SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Mr. Varun Verma S/O Shri Shyamvir … vs State Of Rajasthan Through … on 1 July, 2019

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

D.B. Habeas Corpus Petition No. 229/2018

Mr. Varun Verma S/o Shri Shyamvir Singh, R/o 1147,
Georgetown Road Apt 102 Norfolk Va 23502, U.S.A. Through
Power Of Attorney Holder Smt Uma Rajput, W/o Shyamvir Singh
R/o A-99, Sector-9, Vijay Nagar, Ghaziabad (U.P.) Presently
Residing At C-127, Lohiya Nagar, Ghaziabad (U.P.)
—-Petitioner
Versus
1. State Of Rajasthan Through Superintendent Of Police,
Kota (Rajasthan)
2. Addl. Director General Of Police, Anti Human Trafficking
Unit, Rajasthan Police, Jaipur
3. Ms. Yashita Sahu W/o Varun Verma, D/o Sh. Mahendra
Sahu, R/o H.no.60, Station Road, Kota (Rajasthan).
—-Respondents

For Petitioner(s) : Mr. Prabhjit Johar with
Mr. O.P. Mishra
For Respondent No.1 : Mr. N.S. Gurjar, P.P.
For Respondent No.3 : Mr. Ashish Davessar with
Mr. Vijender Davessar

HON’BLE MRS. JUSTICE SABINA
HON’BLE MR. JUSTICE GOVERDHAN BARDHAR

Judgment / Order

01/07/2019

Petitioner has filed Habeas Corpus Petition under SectionArticle 226

of the Constitution of India for production of his minor child Kiyara

Verma.

Case of the petitioner, in brief, is that he got married to

respondent no.3 on 11.07.2016 at Kota. Thereafter, petitioner and

his wife left for America on 17.07.2016 and they started residing

there. Out of their wedlock, a daughter, namely Kiyara Verma was

(Downloaded on 06/07/2019 at 10:45:23 PM)
(2 of 13) [HC-229/2018]

born on 03.05.2017. Some differences arose between the

petitioner and respondent no.3. On 29.08.2018 respondent no.3

instituted a petition in ‘Norfolk Juvenile and Domestis Relations

District Court’ seeking sole custody of the minor child. A petition

was also filed by respondent no.3 seeking monetary support on

her behalf and on behalf of her minor child. On 26.09.2018,

interim order was passed by the Court Annexure P-9 in terms of

the agreement between the parties. On 01.10.2018, petitioner

came to know that the respondent no.3 had reached India along

with the minor child. Hence, this petition by the petitioner.

Notice of the petition was issued to the respondent no.3.

Efforts were made by this Court to effect amicable

settlement between the parties for restoration of matrimonial

relations but the same proved futile.

Learned counsel for the petitioner has submitted that order

Annexure P-9 was passed by the Court in America as per

agreement between the parties. Petitioner and respondent no.3

were granted joint legal custody of the minor child and shared

physical custody of the child. Petitioner as well as respondent no.3

were to surrender their passports as well as passport of minor

child to guardian adlitem. However, despite passing of the order

Annexure P-9, respondent no.3 left for India and did not honour

the order Annexure P-9. Learned counsel has submitted that

respondent no.3 was liable to be return to America along with

minor child so that further orders could be passed by the Court in

America. In support of his arguments, learned counsel has placed

reliance on the decision of the Hon’ble Supreme Court in Civil

Appeal No(s). 3135-3136/2019 titiled as Lahari Sakhamuri

(Downloaded on 06/07/2019 at 10:45:23 PM)
(3 of 13) [HC-229/2018]

Vs. Sobhan Kodali decided on 15.03.2019, wherein, it was

held as under:-

“In V. Ravi Chandran(Dr.)’s case(supra),
this Court was concerned with the custody of the
child removed by a parent from one country to
another in contravention of the orders of the Court
where the parties had set up their matrimonial
home. This Court took note of the English
decisions, namely L(Minors) in re7 and McKee Vs.
McKee8 and also noticed the decision of this Court
in Elizabeth Dinshaw’s case(supra) and Dhanwanti
Joshi Vs. Madhav Unde9 keeping into consideration
the fact that the child was left with his mother in
India for nearly twelve years, this Court held that
it would not exercise its jurisdiction summarily to
return the child to the US on the ground that his
removal from US in 1984 was contrary to the
orders of US Courts. The relevant portion is as
under:

