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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3367 OF 2018
SHEHZAD HEMANI .. PETITIONER
VERSUS
NADIA RASHID .. RESPONDENT
…
Mr.Venkatesh Dhond, Sr. Advocate with Mrs.Mrunalini
Deshmukh, Mr.Giriraj Subramanium, Mr.Vivek Vashi, Mr.Yusuf
Iqbal, Ms.Parinaz Vakil, Mr.Sidharth Singh and Mr.Utkarsha
Srivastav i/b Vashi and Vashi for the petitioner.
Mrs.Rajani Iyer, Sr. Advocate i/b Ms.Veena Gowda for the
respondent.
CORAM: SMT.BHARATI H. DANGRE, J
RESERVED : 23rd MARCH 2018
PRONOUNCED : 13th APRIL 2018
JUDGMENT:-
1 The petition revolves around a minor child
“Insiya” aged four years. Insiya is the daughter of the
petitioner, who is an Indian citizen and the respondent with
dual citizenship, being a citizen of Netherlands and also a
Pakistani National. The present petition is filed by the
petitioner father, being aggrieved by the order passed by the
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Family Court at Bandra on 29th January 2018, directing to
return the custody of Insiya to the respondent, who is
directed to remain present before the Family Court on 27 th
March 2018.
2 The petition, as any other custody petition has
been filed after going through an estranged legal battle
between the parties fought in India as well outside the
boundaries of India in the Dutch District Court, and has
travelled upto the High Court of Amsterdam and the Dutch,
Supreme Court. In order to appreciate the contention raised
in the petition and to deal with the same, it is necessary to
delve upon the chronology of events in a simplified
chronological manner, though the proceedings initiated by the
parties against one another would make a long synopsis of
events.
3 The petitioner is a Managing Director of a
Multinational Steel Manufacturing and Commodities Trading
Company, and has deep roots in the Indian society. The
petitioner and respondent got married on 29 th April 2011 in
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accordance with the Islamic rituals in India. The marriage
between the petitioner and the respondent was registered
under the Special Marriage Act, 1954. The respondent was
divorced prior to marrying the petitioner and from the earlier
marriage, she has a minor daughter Ms.Elvira Zeeshan
Choudhry, whose father is a Pakistani National. Post-
marriage, the petitioner and the respondent chose Bandra
(West), Mumbai, as their matrimonial home. The daughter
Insiya was born on 6th March 2014 in Netherlands and she is
a Dutch National. After the birth of Insiya, the respondent
returned to India and was accompanied by her elder daughter
Elvira, who came to be admitted to an American International
School in Mumbai. The respondent left India on 7 th
December 2014 and this is the beginning of the tussle
between the parties. According to the petitioner, the
respondent had taken Insiya and her elder daughter Elvira to
Netherlands for vaccination, whereas according to the
respondent, it was mutually decided between the parties that
they would relocate the family to Amsterdam and it was
decided that the respondent with the children would proceed
ahead, followed by the petitioner. The respondent did not
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return with the children and it is the specific case of the
petitioner that in the intervening period, he visited
Netherlands on 15 occasions to get in touch with the
respondent and his daughters, but he was granted a limited
access, which was strictly monitored. At this point of time,
the respondent made her intention clear to continue staying
in Netherlands and expressed her intention not to return to
India.
From this point onwards, commenced the journey
of the long rounds of litigation between the parties. On 23 rd
April 2015, the respondent instituted a Quia Timet
application for custody before the Dutch District Court and
also sent a divorce notice to the petitioner. On 7 th May 2015,
the respondent also instituted proceedings before the Dutch
High Court seeking dissolution of marriage. At the same
time, the petitioner also filed an action before the Hague,
District Court, alleging abduction and seeking return of Insiya
by invoking the International Child Abduction Act of 25 th
October 1980 (also referred to as “Convention”). The
petitioner alleged that the removal/retention of Insiyia
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without his permission attracted Article 3 of the Convention
and he alleged that said removal or non-return is in breach of
the custody Rights under the law of the State in which the
child was happily residing immediately before her removal.
The jurisdiction of the Hague District Court was invoked to
decide a dispute between the parties as to what was habitual
residence of Insiya before her unlawful removal by the
respondent, since the petitioner specifically asserted that
Insiya’s habitual place of residence before her removal, was
in India. The Hague District Court examined the issue and
held that Insiya’s habitual place of residence upto 7 th
December 2014, was in India, and thereafter, the mother
travelled to Netherlands with the children on 7 th December
2014, in order to allow Insiya to be vaccinated. The Hague,
District Court concluded that Insiya’s habitual place of
residence during the period from 8th December 2014 to 15th
April 2015 was moved from India to Netherlands, and
therefore, there was no case whatsoever of retention without
permission within the meaning of Article 3 of the Convention.
In this background, the District Court rejected the father’s
application for return of Insiya to India.
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4 Being aggrieved by the said order of the Dutch,
District Court, the petitioner preferred an Appeal to the
Hague Court of Appeal, and the appellate Court by an order
dated 19th August 2015 upheld the order passed by the Court
below. The Court of Appeal held that there was a case of
change of usual place of residence of Insiya due to action of
the parties, and it can be assumed from those actions that the
presence of Insiya in Netherlands was not temporary or
coincidental, and that the place of residence of the child
expresses a certain integration in social and familial
surroundings. The Court of Appeal agreed with the finding of
the Court below that there was unauthorized retention in
terms of the Hague Abduction Convention, and resultantly, it
confirmed that order passed by the Dutch, District Court on
6th July 2015.
5 The respondent wife who had filed an application
for custody of the daughter before the Dutch, District Court
along with the petition for divorce, resulted into an order
being passed on 1st March 2016 in form of preliminary relief.
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By the said order, the placement order came to be passed in
the backdrop that the respondent mother had always cared
for Insiya, and Insiya had lived with the mother, since they
came to Netherlands from India in December 2014 and
considering her young age, the District Court held that it is in
Insiya’s interest that she be placed with mother Nadia Rashid.
The District Court, therefore, directed that Insiya, born in
Municipality of Amsterdam on 6th March 2014, be placed with
Rashid i.e. the mother, and ordered to hand over the minor, if
she is not already in the hands of the mother.
6 The petitioner raised an issue of jurisdiction of
the Dutch, District Court, in entertaining the proceedings for
divorce and passing of order on 1 st March 2016 by way of an
ancillary order. The objection raised was that the Dutch,
District Court had no jurisdiction on the ground of Council
Regulation – (EC) No.2201/2003, concerning jurisdiction and
the recognition and enforcement of judgments in matrimonial
matters and the matter of parental responsibility (Brussels II
Bis), since the wife had not lived in Netherlands for six
months immediately prior to submitting her petition for
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divorce. Further, the petitioner also claimed that it involved
lis pendens because he had already instituted proceedings for
divorce on 5th May 2015 to the Indian Court and they had
commenced earlier than the proceedings filed by the
respondent in Netherlands. On consideration of the Brussels
II Bis in relation to the usual place of residence, the Dutch
District Court held that it did not have jurisdiction in law
under Article 3 of Brussels II Bis or on the ground of Article 4
and 5 of the Code of Civil Procedure.
