of a summary inquiry, the
Court may deem it fit to order return of the child to theW.P.(CRL) 374/2017 Page 58 of 96
country from where he/she was removed unless such return is
shown to be harmful to the child. In other words, even in the
matter of a summary inquiry, it is open to the Court to decline
the relief of return of the child to the country from where
he/she was removed irrespective of a pre-existing order of
return of the child by a foreign Court. In an elaborate inquiry,
the Court is obliged to examine the merits as to where the
paramount interests and welfare of the child lay and reckon the
fact of a pre-existing order of the foreign Court for return of the
child as only one of the circumstances. In either case, the
crucial question to be considered by the Court (in the country
to which the child is removed) is to answer the issue according
to the child’s welfare. That has to be done bearing in mind the
totality of facts and circumstances of each case independently.
Even on close scrutiny of the several decisions pressed before
us, we do not find any contra view in this behalf. To put it
differently, the principle of comity of courts cannot be given
primacy or more weightage for deciding the matter of custody
or for return of the child to the native state.
30. ………. In a petition for issuance of a writ of habeas
corpus in relation to the custody of a minor child, this Court in
Sayed Saleemuddin v. Dr. Rukhsana Ors. , has held that the
principal duty of the Court is to ascertain whether the custody
of child is unlawful or illegal and whether the welfare of the
child requires that his present custody should be changed and
the child be handed over to the care and custody of any other
person. While doing so, the paramount consideration must be
about the welfare of the child. In the case of Mrs. Elizabeth
(supra), it is held that in such cases the matter must be decided
not by reference to the legal rights of the parties but on the sole
and predominant criterion of what would best serve the
interests and welfare of the minor. The role of the High Court
in examining the cases of custody of a minor is on the
touchstone of principle of parens patriae jurisdiction, as the
minor is within the jurisdiction of the Court (see Paul
Mohinder Gahun Vs. State of NCT of Delhi, (2001) 5 SCC 247
Ors. relied upon by the appellant). It is not necessary to
multiply the authorities on this proposition. (emphasis supplied)W.P.(CRL) 374/2017 Page 59 of 96
31. The High Court while dealing with the petition for
issuance of a writ of habeas corpus concerning a minor child,
in a given case, may direct return of the child or decline to
change the custody of the child keeping in mind all the
attending facts and circumstances including the settled legal
position referred to above. Once again, we may hasten to add
that the decision of the Court, in each case, must depend on
the totality of the facts and circumstances of the case brought
before it whilst considering the welfare of the child which is of
paramount consideration. The order of the foreign Court
must yield to the welfare of the child. Further, the remedy of
writ of habeas corpus cannot be used for mere enforcement of
the directions given by the foreign court against a person
within its jurisdiction and convert that jurisdiction into that of
an executing court. Indubitably, the writ petitioner can take
recourse to such other remedy as may be permissible in law for
enforcement of the order passed by the foreign Court or resort
to any other proceedings as may be permissible in law before
the Indian Court for the custody of the child, if so advised.
32. In a habeas corpus petition as aforesaid, the High Court
must examine at the threshold whether the minor is in lawful or
unlawful custody of another person (private respondent named
in the writ petition). For considering that issue, in a case such
as the present one, it is enough to note that the private
respondent was none other than the natural guardian of the
minor being her biological mother. Once that fact is
ascertained, it can be presumed that the custody of the minor
with his/her mother is lawful. In such a case, only in
exceptionable situation, the custody of the minor (girl child)
may be ordered to be taken away from her mother for being
given to any other person including the husband (father of the
child), in exercise of writ jurisdiction. Instead, the other
parent can be asked to resort to a substantive prescribed
remedy for getting custody of the child.” (emphasis supplied)
W.P.(CRL) 374/2017 Page 60 of 96
The Supreme Court also observed that “merely because such an order
is passed by the foreign court, the custody of the minor would not become
unlawful per se”.
87. The Supreme Court also held in view of the fact that the order passed
by the English Court was an ex parte order, and no finding had been
returned that till the minor returns to England, the custody of the minor with
the mother was unlawful, that the custody of the minor with the appellant –
being her biological mother, would have to be presumed to be lawful. The
Supreme Court then observed:
“35. The High Court in such a situation may then examine
whether the return of the minor to his/her native state would
be in the interests of the minor or would be harmful. While
doing so, the High Court would be well within its jurisdiction
if satisfied, that having regard to the totality of the facts and
circumstances, it would be in the interests and welfare of the
minor child to decline return of the child to the country from
where he/she had been removed; then such an order must be
passed without being fixated with the factum of an order of
the foreign Court directing return of the child within the
stipulated time, since the order of the foreign Court must yield
to the welfare of the child. For answering this issue, there can
be no strait jacket formulae or mathematical exactitude. Nor
can the fact that the other parent had already approached the
foreign court or was successful in getting an order from the
foreign court for production of the child, be a decisive factor.
Similarly, the parent having custody of the minor has not
resorted to any substantive proceeding for custody of the child,
cannot whittle down the overarching principle of the best
interests and welfare of the child to be considered by the Court.
That ought to be the paramount consideration.” (emphasis
supplied)W.P.(CRL) 374/2017 Page 61 of 96
88. The Supreme Court then considered the facts of the case before it,
including the following:
(i) Both parents were of Indian origin;
(ii) They were married in Chennai as per Hindu rites and customs;
(iii) The girl child was an Indian citizen by birth;
(iv) The child had spent equal time, since her birth, in India, and the
UK;
(v) Whereas the child was staying in a nuclear family in UK with
her parents, in India, she had her grandparents and extended
family;
(vi) The appellant produced material before the Court to suggest her
being subjected to physical violence and mental torture by
Respondent No.2-the husband;
(vii) Even though the appellant had returned to India on 02.07.2015,
no proceedings were instituted by the husband in the UK-
including regarding custody of the child, till after the filing of
the complaint by the appellant before the CAW Cell;
(viii) The child was attending school in India for over one year;
(ix) The child would receive love, understanding, care and guidance
for the complete development of her character, personality and
talent from the mother. Ordinarily, a girl child of upto seven
W.P.(CRL) 374/2017 Page 62 of 96
years must ideally be in the custody of the mother, unless there
are circumstances to indicate that it would be harmful for the
girl child to remain in the custody of the mother;
(x) When Nethra was brought to India by the mother, there was no
order of restraint of any court in UK; and
(xi) The father/respondent no. 2 being employed, may not be able to
look after the minor girl child.