“29. While dealing with a case of custody of a child
removed by a parent from one country to another
in contravention of the orders of the court where
the parties had set up their matrimonial home, the
court in the country to which the child has been
removed must first consider the question whether
the court could conduct an elaborate enquiry on
the question of custody or by dealing with the
matter summarily order (1974) 1 All ER
913(CA) (1951) AC 352 1998(1) SCC 112 a parent
to return custody of the child to the country from
which the child was removed and all aspects
relating to the child’s welfare be investigated in a
court in his own country. Should the court take a
view that an elaborate enquiry is necessary,
obviously the court is bound to consider the
welfare and happiness of the child as the
paramount consideration and go into all relevant
aspects of welfare of the child including stability
and security, loving and understanding care and
guidance and full development of the child’s
character, personality and talents. While doing so,
the order of a foreign court as to his custody may
be given due weight; the weight and persuasive
effect of a foreign judgment must depend on the
circumstances of each case.

30. However, in a case where the court decides to
exercise its jurisdiction summarily to return the
child to his own country, keeping in view the
jurisdiction of the court in the native country which
has the closest concern and the most intimate
contact with the issues arising in the case, the
court may leave the aspects relating to the welfare
of the child to be investigated by the court in his
own native country as that could be in the best
interests of the child. The indication given in
McKee v. McKee [1951 AC 352 : (1951) 1 All ER
942 (PC)] that there may be cases in which it is
proper for a court in one jurisdiction to make an
order directing that a child be returned to a foreign
jurisdiction without investigating the merits of the
dispute relating to the care of the child on the

(Downloaded on 06/07/2019 at 10:45:23 PM)
(4 of 13) [HC-229/2018]

ground that such an order is in the best interests
of the child has been explained in L (Minors), In re
[(1974) 1 WLR 250 : (1974) 1 All ER 913 (CA)]
and the said view has been approved by this Court
in Dhanwanti Joshi [(1998) 1 SCC 112] . Similar
view taken by the Court of Appeal in H. (Infants),
In re [(1966) 1 WLR 381 (Ch CA) : (1966) 1 All
ER 886 (CA)] has been approved by this Court in
Elizabeth Dinshaw [(1987) 1 SCC 42 : 1987 SCC
(Cri) 13].”

This Court once again reiterated the
principles of the closest concern, most intimate
contact with the issues arising in the case, natural
habitat of the minor child, best interest of the child
and comity of Courts. This Court eventually
directed the child to be taken to US from where he
was removed to enable the parties to establish
their right in the native state of the child, i.e. US.

In Surya Vadanan’s case(supra), it was a
case where the spouses were of Indian origin and
later the husband became the citizen of UK. They
got married in India and had two daughters in UK.
The wife also became a British citizen and had a
British passport. After matrimonial dispute arose
between them, the wife returned to India with her
daughters and filed a petition under Section 13(1)
(ia) of the SectionHindu Marriage Act, 1955 seeking
divorce in the Family Court. At the same time,
husband filed a petition in the High Court of
Justice. The said Court had passed an order
making the children wards of the Court during
their minority or until further orders of the court
and the wife was directed to return the children to
the jurisdiction of the foreign court. This Court
applied the principles of (i) “the first strike”, i.e the
UK Court had passed effective and substantial
order declaring the children of the parties as wards
of that court, (ii) the comity of courts and (iii) the
best interest and welfare of the child. It also held
that the “most intimate contact” doctrine and the
“closest concern” laid down in Surinder Kaur
Sandhu’s case(supra) are very much alive and
cannot be ignored only because their application
might be uncomfortable in certain situations. The
Court also reiterated that the best interest and
welfare of the child are of paramount importance
which shall always be kept in mind by the courts
while adjudicating the disputes.