The said matter was taken in appeal by the petitioner
before the High Court of Amsterdam. The High Court
considered the issue of jurisdiction and the law of Brussels II
Bis as well as Dutch Civil Procedure. The High Court also
dealt with the contention of the wife that she is unable to
attend the proceedings going on in India, and it is impossible
or unacceptable for her to attend the said proceedings, since
according to her, she apprehends an unfair trial and
inequality of arms at stake. The High Court ruled against the
wife and held that the Dutch Court had no jurisdiction to take
cognizance of the woman’s divorce petition and the same is
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applicable to ancillary reliefs requested by the wife. The
order passed by the Court below was thus set aside on the
ground that the Dutch Court had no jurisdiction to take
cognizance of the wife’s divorce petition with its ancillary
provisions. This order, however, came to be modified
subsequently at a much later point of time on 12 th January
2008, by the Dutch, Supreme Court by holding that the Dutch
Court had jurisdiction to decide ancillary matters of custody,
but not divorce.
7 The events took a sudden turn, when the
petitioner brought Insiya to India on 29th September 2016 and
the respondent alleged that Insiya was abducted by the
petitioner. The respondent, therefore, initiated the
proceedings resulting into the Interpol issuing a Diffusion
Notice against the petitioner and also issuing a Yellow Corner
notice against Insiya. Further, amber alert Europe was also
issued for Insiya. The petitioner instituted proceedings in the
Bombay High Court, claiming a restraint order against CBI
and the Bombay police from taking any coercive action
pursuant to the Diffusion Notice and Yellow Corner Notice
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and the interim protection was granted in favour of the
petitioner, ultimately resulting into the Interpol cancelling
Diffusion notice. Attempts were also made for extraditing the
petitioner from India and the Government of India
subsequently rejected the said Extradition Request by order
dated 5th May 2017.
The child Insiya continued to be in custody of the
petitioner from 29th September 2016. Amsterdam, under the
Hague Convention for return of Insiya. In a petition filed by
the husband under Guardians and Wards Act, 1890, before
the Family Court, the respondent wife put an appearance and
raised an objection on jurisdiction of the Court to decide of
custody on the ground that the child is a Dutch National and
her ordinary place of residence was at Netherlands at the time
of filing of the petition. The respondent alleged that the
petitioner abducted the child from Netherlands. The Family
Court, on an application for interim custody of the child filed
by the husband passed an order on 18th July 2017 continuing
the interim custody of Insiya with the petitioner till disposal
of the petition.
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8 The respondent wife moved a separate application
challenging the jurisdiction of the Court to grant such a relief.
The order dated 18th July 2017 came to be challenged before
the High Court by filing a writ petition by the respondent
wife. It was alleged that the said order was passed in absence
of petitioner and even her Advocate had withdrawn the
vakalatnama. It was also pointed out to the High Court that
she had moved an application before the Family Court seeking
reject/return of the petition and praying for direction to the
petitioner to return custody of the minor child Insiya to the
mother. The Court considered the grievance made by the
petitioner in the petition and after considering the tender age
of the child directed that it is appropriate that pending the
decision in respect of a larger issue of jurisdiction and
maintainability of the petition, the prayer (b) in respect of
custody of the child be decided without any delay. By consent
of the parties, it was agreed that the issue of custody of the
child would be decided, pending the issue of jurisdiction of
the Court. With this direction issued on 11th January 2018,
the Writ Petition came to be disposed of by this Court.
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9 In the mean time, the respondent moved an
application before the District Court, Amsterdam under the
Hague Convention of Child Abduction, praying for immediate
return of the minor child. The claim of the mother was based
on the Hague Convention of Civil aspects of International
Child Abduction on 25/10/1980(Convention). The said
application came to be decided by the District Court (Hague)
on 22nd December 2017 and the Court observed that
Netherlands is a party to the Convention, whereas India is not
a party to the Convention. However, by application of Article
2 of the International Child Abduction Implementation Act,
the law being applicable to the those cases of International
Child Abduction that are governed by the Treaty and in light
of provisions of Articles 2 13 of the Child Abduction
Implementation Act, the provisions of the Convention were
applied by analogy. The Court assumed the jurisdiction on the
basis of Article 11 under 1 of Implementation Act and held
that the Court of Hague had jurisdiction to hear all cases
regarding compulsory return of an Internationally Abducted
Child to the person entitled to its custody and return of such a
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child across the Dutch border. In furtherance of Article 12
under 1 of the Convention, the immediate return of a child is
to be ordered if less than one year has elapsed between the
removal or retention of the child, and the date of filing of the
request with the Court and since less than 1 year had elapsed
between removal of Insiya to India and the date when request
was filed, the Court does not get around to the question,
Whether Insiya has integrated in India, and in principle,
agreed that she must be immediately returned according to
the Convention. The Court, therefore, ordered immediate
return of the minor child Insiya to Netherlands and directed
the father to return the minor child to Netherlands and also
to hand over the necessary valid travel documents over to the
mother.
10 Proceedings before the Family Court at Bandra in
relation to the custody of the minor, were proceeded with as
directed by the High Court, and the issue of custody of the
child was taken up for hearing, keeping aside the issue of the
jurisdiction of the Family Court in Mumbai. The Family
Court, after hearing the application for custody, delved upon
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the entire chronology of events in the form of different
proceedings filed before different forums and also considered
the balance of convenience in favour of the petitioner and
respondent in the backdrop of the well accepted principle
that the child’s welfare be of paramount consideration. The
Family Court noted the present scenario where the child was
being educated in American School in India and proceeded to
decide the question as to whether at interim stage, the child
Insiya should be returned to her mother or whether she
should be retained by the father. The Judge, Family Court,
attempted to strike a balance between the claim made by the
father to maintain Insiya by showering her with all love,
affection, stability, security etc on one hand, and the love and
compassion of the mother on the other hand. The Court
however, observed that the petitioner has not disclosed as to
how the child was brought to India, in the back drop that she
was the citizen of Netherlands holding a passport of Kingdom
of Netherlands and her visa had expired. On due
consideration of the entire matter, the Family Court, Mumbai,
by order dated 29th January 2018, directed return of minor
child Insiya to the respondent and directed the respondent to
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remain present before the Family Court to seek custody of the
child.
