SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

M vs State Of Nct & Anr on 20 September, 2018

$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 6th September, 2018
Decided on: 20th September, 2018
+ W.P. (CRL) 1251/2018
M ….. Petitioner
Through: Mr. Anil Malhotra with Mr. Ranjit
Malhotra and Mr. Rajat Bhalla,
Advocates.

versus

STATE OF NCT ANR … Respondents
Through: Mr. Rahul Mehra, Standing
Counsel (Crl.) with Mr. Chaitanya
Gosain, Advocate for the State.
Ms. Kamini Jaiswal with Mr.
Prashant Mendiratta,
Mr. Harshvardhan Pandey and
Mr. Jitender Pal Singh, Advocates
for R-2.

CORAM: JUSTICE S. MURALIDHAR
JUSTICE I.S. MEHTA

JUDGMENT

Dr. S. Muralidhar, J.:

1. This writ petition, under Article 226 of the Constitution of India,
seeking issuance of a writ of habeas corpus is by a German national who
states that his wife Respondent No.2, an Indian national, on
10th April 2018, brought away their minor daughter (hereafter „the child‟)
to India from Dubai where they were residing without his knowledge and
on an emergency travel document issued in favour of the child by the

W.P.(Crl.) 1251/2018 Page 1 of 48
Consulate General of India („CGI‟) in Dubai. He prays for a direction to
the Respondents to produce the child before the Court and hand her
custody over to him. It is further prayed that Respondent No.2 and the
child be allowed to return to Dubai, United Arab Emirates („UAE‟).

2. In this judgment, the names of the parties and some of their personal
details have been withheld/anonymised, in order to respect their privacy.
Access to the records of this case will be available only to the parties.

3. It is pertinent to note at the outset that although orders in this matter
were initially reserved on 22nd May 2018 having heard both parties on
merits, this Court by the order dated 1st June 2018 deemed it necessary
for both parties to address it further on “working arrangements that can
be put in place, within the framework of law, in the event the Court
agreed either with the Petitioner or with the Respondent No.2, the main
consideration being the welfare of the child”. Thus, both parties were
directed to file their written notes of submissions in that regard and share
advance copies of the same with each other. The matter was then listed
on 6th July 2018, on which date the Court was made aware of several
developments that had taken shape in the intervening period.

Background

4. The Petitioner, a German Christian and Respondent No.2, an
Indian Hindu, underwent a Hindu religious ceremony of marriage
at New Delhi on 29th December 2011. On 24th January 2012, their
marriage was formally solemnized under the Special Marriage
Act 1954 at Bangalore. The parents of Respondent No.2 reside in New

W.P.(Crl.) 1251/2018 Page 2 of 48
Delhi. However, neither the Petitioner nor Respondent No.2 lived
together in New Delhi at any point in time. They met in Bangalore and
resided together at Bangalore and Hyderabad.

5. On 14th March 2013, the child was born to the Petitioner and
Respondent No.2 at Bangalore. She has a German passport issued to her
by the German Consulate in Bangalore on 6th May 2013. It is valid till
5th May 2019. The child had an Indian passport which was issued on
1st August 2013 and expired on 31st July 2018. The further developments
in this regard will be referred to hereafter.

6. In February 2017, the Petitioner found a job in Dubai. Respondent
No.2 and the child joined him there in April 2017. When this matter was
first heard by the Court, the Petitioner was stated to be working as a
General Manager in a company based in Abu Dhabi, UAE. His residence
permit was stated to be valid up to 7th March 2020. The Petitioner further
stated that his parents, who live in Germany, are to retire shortly and
being very emotionally attached to the child, proposed to be with her
throughout.

7. The child had been attending the German International School in
Dubai from September 2017 onwards in kindergarten. The Petitioner is
stated to have paid the registration fees, tuition fees, etc. for the academic
year ending September 2018. She had been issued an entry permit on
8th April 2018 by the General Directorate of Residence and Foreigners
Affairs, Ministry of Interior, UAE on her valid German passport, thus
permitting her stay in Dubai.

W.P.(Crl.) 1251/2018 Page 3 of 48

8. Both the Petitioner and Respondent No.2 admit that there were
differences and disputes between them while they lived in Dubai.
Sometime in June 2017, Respondent No.2 brought the child to India for a
brief period without informing the Petitioner. According to her, this was
on account of the Petitioner‟s changed behaviour towards her which
made it impossible for her to continue living in the matrimonial home.
She, however, returned to Dubai with the child in July 2017 and resumed
living with the Petitioner there.

9. On 27th October 2017, Respondent No.2 left the house to stay
separately in Dubai. In the affidavit filed by her in this Court on
24th May 2018, Respondent No.2 stated that she was constrained to leave
her matrimonial home on 27th October 2017 without her daughter as life
was becoming unbearable for her on account of the Petitioner‟s conduct
towards her. The Petitioner, on the other hand, states that he was shocked
to learn of the conduct of Respondent No.2 which destroyed their mutual
trust and when he confronted her with the facts he had gathered, she left
the matrimonial home of her own accord. The Court does not propose to
dwell on these aspects in this order since they involve disputed questions
of fact that may warrant the leading of evidence by the parties. What is
relevant to note, however, is that both the Petitioner and Respondent
No.2 have acknowledged at this stage that they have irreconcilable
differences and that their staying together in the same place as a family is
not realistic.

10. To resume the chronological narration of the background events,

W.P.(Crl.) 1251/2018 Page 4 of 48
within a month of their living separately in Dubai, the Petitioner and
Respondent No.2 entered into a written agreement on
25th November 2017 titled „Interim Agreement – Rules of Engagement
25.11.2017‟. The said interim agreement began by acknowledging that it
was necessitated in order “to keep things clear, free of confusion and
misunderstanding and allow time to be taken” between them as a married
couple to understand the extent of their marital problems and feelings
towards each other. There are 12 clauses in the said agreement, the gist
of which is that Respondent No.2 had taken an apartment for herself
since 1st November 2017 and was staying separately from the Petitioner
and their child “to provide time, distance and space for the Petitioner to
process what he came to know of recently”. The Respondent No.2 had
the promise and guarantee from the Petitioner to get unlimited access to
the child “within boundaries of her safekeeping and needs of upbringing,
e.g. ability to reach school bus in the morning, collection from her school
bus in the afternoon, being supervised post school prior a parent‟s return
from work, etc.”. The Petitioner and Respondent No.2 were to have
alternate evenings with the child in their original home where the
Petitioner and the child continued to reside during the weekdays with
equal time for each to make sure that the child had both parents in her
life. Respondent No.2 was permitted to take the child to her separate
apartment for two weekends every month. She could collect the child on
Thursday afternoon from the school bus or from her home after work
until Sunday morning drop off for the school bus. For the other two
weekends per month the child would stay exclusively with the Petitioner.
Alternatively, it could be agreed upon to share a weekend with the other

W.P.(Crl.) 1251/2018 Page 5 of 48
parent in the fairest possible way of splitting the child‟s time.

11. As far as the present petition is concerned, Clause 7 of the interim
agreement is important. This recorded a promise of Respondent No.2 not
to leave UAE with the child again without the consent of the Petitioner.
Clause 8 records the promise of the Petitioner not to take his daughter out
of the country of residence (UAE) except for the already planned week
of Christmas vacation in Germany in December 2017 which Respondent
No.2 was informed about. Clause 9 recorded the consent of Respondent
No.2 to the Petitioner holding the passport and Emirates ID and general
day to day care aspects of custody of the child. Both the Petitioner and
Respondent No.2 confirmed that as on that day, no legal action had been
initiated and “shall not be initiated, unless discussed with or informed to
the other partner prior any such steps being taken”.

12. Respondent No.2 now claims that she felt compelled to sign the
above interim agreement on the dotted line as she was distraught without
the child and was desperate to have even limited access to her. According
to Respondent No.2, the agreement subsisted for only 5 months. She was
all along trying to make the marriage work but it is the Petitioner who
violated the agreement and verbally intimated the Respondent No.2 that
he had filed for divorce in Dubai without giving any details. She states
that she felt devastated and insecure in a “totally patriarchal” country and
was left with no choice but to leave. All of these allegations have been
refuted by the Petitioner.