This was followed by a three Judge Bench of
this Court in Nithya Anand Raghavan’s case(supra)
in which one of us(Justice Khanwilkar) was a
party. In that case, the couple married on 30 th
November, 2006 at Chennai and shifted to UK in
early 2007. Disputes arose between the spouse.
The wife had conceived in December, 2008 came
to New Delhi in June 2009 and stayed there with
her parents and she gave birth to a girl child in
August, 2009 at Delhi. After the husband arrived in
India, the couple went back to UK in March, 2010
and following certain unsavoury events, the wife
and the daughter returned to India in August
2010. After exchange of legal correspondence, the
wife and her daughter went back to London in

(Downloaded on 06/07/2019 at 10:45:23 PM)
(5 of 13) [HC-229/2018]

December 2011. In July, 2014, the wife returned
to India along with her daughter and early 2015
the child became ill and was diagnosed with
cardiac disorder and due to the alleged violent
behavior of her husband filed complaint against
him at the GAW Cell, New Delhi. In 2016, husband
filed custody/wardship petition in UK to seek
return of the child. He also filed habeas corpus
petition in 2017 in Delhi High Court which was
allowed. The matter was brought before this Court
by the wife. This Court heavily relied upon its
earlier judgment in Dhanwanti Joshi’s case(supra)
which in turn referred to Mckee’s case(supra)
where the Privy Council held that the order of
foreign court would yield to the welfare of the child
and that the comity of courts demanded not its
enforcement, but its grave consideration. This
Court also relied upon the judgment in V. Ravi
Chandran’s case(supra) and held that the role of
the High Court in examining the cases of custody
of a minor is on the touchstone of principle of
parents patriae jurisdiction, as the minor is within
the jurisdiction of the Court. This Court further
held that the High Court while dealing with the
petition for issuance of habeas corpus concerning a
minor child in a given case, may direct return of
the child or decline to change the custody of the
child keeping in mind all the attending facts and
circumstances into consideration. It was held
further by this Court that each case must depend
on the totality of the facts and circumstances
brought before it while considering the welfare of
the child which is of paramount consideration and
the order of the foreign Court must yield to the
welfare of the child and the remedy of writ of
habeas corpus cannot be used for mere
enforcement of the directions given by the foreign
court against a person within its jurisdiction and
convert that jurisdiction into that of an executing
court. It was further observed that writ petitioner
can take recourse to such other remedy as may be
permissible in law for enforcement of the order
passed by the foreign court or resort to any
proceedings as may be permissible in law before
the Indian Court for the custody of the child, if so
advised. This Court has disapproved paragraph 56

(a) to (d) in Surya Vadanan’s case(supra) which
reads as follows:

“56. However, if there is a preexisting order of a
foreign court of competent jurisdiction and the
domestic court decides to conduct an elaborate
inquiry (as against a summary inquiry), it must
have special reasons to do so. An elaborate inquiry
should not be ordered as a matter of course. While
deciding whether a summary or an elaborate
inquiry should be conducted, the domestic court
must take into consideration:

(a) The nature and effect of the interim or
interlocutory order passed by the foreign court.

(b) The existence of special reasons for
repatriating or not repatriating the child to the
jurisdiction of the foreign court.

(Downloaded on 06/07/2019 at 10:45:23 PM)

(6 of 13) [HC-229/2018]

(c) The repatriation of the child does not cause any
moral or physical or social or cultural or
psychological harm to the child, nor should it
cause any legal harm to the parent with whom the
child is in India. There are instances where the
order of the foreign court may result in the arrest
of the parent on his or her return to the foreign
country. [SectionArathi Bandi v. Bandi Jagadrakshaka
Rao, (2013) 15 SCC 790 : (2014) 5 SCC (Civ)
475] In such cases, the domestic court is also
obliged to ensure the physical safety of the parent.

(d) The alacrity with which the parent moves the
foreign court concerned or the domestic court
concerned, is also relevant. If the time gap is
unusually large and is not reasonably explainable
and the child has developed firm roots in India, the
domestic court may be well advised to conduct an
elaborate inquiry.”