11 It is in the backdrop of this factual matrix, the
parties were represented by their respective counsel. I have
extensively heard the learned senior counsel Mr.Venkatesh
Dhond appearing on behalf of the petitioner. Mr.Dhond
would invite attention of the Court to the chronology of
events and would submit that the paramount consideration in
the matter, should be the welfare of the child. He would
submit that from 29th June 2016, the child was with the
petitioner and she is admitted in an International School in
Mumbai. He would submit that the child has developed deep
roots in India, and the father and his family including grant
parents are taking care of the child. In contrast, he would
submit that the surrounding in which the respondent mother
was staying is not conducive to the healthy growth of the
child, and he would specifically refer to the statement of the
mother in the pleadings reflecting that the mother is not
financially sound and is dependent on the support from the
State and she is residing in a house funded by the State. His
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emphasis is also on the fact that the mother has a dual
citizenship, being of Pakistan and Netherlands. The learned
Senior counsel would express his apprehension if the child is
taken by the mother to Pakistan, he would be losing the child
forever, and in such circumstances, he would submit that the
Family Court has grossly erred in granting custody to the
mother by way of an interim relief. The learned counsel
would also submit that in light of the proceedings initiated by
the petitioner in Netherlands, it is not possible for him to step
into Netherlands to meet his daughter and avail any access.
The learned senior counsel would also submit that when the
child was brought to India on 29th September 2016, she was
barely two years and was not following any language, but
now she is conversant with the language spoken in the
country and she do not speak or understand Dutch language,
which would make it difficult for her to settle and develop
any ties in Netherlands and this would be nothing short than
uprooting a child at this age. He would heavily criticize the
order passed by the Judge, Family Court, who has made the
entire situation irreversible in nature, and according to him,
the interim order has virtually resulted grant of final relief,
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rendering his petition for custody, infructuous. He would
conclude and assert that the Family Court has fallen into a
gross error in granting the relief.
He would rely upon the judgment of the Hon’ble
Apex Court in the case of Pratik Gupta Vs. Shilpi Gupta1
dealing with somehow similar situation, where the Hon’ble
Apex Court continued the custody of the child with the father.
He would submit that in the peculiar facts of the case, the
child who was approximately 5 years and spent half of his life
in India, the Apex Court has held that it would be difficult for
him to have social, physical, psychological, cultural and
academic environment which would be totally upturned by a
transition which would result into his inherent potential and
faculties getting a set back. He would also place reliance on
the judgment of the Apex Court in case of V. Ravi Chandran
Vs.Union of India ors2 to emphasize the course to be
adopted by the Courts of a recipient country.
1 (2018) 2 SCC 309
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Tilak 18/55 WP-3367-18(J)12 As against this, the learned senior counsel
Ms.Rajani Iyer appearing for the respondent would submit
that the moot question is how the petitioner has brought
Insiya to India and she alleges that in breach of the judgments
delivered by the Court in Netherlands, he had kidnapped the
child and brought her to India. According to the learned
senior counsel, the assertion of the father has been
disbelieved by the Dutch Court and it was the conduct of the
father which had disentitled him from availing access to the
daughter, as in fact, according to the learned counsel, on 16 th
October 2015, in the divorce petition filed by the respondent,
permission was granted to the petitioner to meet Insiya at a
neutral venue. However, it is the petitioner who lost this
availment by his conduct. The learned counsel would
question the circumstances in which little Insiya was
transported into India without any documents. The learned
counsel would submit that based on this conduct of the
petitioner, the state has foisted an action of kidnapping and
abduction against the petitioner, since it was an offence
against the State and he is therefore, not entitled to visit
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Tilak 19/55 WP-3367-18(J)Netherlands, apprehending his arrest and stern action. As
regards the contention of Mr.Dhond that the petitioner would
provide a more healthy and conducive atmosphere to India,
the learned counsel would submit that the said claim is false
and pretentious and she would invite attention of this Court
to the service report placed on record with the report of the
bailiff and his statement reflecting that the mother of the
petitioner had refused to accept the notice on his behalf when
an attempt was made to serve the notice at the address
mentioned by the petitioner in the petition, by stating that he
had no connection with the son and he was not staying there.
Learned counsel for the respondent would submit that mother
is a natural and the preferential guardian as far as the
daughter is concerned, and in support of the said argument,
she would rely upon the judgment of the Apex Court in the
case of Vivek Singh Vs. Romani Singh1. Learned counsel
would also submit that the father has been declared as
fugitive, and she poses a question as to whether a daughter
would be safe with such a father. The learned senior counsel
would also pose a question by pointing out to the chronology
1 (2017) 3 SCC 231
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Tilak 20/55 WP-3367-18(J)of events that if it is the case of the petitioner that the wife
along with the daughter had moved to Netherlands in May
2014, but if he was so concerned about the child and desirous
of the custody, why did he wait till he filed a petition for
custody in the Court in Mumbai only on 5 th May 2015.
According to the learned counsel, it is the specific case of the
respondent and for demonstrating it, she has placed reliance
on the various emails exchanged between the petitioner and
the respondent that the petitioner had an inclination to stay
in Netherlands and in fact, attempts were made to secure a
job for her. However, since he backed out, the respondent
was left with no option, she being a citizen of Netherlands to
select the said country as her place of abode along with her
minor daughter. In all such circumstances, the learned senior
counsel would support the impugned order passed by the
Family Court and would submit that the said order is a well
reasoned order and focused on the conduct of the petitioner
by taking into consideration in the circumstances in which the
child was brought to India.
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Tilak 21/55 WP-3367-18(J)13 In the backdrop of the factual matrix involved in
the matter, it is apparent that the parties have invoked the
jurisdiction of the Courts situated beyond the limits of this
country and some proceedings are also instituted in India.
The husband has initiated the proceedings seeking custody of
the daughter under the Guardian and Wards Act, 1890 by
filing petition invoking provisions under Section 9, 17, and 25
of the Act.
In order to determine the jurisdiction of the Court
to deal with the issue which the petitioner has agitated in
Petition No.D-40 of 2015, it would be necessary to refer to the
law prevailing in the country, dealing with the custody of a
minor child. Section 9 of the Guardian and Wards Act which
determine the jurisdiction of the Court where the petition in
relation to custody of a child can be filed, reads thus :
9 Court having jurisdiction to entertain
application--(1) If the application is with respect to the
guardianship of the person of the minor, it shall
be made to the District Court having jurisdiction
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(2) If the application is with respect to the
guardianship of the property of the minor, it may
be made either to the District Court having
jurisdiction in the place where the minor
ordinarily resides or to a District Court having
jurisdiction in a place where he has property.(3) If an application with respect to the
guardianship of the property of a minor is made
to a District Court other than that having
jurisdiction in the place where the minor
ordinarily resides, the Court may return the
application if in its opinion the application would
be disposed of more justly or conveniently by any
other District Court having jurisdiction.14 It is evident from the statements and pleadings of
the parties that after marriage, the parties have mutually
started residing in India and till the respondent wife moved to
Netherlands, which according to the petitioner, is on the
pretext of vaccination of the child, the parties were residing in
India. It is also not in dispute that the elder daughter came to
be admitted in an International School in Mumbai. The core
of dispute between the parties lies in what circumstances, the
respondent-wife left India along with the child and both the
parties have their own version. According to the petitioner
husband, the wife had travelled temporarily only for a limited
purpose for vaccination, with no intention to leave the place
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Tilak 23/55 WP-3367-18(J)of ordinary residence which was in India, whereas according
to the respondent wife, it was mutually agreed between the
parties that they intended to shift to Netherlands and the
husband encouraged the wife to travel initially along with the
children so that he could subsequently follow.