The Supreme Court then observed:
“38. …. …. Suffice it to observe that taking the totality of the
facts and circumstances into account, it would be in the
interests of Nethra to remain in custody of her mother and it
would cause harm to her if she returns to the U.K. … …”
89. The Supreme Court then proceeded to deal with Surya Vadanan
(supra). It quoted para 56 of Surya Vadanan (supra), which reads as
follows:
“56. However, if there is a pre-existing order of a foreign court
of competent jurisdiction and the domestic court decides to
conduct an elaborate inquiry (as against a summary inquiry), it
must have special reasons to do so. An elaborate inquiry should
not be ordered as a matter of course. While deciding whether a
summary or an elaborate inquiry should be conducted, the
domestic court must take into consideration:
(a) The nature and effect of the interim or interlocutory
order passed by the foreign court.
(b) The existence of special reasons for repatriating or not
repatriating the child to the jurisdiction of the foreign court.
W.P.(CRL) 374/2017 Page 63 of 96
(c) The repatriation of the child does not cause any moral or
physical or social or cultural or psychological harm to the
child, nor should it cause any legal harm to the parent with
whom the child is in India. There are instances where the order
of the foreign court may result in the arrest of the parent on his
or her return to the foreign country. In such cases, the domestic
court is also obliged to ensure the physical safety of the parent.
(d) The alacrity with which the parent moves the foreign
court concerned or the domestic court concerned, is also
relevant. If the time gap is unusually large and is not
reasonably explainable and the child has developed firm roots
in India, the domestic court may be well advised to conduct an
elaborate inquiry.”
90. The Supreme Court, in paras 43-44, disapproved with the drift
away from Dhanwanti Joshi (supra) and Ravi Chandran (supra).
The relevant extract reads as follows:
“43. As regards clauses (a) to (c), the same, in our view, with
due respect, tend to drift away from the exposition in
Dhanwanti Joshi’s case (supra), which has been quoted with
approval by a three-judge bench of this Court in V. Ravi
Chandran (supra). In that, the nature of inquiry suggested
therein inevitably recognises giving primacy to the order of the
foreign Court on the issue of custody of the minor. That has
been explicitly negated in Dhawanti Joshi’s case. For, whether
it is a case of a summary inquiry or an elaborate inquiry, the
paramount consideration is the interests and welfare of the
child. Further, a pre-existing order of a foreign Court can be
reckoned only as one of the factor to be taken into
consideration. We have elaborated on this aspect in the earlier
part of this judgment.
44. As regards the fourth factor noted in clause (d), we
respectfully disagree with the same. The first part gives
weightage to the “first strike” principle. As noted earlier, it is
not relevant as to which party first approached the Court or soW.P.(CRL) 374/2017 Page 64 of 96
to say “first strike” referred to in paragraph 52 of the
judgment. Even the analogy given in paragraph 54 regarding
extrapolating that principle to the Courts in India, if an order is
passed by the Indian Court is inapposite. For, the Indian
Courts are strictly governed by the provisions of the Guardians
and Wards Act, 1890, as applicable to the issue of custody of
the minor within its jurisdiction. Section 14 of the said Act
plainly deals with that aspect. The same reads thus:-
“14. Simultaneous proceedings in different
Courts.- (1) If proceedings for the appointment or
declaration of a guardian of a minor are taken in
more Courts than one, each of those Courts shall,
on being apprised of the proceedings in the other
Court or Courts, stay the proceedings before itself.
(2) If the Courts are both or all subordinate to
the same High Court, they shall report the case to
the High Court, and the High Court shall
determine in which of the Courts the proceedings
with respect to the appointment or declaration of a
guardian of the minor shall be had.
[(3) In any other case in which proceedings are
stayed under sub-section (1), the Courts shall
report the case to and be guided by such orders as
they may receive from their respective State
Governments.]”
91. The first strike principle was rejected by the Supreme Court while
observing as follows:
“46. The invocation of first strike principle as a decisive
factor, in our opinion, would undermine and whittle down the
wholesome principle of the duty of the Court having
jurisdiction to consider the best interests and welfare of the
child, which is of paramount importance. If the Court is
convinced in that regard, the fact that there is already an order
passed by a foreign Court in existence may not be so significantW.P.(CRL) 374/2017 Page 65 of 96
as it must yield to the welfare of the child. That is only one of
the factors to be taken into consideration. The interests and
welfare of the child are of paramount consideration. The
principle of comity of courts as observed in Dhanwanti Joshi’s
case (supra), in relation to non-convention countries 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. While
considering that aspect, the Court may reckon the fact that the
child was abducted from his or her country of habitual
residence but the Court’s overriding consideration must be the
child’s welfare.” (emphasis supplied)
92. The conclusions reiterated in para 49 of Nithya Anand Raghavan
(supra) read as under:
“49. We once again reiterate that the exposition in the case
of Dhanwanti Joshi (supra) is a good law and has been
quoted with approval by a three-judge bench of this Court in
V. Ravi Chandran (supra). We approve the view taken in
Dhanwanti Joshi (supra), inter alia in paragraph 33 that so
far as non-convention countries are concerned, the law is that
the Court in the country to which the child is removed while
considering the question must bear in mind 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. The summary jurisdiction to return the child be
exercised in cases where the child had been removed from its
native land and removed to another country where, may be,
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 be exercised only if the court to which the child
has been removed is moved promptly and quickly. TheW.P.(CRL) 374/2017 Page 66 of 96
overriding consideration must be the interests and welfare of
the child.”
93. What emerges from an analysis of all the above discussed decisions,
including the latest decision in Nithya Anand Raghavan (supra), is that the
paramount consideration in such like cases is the welfare of the minor child
– in respect of whom the habeas corpus writ petition is preferred by one, or
the other, parent. The other considerations – like comity of courts; orders
passed by a foreign Court having jurisdiction in the matter regarding
custody of the minor child; citizenship of the parents and the child; the
“intimate connect”; the manner in which the child may have been brought to
India i.e., even if it is in breach of an order of a competent court in the
foreign jurisdiction, cannot override the consideration of the child’s welfare,
since it is the responsibility of the Court – which exercises the parens
patriae jurisdiction, to ensure that the exercise of the extra ordinary writ
jurisdiction is in the best interest of the child, and the direction to return the
child to the foreign jurisdiction does not result in any physical, mental,
psychological, or other harm to the child.
94. Thus, if it is not in the best interest and welfare of the minor child that
he/ she should be returned to the foreign jurisdiction, and giving of such a
direction would harm his interest and welfare, other considerations and
principles, which persuade the Court to take a view in favour of directing the
return of the minor child to the foreign Court’s jurisdiction, shall stand
relegated and the Court would not direct the return of the child to the place
falling within the jurisdiction of the foreign Court. The aforesaid principles
W.P.(CRL) 374/2017 Page 67 of 96
were culled out from the earlier precedents as would become apparent from
the earlier decisions taken note of hereinabove.