13. The Petitioner invoked the jurisdiction of the Dubai Personal Courts

W.P.(Crl.) 1251/2018 Page 6 of 48
for initiation of a non-Muslim divorce which was accepted for pre-
proceedings counselling on 25th March 2018. It was fixed for hearing
before the Family Counsellor, Dubai on 11th April 2018. According to
the Petitioner, intimation of the said proceedings was given
telephonically to Respondent No.2 but she did not appear.

14. Interestingly, in a parallel move, Respondent No.2 appears to have
travelled to India in March 2018 to file a suit for obtaining an anti-suit
injunction so as to restrain the Petitioner from initiating proceedings
before the courts in Dubai in relation to their matrimonial dispute. The
specific prayer was to restrain the Petitioner from “filing/initiating any
petition/suit/claim/case in the nature of divorce proceeding or any other
matrimonial proceeding pertaining to marriage between the parties or the
minor child of the parties before any other Court except courts of
competent jurisdiction in India”.

15. The affidavit of Respondent No.2 in support of the plaint in Suit
No.3/2018 in the Family Court, Saket is dated 26th March 2018. In the
opening paragraph of the affidavit, Respondent No.2 has given her Dubai
address and stated that she is currently residing in Alaknanda, New
Delhi. The said suit appears to have been heard on several dates starting
from 28th March 2018 onwards. It, therefore, appears that both the
Petitioner and Respondent No.2 parties were anticipating the initiation of
court proceedings against each other at around the same time.

16. It must be mentioned at this stage that Respondent No.2 is a qualified
lawyer, having completed her B.Com. and her LL.B. from Delhi. In

W.P.(Crl.) 1251/2018 Page 7 of 48
drawing a comparison between herself and the Petitioner on parameters
which she states are relevant for determining their respective eligibility
to ensure the welfare of the child, Respondent No.2 states that she has
worked in law firms and various organizations as a Human Resources
Consultant.

17. The Court has consciously not referred to the averments in the
petition which refer to the reasons why the Petitioner instituted the
divorce proceedings against Respondent No.2 in the courts in Dubai. The
Court also does not propose to discuss the allegations and counter
allegations made by each of the parties against each other. It appears that
they are likely to be involved in litigation concerning their marriage and
nothing said here should prejudice their respective rights and contentions
in those proceedings.

Respondent No.2 brings the child to India

18. In her affidavit dated 24th May 2018, Respondent No.2 stated inter
alia that in the face of continued threats of criminal action, Sharia
divorce, and apprehending being forcibly deprived of the custody of the
child, she was left with no choice but to return to India to her parents.
She approached the CGI in Dubai so as to obtain an emergency travel
document („ETD‟) for the child to return to India. She obtained it on
1st April 2018 but could not travel immediately on account of
Government procedures and formalities. She was given clearance to
travel with the child only on 10th April 2018. She reached India with the
child in the early hours of 11th April 2018.

W.P.(Crl.) 1251/2018 Page 8 of 48

19. A photocopy of the said ETD dated 1st April 2018 and expiring on
30th June 2018 was enclosed with the above affidavit. It reveals that the
reason given for issuance of the ETD was “Passport Lost”. In the
remarks column it is stated that there existed no objection to issuing a
further passport subject to usual checks and Ministry instructions.

20. The Petitioner‟s version of what transpired differs. He states that
Respondent No.2 knew that he had with him their daughter‟s original
Indian and German passports and yet misled the CGI into issuing an
ETD for their daughter. He alleges that “the CGI, Dubai, colluded with
Respondent No.2 in this planned abduction and chose not to contact,
confirm or establish the true facts by reaching the petitioner in Dubai”.
He has further averred that on 10th April 2018, Respondent No.2 “on the
pretext of taking their daughter to a trampoline play area on a visitation,
instead left for India and took a flight to leave UAE and flew to New
Delhi without the knowledge and consent of the Petitioner”. The
Petitioner alleges that “this was all pre-planned and pre-meditated by
Respondent No.2 with advance planning and organising her movement to
India surreptitiously”.

21. The Petitioner was not successful in getting the CGI to provide him
with a copy of the ETD or even the reasons for its issuance. He received
an email dated 17th April 2018 from Ms. Sumathi Vasudev of the CGI,
Dubai stating inter alia:

“2. As I mentioned in my earlier email an Emergency
Certificate was issued to (name anonymised) on an

W.P.(Crl.) 1251/2018 Page 9 of 48
application made by her mother (name withheld) We can
share with you that in her application (the mother) had
reported that the passport of (name anonymised) had been
lost and had requested issuance of Emergency Certificate
urgently because she wanted to visit her ailing mother in
India on medical grounds. She reported that her husband is
not in touch with her.

3. As per Government of India rules a single parent can
apply for passport on Emergency Certificate if the other
parent is not available, by giving an undertaking that he or
she will be responsible and liable for any issue arising out of
obtaining passport on Emergency Certification on such an
undertaking.”

22. The Petitioner contends:

“…the rights of petitioner as a father have been violated and
the illegal removal of his daughter from Dubai has been
abetted by the CGI, permitting the kidnapping of his
daughter. Petitioner is astonished that the CGI, Dubai made
no efforts or attempts to ascertain from him directly as to
why and where the existing passports of minor (name
anonymised) were and proceeded to act on one sided
statements made by the Respondent No. 2, who was in
contact and regular communication with the petitioner.
Therefore, the parental rights of petitioner have been
violated and in utter contravention of Article 8 of the
European Convention on Human Rights and the United
Nations Convention on the Rights of the Child have been
infringed since their daughter has a right to a family life in
Dubai and to continue schooling in Dubai as was the
agreement of parties.”

23. After coming to India on 10th April 2018, Respondent No.2 filed, on
21st April 2018, an application against the Petitioner claiming various
reliefs under Sections 18 to 22 of the Protection of Women Against

W.P.(Crl.) 1251/2018 Page 10 of 48
Domestic Violence Act 2005 („PWDV Act‟) in the learned MM‟s Court
at Saket. A copy of this complaint has been enclosed with the affidavit
dated 24th May 2018 filed by Respondent in this petition. According to
Respondent No.2, the said application lists in detail the cruel acts which
she was subjected to and which compelled her to leave Dubai with her
daughter in an emergency and return to India.

Proceedings before this Court till 22nd May 2018

24. This petition was first heard on 24th April 2018. On that date,
Respondent No.2 was present in person. Her counsel accepted notice in
the petition. Since both the Petitioner and Respondent No.2 were willing
to explore the possibility of settling their differences and disputes
through mediation, and Respondent No.2 was also willing to appear in
the mediation centre with the child, the Court directed the parties along
with the child to appear before the Delhi High Court Mediation and
Conciliation Centre („DHCMCC‟). The Petitioner was permitted to meet
the child for two hours in the DHCMCC on that day and on the following
day.

25. The Court, on 24th April 2018, directed that till the next date of
hearing, both the Petitioner and Respondent No.2 would be restrained
from taking any precipitate action. Learned counsel for Respondent No.2
undertook that he would seek adjournment in the above proceedings
under the PWDV Act instituted by her.

26. When the case was heard next on 26th April 2018, the Court was
informed that no settlement could be reached in the mediation. The

W.P.(Crl.) 1251/2018 Page 11 of 48
judges constituting this Bench first met the child in the Judge‟s
chambers. We found her to be articulate. In spite of being just 5 years
old, she was very aware of what was happening. She was clear that she
loved both her parents very much and wanted to stay with both of them.
She did not like to have to choose between either. She further stated that
she was very happy being in Dubai with her father and attending school
there. She asked if her mother could also not come back with her to
Dubai so that they could all be together.

27. We next met Respondent No.2 in the chambers. She was emotional
and reacted strongly to the suggestion that she consider returning to
Dubai for the welfare of the child. Respondent No.2 explained that she
had no help in Dubai and it was not possible for her to continue to live
there even in the vicinity of the Petitioner for a variety of reasons, which
need not be discussed here. While she cared very much for her child, she
pleaded that it would be unfair to deprive her of the custody of the child
on the pretext of the child‟s best interests.