The test for determining the jurisdiction of the
Court under Section 9 of the Guardians and Wards Act is the
"ordinary residence of the minor" and the expression used is
"where the minor ordinarily resides". Whether the minor is
ordinarily residing at a given place, is primarily a question of
intention of the parties and is to be tried as a question of fact.
On occasions, it can be a mixed question of fact and law, but
unless the jurisdictional facts are admitted, it can never be a
pure question of law capable of being answered in law in the
backdrop of factual aspect of the controversy. The word
'resides' definitely has a wider amplitude than the mere
temporary stay or a casual stay at a particular point of time.
The petitioner and respondent have invited attention to this
Court to several e-mail communications in support of their
respective contentions to determine the ordinary place of
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Tilak 24/55 WP-3367-18(J)residence of child Insiya. However, the facts reveal that after
solemnization of the marriage in April 2011 till 7 th December
2013, the parties resided in Mumbai, except when the wife
had been to Netherlands on a short visit for giving birth to
Insiya, who was born in Netherlands on 6th March 2014. The
elder daughter of the respondent wife Elvira was admitted to
an American International School in Mumbai, reflecting an
indication of the parties to settle in India. However, it is
possible that the wife never intended to settle in India, as she
was a citizen of Netherlands and obviously, she had an
intention to move to Netherlands and this intention was not
divulged to the petitioner husband. However, once she left
along with the children and was in Netherlands, she made her
intention clear, not to return back to India. In any
contingency, the intention of the parties in order to determine
"ordinary place of residence" is a matter of evidence and
would be dealt by the Court below during the proceedings
when the custody petition would be tried.
15 The issue involved in the petition crossed the
boundaries of the country, and therefore, has to be looked at
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Tilak 25/55 WP-3367-18(J)with an international perspective by applying the principle of
"Comity of Courts". The principle of 'Comity of Courts' is
derived and is deducible from the principle of 'Comity of
Nations'. According to the Blacks Law Dictionary, the
jurisdictional Comity which can be understood as 'Comity of
Courts' is a principle, in accordance with which the Courts of
one State or jurisdiction will give effect to the laws and
decisions of another, not as a matter of obligation, but out of
deference and where foreign decrees would get preference
while deciding the case. The principle of Comity is an
important doctrine applied in the interest of maintaining
harmonious relations among nation and it is a informal and
voluntary recognition by the Courts of one jurisdiction of the
law and judicial decision of another.
The Hon'ble Apex Court in case of Ruchi Majoo
Vs. Sanjeev Majoo1 has held that a jurisdiction of Court is not
barred in cases involving child custody and removal of a child
by a parent from a foreign country to India in contravention
to the orders of the Court where the parties had set up their
1 (2011) 6 SCC 479
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Tilak 26/55 WP-3367-18(J)matrimonial home. Just because some proceedings have
been instituted, or are pending in a foreign court, or are
decided, would not be sufficient for Indian Courts to shut
their jurisdiction simply because a foreign court has taken a
particular view of any aspect concerning the welfare of a
child. The Courts in the country cannot shut out the
independent consideration of the matter. The matter will
have to be considered objectively and the Court in the country
would not merely succumb to the orders passed by the
foreign courts and would not surrender their jurisdiction in
favour of the Courts outside the country deciding the issue.
This however, should not be meant or construed to lead to an
inference that an order passed by a foreign court is not even a
factor to be kept in mind, but it is thing to consider the
foreign judgment to be conclusive and another to treat it as a
factor or consideration that would go into making of a final
decision.
A Full bench of this Court was lately called upon
to answer an issue as to whether conviction of an Indian by a
foreign court for the offence committed in that country can be
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Tilak 27/55 WP-3367-18(J)taken notice of by the courts or authorities in India, and as to
whether such conviction would be binding while exercising
judicial and quasi judicial powers. On an in-depth
consideration of the principle of Comity of Courts, the Hon'ble
Full Bench observed thus :
27] In the light of the aforesaid discussion, it
appears to be a settled principle of law laid down
by English Court that, though the decrees of penal
laws of foreign country cannot be enforced in
United Kingdom, the laws of foreign countries and
especially the countries with which the United
Kingdom has friendly relations, cannot only be
looked into but on the principle of comity are
required to be given due recognition.34] We are of the considered view that, if
we accept the argument that judgment and order of
conviction and acquittal passed by the foreign
Court cannot at all be looked into by Indian Courts
is accepted, it would have devastating result, of
depriving a person of his right under Article 20(2)
and under Section 300 of Cr.P.C.36] We further find that the said
argument, if accepted, would also be against the
public policy and principle of comity of Nations.Let us consider an illustration. An Indian citizen
while residing in a foreign nation commits a crime
involving moral turpitude and is sentenced for that
offence by a foreign court and after undergoing
sentence, he returns to India and desires to
contest elections, for which conviction for an
offence involving moral turpitude is a
disqualification. If the argument of the Appellant
that the judgment and order of conviction cannot::: Uploaded on - 16/04/2018 17/04/2018 01:38:14 :::
Tilak 28/55 WP-3367-18(J)be looked into is to be accepted, not only it would be
contrary to public policy of not permitting a person
convicted for offence involving moral turpitude to
contest elections, it would also be against the
breach of the comity which should exist between the
countries. As observed by Lord Salmon in
Oppenheimer (cited supra), it would have an effect
of embarrassing Indian Sovereign in its relations
with other Sovereign States, whose independence it
recognizes and with whom it has and hoped to
maintain normal friendly relations.37] In any event, English Courts in the
cases of Regazzoni (supra), Oppenheimer (supra)
and Euro-Diam Ltd. (supra) have consistently
taken a view that, though English Courts would
not enforce a penal decree of foreign nation, they
are not precluded from taking into consideration
the foreign penal laws. Not only that, it is their
consistent view that, in order to avoid breach of
comity, such penal laws should be given due
recognition by English Courts also.In the result, the Court held that the conviction by
Foreign Court for an offence punishable in that country can
be taken notice of though it would not be binding on the
Courts and authorities in India and exercise its judicial and
quasi judicial functions.
16 However, it is amply clear that the Comity of
Courts demands consideration of any such order issued by the
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Tilak 29/55 WP-3367-18(J)Foreign Courts, though it may not necessarily call for its
enforcement. In any contingency, the principle of Comity of
Courts would not superimpose the interest and welfare of a
minor, which is the paramount consideration in dealing with
the issues of custody of minor child. In such circumstances,
the Court of competent jurisdiction in the country is duty
bound to deal with the matter, independently, in accordance
with the law applicable in its country, and while doing so, it is
expected to take into account any judgment/decree/order
passed by a Foreign Court. The Code of Civil Procedure in
Section 13 has made it imperative to recognize the decrees
and orders passed by the Foreign Courts, though it would not
bind the Courts in this country, and simply because the
Foreign Court has taken a particular view is not an enough
reason to deprive the Court in this country from exercising its
jurisdiction over the issues, which fall within its territorial
limits, and this Court would be at liberty to decide the said
issues.