95. Thus, in Surinder Kaur Sandhu (supra) even though the minor child
would have been materially better placed if his custody had continued with
the father in India- since the father lived in an affluent setting as opposed to
the mother, who was a factory worker in England, the Supreme Court
invoked the principle of welfare of the child to direct that the child be
returned to the custody of the mother, since the father was a convict who had
attempted to cause his wife’s murder and was let off on probation due to the
intervention of his wife. He had also procured a duplicate passport by
making false representations. The Supreme Court held that the influence of
such a father on the child would not be in his best interest. The Supreme
Court also invoked the principle of comity of courts in this case. However,
perusal of the decision shows that the primary reason that swayed the Court
was the welfare of the child, which the Supreme Court held would be better
served if his custody is returned to the mother.
96. In Elizabeth Dinshaw (supra), once again, the Supreme Court
emphasized that whenever a question arises before the Court pertaining to
the custody of the minor child, the matter is to be decided-not on
considerations of the legal rights of parties, but on the sole and predominant
criterion as to what would best serve the interest and welfare of the child.
The Supreme Court observed that in its considered opinion, it would be the
best interest and welfare of the child Dustan, that he should go back to the
U.S.A and continue his education in the custody and guardianship of the
mother. The Supreme Court also observed that the child- who was an
W.P.(CRL) 374/2017 Page 68 of 96
American citizen, had not taken roots in this country, since not much time
had elapsed from the time that he had been brought by the father into India
in breach of the order of the American Courts.
97. In Sarita Sharma (supra), even though the mother had brought the
two children into India-in breach of the order passed by the competent Court
in U.S.A. giving custody to the father and only visitation rights to the
mother, the Supreme Court allowed the appeal preferred by the mother/ wife
against the decision of this Court directing the mother to take back the
children to the U.S.A., by holding that it would not be proper to be guided
entirely by the fact that the mother had removed the children from U.S.A.
despite the order of the competent Court in that country. The Supreme
Court held that it was not in the best interest of the children to direct return
of their custody to the father, who was found to be in the habit of taking
excessive alcohol. The Supreme Court was conscious of the possibility,
that in the U.S.A. the two children would get better education. However,
considering the age of the children – one of whom was a minor female child
aged about 5 years, the Supreme Court felt that the direction to return the
child to the U.S.A. was not justified. It also held that, what would be in the
best interest of the children would require a full and thorough inquiry, and
that the High Court should have directed the writ petitioner/ father to initiate
appropriate proceedings in which such an inquiry could be held.
98. In Aviral Mittal (supra), the decision of the High Court was primarily
based on considerations, such as, intention of the parties to make U.K. as
their matrimonial home; the law of U.K. having the closest connection with
W.P.(CRL) 374/2017 Page 69 of 96
the parties, and should govern their relationship and considerations of
welfare of the children.
99. The Supreme Court in Shilpa Aggarwal (Ms.) (supra) dismissed the
appeal preferred by the mother from the decision in Aviral Mittal (supra),
after noticing the order that had been passed by the High Court of Justice,
Family Division, U.K. This was because, all that the said Court in U.K. had
ordered, was to insist that the minor be returned to its jurisdiction. The
English Court did not intend to separate the child from the appellant mother
until a final decision was taken with regard to the custody of the child. The
Supreme Court had observed that the ultimate decision in that regard has to
be left to the English Courts having regard to the nationality of the child, and
the fact that both the parents had worked for gain in the U.K and had also
acquired permanent resident status in the U.K. From this decision in Shilpa
Aggarwal (Ms.) (supra), it appears that the facts presented before the
Supreme Court did not contra-indicate that it was not in the welfare of the
minor child for her to return to the U.K. with the mother.
100. As observed by the Supreme Court in Nithya Anand Raghavan
(supra), this decision was rendered after a summary inquiry into the facts of
the case, and it did not whittle down what has been expounded in Dhanwanti
Joshi (supra), i.e. the duty of the Court to consider the overarching welfare
of the child. The Supreme Court drew a distinction with Shilpa Aggarwal
(Ms.) (supra), while deciding Nithya Anand Raghavan (supra) by, inter alia,
observing:
“40. … … In the present case, the minor is born in India and
is an Indian citizen by birth. When she was removed from theW.P.(CRL) 374/2017 Page 70 of 96
UK, no doubt she had, by then, acquired UK citizenship, yet for
the reasons indicated hitherto dissuade us to direct return of
the child to the country from where she was removed”.
101. As aforesaid, the Supreme Court in Nithya Anand Raghavan (supra)
has re-emphasised the need to place the welfare of the child at the highest
pedestal while considering the issue whether the minor child should be
directed to be returned to the country of which he is a citizen, and/or where
he may have mostly lived with his parents – or one of them. The
determination of the said issue may be undertaken by the Indian Court either
summarily or in an elaborate manner. On this aspect, in Nithya Anand
Raghavan (supra), the Supreme Court places reliance on V. Ravi Chandran
(supra) which, in turn, follows the earlier three Judge bench decision in
Dhanwanti Joshi (supra).
102. We now turn to examine the facts of the present case in the light of
the above decisions. We are presently focusing our attention on those
aspects which concern the welfare and well being of the minor child M.
Respondent no.2 has also made allegations against the petitioner and his
mother which, according to her, demonstrate their cruel behaviour towards
her – justifying her decision to leave her matrimonial home and to seek
divorce from the petitioner. Those allegations are also being noticed, and
we will consider whether they are such as would have a bearing on the
welfare and well-being of the child.
103. The child in question, namely, M, is a girl child, born on 15.02.2014.
Thus, she is about 3 years and 8 months old. When this petition was
preferred on 01.02.2017, she was about 3 years old. M was born in the
W.P.(CRL) 374/2017 Page 71 of 96
USA. She is an American citizen by birth. The petitioner is her father and
respondent No.2 is the mother. The petitioner/father has acquired
citizenship of USA in 2005 and holds an American passport. He has been
living in USA since 1994. The petitioner is thus domiciled in USA. He has
acquired Bachelor’s Degree in Economics from the University of Chicago
and has also obtained MBA qualification from the University of Chicago.
He is an education software entrepreneur who has built PrepMe – an
adaptive learning platform. He is the CEO of GetSet Learning, which helps
colleges and university students who are struggling to pass their courses and
complete their degrees. Respondent No.2-the wife of the petitioner and the
natural mother of M, acquired the USA Permanent Resident Status i.e.