28. We next met the Petitioner. He stated that he was deeply attached to
the child. He explained the circumstances under which the relationship
between him and Respondent No.2 broke down and they started living
separately since October 2017. He stated that he was not interested in
separating Respondent No.2 from the child. He was willing to consider
modifications to the earlier arrangement which was in place prior to
10th April 2018. He assured that he was not interested in seeking the
criminal prosecution of Respondent No.2 or invoking the Sharia law in

W.P.(Crl.) 1251/2018 Page 12 of 48
the divorce proceedings instituted by him in Dubai. He explained that the
child was very happy attending school in Dubai. He stated that his
parents were proposing to move in with him in Dubai after their
retirement. The Petitioner stated that in his current line of work, there
were hardly any job prospects in India. He was doing well in his present
job in the UAE.

29. The Court at that stage felt that the parties should still explore the
possibility of settlement through mediation and referred them to a second
round of mediation at the DHCMCC. This time, a child counsellor and
family counsellor were asked to be associated in the mediation process.
The Court issued interim directions facilitating the meeting of the
Petitioner with his child for two hours every day in the presence of
Respondent No.2 either at the DHCMCC or at a mutually agreed
convenient place.

30. On 5th May 2018, the Court was again informed that the mediation
had not succeeded. The report of the child counsellor, submitted to the
Court in a sealed cover, stated that the child wished to return to Dubai to
resume her schooling. The child counsellor noted that, at that point in
time, the child was confused as to whether she wanted to be with her
mother in India or with her father in Dubai. She further observed that the
child was “facing a difficult phase due to estrangement of her parents”
and that “in the given set of circumstances she has expressed her
willingness to live with her father”. However, as noted by us, the child
clearly did not want to be away from her mother. She expected that her

W.P.(Crl.) 1251/2018 Page 13 of 48
mother would be with her even if she opted to return to school in Dubai.

31. The Court then proceeded to hear the petition on merits. On
22nd May 2018, while reserving judgment for the first time, the Court
issued directions permitting the Petitioner to interact with the child from
Dubai on video link at a mutually agreed time on a daily basis for about
an hour. Learned counsel for Respondent No.2 informed the Court that
she would place on record a copy of the emergency travel document
issued by the Indian embassy in Dubai with the help of which the child
was brought to India by Respondent No.2. This was done two days later
on 24th May 2018 along with the affidavit filed by Respondent No.2.

32. On 22nd May 2018, Mr. Malhotra, on the instructions of Petitioner,
stated that the Petitioner was willing to let Respondent No.2 have the
custody of their daughter as long as she returned to Dubai with her. The
Petitioner was also willing to abide by any conditions that this Court may
deem necessary to impose. The Petitioner was also prepared to give an
assurance to the effect that he would not proceed against Respondent
No.2 in Dubai under the Sharia law which according to him, in any
event, was not applicable to the parties even as per the procedure evolved
under the prevalent legal system in Dubai.

33. However, Respondent No.2 instructed learned counsel Ms. Kamini
Jaiswal who was appearing on her behalf to inform the Court that she
was not willing to consider the above offer and insisted that the
Petitioner would have to come to India if he wants to visit the child and
further that under no circumstances would Respondent No.2 return to

W.P.(Crl.) 1251/2018 Page 14 of 48
Dubai with the child.

Proceedings after 1st June 2018

34. While preparing its order, the Court noticed the ETD issued in the
child‟s name submitted by Respondent No.2 which gave rise to the
question as to whether the Court‟s orders regarding working
arrangements for visitation of either spouse can be given effect to within
the framework of the law. The case was, therefore, again listed for
hearing on 1st June 2018 on which date the following order was passed:

“1. Although the orders were reserved, while further
deliberating on the matter the Court felt that both the parties
should address it further on the working arrangements that
can be put in place, within the framework of law, in the
event of the Court agreed either with the Petitioner or with
the Respondent No.2, the main consideration being the
welfare of the child.

2. Both the Petitioner and Respondent No.2 will file their
respective notes of submissions on the above aspect after
exchanging advance copies at least two weeks prior to the
next date.

3. Mr. Malhotra informs that the Petitioner is present today.
The Petitioner is permitted to meet the child today for two
hours at a mutually convenient place and time in the
presence of Respondent No.2. On his future visits to India,
the counsel for the Respondent No.2 will be notified by the
Petitioner in advance so that a similar visitation can be
arranged on every date of his visit. The earlier directions
regarding meeting the child through video link will
continue.

4. List on 6th July 2018 at 2:15 pm.”

35. On 6th July 2018, learned counsel for Respondent No.2 informed the
W.P.(Crl.) 1251/2018 Page 15 of 48
Court that her daughter‟s Indian passport which was due to expire on
31st July 2018 had been renewed for another five years. He sought time
to produce the renewed passport and the case was then listed for
9th July 2018.

The 9th July 2018 order

36. On 9th July 2018, copies of the renewed Indian passport issued to the
child were produced before the Court. An additional affidavit of that date
was tendered on behalf of Respondent No.2 offering an explanation
regarding the issuance of the said passport. The Court then passed the
following detailed order on 9th July 2018:

“1. The Petitioner is a German national, who approached
this Court with the present petition stating that his wife,
Respondent No.2, has brought away their child, a minor
daughter namely (name anonymised) born to them in
Bangalore on 14th March, 2013 to India from Dubai where
they were residing without his knowledge and on an
emergency travel document. The Court has since then been
engaged with the question of the custody of the minor child.
In the mediation proceedings, attempted during the
pendency of the present petition, the parties have not been
able to arrive at any acceptable terms of settlement. The
child is at present with her mother and both of them are
living in Delhi with the parents of Respondent No.2.

2. An issue that has cropped up during the hearing of the
petition concerns the passports issued to the minor child.
Relevant to this issue are certain facts which are not in
dispute. These are that the Petitioner is a German national
and Respondent No.2 is an Indian citizen. Their marriage
was solemnized in India under, the Special Marriage Act on
24th January, 2012 at Bangalore. The child, (name
anonymised), was born in Bangalore to the Petitioner and

W.P.(Crl.) 1251/2018 Page 16 of 48
Respondent No.2 on 14th March, 2013. A German Passport
bearing No. (withheld by this Court) was issued by the
German Consulate in Bangalore to (name anonymised) on
6th May, 2013 and the said passport is valid up to 5th May,
2019. Thereafter, on 1st August, 2013 an Indian Passport
bearing No. (withheld by this Court) was issued to (name
anonymised) at Bangalore. This is valid up to 31st July,
2018.

3. The Petitioner has in his possession the original of both
the above passports. The original passports have been shown
to the Court by the Petitioner. He had made an averment to
this effect in paras 13 to 15 of his writ petition filed on 23rd
April, 2018. There was no specific denial of this fact in the
counter affidavit of Respondent No.2.

4. In explaining the circumstances under which she returned
to India with her daughter on 10th April 2018 on an
emergency travel document issued in favour of (name
anonymised), Respondent No.2 stated in para 19 of her
counter affidavit, filed oh 11th May, 2018 as under:

“In the above circumstances, the respondent no.2 had
no option but to return to India with her daughter. The
emergency travel document was secured from the
Indian consulate at Dubai since the petitioner had told
the respondent that he had lost/misplaced (the child)’s
Indian passport. Though the respondent did not realise
the actual intent of the petitioner, at that time.
However, this is not the first time that the respondent
had to return to India in this manner. Even in June
2017 the respondent, along with (the child), had
returned to India (on her Indian passport) owing to
their differences but went back to Dubai in July 2017
on the insistence assurance of the petitioner to
mend his ways.”

5. Further, in an affidavit was filed on 24th May, 2018
Respondent No.2 stated in paras 7 and 8 as under:

W.P.(Crl.) 1251/2018 Page 17 of 48

“7. That on 1/4/2018, the Respondent approached the
Indian Embassy in Dubai and asked for an Emergency
Travel Document to return to India. I narrated my
aforesaid ordeal to the officials of the Indian Embassy
who were inclined to help me. I stated to the officials
of the Indian Embassy that I feared for my life and
liberty in Dubai and that it was absolutely imperative
for me and my daughter to return to India. Thereafter,
I was issued the Emergency Travel Document with
respect to my daughter on 1/4/2018. I was constrained
to take the extreme step as aforesaid as I feared not
only for myself but the threat of not seeing my
daughter ever again.

8. That I could not return to India immediately after
obtaining the Emergency Travel Document as several
governmental procedural formalities had to be
completed which would ensure clearance of my
daughter and mine through the immigration at the
Dubai Airport. The said Dubai Government
formalities took about 10 days to complete and I was
given a clearance to travel along with my daughter
only on 10/4/2018. I, along with my daughter, reached
India at early hours on 11/4/2018. True copy of the
Emergency Travel Document issued to my daughter is
annexed hereto as ANNEXURE A-2.”