17 A this stage, it would be useful to refer to the law
laid down by the Hon'ble Apex Court deciding with the
principle of Comity of law in relation to custody matter.
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Tilak 30/55 WP-3367-18(J)18 The Hon'ble Apex Court in case of V. Ravi
Chandran Vs.Union of India ors,1 while dealing with a
Habeas Corpus Petition under Article 32 of the Constitution
for production of the minor child on a petition filed by the
husband of Indian origin and a citizen of United States of
America and dealing with the allegations that the wife had
taken the minor child, dealt with the issue about the Comity
of Courts. Their Lordships of the Apex Court observed thus in
paragraph 29 and 30.
29 While dealing with a case of custody of a
child removed by a parent from one country to
another in contravention to the orders of the
court where the parties had set up their
matrimonial home, the court in the country to
which child has been removed must first
consider the question whether the court could
conduct an elaborate enquiry on the question of
custody or by dealing with the matter summarily
order a parent to return custody of the child to
the country from which the child was removed
and all aspects relating to child's welfare be
investigated in a court in his own country.
Should the court take a view that an elaborate
enquiry is necessary, obviously the court is bound
to consider the welfare and happiness of the
child as the paramount consideration and go
into all relevant aspects of welfare of child
including stability and security, loving and1 (2010) 1 SCC 174
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Tilak 31/55 WP-3367-18(J)understanding care and guidance and full
development of the child's character, personality
and talents. While doing so, the order of a
foreign court as to his custody may be given due
weight; the weight and persuasive effect of a
foreign judgment must depend on the
circumstances of each case.30 However, in a case where the court decides
to exercise its jurisdiction summarily to return
the child to his own country, keeping in view the
jurisdiction of the Court in the native country
which has the closest concern and the most
intimate contact with the issues arising in the
case, the court may leave the aspects relating to
the welfare of the child to be investigated by the
court in his own native country as that could be
in the best interest of the child. The indication
given in McKee v. McKee2 that there may be
cases in which it is proper for a court in one
jurisdiction to make an order directing that a
child be returned to a foreign jurisdiction
without investigating the merits of the dispute
relating to the care of the child on the ground
that such an order is in the best interest of the
child has been explained in re. L (minors)6 and
the said view has been approved by this Court in
Dhanwanti Joshi. Similar view taken by the
Court of Appeal in re. H5 has been approved by
this Court in Elizabeth Dinshaw.19 The Hon'ble Apex Court in the case of Ruchi
Majoo Vs. Sanjeev Majoo,1 while dealing with such a conflict
operating in the international scenario has observed thus :
1 (2011) 6 SCC 479
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Tilak 32/55 WP-3367-18(J)We do not propose to burden this judgment by
referring to a long line of other decisions which have
been delivered on the subject, for they do not in our
opinion state the law differently from what has been
stated in the decisions already referred to by us. What,
however, needs to be stated for the sake of a clear
understanding of the legal position is that the cases to
which we have drawn attention, as indeed any other
case raising the question of jurisdiction of the court to
determine mutual rights and obligation of the parties,
including the question whether a court otherwise
competent to entertain the proceedings concerning the
custody of the minor, ought to hold a summary or a
detailed enquiry into the matter and whether it ought
to decline jurisdiction on the principle of comity of
nations or the test of the closest contact evolved by this
Court in Smt. Surinder Kaur Sandhu v. Harbax
Singh Sandhu and Anr. (1984) 3 SCC 698 have arisen
either out of writ proceedings filed by the aggrieved
party in the High Court or this Court or out of
proceedings under the Guardian Wards Act.
Decisions rendered by this Court in . (1987) 1 Mrs.
Elizabeth Dinshaw v. Arvand M. Dinshaw and Anr
SCC 42, Sarita Sharma's case (supra), V. Ravi
Chandran's case (supra), Shilpa Aggarwal's case
(supra) arose out of proceedings in the nature of
habeas corpus. The rest had their origin in custody
proceedings launched under the Guardian Wards
Act.The said judgment was delivered in a petition
where proceedings were instituted in the nature of Habeas
Corpus. In the peculiar facts of the case, the Court observed
that though the Habeas Corpus proceedings are summary in
nature, where the legality of detention is the alleged
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Tilak 33/55 WP-3367-18(J)detriment, is examined on the basis of the affidavits placed by
the parties, nothing prevents the High Court from embarking
upon a detailed inquiry in cases where welfare of a minor is
in question, which is the paramount consideration of the
Court while exercising its parens patriae jurisdiction. The
Hon'ble Apex Court also held that under the Guardians and
Wards Act, it is open to hold a summary inquiry into the
matter and pass an appropriate order if it is otherwise
competent to entertain the petition for custody of minor
under Rule 9(1) of the Act. Their Lordships observed further
as under :-
"Having said that we must make it clear that no
matter a Court is exercising powers under the
Guardian Wards Act it can choose to hold a
summary enquiry into the matter and pass appropriate
orders provided it is otherwise competent to entertain a
petition for custody of the minor under Section 9 (1) of
the Act. This is clear from the decision of this Court in
Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC 112,
which arose out of proceedings under the Guardian
Wards Act. The following passage is in this regard
apposite:"We may here state that this Court in Elizabeth Dinshaw
v. Arvand M. Dinshaw (1987) 1 SCC 42 while dealing
with a child removed by the father from USA contrary to
the custody orders of the US Court directed that the child
be sent back to USA to the mother not only because of::: Uploaded on - 16/04/2018 17/04/2018 01:38:14 :::
Tilak 34/55 WP-3367-18(J)the principle of comity but also because, on facts, --
which were independently considered -- it was in the
interests of the child to be sent back to the native State.
There the removal of the child by the father and the
mother's application in India 46 were within six months.
In that context, this Court referred to H. (infants), Re
(1966) 1 ALL ER 886 which case, as pointed out by us
above has been explained in L. Re (1974) 1 All ER 913,
CA as a case where the Court thought it fit to exercise its
summary jurisdiction in the interests of the child. Be that
as it may, the general principles laid down in McKee v.
McKee (1951) 1 All ER 942 and J v. C (1969) 1 All ER
788 and the distinction between summary and elaborate
inquiries as stated in L. (infants), Re (1974) 1 All ER 913,
CA are today well settled in UK, Canada, Australia and
the USA. The same principles apply in our country.