Green Card and also applied for American citizenship on 02.12.2016.
104. The petitioner has disclosed that he and respondent No.2 had been
classmates in School, who reconnected in the 2000s. Gradually, their
relationship developed and they decided to get married. The petitioner
states that though it was understood that the parties would reside in USA
where the petitioner had his work and home, they decided to have the Anand
Karaj ceremony and Hindu Vedic Rites in India so that the elders in the two
families could participate. Consequently, on 31.10.2010, the said
ceremonies were performed at the residence of respondent No.2. He further
states that the parties got married in the USA on 19.03.2011 after respondent
No.2 arrived in USA.
105. The petitioner also describes the educational qualifications and
attainments of respondent No.2 which she had acquired prior to her coming
over to USA. Premised on her educational attainments, respondent No.2
W.P.(CRL) 374/2017 Page 72 of 96
applied for a teaching certificate examination. She started working for gain
in USA in October, 2012 as a substitute teacher in Chicago Public Schools
and in November, 2012, she started working full time at Otis Elementary
School within the same Chicago Public Schools district. Respondent No.2
became pregnant with M towards the end of June, 2013. There is no real
dispute on these facts. The petitioner states that the parties decided that the
Baby should be born in USA, and should attain American citizenship. As
aforesaid, baby M was born on 15.02.2014 at Chicago. Thus, respondent
No.2 had worked as a teacher in USA for almost 16 months. She took
maternity leave after M was born, but returned to work upon completion of
the said leave.
106. The petitioner also states that his mother, J G, regularly travelled to
Chicago to ensure that the child M was fully taken care of when respondent
No.2 returned to work. This was despite the petitioner’s father-S G
recovering from prostate cancer surgery. The petitioner states that he moved
his company’s office closer to his residence, so that he could devote more
time with the child M for her well being. This shows the love and care that
the petitioner and his parents bestowed upon her, and that they were
involved in her upbringing. Both the petitioner’s parents are doctors-the
petitioner’s mother being a paediatrician.
107. The petitioner further states that in August, 2014, respondent No.2
decided to take a year off from her work and this decision was supported by
the petitioner emotionally and financially. The parties also travelled to India
on a short holiday and returned back to USA in late August/early
September, 2015. When M was about 18 months old, respondent No.2
W.P.(CRL) 374/2017 Page 73 of 96
chose to return to working full time and joined Andrew Jackson Language
Academy (another school in the Chicago Public Schools district). The
petitioner employed a Nanny to take care of M on 14.09.2015. The
petitioner states that he oversaw the entire process of hiring the Nanny,
including, conducting reference checks, negotiating the contract, calculating
the payments and most importantly overseeing the care provided by the
Nanny through full day interviews when he watched the candidates interact
with the child M. The petitioner states that the parties were living as a
happy family together and were intent of making USA as their permanent
matrimonial home. In this background, the petitioner states that respondent
No. 2 vide email dated 07.11.2016 to her immigration attorney Nancy Vizer,
informed that she had decided to take up USA citizenship. She also made
her application for the said purpose which was received by the USA
citizenship and immigration service on 02.12.2016 and was thereafter under
process.
108. The petitioner also states that on 18.07.2016, M transitioned from care
at home by a Nanny to attending Bright Horizons at Lakeshore East i.e. one
of the top pre-schools in Chicago. She attended pre-school two days a week
initially, and moved to a five days week, namely, full time schedule on
17.08.2016. The petitioner states that he took care of the enrolment
procedure at the pre-school and even met the entire tuition fee of M. M was
to move into three year old class room with effect from 09.01.2017 because
she was developed well ahead of schedule. The petitioner relies on the
certificate issued by Bright Horizons dated 11.01.2017 which, inter alia,
states that “M communicates her wants and needs effectively with adults and
W.P.(CRL) 374/2017 Page 74 of 96
is able to successfully communicate socially with her peers”. It also states
that the petitioner is an active member of the school’s parent partnership
group which meets once monthly to discuss the school events, community
outreach opportunities and ways to promote parental involvement at the
school. The petitioner has offered to be a resource for other families that
may have questions regarding the enrolment at the school and share his
overall experiences with Bright Horizons.
109. Respondent no.2 admits that the couple settled down in Chicago in
November 2010. She also admits that the petitioner’s parents, who were
settled in Cincinnati, Ohio would regularly visit the couple in Chicago.
Respondent no.2 states that after the birth of M, she quit her job of a full
time education assistant in the year 2014 and she was single handedly
responsible to attend all her needs such as bathing her, feeding, making her
sleep etc. The petitioner was not involved in looking after M until he was
constrained to do so. The petitioner’s involvement in M’s life was only in
educational and semi-educational activities such as visits to aquarium, zoo
etc. She states that at the time of the marriage, the petitioner had assured
that the respondent they would eventually settled in India, but it was later
discovered that the petitioner had no such plans, which came as a shock to
the respondent.
110. Thus, the couple started their matrimonial life in the United States and
lived as a couple in that country. They made United Stated their home.
Their entire married life, except the duration during which they were on
short visits to India, had been spent in USA. They have not only given birth
to and raised their daughter M in her initial 3 years and more in USA, both
W.P.(CRL) 374/2017 Page 75 of 96
of them have also worked and lived in the USA. Even their disputes and
differences have arisen in USA since, according to the respondent wife, she
allegedly faced difficulties in her married life – for one or the other reason,
in USA. She has alleged interference in her married life by her mother-in-
law – which too, would have taken place in USA. M had, in fact, started
attending the pre-school in Chicago and had a full time schedule at school
from August 2016. M, as per the certificate issued by the Bright Horizons –
the pre-school, dated 11.01.2017 was already communicating her wants and
needs with the elders and she was able to successfully communicate socially
with her peers. Thus, the mental development of M while she was in USA,
i.e. till the end of 2016, had taken place to such an extent that she was very
well aware and conscious of her surroundings. She was perceiving and
absorbing from her surroundings and communicated not only with her
parents, but also with her other relatives, her peers at the pre-school, her
instructors, teachers and other care givers. The American way of life and
systems were already in the process of being learnt and experienced by M
when she came to India in December 2016.
111. The environment in Chicago, USA which M was experiencing during
her growth, is her natural environment. From the pleadings of the parties
and the materials placed on record, it appears that M was being well taken
care of by both the parents and they both were contributing to her proper
upbringing. This is evident from the fact that she was being sent to a pre-
school; she had a Nanny; and the grandparents – who are educated medical
professionals, and were visiting and interacting with M.