6. The photocopy of the emergency travel document
enclosed with the above affidavit showed that in the column
titled ‘reason’ it is stated ‘passport lost’. This emergency
travel document was valid upto 30th June, 2018.

7. The Petitioner has, in para 14 of the petition, reproduced
the complete text of an e-mail dated 17th April, 2018
received by him from one Smt. Sumati Vasudev, Consul
(Cons. Labour), Consulate General of India, Dubai in
response to his RTI application. It reads as under:

W.P.(Crl.) 1251/2018 Page 18 of 48

“Dear Mr. M (anonymised),
Kindly refer to your email below. I have already sent
you a reply on April 2018 giving our response to the
various issues raised by you. We had also asked your
wife to reply to the comments pertaining to her which
have been answered by her with a copy to you.

2. As I mentioned in my earlier email an Emergency
Certificate was issued to (name anonymised) on an
application made by her mother. We can share with
you that in her application (the mother) had reported
that the passport of (the child) had been lost and had
requested issuance of Emergency Certificate urgently
because she wanted to visit her ailing mother in India
on medical grounds. She reported that her husband is
not in touch with her.

3. As per the Government of India rules a single
parent can apply for passport on Emergency
Certificate if the other parent is not available, by
giving an undertaking that he or she will be
responsible and liable for any issue arising out of
obtaining passport on Emergency Certification on
such an undertaking.

4. As is clear we reject all your allegations and
insinuations. We issued the Emergency Certificate to
(the child) as per our rules, as we would issue to any
other Indian national.”

8. On 1st June, 2018 this Court had asked the parties to
present to it a working arrangement within the framework of
the law in the event the Court agreed either with the
Petitioner or the Respondent No.2, the main consideration
being the welfare of the child. At the subsequent hearing of
this petition on 6th July 2018 the Court was informed by
learned counsel for the Respondent No.2 that the Indian
Passport issued to (the child) has been renewed for another

W.P.(Crl.) 1251/2018 Page 19 of 48
five years. He stated that he would produce the said passport
before this Court along with the copies of the documents
relevant to the renewal.

9. Today, Mr. Mendiratta has produced in the Court an
additional affidavit dated 9th July, 2018 of the Respondent
No.2 explaining inter alia that since the Indian passport
issued to (the child) was expiring. Respondent No.2 had
applied for its renewal. Copies of the birth certificate of
(name anonymised), the blank copy of the form used by
Respondent No.2 for applying for renewal of (the child)’s
Indian passport as well as the copy of the renewed Indian
passport have been enclosed with the above affidavit as
Annexures A-1 to A-3 respectively. On a perusal of the
original of the renewed passport, the Court finds that it notes
“old passport reported lost”. The address given in the
renewed passport is the address of the parents of the
Respondent No.2 in Delhi.

10. The pleadings in the present case show that there was an
agreement between the Petitioner and the Respondent No.2
dated 25th November, 2017 (Annexure-P7) entered into
between the parties in Dubai. Paragraph 9 thereof records
that the Respondent No.2 agreed to handover the passport
and ID of (name anonymised) (valid in the Emirates) to the
Petitioner to ensure that (the child) remains there. The case
of the Respondent No.2, however, is that the Petitioner had
told her that he had “lost / misplaced (name anonymised)’s
Indian passport.” Be that as it may, after the filing of the
present petition, with the Petitioner having positively stated
that he had with him the original passports – both German
and Indian – issued to (the child), Respondent No.2 could
not have, while applying for the renewal of (name
anonymised)’s Indian passport told the Indian Passport
authority in Delhi that the earlier Indian passport issued to
(the child) was lost. It is also not clear what was disclosed
(or not) by Respondent No.2 in the application for such
renewal of (the child)’s Indian passport.

W.P.(Crl.) 1251/2018 Page 20 of 48

11. The Court considers it appropriate to bring the above
facts to the notice of the Regional Passport Office in Delhi
which issued the renewed Indian passport to (name
anonymised) on 27th June, 2018 with the expiry date of 26th
June, 2023. The Court accordingly issues notice to the
Regional Passport Officer, Delhi requiring him to depute
any responsible officer to appear before the Court together
with the files concerning the

(i) Indian Passport No. (withheld by this Court) dated 1st
August, 2013 issued to (the child) by the Regional
Passport Office, Bangalore;

(ii) Passport (withheld by this Court) dated 1st April, 2018
issued by the Indian Consulate in Dubai to (the child)
and

(iii) Passport No. (withheld by this Court) issued in favour
of (the child) on 27th June, 2018 by the Passport
Office in Delhi with an expiry dated of 26th June,
2023.

12. In particular, the applications filed on each instance for
issuance of Indian passport for (the child) along with all the
other documents submitted with those applications be
produced before the Court on the next date.

13. The Court also requests Ms. Maninder Acharya, learned
Additional Solicitor General of India to assist the Court on
the aspects of the issuance of the Indian and German
passports to (the child) and the correct legal position in that
regard.

14. The Petitioner has filed further written submissions
today which are taken on record.

15. The Registry is directed to have the notice issued to the
Regional Passport Officer, Delhi, without process fees, by a
Special Messenger forthwith together with a certified copy
of this order.

W.P.(Crl.) 1251/2018 Page 21 of 48

16. The. Registry is also directed to serve forthwith upon
Ms. Maninder Acharya, learned ASG, again without process
fee, the certified copy of the present order, along with the
complete set of paper book (which will be provided by the
learned counsel for the Petitioner) and all other previous
orders passed in the present petition by this Court.

17. List on 20th July, 2018, at 2.15 pm. The interim orders
passed as regards the Petitioner meeting the child in Delhi
and over video link shall continue.”

Clarification by the Govt. of India

37. On 20th July 2018, the learned Additional Solicitor General of India
(„ASG‟), Ms. Maninder Acharya, appeared and sought to examine the
legal issues that arose as a result of the above developments, in light of
the Citizenship Act 1955 as well as the Passports Act 1967 and the rules
thereunder. While continuing the interim orders, the case was adjourned
to 30th July 2018 when submissions of the learned ASG on the above
aspect were heard. On 9th August 2018, when the case was heard next, an
affidavit was filed by Mr. Arun K. Chatterjee, Joint Secretary (PSP) and
Chief Passport Officer, CPV Division, Ministry of External Affairs,
Government of India in which it was stated inter alia that the child
“ceased to be a citizen of India following her acquisition of a German
Passport”. It was further noted that this fact had not been disclosed to the
Passport Office by Respondent No.2 while the application for the same
was being made. Stating that had this information been available, the
application would have been declined, the affidavit concludes by noting
that the passport issued to the child in 2018 “cannot be deemed to be a
valid passport now since it has been brought to the notice of the

W.P.(Crl.) 1251/2018 Page 22 of 48
Government that the child holds a valid German Passport and is,
therefore, a German national”.

38. After noting the contents of the affidavit, the Court passed an order
on 9th August 2018 wherein the following observations were made:

“2. Upon a query by the Court as to the consequence of the
Indian passport issued to (the child) not being a valid
passport and in the particular context of her being a child
aged five years, Ms. Maninder Acharya, learned Additional
Solicitor General of India, states that she will have to seek
instructions on the question of issuance of an Indian visa to
the child.

3. It may be noted at this stage that Mr. Mendiratta, learned
counsel for Respondent No.2, submits that the determination
recorded in the aforementioned affidavit cannot be treated as
final since the procedure under the Passports Act, 1967 for
arriving at such a determination is yet to be complied with.

4. The Court has also asked Ms. Acharya to clarify the
question of issuance of visa to the Petitioner for visitation in
the event this Court decides the issue of custody of (the
child) in favour of Respondent No.2. She states that on this
issue as well, she will seek instructions and revert on the
next date of hearing.

5. On his part, Mr. Anil Malhotra has produced a legal
opinion dated 11th July 2018 of the Counsellor and Consul,
Head of Legal and Consular Section of the Embassy of the
Federal Republic of Germany, New Delhi where inter alia it
is stated as under:

“German Citizenship can, in certain circumstances, be
lost through voluntary acquisition of a foreign
citizenship (naturalization after voluntary
application), in accordance with Article 25 of the

W.P.(Crl.) 1251/2018 Page 23 of 48
German Citizenship Act.