As regards clauses (a) to (c) of paragraph
56 above, this Court termed the same as tending
to drift away from the exposition in Dhanwanti
Joshi’s case(supra) and V. Ravi Chandran’s
case(supra) and with regard to clause (d), this
Court disagreed with the same, and it was finally
concluded as under:

“69. We once again reiterate that the exposition
in SectionDhanwanti Joshi [Dhanwanti Joshi v. Madhav
Unde, (1998) 1 SCC 112] is a good law and has
been quoted with approval by a threeJudge Bench
of this Court in V. Ravi Chandran (2) [V. Ravi
Chandran (2) v. Union of India, (2010) 1 SCC
174 : (2010) 1 SCC (Civ) 44] . We approve the
view taken in Dhanwanti Joshi, inter alia, in para
33 that so far as non Convention countries are
concerned, the law is that the court in the country
to which the child is removed while considering the
question must bear in mind the welfare of the child
as of paramount importance and consider the
order of the foreign court as only a factor to be
taken into consideration. The summary jurisdiction
to return the child be exercised in cases where the
child had been removed from its native land and
removed to another country where, may be, his
native language is not spoken, or the child gets
divorced from the social customs and contacts to
which he has been accustomed, or if its education
in his native land is interrupted and the child is
being subjected to a foreign system of education,
for these are all acts which could psychologically
disturb the child. Again the summary jurisdiction
be exercised only if the court to which the child
has been removed is moved promptly and quickly.
The overriding consideration must be the interests
and welfare of the child.”

The essence of the judgment in Nithya
Anand Raghavan’s case(supra) is that the
doctrines of comity of courts, intimate connect,
orders passed by foreign courts having jurisdiction
in the matter regarding custody of the minor child,
citizenship of the parents and the child etc. cannot
override the consideration of the best interest and
the welfare of the child and that the direction to
return the child to the foreign jurisdiction must not

(Downloaded on 06/07/2019 at 10:45:23 PM)
(7 of 13) [HC-229/2018]

result in any physical, mental, psychological, or
other harm to the child.

In Kanika Goel Vs. State of Delhi through
Station House Officer and another10 in which one
of us(Justice Khanwilkar) is a member, the
marriage of the couple was solemnized in New
Delhi and accordingly girl child was born in US in
2014. The mother along with the child came to
India in December, 2016 with their return ticket to
Chicago in January 2017. She filed a divorce
petition after coming to India in Delhi and husband
filed emergency custody petition in US Court. Wife
obtained an exparte order from Family Court, Delhi
restraining husband from removing the
child 2018(9) SCC 578 from India on 11th
January, 2017. Husband obtained exparte order
for interim sole custody on 13 th January, 2017
from foreign Court. At the same time, husband
filed Habeas Corpus Petition in Delhi High Court
which ordered the mother to comply with the order
of UK Court. This Court, after taking into
consideration totality of facts and circumstances,
observed that the custody of the minor girl child to
remain with the appellant mother until she attains
the age of majority or the court of competent
jurisdiction, trying the issue of custody of the
minor.

X——-X——-X——-X——-X——-X——-X—-X
It is not in dispute that both the minor
children, from the very inception of their birth, till
removal from the US on 23 rd March, 2017 were
living with their parents in US. This fact was
admitted by the appellant (Lahari Sakhamuri) also
in the guardianship petition filed before the Family
Court, Hyderabad and also in the divorce and
custody petition filed by her in US and only after
hearing learned counsel for the parties, order was
passed by the US Court on 22nd May, 2017 on the
emergency custody petition granting temporary
physical custody of the children with
further direction to the appellant (Lahari
Sakhamuri) to return along with the children to the
jurisdiction of US Court on 2 nd June, 2017. In
case she was aggrieved by the order dated 22 nd
May, 2017 passed by the US Court after affording
an opportunity of hearing which she contested
through her Attorney, all the courses were
available to her to assail the order of the Court.
Since the appellant (Lahari Sakhamuri) failed in
returning the children to the jurisdiction of the US
Court despite order dated 22nd May, 2017, there
was no option left with the respondent (Sobhan
Kodali) but to file a Habeas Corpus Petition and
pray that the children be repatriated back to US in
compliance of the order of the US Court.”