W.P.(CRL) 374/2017 Page 76 of 96
112. Applying the principles laid down in Surinder Kaur Sandhu (supra);
Aviral Mittal (supra); Shilpa Aggarwal (supra); V. Ravi Chandran (supra),
and; Nithya Anand Raghavan (supra) to the case at hand, the Courts in US
seem to be most appropriate to decide the issue of custody of M considering
it has the most intimate contact with the parties and the child. From the facts
it appears that both the parties had intention of living in the US. If that were
not to be the case, the respondent would have firstly, not applied for
permanent residence and obtained a green card. Secondly, she would not
have undertaken the education courses required to teach in Chicago public
schools and, thirdly, and most importantly, she would not have applied for
citizenship by naturalization, which means giving up her Indian citizenship.
All these factors point out towards the respondent’s intention to stay in the
USA permanently. Petitioner, evidently, always wanted a life in the USA. M
has been so far brought up in the USA, and has started attending school as
well. All these factors reflect that the courts in USA would have the most
intimate contact with the parties and the child. Neither are we inclined to,
nor are we in a position to undertake a detailed inquiry into the aspects of
custody; visitation, and; co-parenting of the minor child in the facts and
circumstances of the case, considering all the events unfolded in, and
circumstances developed in, and evidences are located in USA.
113. We may say that, at this stage, we do not have to return any finding
on the averments or counter averments of the warring parents of M. We are
only trying to ascertain if there are any such compelling reasons disclosed
by respondent no.2, so as to persuade this Court not to direct the return of M
to her place of nationality and the environment where she was born and was
W.P.(CRL) 374/2017 Page 77 of 96
being brought up and, when in our considered view, her going back to the
same environment – so as to be able to live with both her parents – though
not at the same time, would be in her best interest.
114. The allegations of respondent no.2 against the petitioner and his
mother are that the petitioner’s mother follows a strict eco-friendly lifestyle
and imposes the same on the couple, which even caused chronic backache to
the respondent since she was forced to sleep on a hard eco-friendly mattress.
She claim that all her day to day affairs were influenced by the lifestyle of
her mother in law, such as not using plastic products, non stick cookware,
personal care products etc. The respondent had no voice in the matter. The
petitioner took minimal interest in household affairs, while his mother
interfered in the lives of the parties by tracking their schedules. The
petitioner and his mother did not respect the respondents privacy and the
plan of the parties to bear a child were disclosed to the petitioner’s mother in
advance. She even imposed lifestyle changes upon the respondent. The
petitioner’s mother also did not permit the respondent to maintain a secular
household. She was not permitted to celebrate both Sikh and Hindu
festivals and the petitioner insisted that they celebrate only Sikh festivals.
Respondent no.2 states that she was diagnosed with a grave’s disease in
October 2014. The petitioner and his mother insisted that the respondent
undergoes surgery rather than taking medication, since medication would
have made it difficult for her to conceive in future. She claims that the
petitioner even threatened her with divorce in case she prioritised her own
health at the cost of expanding their family. The respondent makes several
W.P.(CRL) 374/2017 Page 78 of 96
other allegations against the petitioner and his mother complaining of
cruelty and indifference on their part towards her.
115. The above allegations per se do not suggest any grave undesirable
conduct or deviant behavior on the part of the petitioner, or his mother qua
the child M – even if they were to be assumed to be true for the time being.
The allegations even remotely, not such as to suggest that the minor child M
may be exposed to any adversity, harm, undesirable influence, or danger if
she were to be allowed to meet them or spend time with them in USA. There
is nothing to suggest that the petitioner – father of M, or her grandmother
would leave a bad and undesirable influence on M. These allegations are
not such as to persuade this Court not to send the child M back to her
country of origin and initial upbringing. On the contrary, the petitioner
appears to be an educated person who is gainfully managing his business,
and the photographs on record show healthy bonding between M and her
father. He also appears to have actively participated in the upbringing of M
– if the averments made by him in his petition are to be believed. In fact,
respondent no.2 had also expressed her willingness to let M interact with the
petitioner and to allow him visitation rights, which would not have been the
case if she considered him to be a bad influence on, or a potential threat to
her daughter. The fact that the petitioner’s mother is a pediatrician, in fact, is
a reassuring fact that M would be taken good care of medically in her tender
years. The photographs filed by the petitioner along with the petition show
M to be having a healthy and normal upbringing while she was in USA. She
is seen enjoying the love, care and company of her parents and others –
including children of her age. There is no reason why she should be allowed
W.P.(CRL) 374/2017 Page 79 of 96
to be uprooted from the environment in which she was naturally growing up,
and to be retained in an environment where she would not have the love,
care and attention of her father and paternal grandparents, apart from her
peers, teachers, school and other care givers who were, till recently, with
her.
116. From the allegations made by respondent No.2, it appears that she
may have had issues of living with and adjusting with the petitioner and his
parents – particularly the mother-in-law. However, there is absolutely
nothing placed on record to even remotely suggest that so far as the
petitioner is concerned, his conduct qua M and his presence with M, or for
that matter, even the grandparents, could be said to be detrimental to or
harmful for M. It certainly cannot be said that if M were to be returned to
her place of origin where she spent the initial three years of her life –
considering that those three years constitute more than 3/4th of her entire
existence on this planet till date, would be detrimental to her interest in any
manner whatsoever.
117. The parties started their married life in USA, and as clearly appears
from their conduct, their mutual commitment was to spend their married life
and to raise their children in USA. There is absolutely nothing to suggest
that the parties mutually ever agreed to or intended to shift from their place
of residence to a place in India, though respondent no.2 may have
unilaterally so desired. In such a situation, in our view, respondent No.2
cannot breach her maternal commitment without any valid justification and
remain in return to India with M – who is an American citizen and would,
obviously, be attached to her father and grandparents; her home; her Nanny;
W.P.(CRL) 374/2017 Page 80 of 96
her teachers instructors and her peers and friends, all of whom are in
USA.