The issuance of a foreign passport to a minor child by
a passport agency of a foreign country can never
trigger the loss of German citizenship, if it has not
been preceded by a full naturalization process, and
even in this case only if all legal representatives of the
minor have applied for such naturalization jointly, and
if competent German authorities and Court have been
heard.

The Embassy has been informed that the mentioned
minor child’s mother has obtained a new Indian
passport for the child.

The Embassy cannot speculate if the mentioned minor
child is indeed an Indian citizen. The Embassy can,
however, confirm that (name anonymised), the
mentioned child, has not lost her German citizenship
through her mother’s successful application for an
Indian passport.”

6. List on 21st August 2018 at 4 pm.

7. Interim orders to continue. The compilation of case law
tendered by Mr. Malhotra is taken on record.”

39. At the hearing on 28th August 2018, a written clarification of the Joint
Deputy Director and FRRO dated 24th August 2018 was placed before
the Court by the learned ASG which read as follows:

“1. The petitioner‟s minor child (name anonymised)
(German Citizen) may be granted an X-2 (Entry) visa
subject to production of her valid German passport.

2. The petitioner (father of minor child) may come on
appropriate visa. He is eligible for an X-2 (Entry) visa,
subject to usual checks.”

W.P.(Crl.) 1251/2018 Page 24 of 48

Change in the Petitioner’s position

40. In its order on that date, the Court noted that the above clarification
was of particular relevance should it decide to determine the question of
the child‟s custody in favour of Respondent No.2. On the same date, the
learned counsel appearing for the Petitioner, Mr. Anil Malhotra,
informed the Court by way of an affidavit tendered on the same date that
the Petitioner now intends to relocate to Germany having applied for and
secured employment at IMCD, a multi-national chemical distribution
company headquartered at Rotterdam, Netherlands. It was further stated
therein that he would possibly be posted at the company‟s Zurich branch
which is purportedly just an hour‟s drive from his native place/parents‟
home in Lorrach, Germany. The matter was adjourned to
6th September 2018 on which date the Respondent No.2 was to respond
to this latest development.

41. At the hearing on 6th September 2018, learned counsel Mr. Prashant
Mendiratta appearing for Respondent No.2 stated that there was no
change in her stance notwithstanding the Petitioner‟s intention to take up
employment in Germany. He informed the Court that it would not be
possible for her to relocate to Germany. However, Mr. Mendiratta
offered that the Petitioner could come to India particularly in light of the
assurance given by the Respondent No.2 that she would not pursue any
criminal case against him or ask for orders in the case instituted by her in
the Family Court in Delhi.

42. On his part, the learned counsel for the Petitioner stated that he had

W.P.(Crl.) 1251/2018 Page 25 of 48
been instructed by the Petitioner to state that it was going to be
impossible to relocate to India and that according to the Petitioner, there
would be no impediment whatsoever to Respondent No.2 and the child
relocating to Germany. He pointed out that if there is any apprehension
about the child not learning the English language while in Germany, the
Petitioner was willing to make all possible arrangements for the child to
get special tuitions for the same.

43. It was further stated that with the Petitioner intending to relocate to
Germany, the question of Respondent No.2 having to participate in any
proceedings in the UAE does not arise anymore. The Court was informed
that the proceedings earlier instituted by the Petitioner in the Dubai
courts have now terminated due to lapse of time. With the Petitioner
taking no further steps in that regard, it is stated that as of today, no such
proceedings are pending there. He further states that the only proceeding
currently pending between the parties is the one instituted in the Family
Court in Dwarka by Respondent No.2 in which there has been no further
progress owing to the interim orders of this Court.

44. The Court reserved the matter for judgment on 6th September 2018
and on that date, sought to meet the child in the Judge‟s chambers. The
Petitioner could not reach India for the proceedings in time. The child
was reluctant to meet the two of us by herself and insisted on being with
her mother, i.e. Respondent No.2 throughout. The Court, however, could
gather from the child‟s replies that she was not under any pressure. She is
pursuing her schooling in Delhi without any difficulty. The child appears

W.P.(Crl.) 1251/2018 Page 26 of 48
to have adjusted well to her present environment.

Welfare of the child

45. The Court would like to begin its consideration of the case by first
acknowledging the well-settled position that in cases such as the present
one, the paramount consideration of the Court should be the best interests
and overall welfare of the child. In Prateek Gupta v. Shilpi Gupta (2018)
2 SCC 309, the Supreme Court observed:

“51. 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.”

46. Reference should also be made to the decision of the Supreme Court
in Nil Ratan Kundu v. Abhijit Kundu (2008) 9 SCC 413, wherein it was
observed:

“56. In our judgment, the law relating to custody of a child
is fairly well-settled and it is this. In deciding a difficult and
complex question as to custody of minor, a Court of law
should keep in mind relevant statutes and the rights flowing
therefrom. But such cases cannot be decided solely by
interpreting legal provisions. It is a humane problem and is
required to be solved with human touch. A Court while
dealing with custody cases, is neither bound by statutes nor
by strict rules of evidence or procedure nor by precedents. In
selecting proper guardian of a minor, the paramount
consideration should be the welfare and well-being of the
child. In selecting a guardian, the Court is exercising parens
patriae jurisdiction and is expected, nay bound, to give due
weight to a child’s ordinary comfort, contentment, health,
education, intellectual development and favourable
surroundings. But over and above physical comforts, moral

W.P.(Crl.) 1251/2018 Page 27 of 48
and ethical values cannot be ignored. They are equally, or
we may say, even more important, essential and
indispensable considerations. If the minor is old enough to
form an intelligent preference or judgment, the Court must
consider such preference as well, though the final decision
should rest with the Court as to what is conducive to the
welfare of the minor.”

47. Therefore, the question before the Court is not always one of
determining whether a parent is in illegal custody of the child. Rather,
there must be interaction with the child so as to properly appreciate the
child‟s preference. It was further emphasised in the same judgment:

“74. In our considered opinion, the Court was not right.
Apart from statutory provision in the form of sub-section (3)
of Section 17 of 1890 Act, such examination also helps the
Court in performing onerous duty, in exercising
discretionary jurisdiction and in deciding delicate issue of
custody of a tender-aged child. Moreover, the final decision
rests with the Court which is bound to consider all questions
and to make an appropriate order keeping in view the
welfare of the child. Normally, therefore, in custody cases,
wishes of the minor should be ascertained by the Court
before deciding as to whom custody should be given.”

48. Given the nature of the dispute, these are no doubt difficult issues to
deal with for any Court as was noted recently in Vivek Singh v. Romani
Singh (2017) 3 SCC 231 where it was observed as under:

“9. …..In cases of this nature, where a child feels tormented
because of the strained relations between her parents and
ideally needs the company of both of them, it becomes, at
times, a difficult choice for the court to decide as to whom
the custody should be given. No doubt, paramount
consideration is the welfare of the child. However, at times
the prevailing circumstances are so puzzling that it becomes
difficult to weigh the conflicting parameters and decide on

W.P.(Crl.) 1251/2018 Page 28 of 48
which side the balance tilts.”

49. When the present petition was heard on merits and reserved for
judgment on 22nd May 2018, the central plank of the submissions made
by learned counsel Ms. Kamini Jaiswal appearing on behalf of
Respondent No.2 was the decision of the Supreme Court in Nithya
Anand Raghavan v. State (NCT of Delhi) (2017) 8 SCC 454. Reference
was made, in particular, to the following observations in para 47:

“47. 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.”

50. Ms. Jaiswal accordingly submitted that unless the Petitioner is able to
show that their daughter is in the unlawful custody of Respondent No.2,
the question of entertaining the present petition or issuing a writ of
habeas corpus does not arise. She pointed out that, as of 22nd May 2018,
there was no order of the courts in Dubai in this regard and even if there
was one, it would not affect the nature of the mother‟s custody of the
child as a natural guardian.

W.P.(Crl.) 1251/2018 Page 29 of 48

51. The learned counsel Mr. Anil Malhotra appearing for the Petitioner,
meanwhile, also relied on the same decision to urge that the welfare of
the child should be the paramount consideration in determining the best
interests of the child.