Learned counsel for respondent no.3 has opposed the

petition and has submitted that the petition was liable to be

dismissed as respondent no.3 was the natural guardian of the

(Downloaded on 06/07/2019 at 10:45:23 PM)
(8 of 13) [HC-229/2018]

child. It was in the best interest of the child who is aged about two

years to live in the custody of her mother. By way of the present

petition, petitioner was practically seeking execution of the order

Annexure P-9, hence, this petition is liable to be dismissed. In

support of his arguments, learned counsel has placed reliance on

the decision of the Hon’ble Supreme Court in Nithya Anand

Raghavan Vs. State (NCT of DELHI) and Another in (2017)

8 Supreme Court Cases 454, decided on July 3, 2017,

wherein, it was held as under:-

“The consistent view of this court is that if
the child has been brought within India, the Courts
in India may conduct (a) summary inquiry or (b)
an elaborate inquiry on the question of custody. In
the case of a summary inquiry, the Court may
deem it fit to order return of the child to the
country from where he/she was removed unless
such return is shown to be harmful to the child. In
other words, even in the matter of a summary
inquiry, it is open to the Court to decline the relief
of return of the child to the country from where
he/she was removed irrespective of a pre-existing
order of return of the child by a foreign Court. In
an elaborate inquiry, the Court is obliged to
examine the merits as to where the paramount
interests and welfare of the child lay and reckon
the fact of a pre-existing order of the foreign Court
for return of the child as only one of the
circumstances. In either case, the crucial question
to be considered by the Court (in the country to
which the child is removed) is to answer the issue
according to the child’s welfare. That has to be
done bearing in mind the totality of facts and
circumstances of each case independently. Even
on close scrutiny of the several decisions pressed
before us, we do not find any contra view in this
behalf. To put it differently, the principle of comity
of courts cannot be given primacy or more
weightage for deciding the matter of custody or for
return of the child to the native state.

X——X——X——X—–X—–X—–X—–X—–X

In a petition for issuance of a writ of habeas
corpus in relation to the custody of a minor child,
this Court in SectionSayed Saleemuddin v. Rukhsana24,
has held that the principal duty of the Court is to
ascertain whether the custody of child is unlawful
or illegal and whether the welfare of the child
requires that his present custody should be
changed and the child be handed over to the care
and custody of any other person. While doing so,
the paramount consideration must be about the
welfare of the child. In the case of Mrs. Elizabeth

(Downloaded on 06/07/2019 at 10:45:23 PM)
(9 of 13) [HC-229/2018]

(supra), it is held that in such cases the matter
must be decided not by reference to the legal
rights of the parties but on the sole and
predominant criterion of what would best serve the
interests and welfare of the minor. The role of the
High Court in examining the cases of custody of a
minor is on the touchstone of principle of parens
patriae jurisdiction, as the minor is within the
jurisdiction of the Court (see Paul Mohinder Gahun
Vs. State of NCT of Delhi 15 (2001) 5 SCC 247
Ors.16 relied upon by the appellant). It is not
necessary to multiply the authorities on this
proposition.

The High Court while dealing with the
petition for issuance of a writ of habeas corpus
concerning a minor child, in a given case, may
direct return of the child or decline to change the
custody of the child keeping in mind all the
attending facts and circumstances including the
settled legal position referred to above. Once
again, we may hasten to add that the decision of
the Court, in each case, must depend on the
totality of the facts and circumstances of the case
brought before it whilst considering the welfare of
the child which is of paramount consideration. The
order of the foreign Court must yield to the welfare
of the child. Further, the remedy of writ of habeas
corpus cannot be used for mere enforcement of
the directions given by the foreign court against a
person within its jurisdiction and convert that
jurisdiction into that of an executing court.
Indubitably, the writ petitioner can take recourse
to such other remedy as may be permissible in law
for enforcement of the order passed by the foreign
Court or to 16 113 (2004) Delhi Law Time
823 resort to any other proceedings as may be
permissible in law before the Indian Court for the
custody of the child, if so advised.

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.

The next question to be considered by the
High Court would be whether an order passed by
the foreign court, directing the mother to produce
the child before it, would render the custody of the
minor unlawful? Indubitably, merely because such
an order is passed by the foreign court, the

(Downloaded on 06/07/2019 at 10:45:23 PM)
(10 of 13) [HC-229/2018]

custody of the minor would not become unlawful
per se.

X——X——X——X—–X—–X—–X—–X—–X

In the present case, we are of the
considered opinion that taking the totality of the
facts and circumstances of the case into account, it
would be in the best interests of the minor
(Nethra) to remain in custody of her mother
(appellant) else she would be exposed to harm if
separated from the mother. We have, therefore,
no hesitation in overturning the conclusion reached
by the High Court. Further, we find that the High
Court was unjustly impressed by the principle of
comity of courts and the obligation of the Indian
Courts to comply with a pre-existing order of the
foreign Court for return of the child and including
the “first strike” principle referred to in Surya
Vadanan’s case (supra).

We once again reiterate that the exposition
in the case of Dhanwanti Joshi (supra) is a good
law and has been quoted with approval by a three-
judge bench of this Court in V. Ravi Chandran
(supra). We approve the view taken in Dhanwanti
Joshi (supra), inter alia in paragraph 33 that so far
as non-convention countries are concerned, the
law is that the Court in the country to which the
child is removed while considering the question
must bear in mind the welfare of the child as of
paramount importance and consider the order of
the foreign Court as only a factor to be taken into
consideration. The summary jurisdiction to return
the child be exercised in cases where the child had
been removed from its native land and removed to
another country where, may be, his native
language is not spoken, or the child gets divorced
from the social customs and contacts to which he
has been accustomed, or if its education in his
native land is interrupted and the child is being
subjected to a foreign system of education, – for
these are all acts which could psychologically
disturb the child. Again the summary jurisdiction
be exercised only if the court to which the child
has been removed is moved promptly and quickly.
The overriding consideration must be the interests
and welfare of the child.”

In the present case, facts are not in dispute. Admittedly,

petitioner and respondent no.3 got married on 11.07.2016 at Kota

and thereafter started residing together in America. A daughter

namely Kiyara Verma was born to petitioner and respondent no.3

(Downloaded on 06/07/2019 at 10:45:23 PM)
(11 of 13) [HC-229/2018]

on 03.05.2017. Due to some matrimonial discord between the

parties, respondent no.3 filed a petition in the Court in America

seeking sole custody of the minor child. The said petition came up

for hearing before ‘Norfolk Juvenile and Domestis Relations District

Court’ on 26.09.2018 and interim order was passed in terms of

agreement incorporated as Exhibit-A. Parties were directed to

abide by agreement incorporated as Exhibit-A and were directed

to hand over the passports to GAL ASAP.

Exhibit-A to Annexure P-9 reads as under:-

“Father to continue paying Rent and Utilities @ the
marital residence for October and November 2018.
Father will add Mother to lease as an authorized
occupant or lease holder. Father to pay Mother $
150/ week for child support for October and
November 2018 and $ 200/week for December
2018. Parties to work together to reach a resolution
as to who will occupy the marital residence after
November 2018. Mother to look for employment
consistent with her educational and professional
experience. Mother and Father have joint legal
custody of minor child and shared physical custody
of child. Father’s parenting time to start Thursday
September 27, 2018 @ noon until Saturday
September 29, 2018 @ noon. Thereafter the Parties
are to share Parenting time as follows:
Mother to have child every other week from
Saturday @ noon until Wed @ Noon, and on
alternating weeks from Saturday @ noon until
Thursday @ noon. Father shall have parenting time
on [email protected] until Saturday, w/ alternating weeks
Tues. @ noon until Saturday @ noon (i.e., 4 days
on, 3 days off switching weeks for each parent).
Parents shall allow Whatsapp calling w/child w/
custodial parent at least 5 min. per evening upon
Reasonable notice to other Parent. Parent shall use
a Third neutral party to facilitate exchanging the
child. Parties shall cooperate w/ each other third
party if non exchange time is not feasible.

All parties will surrender their passports,
including child’s passport to guardian adlitem.
Mother to reside @ marital Residence until
December 1, 2018 wherein Mother will vacate the
premises or assume full responsibility of the Rent
Utilities thereafter.

The next date of hearing was fixed by the Court as

01.10.2019 at 11.30 a.m. However, respondent no.3 came to

India along with minor child after passing of the order dated

(Downloaded on 06/07/2019 at 10:45:23 PM)
(12 of 13) [HC-229/2018]

26.09.2018 and before the next date of hearing i.e., 01.10.2019

fixed before ‘Norfolk Juvenile and Domestis Relations District

Court’ (Common Wealth of Virginia). Learned counsel for

respondent no.3 has placed great reliance on the decision of the

Hon’ble Supreme Court in Nithya Anand Raghavan case (supra) in

support of his argument that the present petition was liable to be

dismissed as the Court was only required to consider best interest

and welfare of the child. In Lahari Sakhamuri case (supra)

Hon’ble Supreme Court has passed the order of return of the

minor child to America after considering various decisions of the

Hon’ble Supreme Court including Nithya Anand Raghavan case

(supra).

In the present case, minor child was admittedly born in

America and had been living with her parents in America. Petition

seeking sole custody of the child was filed by respondent no.3

before the Court in America. Thus, respondent no.3 had herself

submitted to the jurisdiction of the Court in America. Order

Annexure P-9 was passed by the ‘Norfolk Juvenile and Domestis

Relations District Court’ as per the agreement between the

parties. It had been agreed between the parties that the petitioner

and respondent no.3 would have joint legal custody of the minor

child and shared physical custody of the child. It was agreed

between the parties with regard to the sharing of parenting time.

It was also agreed between the parties that they would surrender

their passports including child’s passport to the guardian adlitem.

The next date of hearing was fixed by the court as 01.10.2019.

Respondent no.3 instead of appearing before the Court on the

date fixed, came to India along with the minor child. Thus,

respondent no.3 did not honour the terms of the agreement.

(Downloaded on 06/07/2019 at 10:45:23 PM)

(13 of 13) [HC-229/2018]

Hence, petitioner was left with no other option but to file the

present petition praying that respondent no.3 should facilitate the

return of the minor child to the jurisdiction of the US Court. The

interest and welfare of the child will be duly protected and taken

care by the Jurisdictional Court in America in the pending

proceedings regarding custody of minor child.

Accordingly, respondent no.3 is directed to return to US

along with her minor daughter Kiyara Verma within a period of six

weeks from today to enable the Jurisdictional Court in US to pass

further orders in the proceedings initiated by respondent no.3

regarding custody of minor child. It is further directed that

petitioner shall make all arrangements of stay and travel expenses

(including air tickets) of respondent no.3 and minor child Kiyara

Verma as well as her companion, if any, in their own house or if

she is not willing to stay in the said house for any personal

reasons, petitioner shall make all arrangements for her stay at the

place of her choice at a reasonable cost.

Any observations made by this Court for the purpose of

consideration in summary inquiry in the present petition will not

be of any assistance to either of the party in the custody

proceedings pending in the US Court which would be decided on

its own merits.

Petition stands disposed of accordingly.

(GOVERDHAN BARDHAR),J (SABINA)J.

Mohita /38

(Downloaded on 06/07/2019 at 10:45:23 PM)

Powered by TCPDF (www.tcpdf.org)

Leave a Reply

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


Not found ...? HOW TO WIN 498a, DV, DIVORCE; Search in Above link

All Law documents and Judgment copies
Laws and Bare Acts of India
Landmark SC/HC Judgements
Rules and Regulations of India.

STUDY REPORTS

Copyright © 2021 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