118. Ms. Rajkotia has repeatedly emphasized that respondent No.2 being
the mother of M, who is not yet four years old, is a primary care giver qua
M. There can be no dispute or debate on this aspect. However, is that by
itself sufficient to enable the mother to dictate as to in which part of the
world she would choose to live with the child? In our view, the answer to
this question cannot be assumed to be an obvious ‘Yes’. By not returning to
USA, is respondent No.2 not depriving M of the love, affection and care of
her other parent, i.e. the father? Certainly, she is. She is depriving M all
that M is entitled to and got used to in terms of love, attention, care,
facilities, amenities, upbringing and environment, before she left the shores
of USA. M did not make her choice to return to India, and not go back to
USA. It is not her conscious decision to remain in India, away from her
father, paternal grandparents, Nanny, teachers instructors at her school
and her peers. It is respondent No.2 who has taken that decision for her. By
taking that decision, respondent No.2 is clearly depriving M of, firstly, the
love and affection that she is entitled to receive from her father; secondly,
the love and affection that she is entitled to receive from her paternal
grandparents; thirdly, the care and learning that she was getting from her
Nanny and her instructors; and fourthly, the love, companionship and joy
that she was deriving from her peers at her pre-school. Though respondent
no.2 may argue that M shall make new friends, and have new caregivers and
teachers in India at her new school, she cannot deny that there can be no
substitute for her natural father, or paternal grandparents. They are equally
W.P.(CRL) 374/2017 Page 81 of 96
important to the upbringing of M, just as respondent no.2 is. Just because
respondent no.2 has found a safe haven in India – where her parents live, she
could not have left USA permanently with M, without caring for the best
interest of M and tearing the child away from her father and paternal
grandparents, with whom M had spent her initial life. Chicago, USA was
the petitioners and respondent no.2’s Karam Bhumi. Respondent no.2
cannot run away from her Karam Bhumi and escape to India – which is her
comfort zone, at the cost of her child’s best interest. Respondent no.2
should return to Chicago, USA to fight her battles on that turf, so that the
child M can be with both her parents. Respondent no.2 is not alone, and
carries with her the responsibility of bringing up the child jointly with her
father. It would have been a different matter if the couple had not had a
child.
119. The expression “best interest of child”, as used by the Supreme Court
in the above referred decisions, is wide in its connotation. It cannot be read
as being only the love and care of the primary care giver, i.e. the mother in
the case of an infant, or a child who is only a few years old.
120. At this stage, we may look at some of the provisions of the Juvenile
Justice (Care Protection) Act, 2015 (JJ Act), which throw some light on
the issue as to what is the content of “best interest of the child”. We are
conscious of the fact that the provisions of the JJ Act may not strictly apply
to the present fact situation. However, the said provisions certainly would
throw light on the concept of “best interest of the child”, as understood by
the Parliament in India.
W.P.(CRL) 374/2017 Page 82 of 96
121. Firstly, the preamble to the JJ Act takes note of the fact that “the
Government of India has acceded on the 11th December, 1992 to the
Convention on the Rights of the Child, adopted by the General Assembly of
United Nations, which has prescribed a set of standards to be adhered to by
all State parties in securing the best interest of the child;”. Thus, it would
be seen that the JJ Act has been enacted by the Parliament to implement its
obligations under the Convention on the Rights of the Child, which has been
acceded to by India. Consequently, it is the bounden obligation of all State
actors – which would include the Courts in India, to implement in letter
spirit the said Convention on the Rights of the Child.
122. Section 2(9) of the JJ Act explains the meaning of “best interest of
child” to mean “the basis for any decision taken regarding the child, to
ensure fulfilment of his basic rights and needs, identity, social well-being
and physical, emotional and intellectual development;”. Thus, to determine
the best interest of the child, his/ her basic rights and needs, identity, social
well-being and physical, emotional and intellectual development have to be
addressed.
123. Section 3 of the JJ Act lays down the fundamental principles which
the Central Government, the State Government, the Board created under the
said Act, and other agencies should be guided by while implementing the
provisions of the said Act. Clauses (iv), (v) (xiii) of Section 3 are
relevant and they read as follows:
“3. x x x x x x x x x
W.P.(CRL) 374/2017 Page 83 of 96
(iv) Principle of best interest: All decisions regarding the child
shall be based on the primary consideration that they are in the
best interest of the child and to help the child to develop full
potential.
(v) Principle of family responsibility: The primary
responsibility of care, nurture and protection of the child shall
be that of the biological family or adoptive or foster parents, as
the case may be.
x x x x x x x x x x
(xiii) Principle of repatriation and restoration: Every child in
the juvenile justice system shall have the right to be re-united
with his family at the earliest and to be restored to the same
socio-economic and cultural status that he was in, before
coming under the purview of this Act, unless such restoration
and repatriation is not in his best interest.”
124. Thus, all decisions regarding the child should be based on primary
consideration that they are in the best interest of the child and to help the
child to develop to full potential. When involvement of one of the parents is
not shown to be detrimental to the interest of the child, it goes without
saying that to develop full potential of the child, it is essential that the child
should receive the love, care and attention of both his/ her parents, and not
just one of them, who may have decided on the basis of his/ her differences
with the other parent, to re-locate in a different country. Development of
full potential of the child requires participation of both the parents. The
child, who does not receive the love, care and attention of both the parents,
is bound to suffer from psychological and emotional trauma, particularly if
the child is small and of tender age. The law also recognizes the fact that the
primary responsibility of care, nutrition and protection of the child falls
primarily on the biological family. The “biological family” certainly cannot
W.P.(CRL) 374/2017 Page 84 of 96
mean only one of the two parents, even if that parent happens to be the
primary care giver.
125. The JJ Act encourages restoration of the child to be re-united with his
family at the earliest, and to be restored to the same socio-economic and
cultural status that he was in, before being removed from that environment,
unless such restoration or repatriation is not in his best interest. The present
is not a case where respondent No.2 fled from USA or decided to stay back
in India on account of any such conduct of the petitioner which could be
said to have been detrimental to her own interest, or the interest of the minor
child M. The decision of respondent No.2 to stay back in India is entirely
personal to her, and her alone. It is not based on consideration of the best
welfare of the minor child M. In fact, the best interest of the child M has
been sidelined by respondent no.2 while deciding to stay back in India with
M.
126. Pertinently, respondent No.2 in her statement in response to the
missing person report made by the petitioner on 14.01.2017 vide DD
No.20B dated 14.01.2017 at PS – Vasant Kunj (South), New Delhi, inter
alia, stated that “the parties came to New Delhi, India with their daughter M
on 20.12.2016. She further stated that during this time, I realized that I do
not want to continue with his suppressed marriage and file for divorce and
custody petition against K G in the Hon’ble Court Sh. Arun Kumar Arya,
Principle Judge, Family Courts, Patiala House, New Delhi via HMA
No.27/17 … … …”. Thus, it appears from the statement of respondent No.2
that the realization that she did not want to continue in her marriage dawned
upon her only when she came to India, and it is not that when she left the
W.P.(CRL) 374/2017 Page 85 of 96
shores of USA in December 2016, she left with a clear decision in her mind
that she would not return to USA for any specific and justifiable reason.