The decision in Nithya Anand Raghavan
52.1 In Nithya Anand Raghavan, two Indians, after marriage, shifted to
the United Kingdom („UK‟). A daughter was born to them in Delhi and
they then returned to the UK. The father and the daughter were
subsequently granted citizenship of the UK. At one stage, the daughter
took ill and was diagnosed with a cardiac disorder and had to undergo
periodical medical reviews.

52.2 In July 2015, the mother came back to India with the daughter
alleging the violent behaviour of the father. After coming to India, the
mother filed a complaint with the Crime Against Women Cell („CAW
Cell‟) in Delhi which then issued notice to the father and his parents
asking them to appear before it. As a counter-blast, the father filed a
custody/wardship petition in the UK before the Family Division of High
Court of Justice seeking return of his daughter. In that proceeding, the
High Court of Justice passed an ex parte order inter alia directing the
mother to return the daughter to the UK and to appear before the Royal
Courts of Justice.

52.3 The father filed a habeas corpus petition before the High Court of
Delhi on 23rd January 2016 seeking to have the daughter produced before
the Court. On 8th July 2016, this Court inter alia directed the mother to

W.P.(Crl.) 1251/2018 Page 30 of 48
produce the daughter and comply with the orders passed by the court in
the UK or hand over the daughter to the father within three weeks from
the date of the order. It was noticed that this Court opined that the foreign
court having the most intimate contact with the child would be better
placed to appreciate the social and cultural milieu in which the child had
been brought up. This Court held that the principle of comity of courts
should not be discarded except for special and compelling reasons
especially when interim or interlocutory orders have been passed by the
foreign Courts. This Court applied the law in Surya Vadanan v. State of
Tamil Nadu (2015) 5 SCC 450 and held that there was no special or
compelling reason to ignore the interim order passed by the court in the
UK.

52.4 It was argued on behalf of the mother in the Supreme Court that the
High Court had given undue emphasis to the principle of comity of
courts “in complete disregard to the paramount interests and the welfare
of the child”. It was urged that “there is an obvious need to protect the
interest of the child and the mother, especially in light of the fact that
Respondent No.2 had been physically and verbally abusive to the
Appellant in the past and even put the child at risk with his behaviour”. It
was urged that “upholding the principle of comity of Courts while
disregarding the welfare of the child would thus go against the public
policy of India and result in grave harm being caused to the child and the
appellant”. It was pointed out in that case that “the child has been born
and brought up in India. While the child now has British citizenship, she
still retains her Indian citizenship. The child was forced to return with the

W.P.(Crl.) 1251/2018 Page 31 of 48
mother under compelling situation emanating from domestic violence
inflicted by the father”.

52.5 In Nithya Anand Raghavan, the Supreme Court noted:

“28. ….. The intention of Respondent No.2 can be
ascertained by the fact that he filed a habeas corpus petition
before the High Court, which is meant for urgent and
immediate relief whereas the appellant and the child were
staying in India for more than 6 months. Clearly, there was
no immediate or urgent need necessitating the production of
the child and the petition was filed as an afterthought and
litigation strategem. The High Court should have been loath
to countenance such stratagem adopted by Respondent No.2,
which is bordering on abuse of the process of Court.”

52.6 The Supreme Court concluded that it would be in the interest of the
child to remain in the custody of her mother and it would cause harm to
her if she returned to the UK. In other words, what weighed with the
Supreme Court in Nithya Anand Raghavan was the welfare of the child
and not the principle of comity of jurisdictions. Among other factors, that
weighed with the Supreme Court was the fact that the child in that case
had “been schooling here for the past over one year and has spent equal
time in both the countries out of the first six years”. It is in that context it
is stated that being a girl child, “the guardianship of the mother is of
utmost significance”. It was observed that “ordinarily, the custody of a
„girl‟ child who is around seven years of age, must ideally be with her
mother unless there are circumstances to indicate that it would be
harmful to the girl child to remain in custody of her mother”. The
Supreme Court then reiterated:

W.P.(Crl.) 1251/2018 Page 32 of 48

“The interests and welfare of the child are of paramount
consideration. The principle of comity of courts as observed
in Dhanwanti Joshi’s case, 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.”

The decision in Kanika Goel
53.1 After the hearing of the present petition resumed on 6 th July 2018,
the Supreme Court on 20th July 2018 delivered its decision in Kanika
Goel v. State of Delhi AIR 2018 SC 3425. Mr. Malhotra, on behalf of the
Petitioner, sought to distinguish the judgment as regards its applicability
to the present case. It is nevertheless an important decision that has a
bearing on the issues that arise here.

53.2 In that case, the father of a minor child „M‟ (anonymised), aged
three years at the time of filing of the writ petition in 2017, approached
this Court seeking the writ of habeas corpus and a direction for the return
of „M‟ to the jurisdiction of the competent court in the United States of
America („USA‟) in compliance with the order dated 13th January 2017
passed by the Circuit Court of Cook County, Illinois, USA.

53.3 The father in that case was born in India but had become a citizen of
the USA in 2005. The mother too was a Permanent Resident of the USA
and held a Green Card. On 2nd December 2016, she had applied for US

W.P.(Crl.) 1251/2018 Page 33 of 48
citizenship. She was a certified teacher in the State of Illinois and was
employed as a Special Education Classroom Assistant in Chicago Public
Schools.

53.4 The father (respondent therein) and the mother (appellant therein) of
the child got married in New Delhi on 31st December 2010 as per Sikh
rites. According to the respondent, it was understood that his wife would
reside with him in the USA. She travelled to USA on a Fiancée Visa and
again got married to the respondent on 19th March 2011 at the Cook
County Court in Chicago, Illinois. Before marriage, a Pre-nuptial
Agreement dated 20th October 2010 was entered into between the parties,
enforceable in accordance with the laws of the State of Illinois USA. „M‟
was born on 15th February 2014 in the USA. „M‟ was thus a natural born
US citizen domiciled in the State of Illinois, USA from her birth.

53.5 The case of the husband was that his wife had, in December 2016,
under the guise of making a short trip to New Delhi to meet her parents,
clandestinely removed their child. The mother was scheduled to return to
Chicago on 7th January 2017 but went missing. She filed a petition in the
in the Family Court in New Delhi under Section 13(1) Hindu Marriage
Act 1955 („HMA‟) along with an application under Section 26 HMA on
7th January 2017 seeking a restraint order against the father from taking
„M‟ away from the jurisdiction of Indian courts. Notice was issued in the
said petition and application to the father made returnable on
11th January 2017.

53.6 Meanwhile, the father filed an emergency petition for temporary

W.P.(Crl.) 1251/2018 Page 34 of 48
sole allocation of parental responsibilities and parenting time in his
favour and in the alternative, an emergency order of protection for
possession of „M‟, before the Circuit Court of Cook County, Illinois on
9th January 2017. A notice of emergency motion was served on the
mother by e-mail, informing her of the proposed hearing on
13th January 2017.

53.7 In the meanwhile, on 11th January 2017, the Family Court in New
Delhi issued fresh notice to the father. An ex-parte order was passed on
the application filed by the mother whereby the father was restrained
from removing „M‟ from the jurisdiction of the Family Court, New Delhi
until further orders.

53.8 The father caused a missing person complaint to be filed on
13th January 2017 before the Station House Officer („SHO‟) of PS Vasant
Kunj. This complaint was acknowledged by the PS on 14 th January 2017.
Simultaneously, on 13th January 2017 the father moved the Circuit Court
of Cook County, Illinois. An ex-parte order was passed by that Court
granting the father interim sole custody of „M‟ and inter alia it was
directed that „M‟ was to be “immediately returned to the residence” of
the father in Cook County, Illinois.

53.9 The mother did not comply with the above order leading the father
to file a habeas corpus writ petition before this Court on
1st February 2017 seeking the prayers as noticed hereinbefore. Interim
orders were passed by this Court granting the father access to the minor
child in the presence of the mother and her parents.

W.P.(Crl.) 1251/2018 Page 35 of 48

53.10 A final judgment was rendered by this Court on
16th November 2017 in favour of the father after recording a finding that
the paramount interest of the minor child was to “return to USA” so that
she could be “in her natural environment”. This Court put in place a
working arrangement to minimise the inconvenience that might be
caused to all parties. Inter alia the directions issued by this Court were
that it would be in the interest of „M‟ for the mother to return to USA
with „M‟ so that „M‟ could be in her natural environment; receive the
love, care, and attention of the father as well apart from her grandparents;
and resume her schooling and be with her teachers and peers. Further, it
was noted that the mother was able-bodied, educated, and accustomed to
living in Chicago, USA and in fact had been gainfully employed there
before she came to India. Certain directions were issued regarding
provision of reasonable accommodation by the father to cater to the
needs of the mother and the minor child in the USA and also to meet the
expenses towards food, clothing, and shelter for the initial period of six
months or till such time the mother found a suitable job.