Therefore nothing precludes the Indian courts from
considering the question on merits, having regard to the
delay from 1984 -- even assuming that the earlier orders
passed in India do not operate as constructive res
judicata."20 Subsequently in a judgment delivered by the Apex
Court in case of Nithya Anand Raghavan Vs State (NCT of
Delhi) and Anr1, the Hon'ble Apex Court re-iterated its earlier
view and observed that High Court should undertake
elaborate inquiry by considering the question on merits,
bearing in mind the welfare of a child as of a paramount
importance and reckoning order of Foreign Court only as a
factor to be taken into consideration, unless it thinks it fit to
exercise summary jurisdiction. Their Lordships on
1 (2017) 8 SCC 454
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Tilak 35/55 WP-3367-18(J)consideration of the earlier law laid down on the said point
observed thus :
"The Court has noted that India is not yet a
signatory to the Hague Convention of 1980 on
"Civil Aspects of International Child Abduction".As regards the non-convention countries, the law
is that the Court in the country to which the
child has been removed must consider the
question on merits bearing the welfare of the
child as of paramount importance and reckon the
order of the Foreign Court as only a factor to be
taken into consideration, unless the Court thinks
it fit to exercise summary jurisdiction in the
interests of the child and its prompt return is for
its welfare. In exercise of summary jurisdiction,
the Court must be satisfied and of the opinion
that the proceeding instituted before it was in
close proximity and filed promptly after the child
was removed from his/her native state and
brought within its territorial jurisdiction, the
child has not gained roots here and further that
it will be in the child's welfare to return to his
native state because of the difference in language
spoken or social customs and contacts to which
he/she has been accustomed or such other
tangible reasons. In such a case the Court need
not resort to an elaborate inquiry into the merits
of the paramount welfare of the child but leave
that inquiry to the foreign Court by directing
return of the child. Be it noted that in exceptional
cases the Court can still refuse to issue direction
to return the child to the native state and more
particularly inspite of a pre-existing order of the
foreign Court in that behalf, if it is satisfied that
the child's return may expose him to a grave risk
of harm. This means that the Courts in India,
within whose jurisdiction the minor has been
brought must "ordinarily" consider the question
on merits, bearing in mind the welfare of the::: Uploaded on - 16/04/2018 17/04/2018 01:38:14 :::
Tilak 36/55 WP-3367-18(J)child as of paramount importance whilst
reckoning the pre-existing order of the foreign
Court if any as only one of the factors and not get
fixated therewith. In either situation - be it a
summary inquiry or an elaborate inquiry - the
welfare of the child is of paramount
consideration. Thus, while examining the issue
the Courts in India are free to decline the relief
of return of the child brought within its
jurisdiction, if it is satisfied that the child is now
settled in its new environment or if it would
expose the child to physical or psychological
harm or otherwise place the child in an
intolerable position or if the child is quite mature
and objects to its return. We are in respectful
agreement with the aforementioned exposition.21 In the light of the aforesaid judgment and the
observations made by the Hon'ble Apex Court therein, it is
clear that while determining the issue of custody of a child,
the option with the Court exercising the jurisdiction is either
to conduct a summary adjudication or to proceed with an
elaborate inquiry, the situations in which either of the option
can be exercised, being distinct in nature. While deciding the
question of transmitting the custody to either of the parents
forthwith, the Court should take an immediate decision by
conducting a summary inquiry, but if in view of the lapse of
considerable time gap, if the Court is considering the issue as
to the entitlement of either parent for custody of the child, it
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Tilak 37/55 WP-3367-18(J)can be done in form of elaborate inquiry, keeping in mind that
the welfare of the child. While doing so, the Court will also
have to take into consideration the affiliation which the child
has developed to the new environment and whether removing
a child from such environment would expose the child to
physical or psychological harm. There is no denial to the fact
that the act of the parents unilaterally uprooting a child from
a habitual residence and thereby preventing access to the
parent can prove to be traumatic experience for the child with
potential deleterious effects on his/her psychological and
sociological well being. In any contingency, the matter will
have to be decided by the Court on the sole and predominant
criteria of what would be the best interest of the child and
what arrangement would subserve such an interest. The
elaborate inquiry would also take into account the relevant
factors including the stability and security of the child and
arranging for an atmosphere/environment conducive to his
development of character, personality, talent. In contrast to
this, in a summary manner. the Court may deem it fit to
return the child to a country from where the child was
removed, but that is the stage which has to be undertaken
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Tilak 38/55 WP-3367-18(J)immediately and by a summary inquiry. The Court may refuse
a relief of returning a child to the country from where the
child was removed, irrespective of a pre-existing order of
return of child by a Foreign Court.
This mechanism in either form is recognized as a
well known mode to deal with the custody matters which are
falling within the jurisdiction of the Courts in India.
Whenever the jurisdiction of the competent court in the
country is invoked, by filing proceedings, it is open for the
Court in the country to which the child has been brought to
first determine as to whether it would conduct an elaborate
inquiry on the question of custody of the child, or it would
deal with the matter summarily to return the child to the
country from which the child was removed, and let the Court
of the country from which the child was removed, investigate
the various aspects of the child's welfare according to its own
law. When once the Court decides to exercise a jurisdiction in
a summary manner, the Court would leave the aspects
relating to the welfare to be investigated by the Court in his
own native country which would best sub-serve the interest of
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Tilak 39/55 WP-3367-18(J)the child. However, when the Court decides to conduct
elaborate inquiry, then it would be required to go into the
relevant aspects of the welfare of the child, including his
security, his developing bonds with the environment in which
the child is presently to be found, and the possibility of the
child developing as a good human being, by recognizing that,
the child has developed roots in the country in which he has
been removed and his ties with the country from which he
was removed, has been severed. It is to be noted that under
the Indian Law, a removal of a child from the matrimonial
home by one of its parents without consent of another, in
absence of an order of the Court, is not an offence. India is
not even a signatory to the Hague Convention of Civil Aspects
of International Child Abduction (October 25, 1980)
(Convention) which has come into effect from 1983 and 87
countries have contracted to the same. However, India being
not a signatory to the said convention, and since procuring
the custody of a child by a natural father is not a crime,
Courts in India are duty bound to decide the issue of custody
of the child by invoking the doctrine of parens partiae.
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Tilak 40/55 WP-3367-18(J)22 If this test has to be applied, then the chronology
of events in the present litigation are of great relevance. The
child was born in Netherlands on 6th March 2014, but the
child along with the mother continued to stay in India from
20th April 2014 to 7th December 2014. It is from this date that
the child resided in Netherlands along with his mother.
Amidst the proceedings which were instituted in the Dutch
Court by the wife and the proceedings for custody instituted
by the husband in the Family Court in Mumbai, on 29th
September 2016, the child was brought to India and since
then, the child is in India which is approximately a period of
about 18 months. When the child was taken by the mother
on 7th February 2014, the child was barely 8 months old and
was not even a toddler. The child was brought to India by the
father when she was 1 year 5 months old, and now the child
is approximately 4 years.
Perusal of the impugned order passed by the
Family Court, would reveal that the order came to be passed
on an application preferred by the wife, praying that the
Court should reject/return the petition filed by the husband,
and the Court be pleased to direct the husband to return the
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Tilak 41/55 WP-3367-18(J)custody of the minor child Insiya to the mother. A specific
case was put up before the Court by the respondent wife that
the child Insiya was abducted by the petitioner from
Netherlands, and removed illegally from the custody of the
mother, and the child was transported illegally without any
travel documents. The Court noted that the petition was filed
on 5th May 2015 and after more than a year, the respondent
had filed a written statement, and thereafter, she did not
appear in the matter. The Family Court took note of the fact
that on 10th November 2016, the father had moved the Court
vide Exhibit-18 to retain the custody of the minor child Insiya,
on the basis that Insiya was in his custody from 29th
September 2016, and the Court passed an order on 18 th July
2017, retaining the custody of the child with the petitioner.
The Judge, Family Court proceeded to decide the application
filed by the wife, seeking return of custody of child Insiya, in
terms of the directions issued by the Hon'ble High Court on
11th January 2018, by which the Court had directed the
Family Court to decide the interim custody of the minor child
within a period of two weeks from the date of the order. This
is how the Court proceeded to deal with the issue of custody
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Tilak 42/55 WP-3367-18(J)of the minor.
After making a reference to the proceedings
instituted between the parties, and the various orders passed
therein, the Court noted that the matter has not reached the
stage of evidence and the petitioner husband had filed a
compilation of documents reflecting how Insiya is happily
leading a life of a settled childhood in India, and he
attempted to demonstrate that she would be deprived of good
education in Netherlands, since in view of the poor financial
condition, the child would be required to put in a Free
Government School for underprivileged children. Further, the
father also attempted to demonstrate that English language is
a medium of education in India, and now, Insiya will suffer
disabilities to communicate in Dutch language as she has not
learnt the said language. In reference to the said submissions
advanced, the Judge, Family Court observed that these are
the factors which would be taken into consideration at the
time of evidence and the limited question before the Court
was "whether the custody of the child Insiya should be
returned to her mother or it should be retained with the
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Tilak 43/55 WP-3367-18(J)petitioner?"
The Court then observed that Insiya is a Dutch
citizen and holding a Dutch passport and her visa had expired
on 6th April 2015. By making reference to certain orders
passed by the District Court, Northern Holland on 16 th
October 2015, the Court proceeds to observe that the
petitioner is silent as to how the child was brought in India,
and that he cannot benefit from his wrongful deed. The
Court then also observed that the husband had no order of
any competent court to travel to India with Baby Insiya. In
this backdrop, the Court observed that Insiya is Dutch
National by birth and Indian National by descent, and no
doubt, the father is a natural guardian of Insiya. The Court
then proceeds to observe that the welfare of the child is to be
considered at an interim stage and therefore, was of the
opinion that the custody of the minor child be directed to be
handed over to the mother by way of an interim direction.
23 In the result, by the impugned order, the prayer as
regards the jurisdiction issued raised by the wife in her
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Tilak 44/55 WP-3367-18(J)application was kept pending. However, prayer clause (b)
granting custody came to be allowed, and the child is directed
to be handed over to the mother on 27th March 2018 who was
directed to remain present to receive the child.
The approach of the Family Court, in light of the
decision of the Hon'ble Apex Court and in light of the
principle of parens patriae appears to be totally erroneous.
The Family Court appears to have been influenced by the
manner in which the child was brought to India in ignorance
of the orders passed by the Court of Hague in case
C/09/539394 dated 22nd December 2017 and also the order
passed by the District Court, Northern Holland on 16 th
October 2015 where the Courts had directed and permitted
the wife to retain the custody of Insiya and also release the
passport of Insiya to the lawyer of the woman. The impugned
order is therefore, based on the conduct of the petitioner, and
the Court has made it clear that his conduct will not benefit
him in retaining the custody, and that the respondent wife
was having a legal custody of baby Insiya.
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Tilak 45/55 WP-3367-18(J)24 The learned Family Court has erred in not
considering that the application which was being decided was
an interim application moved by the wife, pending the issue
of jurisdiction of the Family Court to grant relief. The Court
has failed to take into consideration that the child Insiya was
removed away from the legal custody of the father under the
alleged pretext of vaccination and ultimately, while deciding
the petition for custody, the Family Court would be dealing
with the manner in which the child was removed from India
to Netherlands and as to what was the intention of the
parties. The matter has not yet reached the stage of evidence
and it is in the proceedings filed before the Family Court
claiming custody of the minor child, all these issues would be
gone into by adducing evidence. The Family Court, on an
application filed by the husband (Exhibit-19), had passed an
order on 18th July 2017 permitting him to retain the custody
of the child. While issuing the said order, no doubt the wife
was not represented, but while passing impugned order, the
Court took note of the earlier order where the Family Court
had observed that the petitioner being father and natural
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Tilak 46/55 WP-3367-18(J)guardian of the minor child, could not be charged with
offence of kidnapping. However, on directions from the High
Court by order dated 11th January 2018 and on
reconsideration of the issue, the Court by an interim order,
directed the child Insiya to be handed over to the mother.
25 The impugned order completely ignores the fact
that the child Insiya is in India for last 1 ½ years and is
admitted in a school. The father had tendered on record the
photographs of the child in the company of his grand-mother,
and have also tendered on record the progress of the child in
the school. The Court failed to take into consideration that if
the child at this stage is to be settled in the new environment,
she would be exposed to the physical or psychological harm,
since the child has gained roots in India. The child is not
conversant with Dutch language and would feel completely
uprooted if transferred to Netherlands and is made to live in
an atmosphere where the child is left only to the mother,
whereas in India, the child is in the company of the grand-
parents with lot of love and affection being showered on the
child. The Judge, Family Court has failed to take into
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Tilak 47/55 WP-3367-18(J)consideration that by an interim order, if an attempt is made
to uproot the child and transfer the child into a new
environment, and if on final decision on a custody petition,
the court arrives at a conclusion, on consideration of the
evidence adduced before it, that the father is entitled to the
custody of the child, the child will have to be again uprooted
from Netherlands and to be placed back in an environment
with which she would totally alienate herself during the
intervening period. In the peculiar circumstances, since the
Family Court is required to deal with the matter of custody, by
conduct of an elaborate inquiry, in order to work out the
welfare of the child and then, to determine whether the father
is entitled for custody of Insiya, by way of an interim order,
the relief of repatriation of the child to the father is not in the
interest of the child and would rather affect the physical,
psychological, emotional and sociological well being and
growth of the child at this stage.
The issue as to in what manner Insiya was
brought to India, is of no significance since the parties in the
petition before Family Court have independently instituted
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Tilak 48/55 WP-3367-18(J)proceedings in furtherance of the Hague Convention of 1980
"Civil Aspects of International Child Abduction. As noted
above, India is not yet a signatory of the said Convention and
as regards the non-convention countries, the Court in that
country to which the child has been brought must consider
the question on merits, wherein the welfare of the child and
dealing with the order of the Foreign Courts only as a fact, to
be taken into consideration. The Family Court is duty bound
to consider the issue of Insiya's custody by adopting an
elaborate procedure, bearing in mind her welfare and being
not bound by the orders of the Foreign courts, the Family
Court which is a Court of competent jurisdiction in India to
decide the custody of the child, and is at liberty to decide the
said issue on its merits. No doubt, the Court would be duty
bound to note the judgments of the Court in Amsterdam and
the Dutch Court, though it is not duty bound to enforce the
said judgments. Insiya has been admitted in a school in India
and is blossoming from a toddler to a sensible child, and is
standing at an age where she is capable of reacting to
environment around her, and it is not the case of the
respondent that the father is not taking care of the child,
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Tilak 49/55 WP-3367-18(J)except the term used by the learned Senior counsel Ms.Iyer,
that the father is a fugitive. From perusal of the proceedings,
it is clear that both the mother and father have instituted
proceedings against one another, and which are being dealt
internationally and even the Embassies and Consulates of the
countries are involved. However, at this stage, the
righteousness of either party is not of any relevance except to
the extent as to what would better sub-serve the welfare of
the child.
Though the Comity of Courts is a principle of
International acceptance, it would not partake the guiding
principle in the custody matters being the welfare of the child
to be of paramount importance. The Family Court has
completely lost sight of the said fact and was more influenced
by the custody orders passed by the Courts abroad and
without either interviewing the child, or taking into
consideration the surrounding circumstances produced by the
father on record, and without balancing the said
circumstances, by way of an interim order, has chosen to pass
the custody to the mother. The said order is completely
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Tilak 50/55 WP-3367-18(J)passed in ignorance of the principle of welfare and interest of
the minor child and the consequences of shifting the custody
after a period of eighteen months when the child has gained
roots in the Indian scenario. The Court ought to have taken
into consideration the existence of special circumstances in
not repatriating the child to the jurisdiction of the Foreign
Courts, which, in view of her bonding with the father and his
family and with the country for last 18 months, would cause
tremendous mental and psychological harm to the child, who
is at the age of receiving love and affection and reciprocating
the same.
26 The aforesaid view is fortified by the decision of
the Hon'ble Apex Court in the case of Pratik Gupta Vs. Shilpi
Gupta (Criminal Appeal No.968 of 2017) where the Hon'ble
Apex Court dealt with the factual matrix of the matter
somehow similar to the present case where a writ in the
nature of habeas corpus was issued by the Delhi High Court,
directing the father to hand over the custody of a child, aged
5 years, to the mother. The parties in the said petition had
shifted to the United States of America and the child was
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Tilak 51/55 WP-3367-18(J)residing in United States. However, in the backdrop of the
marital issues, the child was brought in India without any
prior permission of the mother. Proceedings came to be filed
in the Court in United States of America in form of
"Emergency Motion for return of minor child as established
temporary custody" resulting into an order directing the
father to return the custody of the child to the mother. At the
same time, the appellant husband instituted the proceedings
for restitution of conjugal rights under the Hindu Marriage
Act before the Family Court at Delhi, seeking a decree for
restitution of conjugal rights and a declaration that he was a
sole and permanent guardian of the child. He also filed
proceedings in the High Court of Delhi, seeking a peculiar
declaration that the proceedings filed by the wife in the Court
of U.S, are nullis juris.
Their Lordships, on consideration of the whole
gamet of facts involve, and a specific refusal of the wife to
return back to India observed thus :
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Tilak 52/55 WP-3367-18(J)
32. The gravamen of the judicial enunciation on
the issue of repatriation of a child removed from
its native country is clearly founded on the
predominant imperative of its overall well-being,
the principle of comity of courts, and the
doctrines of intimate contact and closest concern
notwithstanding. Though the principle of comity
of courts and the aforementioned doctrines qua a
foreign court from the territory of which a child is
removed are factors which deserve notice in
deciding the issue of custody and repatriation of
the child, it is no longer res integra that the ever
overriding determinant would be the welfare and
interest of the child. In other words, the
invocation of these principles/doctrines has to be
judged on the touchstone of myriad attendant
facts and circumstances of each case, the ultimate
live concern being the welfare of the child, other
factors being acknowledgeably subservient
thereto. Though in the process of adjudication of
the issue of repatriation, a court can elect to
adopt a summary enquiry and order immediate
restoration of the child to its native country, if the
applicant/parent is prompt and alert in his/her
initiative and the existing circumstances ex facie
justify such course again in the overwhelming
exigency of the welfare of the child, such a course
could be approvable in law, if an effortless
discernment of the relevant factors testify
irreversible, adverse and prejudicial impact on its
physical, mental, psychological, social, cultural
existence, thus exposing it to visible, continuing
and irreparable detrimental and nihilistic
attentuations. On the other hand, if the
applicant/parent is slack and there is a
considerable time lag between the removal of the
child from the native country and the steps taken
for its repatriation thereto, the court would prefer
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Tilak 53/55 WP-3367-18(J)bearing on the child, as meanwhile with the
passage of time, it expectedly had grown roots in
the country and its characteristic milieu, thus
casting its influence on the process of its
grooming in its fold.33. The doctrines of intimate contact and closest
concern are of persuasive relevance, only when
the child is uprooted from its native country and
taken to a place to encounter alien environment,
language, custom etc., with the portent of
mutilative bearing on the process of its overall
growth and grooming.34. It has been consistently held that there is no
forum convenience in wardship jurisdiction and
the peremptory mandate that underlines the
adjudicative mission is the obligation to secure
the unreserved welfare of the child as the
paramount consideration.27 With the aforesaid observations, the Hon'ble Apex
Court observed that the stay of the infant in United States was
too little for the required inclination of his social, physical,
psychological, cultural and academic environment of United
States, and the Court observed that it is not the case of
upturning the transitions, unless he was immediately
repatriated and his inherent potentials and faculties would
suffer an immature set back. The Hon'ble Apex Court
observed that there is no convincing material on record that
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Tilak 54/55 WP-3367-18(J)the continuation of the child in the company of the father in
India, would be irreparably prejudicial to him. It was also
observed that immediate restoration of a child is called for
only on an unmistakable discernment of the possibility of
immediate and irremediable harm to it and not otherwise. In
this background, the Apex Court concluded that on being the
biological father of the child, his custody by no means in law
can be construed as illegal or unlawful and no writ of of
habeas corpus could be issued. In the result, the judgment
delivered by the Hon'ble High Court was quashed and set
aside.
28 In light of the facts and circumstances and
discussions above, the impugned order dated 29th January
2018 passed by the Family Court, cannot be sustained, and is
liable to be set aside and is accordingly set aside.
Though by the impugned order the mother was
directed to remain present in the Court on 27th March 2018 to
take over the custody of child Insiya, the learned counsel for
the respondent wife had informed, during the course of
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Tilak 55/55 WP-3367-18(J)hearing of the petition, that the mother is not in a position to
remain present on the said date and the date is required to be
postponed.
However, considering the expediency of the
situation, the Family Court, Bandra is directed to decide the
custody petition filed by the petitioner husband and also deal
with the objection raised by the wife in respect of the
jurisdiction of the Family Court to deal with the custody
petition and the proceedings are directed to be completed
within a period of one year from today.
Writ Petition is allowed.
Rule is made absolute accordingly.
(BHARATI H. DANGRE, J)
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