127. We may also take note of some of the provisions of the Convention
on the Rights of the Child adopted by the General Assembly of the United
Nations on 20.11.1989, which was ratified by the Government of India on
11.12.1992. The Preamble to the said Convention sets out the basis on
which the same has been framed. The relevant paragraphs from the said
Preamble, which are relevant, read as follows:
“Convinced that the family, as the fundamental group of
society and the natural environment for the growth and well-
being of all its members and particularly children, should be
afforded the necessary protection and assistance so that it can
fully assume its responsibilities within the community,Recognizing that the child, for the full and harmonious
development of his or her personality, should grow up in a
family environment, in an atmosphere of happiness, love and
understanding,x x x x x x x x x x
Bearing in mind that, as indicated in the Declaration of the
Rights of the Child, “the child, by reason of his physical and
mental immaturity, needs special safeguards and care,
including appropriate legal protection, before as well as after
birth”,x x x x x x x x x x
Taking due account of the importance of the traditions and
cultural values of each people for the protection and
harmonious development of the child,W.P.(CRL) 374/2017 Page 86 of 96
Recognizing the importance of international co-operation for
improving the living conditions of children in every country, in
particular in the developing countries,” (emphasis supplied)
128. Article 3 (1) (2) of this Convention read as follows:
“Article 3
1. In all actions concerning children, whether undertaken by
public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best
interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection
and care as is necessary for his or her well-being, taking into
account the rights and duties of his or her parents, legal
guardians, or other individuals legally responsible for him or
her, and, to this end, shall take all appropriate legislative and
administrative measures.”
129. Article 5 of this Convention reads as follows:
“Article 5
States Parties shall respect the responsibilities, rights and
duties of parents or, where applicable, the members of the
extended family or community as provided for by local custom,
legal guardians or other persons legally responsible for the
child, to provide, in a manner consistent with the evolving
capacities of the child, appropriate direction and guidance in
the exercise by the child of the rights recognized in the present
Convention.” (emphasis supplied)
130. Article 6 (1) of this Convention reads:
“Article 6
1. States Parties recognize that every child has the inherent
right to life.”
W.P.(CRL) 374/2017 Page 87 of 96
131. The inherent right to life, in our view, is wide enough to be
understood as the right to a family life, i.e. with the parents and immediate
family of the child.
132. Articles 7 8 of the Convention reads as follows:
“Article 7
1. The child shall be registered immediately after birth and
shall have the right from birth to a name, the right to acquire a
nationality and. as far as possible, the right to know and be
cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights
in accordance with their national law and their obligations
under the relevant international instruments in this field, in
particular where the child would otherwise be stateless.
(emphasis supplied)Article 8
1. States Parties undertake to respect the right of the child to
preserve his or her identity, including nationality, name and
family relations as recognized by law without unlawful
interference.
2. Where a child is illegally deprived of some or all of the
elements of his or her identity, States Parties shall provide
appropriate assistance and protection, with a view to re-
establishing speedily his or her identity.” (emphasis supplied)
133. Article 9 (1) (3) of the Convention read as follows:
“Article 9
1. States Parties shall ensure that a child shall not be
separated from his or her parents against their will, exceptW.P.(CRL) 374/2017 Page 88 of 96
when competent authorities subject to judicial review
determine, in accordance with applicable law and procedures,
that such separation is necessary for the best interests of the
child. Such determination may be necessary in a particular
case such as one involving abuse or neglect of the child by the
parents, or one where the parents are living separately and a
decision must be made as to the child’s place of residence.
x x x x x x x x x x
3. States Parties shall respect the right of the child who is
separated from one or both parents to maintain personal
relations and direct contact with both parents on a regular
basis, except if it is contrary to the child’s best interests.”
(emphasis supplied)
134. Article 10 of the Convention reads as follows:
“Article 10
1. In accordance with the obligation of States Parties under
article 9, paragraph 1, applications by a child or his or her
parents to enter or leave a State Party for the purpose of family
reunification shall be dealt with by States Parties in a positive,
humane and expeditious manner. States Parties shall further
ensure that the submission of such a request shall entail no
adverse consequences for the applicants and for the members of
their family.
2. A child whose parents reside in different States shall have
the right to maintain on a regular basis, save in exceptional
circumstances personal relations and direct contacts with both
parents. Towards that end and in accordance with the
obligation of States Parties under article 9, paragraph 1, States
Parties shall respect the right of the child and his or her
parents to leave any country, including their own, and to enter
their own country. The right to leave any country shall be
subject only to such restrictions as are prescribed by law and
which are necessary to protect the national security, publicW.P.(CRL) 374/2017 Page 89 of 96
order (ordre public), public health or morals or the rights and
freedoms of others and are consistent with the other rights
recognized in the present Convention.” (emphasis supplied)
135. Article 18 of the Convention reads as follows:
“Article 18
1. States Parties shall use their best efforts to ensure
recognition of the principle that both parents have common
responsibilities for the upbringing and development of the
child. Parents or, as the case may be, legal guardians, have the
primary responsibility for the upbringing and development of
the child. The best interests of the child will be their basic
concern.
2. For the purpose of guaranteeing and promoting the rights set
forth in the present Convention, States Parties shall render
appropriate assistance to parents and legal guardians in the
performance of their child-rearing responsibilities and shall
ensure the development of institutions, facilities and services
for the care of children.
3. States Parties shall take all appropriate measures to ensure
that children of working parents have the right to benefit from
child-care services and facilities for which they are eligible.”
(emphasis supplied)
136. Article 20 of the Convention reads as follows:
“Article 20
1. A child temporarily or permanently deprived of his or her
family environment, or in whose own best interests cannot be
allowed to remain in that environment, shall be entitled to
special protection and assistance provided by the State.
2. States Parties shall in accordance with their national laws
ensure alternative care for such a child.
W.P.(CRL) 374/2017 Page 90 of 96
3. Such care could include, inter alia, foster placement, kafalah
of Islamic law, adoption or if necessary placement in suitable
institutions for the care of children. When considering
solutions, due regard shall be paid to the desirability of
continuity in a child’s upbringing and to the child’s ethnic,
religious, cultural and linguistic background.” (emphasis
supplied)
137. We may also refer to a Resolution passed by the Government of India
and issued by the Ministry of Human Resource Development vide
Resolution No.6-15/98-C.W., dated 09.02.2004 framing the “National
Charter for Children, 2003”. The said Charter has been framed by the
Government of India “to reiterate its commitment to the cause of the
children in order to see that no child remains hungry, illiterate or sick”.
The Preamble to the said Charter, inter alia, reads:
“Whereas we affirm that the best interest of children must be
protected through combined action of the State, civil society,
communities and families in their obligations in fulfilling
children’s basic needs.
Whereas we also affirm that while State, Society, Community
and Family have obligations towards children, these must be
viewed in the context of intrinsic and attendant duties of
children, and inculcating in children a sound sense of values
directed towards preserving and strengthening the Family,
Society and the Nation.
x x x x x x x x x x
Underlying this Charter is our intent to secure for every child
its inherent right to be a child and enjoy a healthy and happy
childhood, to address the root causes that negate the healthy
growth and development of children, and to awaken the
conscience of the community in the wider societal context toW.P.(CRL) 374/2017 Page 91 of 96
protect children from all forms of abuse, while strengthening
the family, society and the Nation.” (emphasis supplied)
138. Thus, best welfare of the child, normally, would lie in living with both
his/ her parents in a happy, loving and caring environment, where the
parents contribute to the upbringing of the child in all spheres of life, and the
child receives emotional, social, physical and material support – to name a
few. In a vitiated marriage, unfortunately, there is bound to be impairment
of some of the inputs which are, ideally, essential for the best interest of the
child. Then the challenge posed before the Court would be to determine and
arrive at an arrangement, which offers the best possible solution in the facts
and circumstances of a given case, to achieve the best interest of the child.
139. In the light of the aforesaid, we are more than convinced that
respondent No.2 should, in the best interest of the minor child M, return to
USA along with the child, so that she can be in her natural environment;
receive the love, care and attention of her father as well – apart from her
grandparents, resume her school and be with her teachers and peers.
Pertinently, respondent No.2 is able-bodied, educated, accustomed to living
in Chicago, USA, was gainfully employed and had an income before she
came to India in December 2016 and, thus, she should not have any
difficulty in finding her feet in USA. She knows the systems prevalent in
that country, and adjustment for her in that environment would certainly not
be an issue. Accordingly, we direct respondent no.2 to return to USA with
the minor child M. However, this direction is conditional on the conditions
laid down hereinafter.
W.P.(CRL) 374/2017 Page 92 of 96
140. Respondent No.2 has raised certain issues which need to be
addressed, so that when she returns to USA, she and the minor child do not
find themselves to be in a hostile or disadvantageous environment. There
can be no doubt that the return of respondent No.2 with the minor child
should be at the expense of the petitioner; their initial stay in Chicago, USA,
should also be entirely funded and taken care of by the petitioner by
providing a separate furnished accommodation (with all basic amenities
facilities such as water, electricity, internet connection, etc.) for the two of
them in the vicinity of the matrimonial home of the parties, wherein they
have lived till December 2016. Thus, it should be the obligation of the
petitioner to provide reasonable accommodation sufficient to cater to the
needs of respondent No.2 and the minor child. Since respondent No.2 came
to India in December 2016 and would, therefore, not have retained her job,
the petitioner should also meet all the expenses of respondent No.2 and the
minor child, including the expenses towards their food, clothing and shelter,
at least for the initial period of six months, or till such time as respondent
No.2 finds a suitable job for herself. Even after respondent No.2 were to
find a job, it should be the responsibility of the petitioner to meet the
expenses of the minor daughter M, including the expenses towards her
schooling, other extra-curricular activities, transportation, Attendant/ Nanny
and the like, which even earlier were being borne by the petitioner. The
petitioner should also arrange a vehicle, so that respondent No.2 is able to
move around to attend to her chores and responsibilities.
141. Considering that the petitioner had initiated proceedings in USA and
the respondent No.2 has been asked to appear before the Court to defend
W.P.(CRL) 374/2017 Page 93 of 96
those proceedings, the petitioner should also meet the legal expenses that
respondent No.2 may incur, till the time she is not able to find a suitable job
for herself. However, if respondent no.2 is entitled to legal aid/ assurance
from the State, to the extent the legal aid is provided to her, the legal
expenses may not be borne by the petitioner.
142. The petitioner should also undertake that after the return of the minor
child M with respondent No.2 to USA, the custody of M shall remain with
respondent No.2 and that he shall not take the minor child out of the said
custody by use of force. He should also undertake that after respondent
No.2 lands in Chicago, USA, the visitation and custody rights qua the
parties, as may be determined by the competent Court in USA, shall be
honoured.
143. Respondent No.2 has also expressed apprehension that the petitioner
would seek to enforce the terms of the Pre-Nuptial Agreement entered into
between the parties. Since the said agreement has been entered into in India,
its validity has to be tested as per the Indian law. Respondent No.2 has
already initiated suit for declaration and permanent injunction to challenge
the said Pre-Nuptial Agreement dated 22.10.2010. We have perused the
said agreement and we are of the view the petitioner should not be permitted
to enforce the terms of this agreement in USA, at least till the said suit
preferred by the respondent No.2 is decided. The petitioner should,
therefore, give an undertaking to this Court, not to rely upon or enforce the
said Pre-Nuptial Agreement to the detriment of respondent No.2 in any
proceedings either in USA, or in India. The undertaking shall remain in
force till the decision in the suit for declaration and injunction filed by
W.P.(CRL) 374/2017 Page 94 of 96
respondent No.2 challenging validity of the Pre-Nuptial Agreement. This
undertaking shall, however, not come in the way of the petitioner while
defending the said suit of the respondent No.2.
144. With the aforesaid arrangements and directions, in our view,
respondent No.2 can possibly have no objection to return to USA with M.
The comfort that we have sought to provide to respondent No.2, as
aforesaid, is to enable her to have a soft landing when she reaches the shores
of USA, so that the initial period of at least six months is taken care of for
her, during which period she could find her feet and live on her own, or
under an arrangement as may be determined by the competent Courts in
USA during this period. At this stage, we are not inclined to direct that the
custody of M be given to the petitioner so that he takes her back to USA. M
is a small child less than 4 years of age, and that too, is a female child.
Though she may be attached to the petitioner – her father, she is bound to
need her mother – respondent no.2 more. In our view, once M returns to
USA with her mother, i.e. respondent No.2, orders for custody or co-
parenting should be obtained by the parties from the competent Courts in
USA. Moreover, it would be for the Courts in USA to eventually rule on the
aspect concerning the financial obligations and responsibilities of the parties
towards each other and towards the minor child M – for upbringing the
minor child – M independent of any directions issued by this Court in this
regard.
145. The petitioner is directed to file his affidavit of undertaking in terms
of paras 140 to 144 above within ten days with advance copy to the
W.P.(CRL) 374/2017 Page 95 of 96
respondents. The matter be listed on 01.12.2017 for our perusal of the
affidavit of undertaking, and for passing of final orders.
(VIPIN SANGHI)
JUDGE
(DEEPA SHARMA)
JUDGE
NOVEMBER 16 , 2017
W.P.(CRL) 374/2017 Page 96 of 96