53.11 Directions were also issued by this Court to the father to meet the
expenses of schooling, extra-curricular activities, transportation, hiring
an attendant/nanny for the child, and arranging a vehicle so that the
mother would be able to move around to attend to her chores and
responsibilities. The father was also directed to meet the legal expenses
involved in the mother defending herself in the proceedings in the Cook
County Court in Chicago. After the return of „M‟ with her mother to the

W.P.(Crl.) 1251/2018 Page 36 of 48
USA, the custody of „M‟ was to remain with the mother and the father
would not take the custody of the minor child by use of force. The
visitation and custody rights qua the parties, was to be decided thereafter
by the competent court in the USA which was to be honoured by both
parties. Further it was directed that until the suit instituted by the mother
challenging the Pre-nuptial Agreement was decided, the father was
restrained from relying upon or enforcing it.

53.12 A further order was passed by this Court on 1st December 2017,
noting that the father had filed an affidavit undertaking to abide by all the
conditions imposed upon him. He also tendered before this Court the
proposed financial aid in terms of the said judgment, which may be made
available to the wife in the USA. The Court directed him to deposit
$25,000 in an escrow account which was to be operated upon orders of
the competent Court in Cook County, Illinois at the instance of the
mother in the event of non-compliance of any of the conditions. Again,
on 6th December 2017, the Court took on record another affidavit of
undertaking sworn by the father which was in satisfaction of the earlier
directions issued by the Court. The Court directed the mother to return to
the USA with the minor child within two weeks, failing which, „M‟
would be handed over to the father to be taken to USA.

53.13 Aggrieved by the above orders, the mother approached the
Supreme Court in appeal. An interim order was passed on
15th December 2017 to the effect that the arrangement made by the High
Court with regard to visitation rights would remain in force and the wife

W.P.(Crl.) 1251/2018 Page 37 of 48
would not create any kind of impediment in that respect. It was also
noted that the husband was not to implicate the wife in any criminal
proceedings. On 24th January 2018, further interim directions were issued
regarding visitation by the husband when he was in India.

53.14 In its final judgment, the Supreme Court, after reviewing the entire
case law, including Nithya Anand Raghavan (supra) and Prateek Gupta
(supra), observed as under:

“22. After these decisions, it is not open to contend that the
custody of the female minor child with her biological mother
would be unlawful, for there is presumption to the contrary.
In such a case, the High Court whilst exercising jurisdiction
under Article 226 for issuance of a writ of habeas corpus
need not make any further enquiry but if it is called upon to
consider the prayer for return of the minor female child to
the native country, it has the option to resort to a summary
inquiry or an elaborate inquiry, as may be necessary in the
fact situation of the given case.”

53.15 It was further observed, on the facts of that case, as under:

“As observed in Nithya Anand Raghavan’s case (supra), the
Court must take into account the totality of the facts and
circumstances whilst ensuring the best interest of the minor
child. In Prateek Gupta’s case (supra), the Court noted that
the adjudicative mission is the obligation to secure the
unreserved welfare of the child as the paramount
consideration. Further, the doctrine of “intimate 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. The High Court in the present case
focused primarily on the grievances of the appellant and
while rejecting those grievances, went on to grant relief to

W.P.(Crl.) 1251/2018 Page 38 of 48
respondent No.2 by directing return of the minor girl child to
her native country. On the totality of the facts and
circumstances of the present case, in our opinion, there is
nothing to indicate that the native language (English) is not
spoken or the child has been divorced from the social
customs to which she has been accustomed. Similarly, the
minor child had just entered pre-school in the USA before
she came to New Delhi along with her mother. In that sense,
there was no disruption of her education or being subjected
to a foreign system of education likely to psychologically
disturb her. On the other hand, the minor child M is under
the due care of her mother and maternal grand-parents and
other relatives since her arrival in New Delhi. If she returns
to US as per the relief claimed by the respondent No.2, she
would inevitably be under the care of a Nanny as the
respondent No.2 will be away during the day time for work
and no one else from the family would be there at home to
look after her. Placing her under a trained Nanny may not be
harmful as such but it is certainly avoidable. For, there is
likelihood of the minor child being psychologically
disturbed after her separation from her mother, who is the
primary care giver to her. In other words, there is no
compelling reason to direct return of the minor child M to
the US as prayed by the respondent No.2 nor is her stay in
the company of her mother, along with maternal
grand-parents and extended family at New Delhi, prejudicial
to her in any manner, warranting her return to the US.”

53.16 It was further observed as under:

“23. As expounded in the recent decisions of this Court, the
issue ought not to be decided on the basis of rights of the
parties claiming custody of the minor child but the focus
should constantly remain on whether the factum of best
interest of the minor child is to return to the native country
or otherwise. The fact that the minor child will have better
prospects upon return to his/her native country, may be a
relevant aspect in a substantive proceedings for grant of
custody of the minor child but not decisive to examine the

W.P.(Crl.) 1251/2018 Page 39 of 48
threshold issues in a habeas corpus petition. For the purpose
of habeas corpus petition, the Court ought to focus on the
obtaining circumstances of the minor child having been
removed from the native country and taken to a place to
encounter alien environment, language, custom etc.
interfering with his/her overall growth and grooming and
whether continuance there will be harmful. This has been
the consistent view of this Court as restated in the recent
three- Judge Bench decision in Nithya Anand Raghavan
(supra), and the two Judge Bench decision in Prateek Gupta
(supra). It is unnecessary to multiply other decisions on the
same aspect.”

53.17 On the facts of that case, it was finally held that the “proceedings
pending in the Family Court at New Delhi are decided with utmost
promptitude in the first place before the wife was called upon to appear
before the US Court, including production of the minor child before that
Court”. The Supreme Court was very keen that “parties must eschew
from pursuing parallel proceedings in two different countries”. Therefore,
it was deemed appropriate that the proceedings pending in the Family
Court, New Delhi “are decided in the first place including on the question
of jurisdiction of that Court”. Depending on the outcome of the said
proceedings, “the parties will be free to pursue such other remedies as
may be permissible in law before the Court of Competent Jurisdiction”.
Further, even though the minor girl had a US passport and had travelled
to India on a tenure visa which was expired, “that does not mean that she
is in unlawful custody of her biological mother. Her custody with the
Appellant would nevertheless be lawful”.

53.18 The Supreme Court in Kanika Goel (supra) noted that the father

W.P.(Crl.) 1251/2018 Page 40 of 48
had also filed proceedings in a court in the USA for custody of the minor
child. It observed as under:

“In such a situation, the arrangement directed by this Court
in the case of Nithya Anand Raghavan (supra), as exposited
in paragraphs 70-71, may be of some help to pass an
appropriate order in the peculiar facts of this case, instead of
directing the biological mother to return to the US along
with the minor girl child, so as to appear before the
competent court in the US. In that, the custody of the minor
girl child M would remain with the appellant until she
attains the age of majority or the Court of competent
jurisdiction, trying the issue of custody of the minor child,
orders to the contrary, with visitation and access rights to the
biological father whenever he would visit India and in
particular as delineated in the interim order passed by us
reproduced in paragraph 11 (eleven) above.”

53.19 Directions were further given that the husband would not initiate
coercive penal action against the wife in the USA and if any such
proceeding was initiated by him, it shall be withdrawn and not pursued
before the concerned Court any further. Ultimately, while setting aside
the orders of this Court, the directions issued by the Supreme Court were
as follows:

“The appellant and respondent No.2 must ensure early
disposal of the proceedings for grant of custody of the minor
girl child to the appellant, instituted and pending before the
Family Court at Patiala House, New Delhi. All contentions
available to the parties in that regard will have to be
answered by the Family Court on its own merits and in
accordance with law.”

The present case

54. In the present case, in our initial interaction with the child, she said

W.P.(Crl.) 1251/2018 Page 41 of 48
she wanted to return to Dubai to continue her schooling there and to be
with her father. She nevertheless also said that she wanted her mother to
be with her in Dubai. She conveyed more or less the same wish to the
Child Counsellor who submitted a confidential report to this Court. Her
bond with both her parents is undeniable. Also undeniable is the
considerable emotional attachment that both parents have to their child. It
became apparent to us in our initial interactions with the child that she
resented having to choose between staying with either parent as she
would ideally want to be with both of them. The principle of „welfare of
the child‟ as repeatedly emphasised in Nithya Anand Raghavan (supra)
would mean that this Court cannot possibly ignore the wishes of the
child. However, the Court cannot also be oblivious to the fact that it is
not feasible as of present for both parents to be with her in the same
place.

55. The earlier assurances by the Petitioner that if Respondent No.2
returned to Dubai with the child, he would not insist on the custody of
the child as long as he was given visitation rights are no longer relevant.
The proceedings initiated by the Petitioner have lapsed and in any event
he is in the process of relocating to Germany. The situation of there
being a parallel exercise of jurisdiction by a foreign Court no longer
exists since no fresh proceedings have been instituted by the Petitioner in
Dubai or anywhere else.

Factual position as of date

56. The Court finds that the situation at present is as follows:

W.P.(Crl.) 1251/2018 Page 42 of 48

(i) The child is in the custody of her biological mother. In terms of the
law explained in Prateek Gupta (supra), Nithya Anand Raghavan
(supra), and most recently in Kanika Goel (supra), her custody
with the Respondent No.2 is lawful notwithstanding that she has
been taken away by Respondent No.2 from the UAE where the
parties last resided together.

(ii) There was no order as such of the UAE Court restraining
Respondent No.2 from taking away the child.

(iii) Notwithstanding that the renewed Indian passport issued to the
child may be of doubtful validity, the procedure under the
Passports Act for declaring it to be invalid is yet to be initiated. Be
that as it may, she can continue to stay in India as the daughter of
the Respondent No.2, an Indian citizen, on a valid visa, as
confirmed by the learned ASG.

(iv) The child is presently attending school in Delhi/NCR and is with
her mother and maternal grandparents in Delhi.

(v) The Petitioner has been regularly visiting the child whenever he is
in India and has also been in regular touch over video for various
lengths of time. The Government of India has clarified that
whenever he visits India, the Petitioner will be eligible for an
appropriate X-2 Entry visa subject to usual checks.

(vi) The Petitioner is in the process of relocating to Germany, having
taken up a new job and as such there are no proceedings instituted
by him in Germany.

(vii) Although the child wishes both her parents to be with her, it is not
practical considering that the Petitioner is not willing to relocate to

W.P.(Crl.) 1251/2018 Page 43 of 48
India and neither is Respondent No.2, in terms of the renewed
offer of the Petitioner, willing to relocate to Germany.

(viii) The parties have never lived in Germany together as a family unit.

Respondent No.2 would have to begin life anew there, if
compelled to relocate to Germany with the child.

(ix) For that matter, even the child has never lived in Germany for any
length of time and therefore, it would be a completely new
environment for her as well. On the other hand, the Petitioner and
Respondent No.2, along with their daughter, lived in India together
from the time the child was born till she was 4 years old. The child
lived in the UAE for around 12 months, but has been in India since
8th April 2018. Therefore, India is not an alien environment as far
as she is concerned. Even the Petitioner has lived in India for
several years.

57. The child is presently comfortably relocated in India and is in the
company of her mother and maternal grandparents. The working
arrangements earlier put in place by this Court through its interim orders
shall continue. The further directions set out hereafter will enable the
Petitioner to visit the child whenever he desires without any legal
impediment.

58. Applying the „best interests of the child‟ test, this Court is of the view
that, pursuant to the summary inquiry undertaken by it, the child should
not be compelled at this point in time to relocate with her mother, viz.
Respondent No.2, to Germany where the Petitioner has currently taken

W.P.(Crl.) 1251/2018 Page 44 of 48
up employment. The Petitioner‟s prayer in that regard is, therefore,
declined.

Place of ‘ordinary residence’

59. A submission was made on behalf of Respondent No.2 that the
Petitioner can approach the Courts in India for relief under Section 9
Guardian and Wards Act 1890 („GWA‟) which confers jurisdiction on
the Court having territorial jurisdiction in the place where the minor
ordinarily resides. The child returned to India on 10th April 2018 after a
12 month gap and has been living in Delhi continuously since then.

60. It will be for the concerned Court in Delhi if approached by the
Petitioner to decide the issue in light of the law explained in Ruchi
Majoo v. Sanjeev Majoo AIR 2011 SC 1952. It is not necessary for this
Court to decide that issue in the present petition.

Directions

61. It will be the responsibility of Respondent No.2 to ensure that the
child pursues her schooling in Delhi/NCR till the end of the current
academic year and has a stable and healthy environment/ambience in the
company of her maternal grandparents and other friends and relatives. It
is further directed that till the end of the current academic year,
Respondent No.2 shall not seek employment outside Delhi/NCR as doing
so would deprive the child of the company of her mother which she
clearly needs on a continuous basis at the present stage of her life.

62. The Petitioner will hand over to Respondent No.2 forthwith the

W.P.(Crl.) 1251/2018 Page 45 of 48
original German passport of the child to enable the Government of India
to grant the child the X-2 Entry visa on such passport. He will also return
to Respondent No.2 forthwith the original of the expired Indian passport
of the child. The Petitioner will not cause any legal impediment in
keeping the said German passport of the child renewed from time to
time.

63. The Court appreciates the positive attitude displayed by the Petitioner
as well as Respondent No.2 in working to ensure the best future for the
child. Respondent No.2 fairly agreed not to pursue, during the pendency
of this petition, the cases instituted by her. As far as the case seeking an
anti-suit injunction is concerned, it has now been rendered infructuous
since the proceedings instituted in the UAE by the Petitioner have lapsed.
The said suit will not continue and shall be withdrawn by Respondent
No.2 in light of the changed circumstances. However, the petition filed
by Respondent No.2 against the Petitioner under the PWDV Act before
the Family Court in Dwarka, is permitted to be continued as regards the
issues of financial support/maintenance to the child and herself.

64. The Court further directs that no coercive or criminal proceedings
shall be instituted or directions of a coercive nature sought from any
Court or Tribunal by either party against the other either in India or
elsewhere with regard to events that have already transpired. This is only
to ensure an atmosphere conducive to the parties resolving their
matrimonial disputes and so that no undue emotional stress is caused to
their child on account of their differences and disputes.

W.P.(Crl.) 1251/2018 Page 46 of 48

65. Both the Petitioner and Respondent No.2 should attempt to resolve
the issues concerning their marriage as peacefully as possible. If there
has to be a divorce, the parties should attempt, as far as possible, to have
it done by mutual consent instead of a contest on merits as the latter
option is likely to be long drawn and cause the child emotional and
mental stress.

66. The Court directs that whenever the Petitioner visits India, he will
give Respondent No.2 at least one week‟s advance notice. The Petitioner
can meet the child at any mutually convenient place for a period of 4
hours on each occasion (without disrupting her schooling). Such visits
shall take place during the day time, over the weekend, and in the
presence of Respondent No.2.

67. The child‟s paternal grandparents will be permitted access to their
granddaughter (through phone and video chats) and may visit her subject
to the mutual convenience of the parties.

68. The above directions will not prevent the parties undertaking joint
visits with the child to any place of their choice, subject to the mutual
convenience of the parties. The Petitioner will have access to the child
through video-link on terms set out in the interim orders earlier issued in
this petition.

69. The parties are at liberty to approach the Family Court where the
proceedings under the PWDV Act are pending or in the divorce

W.P.(Crl.) 1251/2018 Page 47 of 48
proceedings, if any, that might be instituted hereafter for any further
interim directions or for modification of any of the above conditions as
regards access to the child through video-link, visitation, financial
support and travel.

70. The Petitioner is permitted to approach the Family Court for
directions concerning custody of the child, after the expiry of the current
academic year. Such request will be considered on its merits by the
Family Court on the basis of the facts and circumstances then prevalent.

71. The petition is disposed of in the above terms.

S. MURALIDHAR, J.

I.S. MEHTA, J.

SEPTEMBER 20, 2018
‘anb’/tr

W.P.(Crl.) 1251/2018 Page 48 of 48

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation