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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.934-936 OF 2013
(Arising out of SLP (Crl.) No. 10606-10608 of 2010)
Arathi Bandi
…Appellant
VERSUS
Bandi Jagadrakshaka Rao & Ors. …Respondents
WITH
CRIMINAL APPEAL NO.937 OF 2013
(Arising out of SLP (Crl.) No. 3335 of 2012)
Bandi Jagadrakshak Rao & Ors. …Appellants
VERSUS
The State of Andhra Pradesh & Anr. …Respondents
J U D G E M E N T
SURINDER SINGH NIJJAR, J.
1. Leave granted.
2. These appeals arising out of Special Leave Petition
(Crl.) No. 10606-10608 of 2010 are directed against the
judgment and final order dated 24th September, 2010
passed by the High Court of Judicature of Andhra
Pradesh, Hyderabad in Writ Petition No. 25479 of 2009
issuing a writ in the nature of Habeas Corpus directing
the petitioner to submit to the jurisdiction of U.S.
Courts.
The petitioner also assails the orders dated 3rd
December, 2010 and 14th December, 2010 passed by the
Andhra Pradesh High Court in W.P.M.P. No.
31378 of 2010 in W.P. No. 25479 of 2010, directing the
petitioner to produce the child along with necessary
documents to give effect to the main judgment and order
dated 24th September, 2010.
The appellant has framed
three questions of law for the consideration of this
Court in the Special Leave Petition giving rise to these
appeals. They are as under:-
“(A) Has not the Hon’ble High Court failed to exercise
jurisdiction vested in it under law in not considering the
welfare and well being of the minor child before issuing the
impugned directions ?
(B) Has not the Hon’ble High Court erred in holding that when
there is an order passed by foreign court, it is not necessary
to go into the facts of the case?
(C) Is not the judgment of US Court “not conclusive” as between
the parties and hence unenforceable in India for being in
violation of Section 13(c) and (d) of the Code of Civil
Procedure, 1908?”
3. The relevant facts giving rise to the aforesaid
questions of law as narrated by the parties are as
under:-
(a) Respondent No. 1 (hereinafter referred to as the
“husband”) invoked the Habeas Corpus jurisdiction of
the Andhra Pradesh High Court under Article 226 of
the Constitution of India for production of the minor
child, i.e., Master Anand Saisuday Bandi before the
Court and permit him to take custody of the minor
child in compliance of the orders passed in Case
No.06-3-08145-9-KNT by the Superior Court of
Washington, County of King (hereinafter referred to
as “the U.S. Court”).
Upon consideration of the
entire facts and circumstances, the High Court issued
the following directions:-
“ i) The petitioner shall obtain necessary travel tickets
for the 7th respondent and the child for their visit
to the place where U.S. Court is situated;
ii) On obtaining travel tickets, the petitioner
shall intimate the same to the 7th respondent three
weeks in advance of the date of departure to enable
her to make necessary arrangements;
iii) The petitioner shall deposit a sum of $5000
(Five thousand American dollars) in the name of the
7th respondent for enabling her to engage an advocate
in US and to submit to the jurisdiction of the US
Court;
iv) The petitioner shall make necessary arrangements for
the stay of the 7th respondent and the child for a
period of fifteen (15) [sic] on their landing in USA.
v) On petitioner providing travel tickets, depositing
the amount as ordered above, and intimating the date
of departure, if 7th respondent fails to submit to
the jurisdiction of the US Court along with the
child, Master Anand Saisuday Bandi, in obedience to
the orders passed in writ of Habeas Corpus by the US
Court, she shall handover the custody of the child to
the petitioner, who in turn shall produce the child
before the US Court and custody of the child will
abide by the decision of the US Court since the child
is a citizen of USA.”
(b) The petitioner (hereinafter referred to either as
“the petitioner”, “the wife” or “the mother”),
aggrieved by the aforesaid directions, filed the
special leave petitions giving rise to the present
appeals.
Events/ Legal Proceedings in the U.S.A.:
(c) The marriage between the parties was solemnized
according to Hindu rights on 9th November, 2003 in
Atlanta, USA.
They were both divorcees. After
marriage, they had settled down in Seattle, USA.
Anand (hereinafter referred to either as “the child”,
“the minor child,” or “Anand”) was born on 5th June,
2005 in USA and, therefore, is a US citizen by birth.
On 30th October, 2006, respondent No.1 (hereinafter
referred to as “respondent No.1”, “the husband” or
“the father”) filed a petition for dissolution of
marriage in Superior Court of Washington, County of
King at Seattle.
In these proceedings, an ex parte
order was issued restraining the wife from leaving
the State of Washington.
The husband was authorised
to hold on to the passport and Person of Indian
Origin Card (PIO Card) of Anand.
Within days of the
husband petitioning for dissolution of marriage, the
wife on 13th November, 2006 submitted a complaint of
domestic violence in which the Superior Court of
Washington, Kent directed the husband to move out of
the matrimonial home.
Anand was to remain in the
custody of wife with limited visitation rights were
granted to the husband.
The wife was, however,
directed to pay US $ 1500 for the husband’s expenses
until the regular hearing.
On 4th December, 2006,
further orders were issued stipulating that the
wife/mother would occupy the family home with the
child.
Furthermore, the father was to bear half of
the mortgage on family home, child’s day care
expenses and insurance costs for the child and the
mother.
The unsupervised visitation rights of the
father were increased from 9 hours to 12 hours per
week.
Father’s attorney was required to hold Anand’s
U.S.A. passport.
On 1st March, 2007, Ms. Jennifer
Keilin was appointed by the Superior Court of
Washington, Kent as Guardian ad litem to make
recommendations regarding the marriage and child
custody.
On 22nd June, 2007, Parenting Evaluation
Report was submitted to the U.S. Court. The
wife/mother was found suitable for custody in view of
the problems of the husband/father at the work place,
alcohol dependency and smoking addiction.
It was also
noted that the child Anand has very serious food
allergies.
On 9th July, 2007, the wife filed a motion
before the Superior Court of Washington, Seattle for
an emergency hearing on her petition requesting
travel to India for two weeks.
This was denied by the
aforesaid court on 10th July, 2007. On the same day,
the wife moved the Superior Court of Washington, Kent
seeking an emergency hearing. This too was denied by
the Court.
However, regular hearing was set for 24th
July, 2007. On 25th July, 2007, at the regular
hearing, the Superior Court of Washington, Kent
passed an order permitting the wife to travel to
India with the child.
However, at the request of the
husband, the said order was stayed, until his motion
of reconsideration could be adjudicated.
On 17th
August, 2007, the wife filed motion for continuance
of trial, permanent relocation to India with the
child and requesting the court to order the father to
undergo domestic violence assessment. On 4th
September, 2007, Superior Court of Washington, Kent
passed orders granting request of the wife for
continuance of trial, appointing Ms. Keilin to
conduct another evaluation to make recommendations
regarding relocation. However, the request of the
wife to order the husband to go through a further
domestic violence assessment was denied.
On the same
day, i.e. 4th September, 2007, the appeal of the
father against the order dated 25th July, 2007,
permitting the wife to travel to India with the
child, was allowed.
(d) The trial in the main petition for dissolution of
marriage on the ground of irretrievable breakdown of
marriage commenced on 18th March, 2008 in the
Superior Court of Washington, Kent. On 19th March,
2008, parenting plan was approved with primary
custody of Anand given to the mother and limited
visitation rights granted to the father. During
summer vacations of two weeks, each parent was
granted five consecutive days of residential time, at
a time. Out of State or International travel was
permitted to both the parties during the residential
time. The attorney of the husband was ordered by the
Superior Court of Washington to prepare final orders.
4. On 20th March, 2008, the motion of the wife for
relocation to India was denied. On 7th July, 2008, the
wife filed a motion petition before the Superior Court
of Washington, Kent requesting a clarification on final
parenting plan to permit 13 consecutive days
of vacation with the child for travelling to India.
On
16th July, 2008, Superior Court of Washington denied her
motion.
In violation of the aforesaid orders, the wife
travelled to India with Anand on 17th July, 2008. On
22nd August, 2008, final orders were passed in the
petition filed by the husband for dissolution of
marriage.
The order includes findings of fact and law
entered by the Superior Court of Washington. The Court
specifically recorded the reasons that led to the denial
of the motion filed by the wife for relocation on 20th
March, 2008. On 23rd August, 2008, divorce decree
entered by the Superior Court of Washington as part of
final orders.
5. On the same day, i.e., 23rd August, 2008, the wife sent
an e-mail to the husband informing him that she will
return on 16th September, 2008 alongwith the child.
This
E-mail also contained the confirmed itinerary. Since the
wife did not return with the child, the husband moved an
application in September, 2008 seeking modification of
the final parenting plan on the grounds of violation of
earlier parenting plan (19th March, 2008) and
interference with his visitation rights.
On 9th
December, 2008, Superior Court of Washington, Kent
modified the parenting plan. The husband was made
custodial parent and the wife was granted visitation
rights.
On 12th December, 2008,
Superior Court of Washington, Seattle also issued a Writ
of Habeas Corpus, directing the State and its officers
to locate and take Anand into immediate custody and
deliver him to the Presiding Judge of the Superior Court
of Washington, County of King.
On 11th January, 2009,
abduction notices were issued against the wife.
This was followed by a Red Corner Notice.
In the
meantime, the services of the husband were terminated by
his employer in February, 2009, due to the economic
downturn.
Similarly, the wife was also affected by the
downturn and was not able to take up a new job in the
USA.
Since the wife did not return with the child on
13th March, 2009, Superior Court of Washington, Kent
issued bailable warrants against her for Custodial
Interference in the First Degree.
In May, 2009, the
husband sold the matrimonial house in USA.
Events and legal proceedings in India -
6. On 20th November, 2009, the husband filed a Habeas
Corpus petition in the Andhra Pradesh High Court. Since
there was no representation from the wife, the writ
petition was admitted.
Upon completion of the
proceedings, which according to the husband, were
deliberately delayed by the wife, the High Court
delivered the impugned judgment on 24th
September, 2010.
A few days thereafter, the husband
filed W.P.M.P. No.31378 of 2010 on 29th September, 2010,
seeking inter alia custody of Anand for producing him
before the US Consulate in Hyderabad; a direction to the
Registrar (Judicial) of the Andhra Pradesh High
Court to return his own Indian Passport; and a direction
to the wife for providing her “current name”, “xerox
copies of her current passport”, “visa papers” and “PIO
Card” of Anand to the husband.
On 3rd December, 2010,
the High Court directed the wife to be present along
with Anand before it on the next date of hearing, i.e.,
10th December, 2010.
She was also directed to produce
her passport and visa papers and the PIO Card of Anand,
so as to enable the husband to comply with the
directions of the High Court issued in Writ Petition No.
25479 of 2009 dated 24th September, 2010.
It seems that
on 10th December, 2010, another Advocate, who replaced
the earlier counsel, appeared for the wife and sought
some more time to comply with the order dated 3rd
December, 2010.
On 14th December, 2010, the wife came
to the High Court, albeit without Anand and served the
copy of her Review Petition against the judgment dated
24th September, 2010 to the petitioner/husband. On 18th
December, 2010, the present appeal was preferred before
this Court, by the wife.
Meanwhile on 22nd December,
2010, neither the wife nor Anand came to the High Court
and a death in the family at Vijayawada was reported by
her as the reason for the absence.
Again on 28th
December, 2010, the wife and Anand absented themselves
from the High Court. The High Court, however, issued
directions on the same date to the Commissioner of
Police, Hyderabad City to produce Anand before the Court
on 17th January 2011. On 18th January, 2011, the police
could not
locate either wife or Anand. Upon this, the High Court
granted a week’s time to the police to produce Anand.
On 25th January, 2011, since the police could not locate
Anand, the High Court issued a non-bailable warrant
against wife and directed the matter to be listed on 8th
February, 2011.
Meanwhile, this Court on 31st January,
2011, issued notice in the Civil Appeal filed by the
wife and order dated 25th January, 2011 was stayed.
The
Review Petition pending before the High Court appears to
have been withdrawn by the petitioner after the notice
was issued by this court in the present Civil Appeal.
7. We have heard the learned counsel for the parties at
length.
8. Mr. Pallav Shishodia, learned senior counsel appearing
for the wife has submitted that both the mother and the
child have been in India since July, 2008.
The mother
has been looking after Anand single handedly without any
help from the father.
She has got a well paid job with
IBM at Bangalore.
Anand now lives in a joint family and
is happy. He enjoys the company of his cousins. He is
now 8 years of age and has developed roots in India.
He
has emphasised that the High Court has not considered
the welfare of the child in passing the impugned
judgment.
He has submitted, by making exhaustive
reference to the Parenting Evaluation Report, that it
would be for the welfare of the child to remain with the
mother in India.
Learned senior counsel submitted that
this Court would have to consider the benefits that
would accrue to Anand if he is permitted to remain with
her in India as opposed to the undesirability of
compelling her to handover his custody to the father.
Learned senior counsel submits that the Parenting
Evaluation Report clearly notices that the father was
subjected to Urinalysis Testing for alcohol.
The mother
had objected to her husband’s use of alcohol. The
husband frequently drank alcohol during the evening. At
the same time, he tried to hide his alcohol dependency
from his parents who were staying with him.
The wife had
also narrated before Ms. Jennifer Keilin who gave the
Parenting Evaluation Report that the husband drank while
watching television, consuming half a bottle of rum
every evening. His drinking had increased while she was
visiting India in April and May, 2004.
She had also
claimed that the husband sometimes had difficulty in
waking up in the morning and after drinking he suffered
occasional hangovers.
Mr. Shishodia also pointed out
that the husband is also addicted to cigarette smoking.
He also has a history of employment problems.
This
apart, the husband had also admitted before the
evaluator about his past drug use. Referring to the
Parenting Evaluation Report, Mr. Shishodia pointed out
the numerous other difficulties which were being faced
by both the parties whilst they were married.
On the
basis of the aforesaid, he submitted that the High Court
erred in law by not taking into consideration the
relevant factors whilst passing the impugned judgment.
At this stage, he relied on the judgment of this Court
in Smt. Surinder Kaur Sandhu Vs. Harbax Singh Sandhu &
Anr.[1]. He submitted that the High Court has totally
ignored the relevant facts for determining what would be
in the best interest of the child. He also pointed out
to the conclusion in the Parenting Evaluation Report
which is as under:
“In my opinion, Anand should reside primarily with Ms. Bandi. He
should have regular, limited visitation with Mr. Rao, increasing
at regular intervals. These intervals should be based on Mr. Rao
completing and maintaining certain criteria as well as on
Anand’s development needs. Mr. Rao should engage in specific
services, including alcohol treatment and a parenting class, and
both parents should participate in co-parent counseling.”
9. Learned senior counsel further submitted that the High
Court has totally misconstrued the principle of Comity
of Courts, as applicable in private international law
matters.
The High Court has erred in holding that it was
not necessary to hold an elaborate enquiry in the facts
and circumstances of this case.
He submitted that the
High Court has misconstrued the principles of law laid
down by this Court in V. Ravi Chandran (Dr.) (2) Vs.
Union of India & Ors.[2]. He submitted that the
observations made by this Court in the case of Shilpa
Aggarwal (Ms.) Vs. Aviral Mittal & Anr.[3] would not be
applicable in the facts and circumstances of this case.
In fact, the matter is squarely covered by the judgment
of this Court in Dhanwanti Joshi Vs. Madhav Unde[4].
Learned senior counsel also relied on the judgment in
Sarita Sharma Vs. Sushil Sharma[5] and Ruchi Majoo Vs.
Sanjeev Majoo[6].
Learned counsel pointed out that the
High Court has totally ignored some very important
issues as to why it would not be in the interest of
Anand to be sent back to USA to live with the father.
He also pointed out that the husband has lost his job in
the USA and has been living in India for the past three
years. He has also sold the family house in USA.
Therefore, Anand would have no family atmosphere if he
is taken back to the USA. He pointed out that initially
the custody of Anand had been given to the mother on the
basis of the recommendations made in the parenting plan.
However, subsequently, orders have been passed granting
custody to the respondent-husband.
It is these orders
which are sought to be enforced in the USA Courts which
had led to the filing of the Habeas Corpus petition in
the Andhra Pradesh High Court. He submitted that the
mother had been compelled to leave the USA due to the
irrational behaviour of the husband.
Learned senior
counsel also pointed out even at the time of the
marriage, the plan was actually to settle in India.
Subsequently, however, the husband declined to return to
India. He also pointed out that the removal of Anand
from USA was neither thoughtless nor malicious.
The wife
had to return to India due to the serious ailment and
old age of her parents. She is now looking after them in
India.
Therefore, it cannot be concluded that the wife
is trying to alienate the child from the husband.
10. Mr. Patwalia, learned senior counsel, for the respondent-
husband submitted that the wife has come to India in
violation of the parenting plan.
It is submitted that
she participated in the proceedings in USA, where some
orders were passed in her favour while the others were
against her.
11. He submits that all efforts of the wife are simply to
alienate the child from the father.
He emphasises that
the petitioner and respondent No.1 were married in USA.
At the time of marriage, they were both divorcees.
They
had settled in Seattle, USA. Anand was born in USA and
is, therefore, a US citizen by birth.
Due to
irreconcilable differences, the husband was constrained
to initiate proceedings in the USA Court for dissolution
of marriage.
During the pendency of the proceedings in
the USA Court, the wife had shown a consistent
propensity to disobey the orders of the Court. At the
same time, she filed a number of motions in the pending
proceedings with regard to domestic violence;
independent occupation of the matrimonial home, at the
same time demanding that the husband bears half of the
mortgage of the family home and other expenses for her
as well as the child.
Although both the parents were
allowed five days residential time with the child during
the two weeks summer vacation, the effort of the wife
was always to remove him from the country of his birth.
Her motion for permanent location to India was
ultimately denied on 16th July 2008.
In defiance of the
said order, she travelled to India with Anand on 17th
July, 2008.
The learned senior counsel submits that the
facts which have been narrated above would clearly
indicate that the petitioner has little or no regard for
the orders of the Court.
12. Mr. Patwalia further submitted that the conduct of the
petitioner in the courts in this country follows the
same pattern.
In fact, the counsel for the petitioner
has admitted before the High Court the fact of US Court
passing order for the custody of the child and that it
has not permitted the petitioner to remove the child out
of Washington.
It was further admitted that in spite of
the aforesaid direction, the child was removed from the
jurisdiction of the Courts in which he was born. The
fact of issuance of the Writ of Habeas Corpus by the
United States Superior Court for production of the child
was also admitted. Before the High Court, a submission
was made on behalf of the petitioner-wife for grant of
some time to submit to the jurisdiction of the US Court
and to enable her to obtain necessary orders from the
aforesaid court. Relying on the aforesaid submissions of
the petitioner, the High Court had issued the directions
reproduced earlier in this judgment. After obtaining
such orders, the wife disappeared again from the scene.
Consequently, the respondent-husband had to file a
miscellaneous application seeking directions to the
petitioner to handover the custody of the child for
producing before the US Consulate in Hyderabad. On 3rd
December, 2010, the High Court directed the petitioner
to be present before the Court on 10th December, 2010
along with the child, so that the husband could comply
with the directions issued by the Court on 24th
September, 2010. On 14th December, 2010, the wife
appeared in Court but did not produce the child, as
directed. It was submitted before the Court that she had
filed a review petition which ought to be taken up for
hearing and sought one week’s time for production of the
child. Upon this assurance, the Court again directed
that the child be produced on 22nd December, 2010.
According to Mr. Patwalia, she was all along misleading
the Andhra Pradesh High Court, whilst preparing to file
the SLP against the impugned judgment. The SLP was
actually filed on 18th December, 2010, challenging three
orders viz. orders dated 24th September, 2010 passed in
W.P.No.25479 of 2009 and subsequent orders dated 3rd
December, 2010 and 14th December, 2010
passed in W.P.M.P. No.31378 of 2010 in the aforesaid
writ petition.
13. Mr. Patwalia points out that, in fact, the conduct of
the petitioner is noticed in the order dated 28th
December, 2010. The High Court noticed that in spite of
the directions having been given, the petitioner has not
produced the child in the Court. She had also not
produced necessary papers relating to the child. On 14th
December, 2010, she had undertaken to produce the child
on 22nd December, 2010. On 22nd December, 2010, the
counsel for the petitioner had submitted that her
maternal uncle had died and, therefore, she had left for
Vijayawada. But on 28th December, 2010, it was brought
to the notice of the court that her maternal uncle had
already died on 16th December, 2010. It was then
represented before the High Court that the petitioner
was staying at Vijayawada because the child was unwell
and admitted in hospital. The High Court noticed that
the petitioner appears to have made a false statement on
the last date of hearing. Therefore, the directions were
issued to the Commissioner of Police, Hyderabad to
produce the child before the Court on 17th January,
2011 at 4.00 p.m. On 18th January, 2011, the Court was
informed by the Assistant Government Pleader that in
spite of best efforts by the police, the child could not
be traced and she sought further time to locate and
produce the child in Court. Since the petitioner was
failing to assist the authorities in locating the child,
non-bailable warrants were issued for her. The matter
was posted for further proceedings on 8th February,
2011. In the meantime, this Court on 31st January, 2011
issued notice in the SLP and stayed the
operation of the
impugned orders.
14. Learned senior counsel further submitted that the
petitioner is able to defy the orders issued by the
Court of Competent Jurisdiction in USA as India is not a
signatory to the Hague Convention of 1980 on “Civil
Aspects of International Child Abduction”. The aforesaid
Convention fully recognizes the concept of doctrine of
Comity of Courts in private international law. He
submits that taking note of the undesirable effect of
not being the signatory to the aforesaid convention, the
then Chairman of the Law Commission of India recommended
that India should keep pace and change according to the
changing needs of the society. The Commission
recommended that the Government may consider that India
should become a signatory to the Hague Convention of
1980 which will, in turn, bring the prospect of
achieving the return to India of children who have their
homes in India. [See Law Commission of India Report
No.218 entitled “Need to accede to the Hague Convention
on the Civil Aspects of International Child Abduction
(1980)”]. Mr. Patwalia also submits that the impugned
order/judgment of the Andhra Pradesh High Court is in
consonance with the law as declared by this Court in
numerous judgments. In support of his submission, the
learned senior counsel relies on the same judgments
which were cited by Mr. Shishodia.
15. Mr. Patwalia also pointed out that not only the
petitioner had made false statements before the Court
but she had denied the husband any contact with the
child. From 6th April, 2010, the husband was entitled to
see the child for 2½ hours. From 3rd October, 2010, the
period was increased to 4 hours. Mr. Patwalia further
submitted that
the petitioner has also filed a complaint
in the Court of XIII Additional Chief Metropolitan
Magistrate, Hyderabad against her husband, both his
parents and his brother, alleging commission of offences
under Sections 498-A, 506 of IPC; and Sections 4 & 6 of
the Dowry Prohibition Act, 1961.
The respondent and his
parents had filed Criminal Petition no. 6711 of 2009
under section 482 of Cr.P.C., before the High Court of
Andhra Pradesh seeking quashing of the criminal
complaint.
In the said proceedings, the High Court, vide
order dated 23rd December 2011,
partly allowed the said criminal petition and directed
that the respondent husband and other co-accused should
not be prosecuted for offences said to have taken place
in USA without necessary permission from the Central
Government.
However, the proceedings emanating from the
said complaint were not quashed because the High Court
was of the opinion that there is sufficient prima facie
material in the complaint in the context of offences
alleged to have been committed in India.
The said order
is under challenge before us, in Criminal Appeal arising
from S.L.P. (Criminal) No. 3385 of 2012.
16. In this context, Mr. Patwalia submits that the aforesaid
complaint is merely a counter blast to the divorce and
child custody proceedings initiated by the husband
against the wife.
17. We have anxiously considered the submissions made by the
learned senior counsel for the parties and minutely
perused the material on record.
18. From the facts narrated above,
it becomes evident that
the wife has reached India in defiance of the orders
passed by the Courts of competent jurisdiction in U.S.
It is apparent that the appellant has scant regard for
the orders passed by the Andhra Pradesh High Court also.
Keeping in view the aforesaid facts and circumstances,
the Andhra Pradesh High Court issued the directions
which have been reproduced in the earlier part of the
judgment.
Although the learned counsel for the parties
have relied on a number of judgments of this Court in
support of their respective submissions, in our opinion,
the matter is squarely covered by the ratio of law in
the case of V. Ravichandran (supra).
19. In the aforesaid judgment, this Court considered a
similar factual situation.
The petitioner, who was of
Indian origin, was a citizen of the United States of
America.
He married respondent No. 6 on 14th December,
2000 at Tirupathi in India.
On 1st July, 2002, child
Aditya was born while they were in USA.
Subsequently, a
dispute arose between the parties regarding custody of
Aditya, and the parties had obtained consent order dated
18th June, 2007 from the court of competent jurisdiction
in USA under which both the parents were to have
alternate custody of the child on weekly basis.
However,
respondent No. 6, in violation of the said court's
orders, removed the child to India on 28th June, 2007
for staying with her parents in Chennai.
The petitioner
in turn moved the USA Court on 8th August, 2007 for
modification of custody order and for taking action
against respondent No. 6 for violation of court order.
On that very day, the petitioner was granted temporary
sole legal and physical custody of the minor child and
respondent No. 6 was directed to immediately turn over
the minor child and his passport to the petitioner.
The
order could not however be implemented in USA because of
illegal removal of child by respondent No. 6 to India.
The petitioner thereafter filed habeas corpus petition
under Article 32 of the Constitution in the Supreme
Court for production of the minor child and for handing
over his custody to the petitioner along with the
child's passport.
Despite orders of the Supreme Court,
the State Police could not produce the child for two
years, but CBI, on the directions of the Supreme Court,
was able to trace and produce the child within two
months.
The Court considered what would be an
appropriate order in the facts and circumstances,
keeping in mind the interests of the child and the
orders of the courts of the United States of America.
The Supreme Court while passing orders in this case also
took into consideration several concessions which the
petitioner husband made so that the wife could return to
USA and present her claim, if any, over the child in the
Courts in USA.
20. This Court partly allowed the writ petition with certain
observations which are very relevant in the decision in
the present case.
We may notice the observations made
in different paragraphs of the judgment. In Paragraph
25, the Court noticed the observation made by a Three
Judge Bench of this Court in the case of Smt. Surinder
Kaur Sandhu (supra), particular notice was taken of the
observations made in Paragraph 10 of the judgment, which
are as under:-
“10. In B's Settlement, In re, B. v. B. the Chancery Division
was concerned with an application for custody by the father of
an infant who had been made a ward of court. The father was a
Belgian national and the mother a British national who took
Belgian nationality on marriage to him. The infant was born in
Belgium. The mother was granted a divorce by a judgment of the
court in Belgium, but the judgment was reversed and the father
became entitled to custody by the common law of Belgium. The
mother, who had gone to live in England, visited Belgium and was
by arrangement given the custody of the infant for some days.
She took him to England and did not return him. The infant had
been living with the mother in England for nearly two years. The
father began divorce proceedings in Belgium, and the court
appointed him guardian. Pending the proceedings, the court gave
him the custody and ordered the mother to return the infant
within twenty-four hours of service of the order on her. She did
not return the infant. The correctional court in Brussels fined
her for disobedience and sentenced her to imprisonment should
the fine be not paid. The correctional court also confirmed the
custody order.”
21. In our opinion, these observations leave no manner of
doubt that
no relief could be granted to the appellant
in the present proceedings given her conduct in removing
Anand from U.S.A. in defiance of the orders of the Court
of competent jurisdiction.
The Court has specifically
approved the modern theory of Conflict of Laws, which
prefers the jurisdiction of the State which has the most
intimate contact with the issues arising in the case.
The Court also holds that Jurisdiction is not attracted
“by the operation or creation of fortuitous
circumstances”.
The Court adds a caution that to allow
the assumption of jurisdiction by another State in such
circumstances will only result in encouraging forum-
shopping.
The aforesaid observations are fully
applicable in the facts and circumstances of this case.
22. Again in Mrs. Elizabeth Dinshaw Vs. Arvand M. Dinshaw &
Anr.[7], this Court reiterated the principle that it was
the duty of Courts in all countries to see that a parent
doing wrong by removing children out of the country does
not gain any advantage by his or her wrongdoing.
In Re H. (Infants)[8], the Court of
Appeal in England had also observed that the sudden and
unauthorized removal of children from one country to
another is far too frequent nowadays. Therefore, it is
the duty of all courts in all countries to do all they
can to ensure that the wrongdoer does not gain an
advantage by his wrongdoing. These observations were
also approved specifically by the Court in the case of
Mrs. Elizabeth Dinshaw (supra). In the case of V.
Ravichandran (supra), in Paragraph 29 and 30, this Court
has concluded as follows:-
“29. While dealing with a case of custody of a child removed by
a parent from one country to another in contravention of the
orders of the court where the parties had set up their
matrimonial home, the court in the country to which the child
has been removed must first consider the question whether the
court could conduct an elaborate enquiry on the question of
custody or by dealing with the matter summarily order a parent
to return custody of the child to the country from which the
child was removed and all aspects relating to the child's
welfare be investigated in a court in his own country. Should
the court take a view that an elaborate enquiry is necessary,
obviously the court is bound to consider the welfare and
happiness of the child as the paramount consideration and go
into all relevant aspects of welfare of the child including
stability and security, loving and understanding care and
guidance and full development of the child's character,
personality and talents. While doing so, the order of a foreign
court as to his custody may be given due weight; the weight and
persuasive effect of a foreign judgment must depend on the
circumstances of each case.
30. However, in a case where the court decides to exercise its
jurisdiction summarily to return the child to his own country,
keeping in view the jurisdiction of the court in the native
country which has the closest concern and the most intimate
contact with the issues arising in the case, the court may leave
the aspects relating to the welfare of the child to be
investigated by the court in his own native country as that
could be in the best interests of the child. The indication
given in McKee v. McKee that there may be cases in which it is
proper for a court in one jurisdiction to make an order
directing that a child be returned to a foreign jurisdiction
without investigating the merits of the dispute relating to the
care of the child on the ground that such an order is in the
best interests of the child has been explained in L (Minors), In
re and the said view has been approved by this Court in
Dhanwanti Joshi. Similar view taken by the Court of Appeal in H.
(Infants), In re has been approved by this Court in Elizabeth
Dinshaw.”
23. In our opinion, the Andhra Pradesh High Court has
decided to exercise jurisdiction summarily and directed
the appellant to return the child to the U.S.A. This
course is absolutely permissible as is apparent from the
observations made by this Court in Paragraph 30 of the
aforesaid judgment. This Court also rejected the
objection raised by respondent No. 6 in the Counter
Affidavit that the American court, which passed the
order/decree has no jurisdiction and being inconsistent
in Indian Laws can not be executed in India. It was
observed that despite the fact that the respondent had
been staying in India for more than 2 years, she has not
pursued any legal proceeding for the sole custody of the
minor child or for the declaration that the orders
passed by the American courts concerning the custody of
minor child are null and void and without jurisdiction.
Similar are the facts in the present case. The wife
has not pursued any legal proceeding for seeking custody
of Anand. She has also not sought a declaration that the
orders passed by the American Courts are null and void
and are without jurisdiction. Therefore, in our
opinion, the High Court of Andhra Pradesh can not be
said to have acted erroneously.
In V. Ravichandran’s case (supra), this court
again observed in Paragraph 35 as follows:-
“35. The facts and circumstances noticed above leave no manner
of doubt that merely because the child has been brought to India
by Respondent 6, the custody issue concerning minor child
Adithya does not deserve to be gone into by the courts in India
and it would be in accord with principles of comity as well as
on facts to return the child back to the United States of
America from where he has been removed and enable the parties to
establish the case before the courts in the native State of the
child i.e. the United States of America for modification of the
existing custody orders. There is nothing on record which may
even remotely suggest that it would be harmful for the child to
be returned to his native country.”
24. These observations are squarely applicable in the facts
and circumstances of the present case. Mr. Shishodia
has, however, placed strong reliance on the judgment of
this Court in Ruchi Majoo (supra). The aforesaid
judgment would not be of any assistance to the appellant
in the facts and circumstances of the present case. In
that case, the respondent and wife had been living in
America, the child was born in America and was,
therefore, an American Citizen. The wife on account of
husband’s addiction to pornographic films, internet sex
and adulterous behavior during the couple's stay in
America took a decision to take the child to Delhi and
the husband consented to it. The parties had agreed
that the wife will stay with the minor child in India
and make the best arrangements for his schooling.
Subsequently, however, the husband objected to the wife
staying in India. On the other hand, the wife had no
intentions of returning to the country in the
foreseeable future especially after she has had a very
traumatic period on account of matrimonial discord with
the respondent husband. The wife had taken out
proceedings under Section 9 of the Guardian and Wards
Act, 1890 seeking custody of the minor child. Shortly
after the presentation of the main petition, an
application under Section 12 of the Guardian and Wards
Act read with Section 151 of the Code of Civil
Procedure, 1908 was filed by the wife/mother of the
child praying for an ex-parte interim order restraining
the respondent from removing the minor from her custody
and for an order granting interim custody of the minor
to the Appellant. On the other hand, the husband had
filed a case against the appellant alleging that she had
abducted the minor child. On his application, a Red
Corner Notice was issued against the wife. In the
meantime, the Additional District Court at Delhi had
granted interim custody to the appellant by order dated
4th April, 2009. This order was challenged by the
husband under Article 227 of the Constitution of India
before the High Court of Delhi. The Delhi High Court
accepted the petition, set aside the order of the
District Court and dismissed the custody case filed by
the mother primarily on the ground that the Court at
Delhi had no jurisdiction to entertain the claim as the
minor was not ordinarily residing at Delhi. The High
Court also held that all issues relating to the custody
of child ought to be adjudicated by the Courts in
America not only because that Court had already passed
an order to that effect in favour of the father, but
also because all the three parties namely, the parents
of the minor and the minor himself were American
citizens. The High Court then buttressed its decision on
the principle of comity of courts and certain
observations made by this Court in the earlier decisions
relied upon by the husband. It was in these
circumstances that the appeal filed by the wife/mother
against the order of the High Court was allowed. This
Court specifically took note of the following
circumstances:-
“34. The appellant’s case is that although the couple and their
son had initially planned to return to USA, that decision taken
with the mutual consent of the parties was changed to allow the
appellant to stay back in India and to explore career options
here. Master Kush was also according to that decision of his
parents, to stay back and be admitted to a school in Delhi. The
decision on both counts, was free from any duress whatsoever,
and had the effect of shifting the “ordinary residence” of the
appellant and her son Kush from the place they were living in
America to Delhi. Not only this the respondent father of the
minor, had upon his return to America sent e-mails, reiterating
the decision and offering his full support to the appellant.
This is, according to the appellant, clear from the text of the
e-mails exchanged between the parties and which are self-
explanatory as to the context in which they are sent.”
25. This Court accepted the submission of the appellant that
on the consent of the parties, the ordinary residence of
the minor had shifted to India. In coming to the
aforesaid conclusions, the Court examined the e-mails
exchanged between the parties, which totally demolished
the respondent’s defence that his consent for shifting
the residence of the minor was obtained by coercion. In
Paragraph 45 of the judgment, it is observed as follows:-
“45. It is difficult to appreciate how the respondent could in
the light of the above communications still argue that the
decision to allow the appellant and Master Kush to stay back in
India was taken under any coercion or duress. It is also
difficult to appreciate how the respondent could change his mind
so soon after the above e-mails and rush to a court in US for
custody of the minor accusing the appellant of illegal
abduction, a charge which is belied by his letter dated 19-7-
2008 and the e-mails extracted above. The fact remains that Kush
was ordinarily residing with the appellant, his mother and has
been admitted to a school, where he has been studying for the
past nearly three years. The unilateral reversal of a decision
by one of the two parents could not change the fact situation as
to the minor being an ordinary resident of Delhi, when the
decision was taken jointly by both the parents.”
26. The Court on facts rejected the contention of the
husband in that case that the minor child has been
removed from the jurisdiction of the American Courts in
contravention of the orders passed by them. In
Paragraph 64, the Court observed as follows:-
“64. Secondly, the respondent’s case that the minor was removed
from the jurisdiction of the American courts in contravention of
the orders passed by them, is not factually correct. Unlike V.
Ravi Chandran case, where the minor was removed in violation of
an order passed by the American court there were no proceedings
between the parties in any court in America before they came to
India with the minor. Such proceedings were instituted by the
respondent only after he had agreed to leave the appellant and
the minor behind in India, for the former to explore career
options and the latter to get admitted to a school. The charge
of abduction contrary to a valid order granting custody is,
therefore, untenable.”
27. These observations clearly are of no assistance to the
appellant herein. She had participated in the
proceedings in America for two years prior to fleeing to
India in the defiance of the orders passed by the Court
of competent jurisdiction restraining her from taking
the child to India for a period of more than 5 days.
The appellant, therefore, can not be allowed to take
advantage of her own wrong. Therefore, the present case
would be squarely covered by the ratio of law in the
case of V. Ravichandran (supra).
28. The Courts have taken cognizance of growing practice of
children being removed from one country to another just
to put pressure/influence the legal proceedings that are
usually pending in these cases in relation to
irretrievable breakdown of marriage. In the case of Re
H. (Infants) (supra), Willmer, L.J., as long as 1961,
observed as follows :
“…….The sudden and unauthorized removal of children from one
country to another is far too frequent nowadays, and, as it
seems to me, it is the duty of all courts in all countries to do
all they can to ensure that the wrongdoer does not gain an
advantage by his wrongdoing.”
29. Further, in V. Ravichandran’s case (supra), even though
the Court had directed that the child will be taken back
to America, this Court took assurances from the husband
that he would bear all the travelling expenses and make
suitable arrangements for respondent No.6 in the U.S.A.
He had also given an undertaking that he would take out
necessary application for the removal of the Red Corner
Notice so that the wife was not arrested on arrival in
America.
30. After the arguments in this matter had been concluded,
we interviewed at length the husband and wife.
The wife
was prepared to go back to the USA and live with her
husband.
However, the husband was not prepared to
cohabit with the wife.
Sadly, therefore, there was no
chance of reconciliation between the parties.
We are
conscious of the fact that the child has now been
residing in India since 17th July, 2008. He is now 8
years of age.
In spite of the manner in which the child
has been brought to India, it is quite evident that he
has been studying at one of the best English medium
schools.
When we interviewed the child, it appeared
that he had been thoroughly brain washed against the
father.
We, therefore, permitted the father to be alone
with the child for about three hours in the chamber of
Nijjar, J. and after the meeting the child seemed to be
not wholly averse to meeting the father again.
All said
and done, in such circumstances, the Court is left with
making a very unpleasant decision.
Either way, certain
collateral damage being caused to the child can not be
avoided.
The facts narrated above would clearly
indicate that the mother is singularly responsible for
removal of the child from the jurisdiction of U.S.
Courts.
In view of the above, we are constrained to
pass the following order:-
31. The directions issued by the High Court in the impugned
order are upheld with the following additions and
modifications:-
Direction No.(iv) of the High Court shall be substituted by the
following :
“(iv) The petitioner shall make necessary arrangements for the
stay of the respondent No.7 and the child in suitable
accommodation in a locality according to her status prior to the
dissolution of marriage for a period of three months on their
landing in USA.”
Direction No.(vi) – Prior to making any travel arrangements for
the 7th respondent and Anand, the petitioner shall move the
Court of Competent Jurisdiction in USA for withdrawal of the
bailable warrants issued against the respondent No.7 to enable
her to attend the custody proceedings in the US Courts.
Direction No.(viii) – Upon the bailable warrants having been
withdrawn, the petitioner shall personally escort respondent
No.7 and Anand from India to the USA.
32. With these observations, the judgment of the High Court
is upheld and the Criminal Appeals No.934-936 of 2013 @
SLP(Crl.) Nos. 10606-10608 of 2010 are hereby dismissed.
33. Before parting with this order, we may also notice here
that the respondent (husband) filed a Criminal Appeal
No. 937 of 2013 @ SLP(Crl.)No.3335 of 2012, challenging
the order dated 23rd December, 2011 of the High Court of
Andhra Pradesh.
As noticed earlier, the aforesaid order
was passed in the criminal petition filed by the
respondent husband, seeking quashing of the criminal
complaint filed by the appellant/wife against the
respondent himself and his parents under Sections 498-A,
506 of IPC and Sections 4 & 6 of the Dowry Prohibition
Act, 1961.
Since no arguments were advanced in the
aforesaid matter, let this appeal be listed for
arguments separately.
……………………………..J.
[Surinder Singh Nijjar]
New Delhi ………………………………J.
July 16, 2013 [Pinaki Chandra
Ghose]
-----------------------
[1] (1984) 3 SCC 698
[2] (2010) 1 SCC 174
[3] (2010) 1 SCC 591
[4] (1998) 1 SCC 112
[5] (2000) 3 SCC 14
[6] (2011) 6 SCC 479
[7] (1987) 1 SCC 42
[8] (1966) 1 W.L.R. 381 (Ch & CA) ; (1966) 1 All ER 886
-----------------------
45
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.934-936 OF 2013
(Arising out of SLP (Crl.) No. 10606-10608 of 2010)
Arathi Bandi
…Appellant
VERSUS
Bandi Jagadrakshaka Rao & Ors. …Respondents
WITH
CRIMINAL APPEAL NO.937 OF 2013
(Arising out of SLP (Crl.) No. 3335 of 2012)
Bandi Jagadrakshak Rao & Ors. …Appellants
VERSUS
The State of Andhra Pradesh & Anr. …Respondents
J U D G E M E N T
SURINDER SINGH NIJJAR, J.
1. Leave granted.
2. These appeals arising out of Special Leave Petition
(Crl.) No. 10606-10608 of 2010 are directed against the
judgment and final order dated 24th September, 2010
passed by the High Court of Judicature of Andhra
Pradesh, Hyderabad in Writ Petition No. 25479 of 2009
issuing a writ in the nature of Habeas Corpus directing
the petitioner to submit to the jurisdiction of U.S.
Courts.
The petitioner also assails the orders dated 3rd
December, 2010 and 14th December, 2010 passed by the
Andhra Pradesh High Court in W.P.M.P. No.
31378 of 2010 in W.P. No. 25479 of 2010, directing the
petitioner to produce the child along with necessary
documents to give effect to the main judgment and order
dated 24th September, 2010.
The appellant has framed
three questions of law for the consideration of this
Court in the Special Leave Petition giving rise to these
appeals. They are as under:-
“(A) Has not the Hon’ble High Court failed to exercise
jurisdiction vested in it under law in not considering the
welfare and well being of the minor child before issuing the
impugned directions ?
(B) Has not the Hon’ble High Court erred in holding that when
there is an order passed by foreign court, it is not necessary
to go into the facts of the case?
(C) Is not the judgment of US Court “not conclusive” as between
the parties and hence unenforceable in India for being in
violation of Section 13(c) and (d) of the Code of Civil
Procedure, 1908?”
3. The relevant facts giving rise to the aforesaid
questions of law as narrated by the parties are as
under:-
(a) Respondent No. 1 (hereinafter referred to as the
“husband”) invoked the Habeas Corpus jurisdiction of
the Andhra Pradesh High Court under Article 226 of
the Constitution of India for production of the minor
child, i.e., Master Anand Saisuday Bandi before the
Court and permit him to take custody of the minor
child in compliance of the orders passed in Case
No.06-3-08145-9-KNT by the Superior Court of
Washington, County of King (hereinafter referred to
as “the U.S. Court”).
Upon consideration of the
entire facts and circumstances, the High Court issued
the following directions:-
“ i) The petitioner shall obtain necessary travel tickets
for the 7th respondent and the child for their visit
to the place where U.S. Court is situated;
ii) On obtaining travel tickets, the petitioner
shall intimate the same to the 7th respondent three
weeks in advance of the date of departure to enable
her to make necessary arrangements;
iii) The petitioner shall deposit a sum of $5000
(Five thousand American dollars) in the name of the
7th respondent for enabling her to engage an advocate
in US and to submit to the jurisdiction of the US
Court;
iv) The petitioner shall make necessary arrangements for
the stay of the 7th respondent and the child for a
period of fifteen (15) [sic] on their landing in USA.
v) On petitioner providing travel tickets, depositing
the amount as ordered above, and intimating the date
of departure, if 7th respondent fails to submit to
the jurisdiction of the US Court along with the
child, Master Anand Saisuday Bandi, in obedience to
the orders passed in writ of Habeas Corpus by the US
Court, she shall handover the custody of the child to
the petitioner, who in turn shall produce the child
before the US Court and custody of the child will
abide by the decision of the US Court since the child
is a citizen of USA.”
(b) The petitioner (hereinafter referred to either as
“the petitioner”, “the wife” or “the mother”),
aggrieved by the aforesaid directions, filed the
special leave petitions giving rise to the present
appeals.
Events/ Legal Proceedings in the U.S.A.:
(c) The marriage between the parties was solemnized
according to Hindu rights on 9th November, 2003 in
Atlanta, USA.
They were both divorcees. After
marriage, they had settled down in Seattle, USA.
Anand (hereinafter referred to either as “the child”,
“the minor child,” or “Anand”) was born on 5th June,
2005 in USA and, therefore, is a US citizen by birth.
On 30th October, 2006, respondent No.1 (hereinafter
referred to as “respondent No.1”, “the husband” or
“the father”) filed a petition for dissolution of
marriage in Superior Court of Washington, County of
King at Seattle.
In these proceedings, an ex parte
order was issued restraining the wife from leaving
the State of Washington.
The husband was authorised
to hold on to the passport and Person of Indian
Origin Card (PIO Card) of Anand.
Within days of the
husband petitioning for dissolution of marriage, the
wife on 13th November, 2006 submitted a complaint of
domestic violence in which the Superior Court of
Washington, Kent directed the husband to move out of
the matrimonial home.
Anand was to remain in the
custody of wife with limited visitation rights were
granted to the husband.
The wife was, however,
directed to pay US $ 1500 for the husband’s expenses
until the regular hearing.
On 4th December, 2006,
further orders were issued stipulating that the
wife/mother would occupy the family home with the
child.
Furthermore, the father was to bear half of
the mortgage on family home, child’s day care
expenses and insurance costs for the child and the
mother.
The unsupervised visitation rights of the
father were increased from 9 hours to 12 hours per
week.
Father’s attorney was required to hold Anand’s
U.S.A. passport.
On 1st March, 2007, Ms. Jennifer
Keilin was appointed by the Superior Court of
Washington, Kent as Guardian ad litem to make
recommendations regarding the marriage and child
custody.
On 22nd June, 2007, Parenting Evaluation
Report was submitted to the U.S. Court. The
wife/mother was found suitable for custody in view of
the problems of the husband/father at the work place,
alcohol dependency and smoking addiction.
It was also
noted that the child Anand has very serious food
allergies.
On 9th July, 2007, the wife filed a motion
before the Superior Court of Washington, Seattle for
an emergency hearing on her petition requesting
travel to India for two weeks.
This was denied by the
aforesaid court on 10th July, 2007. On the same day,
the wife moved the Superior Court of Washington, Kent
seeking an emergency hearing. This too was denied by
the Court.
However, regular hearing was set for 24th
July, 2007. On 25th July, 2007, at the regular
hearing, the Superior Court of Washington, Kent
passed an order permitting the wife to travel to
India with the child.
However, at the request of the
husband, the said order was stayed, until his motion
of reconsideration could be adjudicated.
On 17th
August, 2007, the wife filed motion for continuance
of trial, permanent relocation to India with the
child and requesting the court to order the father to
undergo domestic violence assessment. On 4th
September, 2007, Superior Court of Washington, Kent
passed orders granting request of the wife for
continuance of trial, appointing Ms. Keilin to
conduct another evaluation to make recommendations
regarding relocation. However, the request of the
wife to order the husband to go through a further
domestic violence assessment was denied.
On the same
day, i.e. 4th September, 2007, the appeal of the
father against the order dated 25th July, 2007,
permitting the wife to travel to India with the
child, was allowed.
(d) The trial in the main petition for dissolution of
marriage on the ground of irretrievable breakdown of
marriage commenced on 18th March, 2008 in the
Superior Court of Washington, Kent. On 19th March,
2008, parenting plan was approved with primary
custody of Anand given to the mother and limited
visitation rights granted to the father. During
summer vacations of two weeks, each parent was
granted five consecutive days of residential time, at
a time. Out of State or International travel was
permitted to both the parties during the residential
time. The attorney of the husband was ordered by the
Superior Court of Washington to prepare final orders.
4. On 20th March, 2008, the motion of the wife for
relocation to India was denied. On 7th July, 2008, the
wife filed a motion petition before the Superior Court
of Washington, Kent requesting a clarification on final
parenting plan to permit 13 consecutive days
of vacation with the child for travelling to India.
On
16th July, 2008, Superior Court of Washington denied her
motion.
In violation of the aforesaid orders, the wife
travelled to India with Anand on 17th July, 2008. On
22nd August, 2008, final orders were passed in the
petition filed by the husband for dissolution of
marriage.
The order includes findings of fact and law
entered by the Superior Court of Washington. The Court
specifically recorded the reasons that led to the denial
of the motion filed by the wife for relocation on 20th
March, 2008. On 23rd August, 2008, divorce decree
entered by the Superior Court of Washington as part of
final orders.
5. On the same day, i.e., 23rd August, 2008, the wife sent
an e-mail to the husband informing him that she will
return on 16th September, 2008 alongwith the child.
This
E-mail also contained the confirmed itinerary. Since the
wife did not return with the child, the husband moved an
application in September, 2008 seeking modification of
the final parenting plan on the grounds of violation of
earlier parenting plan (19th March, 2008) and
interference with his visitation rights.
On 9th
December, 2008, Superior Court of Washington, Kent
modified the parenting plan. The husband was made
custodial parent and the wife was granted visitation
rights.
On 12th December, 2008,
Superior Court of Washington, Seattle also issued a Writ
of Habeas Corpus, directing the State and its officers
to locate and take Anand into immediate custody and
deliver him to the Presiding Judge of the Superior Court
of Washington, County of King.
On 11th January, 2009,
abduction notices were issued against the wife.
This was followed by a Red Corner Notice.
In the
meantime, the services of the husband were terminated by
his employer in February, 2009, due to the economic
downturn.
Similarly, the wife was also affected by the
downturn and was not able to take up a new job in the
USA.
Since the wife did not return with the child on
13th March, 2009, Superior Court of Washington, Kent
issued bailable warrants against her for Custodial
Interference in the First Degree.
In May, 2009, the
husband sold the matrimonial house in USA.
Events and legal proceedings in India -
6. On 20th November, 2009, the husband filed a Habeas
Corpus petition in the Andhra Pradesh High Court. Since
there was no representation from the wife, the writ
petition was admitted.
Upon completion of the
proceedings, which according to the husband, were
deliberately delayed by the wife, the High Court
delivered the impugned judgment on 24th
September, 2010.
A few days thereafter, the husband
filed W.P.M.P. No.31378 of 2010 on 29th September, 2010,
seeking inter alia custody of Anand for producing him
before the US Consulate in Hyderabad; a direction to the
Registrar (Judicial) of the Andhra Pradesh High
Court to return his own Indian Passport; and a direction
to the wife for providing her “current name”, “xerox
copies of her current passport”, “visa papers” and “PIO
Card” of Anand to the husband.
On 3rd December, 2010,
the High Court directed the wife to be present along
with Anand before it on the next date of hearing, i.e.,
10th December, 2010.
She was also directed to produce
her passport and visa papers and the PIO Card of Anand,
so as to enable the husband to comply with the
directions of the High Court issued in Writ Petition No.
25479 of 2009 dated 24th September, 2010.
It seems that
on 10th December, 2010, another Advocate, who replaced
the earlier counsel, appeared for the wife and sought
some more time to comply with the order dated 3rd
December, 2010.
On 14th December, 2010, the wife came
to the High Court, albeit without Anand and served the
copy of her Review Petition against the judgment dated
24th September, 2010 to the petitioner/husband. On 18th
December, 2010, the present appeal was preferred before
this Court, by the wife.
Meanwhile on 22nd December,
2010, neither the wife nor Anand came to the High Court
and a death in the family at Vijayawada was reported by
her as the reason for the absence.
Again on 28th
December, 2010, the wife and Anand absented themselves
from the High Court. The High Court, however, issued
directions on the same date to the Commissioner of
Police, Hyderabad City to produce Anand before the Court
on 17th January 2011. On 18th January, 2011, the police
could not
locate either wife or Anand. Upon this, the High Court
granted a week’s time to the police to produce Anand.
On 25th January, 2011, since the police could not locate
Anand, the High Court issued a non-bailable warrant
against wife and directed the matter to be listed on 8th
February, 2011.
Meanwhile, this Court on 31st January,
2011, issued notice in the Civil Appeal filed by the
wife and order dated 25th January, 2011 was stayed.
The
Review Petition pending before the High Court appears to
have been withdrawn by the petitioner after the notice
was issued by this court in the present Civil Appeal.
7. We have heard the learned counsel for the parties at
length.
8. Mr. Pallav Shishodia, learned senior counsel appearing
for the wife has submitted that both the mother and the
child have been in India since July, 2008.
The mother
has been looking after Anand single handedly without any
help from the father.
She has got a well paid job with
IBM at Bangalore.
Anand now lives in a joint family and
is happy. He enjoys the company of his cousins. He is
now 8 years of age and has developed roots in India.
He
has emphasised that the High Court has not considered
the welfare of the child in passing the impugned
judgment.
He has submitted, by making exhaustive
reference to the Parenting Evaluation Report, that it
would be for the welfare of the child to remain with the
mother in India.
Learned senior counsel submitted that
this Court would have to consider the benefits that
would accrue to Anand if he is permitted to remain with
her in India as opposed to the undesirability of
compelling her to handover his custody to the father.
Learned senior counsel submits that the Parenting
Evaluation Report clearly notices that the father was
subjected to Urinalysis Testing for alcohol.
The mother
had objected to her husband’s use of alcohol. The
husband frequently drank alcohol during the evening. At
the same time, he tried to hide his alcohol dependency
from his parents who were staying with him.
The wife had
also narrated before Ms. Jennifer Keilin who gave the
Parenting Evaluation Report that the husband drank while
watching television, consuming half a bottle of rum
every evening. His drinking had increased while she was
visiting India in April and May, 2004.
She had also
claimed that the husband sometimes had difficulty in
waking up in the morning and after drinking he suffered
occasional hangovers.
Mr. Shishodia also pointed out
that the husband is also addicted to cigarette smoking.
He also has a history of employment problems.
This
apart, the husband had also admitted before the
evaluator about his past drug use. Referring to the
Parenting Evaluation Report, Mr. Shishodia pointed out
the numerous other difficulties which were being faced
by both the parties whilst they were married.
On the
basis of the aforesaid, he submitted that the High Court
erred in law by not taking into consideration the
relevant factors whilst passing the impugned judgment.
At this stage, he relied on the judgment of this Court
in Smt. Surinder Kaur Sandhu Vs. Harbax Singh Sandhu &
Anr.[1]. He submitted that the High Court has totally
ignored the relevant facts for determining what would be
in the best interest of the child. He also pointed out
to the conclusion in the Parenting Evaluation Report
which is as under:
“In my opinion, Anand should reside primarily with Ms. Bandi. He
should have regular, limited visitation with Mr. Rao, increasing
at regular intervals. These intervals should be based on Mr. Rao
completing and maintaining certain criteria as well as on
Anand’s development needs. Mr. Rao should engage in specific
services, including alcohol treatment and a parenting class, and
both parents should participate in co-parent counseling.”
9. Learned senior counsel further submitted that the High
Court has totally misconstrued the principle of Comity
of Courts, as applicable in private international law
matters.
The High Court has erred in holding that it was
not necessary to hold an elaborate enquiry in the facts
and circumstances of this case.
He submitted that the
High Court has misconstrued the principles of law laid
down by this Court in V. Ravi Chandran (Dr.) (2) Vs.
Union of India & Ors.[2]. He submitted that the
observations made by this Court in the case of Shilpa
Aggarwal (Ms.) Vs. Aviral Mittal & Anr.[3] would not be
applicable in the facts and circumstances of this case.
In fact, the matter is squarely covered by the judgment
of this Court in Dhanwanti Joshi Vs. Madhav Unde[4].
Learned senior counsel also relied on the judgment in
Sarita Sharma Vs. Sushil Sharma[5] and Ruchi Majoo Vs.
Sanjeev Majoo[6].
Learned counsel pointed out that the
High Court has totally ignored some very important
issues as to why it would not be in the interest of
Anand to be sent back to USA to live with the father.
He also pointed out that the husband has lost his job in
the USA and has been living in India for the past three
years. He has also sold the family house in USA.
Therefore, Anand would have no family atmosphere if he
is taken back to the USA. He pointed out that initially
the custody of Anand had been given to the mother on the
basis of the recommendations made in the parenting plan.
However, subsequently, orders have been passed granting
custody to the respondent-husband.
It is these orders
which are sought to be enforced in the USA Courts which
had led to the filing of the Habeas Corpus petition in
the Andhra Pradesh High Court. He submitted that the
mother had been compelled to leave the USA due to the
irrational behaviour of the husband.
Learned senior
counsel also pointed out even at the time of the
marriage, the plan was actually to settle in India.
Subsequently, however, the husband declined to return to
India. He also pointed out that the removal of Anand
from USA was neither thoughtless nor malicious.
The wife
had to return to India due to the serious ailment and
old age of her parents. She is now looking after them in
India.
Therefore, it cannot be concluded that the wife
is trying to alienate the child from the husband.
10. Mr. Patwalia, learned senior counsel, for the respondent-
husband submitted that the wife has come to India in
violation of the parenting plan.
It is submitted that
she participated in the proceedings in USA, where some
orders were passed in her favour while the others were
against her.
11. He submits that all efforts of the wife are simply to
alienate the child from the father.
He emphasises that
the petitioner and respondent No.1 were married in USA.
At the time of marriage, they were both divorcees.
They
had settled in Seattle, USA. Anand was born in USA and
is, therefore, a US citizen by birth.
Due to
irreconcilable differences, the husband was constrained
to initiate proceedings in the USA Court for dissolution
of marriage.
During the pendency of the proceedings in
the USA Court, the wife had shown a consistent
propensity to disobey the orders of the Court. At the
same time, she filed a number of motions in the pending
proceedings with regard to domestic violence;
independent occupation of the matrimonial home, at the
same time demanding that the husband bears half of the
mortgage of the family home and other expenses for her
as well as the child.
Although both the parents were
allowed five days residential time with the child during
the two weeks summer vacation, the effort of the wife
was always to remove him from the country of his birth.
Her motion for permanent location to India was
ultimately denied on 16th July 2008.
In defiance of the
said order, she travelled to India with Anand on 17th
July, 2008.
The learned senior counsel submits that the
facts which have been narrated above would clearly
indicate that the petitioner has little or no regard for
the orders of the Court.
12. Mr. Patwalia further submitted that the conduct of the
petitioner in the courts in this country follows the
same pattern.
In fact, the counsel for the petitioner
has admitted before the High Court the fact of US Court
passing order for the custody of the child and that it
has not permitted the petitioner to remove the child out
of Washington.
It was further admitted that in spite of
the aforesaid direction, the child was removed from the
jurisdiction of the Courts in which he was born. The
fact of issuance of the Writ of Habeas Corpus by the
United States Superior Court for production of the child
was also admitted. Before the High Court, a submission
was made on behalf of the petitioner-wife for grant of
some time to submit to the jurisdiction of the US Court
and to enable her to obtain necessary orders from the
aforesaid court. Relying on the aforesaid submissions of
the petitioner, the High Court had issued the directions
reproduced earlier in this judgment. After obtaining
such orders, the wife disappeared again from the scene.
Consequently, the respondent-husband had to file a
miscellaneous application seeking directions to the
petitioner to handover the custody of the child for
producing before the US Consulate in Hyderabad. On 3rd
December, 2010, the High Court directed the petitioner
to be present before the Court on 10th December, 2010
along with the child, so that the husband could comply
with the directions issued by the Court on 24th
September, 2010. On 14th December, 2010, the wife
appeared in Court but did not produce the child, as
directed. It was submitted before the Court that she had
filed a review petition which ought to be taken up for
hearing and sought one week’s time for production of the
child. Upon this assurance, the Court again directed
that the child be produced on 22nd December, 2010.
According to Mr. Patwalia, she was all along misleading
the Andhra Pradesh High Court, whilst preparing to file
the SLP against the impugned judgment. The SLP was
actually filed on 18th December, 2010, challenging three
orders viz. orders dated 24th September, 2010 passed in
W.P.No.25479 of 2009 and subsequent orders dated 3rd
December, 2010 and 14th December, 2010
passed in W.P.M.P. No.31378 of 2010 in the aforesaid
writ petition.
13. Mr. Patwalia points out that, in fact, the conduct of
the petitioner is noticed in the order dated 28th
December, 2010. The High Court noticed that in spite of
the directions having been given, the petitioner has not
produced the child in the Court. She had also not
produced necessary papers relating to the child. On 14th
December, 2010, she had undertaken to produce the child
on 22nd December, 2010. On 22nd December, 2010, the
counsel for the petitioner had submitted that her
maternal uncle had died and, therefore, she had left for
Vijayawada. But on 28th December, 2010, it was brought
to the notice of the court that her maternal uncle had
already died on 16th December, 2010. It was then
represented before the High Court that the petitioner
was staying at Vijayawada because the child was unwell
and admitted in hospital. The High Court noticed that
the petitioner appears to have made a false statement on
the last date of hearing. Therefore, the directions were
issued to the Commissioner of Police, Hyderabad to
produce the child before the Court on 17th January,
2011 at 4.00 p.m. On 18th January, 2011, the Court was
informed by the Assistant Government Pleader that in
spite of best efforts by the police, the child could not
be traced and she sought further time to locate and
produce the child in Court. Since the petitioner was
failing to assist the authorities in locating the child,
non-bailable warrants were issued for her. The matter
was posted for further proceedings on 8th February,
2011. In the meantime, this Court on 31st January, 2011
issued notice in the SLP and stayed the
operation of the
impugned orders.
14. Learned senior counsel further submitted that the
petitioner is able to defy the orders issued by the
Court of Competent Jurisdiction in USA as India is not a
signatory to the Hague Convention of 1980 on “Civil
Aspects of International Child Abduction”. The aforesaid
Convention fully recognizes the concept of doctrine of
Comity of Courts in private international law. He
submits that taking note of the undesirable effect of
not being the signatory to the aforesaid convention, the
then Chairman of the Law Commission of India recommended
that India should keep pace and change according to the
changing needs of the society. The Commission
recommended that the Government may consider that India
should become a signatory to the Hague Convention of
1980 which will, in turn, bring the prospect of
achieving the return to India of children who have their
homes in India. [See Law Commission of India Report
No.218 entitled “Need to accede to the Hague Convention
on the Civil Aspects of International Child Abduction
(1980)”]. Mr. Patwalia also submits that the impugned
order/judgment of the Andhra Pradesh High Court is in
consonance with the law as declared by this Court in
numerous judgments. In support of his submission, the
learned senior counsel relies on the same judgments
which were cited by Mr. Shishodia.
15. Mr. Patwalia also pointed out that not only the
petitioner had made false statements before the Court
but she had denied the husband any contact with the
child. From 6th April, 2010, the husband was entitled to
see the child for 2½ hours. From 3rd October, 2010, the
period was increased to 4 hours. Mr. Patwalia further
submitted that
the petitioner has also filed a complaint
in the Court of XIII Additional Chief Metropolitan
Magistrate, Hyderabad against her husband, both his
parents and his brother, alleging commission of offences
under Sections 498-A, 506 of IPC; and Sections 4 & 6 of
the Dowry Prohibition Act, 1961.
The respondent and his
parents had filed Criminal Petition no. 6711 of 2009
under section 482 of Cr.P.C., before the High Court of
Andhra Pradesh seeking quashing of the criminal
complaint.
In the said proceedings, the High Court, vide
order dated 23rd December 2011,
partly allowed the said criminal petition and directed
that the respondent husband and other co-accused should
not be prosecuted for offences said to have taken place
in USA without necessary permission from the Central
Government.
However, the proceedings emanating from the
said complaint were not quashed because the High Court
was of the opinion that there is sufficient prima facie
material in the complaint in the context of offences
alleged to have been committed in India.
The said order
is under challenge before us, in Criminal Appeal arising
from S.L.P. (Criminal) No. 3385 of 2012.
16. In this context, Mr. Patwalia submits that the aforesaid
complaint is merely a counter blast to the divorce and
child custody proceedings initiated by the husband
against the wife.
17. We have anxiously considered the submissions made by the
learned senior counsel for the parties and minutely
perused the material on record.
18. From the facts narrated above,
it becomes evident that
the wife has reached India in defiance of the orders
passed by the Courts of competent jurisdiction in U.S.
It is apparent that the appellant has scant regard for
the orders passed by the Andhra Pradesh High Court also.
Keeping in view the aforesaid facts and circumstances,
the Andhra Pradesh High Court issued the directions
which have been reproduced in the earlier part of the
judgment.
Although the learned counsel for the parties
have relied on a number of judgments of this Court in
support of their respective submissions, in our opinion,
the matter is squarely covered by the ratio of law in
the case of V. Ravichandran (supra).
19. In the aforesaid judgment, this Court considered a
similar factual situation.
The petitioner, who was of
Indian origin, was a citizen of the United States of
America.
He married respondent No. 6 on 14th December,
2000 at Tirupathi in India.
On 1st July, 2002, child
Aditya was born while they were in USA.
Subsequently, a
dispute arose between the parties regarding custody of
Aditya, and the parties had obtained consent order dated
18th June, 2007 from the court of competent jurisdiction
in USA under which both the parents were to have
alternate custody of the child on weekly basis.
However,
respondent No. 6, in violation of the said court's
orders, removed the child to India on 28th June, 2007
for staying with her parents in Chennai.
The petitioner
in turn moved the USA Court on 8th August, 2007 for
modification of custody order and for taking action
against respondent No. 6 for violation of court order.
On that very day, the petitioner was granted temporary
sole legal and physical custody of the minor child and
respondent No. 6 was directed to immediately turn over
the minor child and his passport to the petitioner.
The
order could not however be implemented in USA because of
illegal removal of child by respondent No. 6 to India.
The petitioner thereafter filed habeas corpus petition
under Article 32 of the Constitution in the Supreme
Court for production of the minor child and for handing
over his custody to the petitioner along with the
child's passport.
Despite orders of the Supreme Court,
the State Police could not produce the child for two
years, but CBI, on the directions of the Supreme Court,
was able to trace and produce the child within two
months.
The Court considered what would be an
appropriate order in the facts and circumstances,
keeping in mind the interests of the child and the
orders of the courts of the United States of America.
The Supreme Court while passing orders in this case also
took into consideration several concessions which the
petitioner husband made so that the wife could return to
USA and present her claim, if any, over the child in the
Courts in USA.
20. This Court partly allowed the writ petition with certain
observations which are very relevant in the decision in
the present case.
We may notice the observations made
in different paragraphs of the judgment. In Paragraph
25, the Court noticed the observation made by a Three
Judge Bench of this Court in the case of Smt. Surinder
Kaur Sandhu (supra), particular notice was taken of the
observations made in Paragraph 10 of the judgment, which
are as under:-
“10. In B's Settlement, In re, B. v. B. the Chancery Division
was concerned with an application for custody by the father of
an infant who had been made a ward of court. The father was a
Belgian national and the mother a British national who took
Belgian nationality on marriage to him. The infant was born in
Belgium. The mother was granted a divorce by a judgment of the
court in Belgium, but the judgment was reversed and the father
became entitled to custody by the common law of Belgium. The
mother, who had gone to live in England, visited Belgium and was
by arrangement given the custody of the infant for some days.
She took him to England and did not return him. The infant had
been living with the mother in England for nearly two years. The
father began divorce proceedings in Belgium, and the court
appointed him guardian. Pending the proceedings, the court gave
him the custody and ordered the mother to return the infant
within twenty-four hours of service of the order on her. She did
not return the infant. The correctional court in Brussels fined
her for disobedience and sentenced her to imprisonment should
the fine be not paid. The correctional court also confirmed the
custody order.”
21. In our opinion, these observations leave no manner of
doubt that
no relief could be granted to the appellant
in the present proceedings given her conduct in removing
Anand from U.S.A. in defiance of the orders of the Court
of competent jurisdiction.
The Court has specifically
approved the modern theory of Conflict of Laws, which
prefers the jurisdiction of the State which has the most
intimate contact with the issues arising in the case.
The Court also holds that Jurisdiction is not attracted
“by the operation or creation of fortuitous
circumstances”.
The Court adds a caution that to allow
the assumption of jurisdiction by another State in such
circumstances will only result in encouraging forum-
shopping.
The aforesaid observations are fully
applicable in the facts and circumstances of this case.
22. Again in Mrs. Elizabeth Dinshaw Vs. Arvand M. Dinshaw &
Anr.[7], this Court reiterated the principle that it was
the duty of Courts in all countries to see that a parent
doing wrong by removing children out of the country does
not gain any advantage by his or her wrongdoing.
In Re H. (Infants)[8], the Court of
Appeal in England had also observed that the sudden and
unauthorized removal of children from one country to
another is far too frequent nowadays. Therefore, it is
the duty of all courts in all countries to do all they
can to ensure that the wrongdoer does not gain an
advantage by his wrongdoing. These observations were
also approved specifically by the Court in the case of
Mrs. Elizabeth Dinshaw (supra). In the case of V.
Ravichandran (supra), in Paragraph 29 and 30, this Court
has concluded as follows:-
“29. While dealing with a case of custody of a child removed by
a parent from one country to another in contravention of the
orders of the court where the parties had set up their
matrimonial home, the court in the country to which the child
has been removed must first consider the question whether the
court could conduct an elaborate enquiry on the question of
custody or by dealing with the matter summarily order a parent
to return custody of the child to the country from which the
child was removed and all aspects relating to the child's
welfare be investigated in a court in his own country. Should
the court take a view that an elaborate enquiry is necessary,
obviously the court is bound to consider the welfare and
happiness of the child as the paramount consideration and go
into all relevant aspects of welfare of the child including
stability and security, loving and understanding care and
guidance and full development of the child's character,
personality and talents. While doing so, the order of a foreign
court as to his custody may be given due weight; the weight and
persuasive effect of a foreign judgment must depend on the
circumstances of each case.
30. However, in a case where the court decides to exercise its
jurisdiction summarily to return the child to his own country,
keeping in view the jurisdiction of the court in the native
country which has the closest concern and the most intimate
contact with the issues arising in the case, the court may leave
the aspects relating to the welfare of the child to be
investigated by the court in his own native country as that
could be in the best interests of the child. The indication
given in McKee v. McKee that there may be cases in which it is
proper for a court in one jurisdiction to make an order
directing that a child be returned to a foreign jurisdiction
without investigating the merits of the dispute relating to the
care of the child on the ground that such an order is in the
best interests of the child has been explained in L (Minors), In
re and the said view has been approved by this Court in
Dhanwanti Joshi. Similar view taken by the Court of Appeal in H.
(Infants), In re has been approved by this Court in Elizabeth
Dinshaw.”
23. In our opinion, the Andhra Pradesh High Court has
decided to exercise jurisdiction summarily and directed
the appellant to return the child to the U.S.A. This
course is absolutely permissible as is apparent from the
observations made by this Court in Paragraph 30 of the
aforesaid judgment. This Court also rejected the
objection raised by respondent No. 6 in the Counter
Affidavit that the American court, which passed the
order/decree has no jurisdiction and being inconsistent
in Indian Laws can not be executed in India. It was
observed that despite the fact that the respondent had
been staying in India for more than 2 years, she has not
pursued any legal proceeding for the sole custody of the
minor child or for the declaration that the orders
passed by the American courts concerning the custody of
minor child are null and void and without jurisdiction.
Similar are the facts in the present case. The wife
has not pursued any legal proceeding for seeking custody
of Anand. She has also not sought a declaration that the
orders passed by the American Courts are null and void
and are without jurisdiction. Therefore, in our
opinion, the High Court of Andhra Pradesh can not be
said to have acted erroneously.
In V. Ravichandran’s case (supra), this court
again observed in Paragraph 35 as follows:-
“35. The facts and circumstances noticed above leave no manner
of doubt that merely because the child has been brought to India
by Respondent 6, the custody issue concerning minor child
Adithya does not deserve to be gone into by the courts in India
and it would be in accord with principles of comity as well as
on facts to return the child back to the United States of
America from where he has been removed and enable the parties to
establish the case before the courts in the native State of the
child i.e. the United States of America for modification of the
existing custody orders. There is nothing on record which may
even remotely suggest that it would be harmful for the child to
be returned to his native country.”
24. These observations are squarely applicable in the facts
and circumstances of the present case. Mr. Shishodia
has, however, placed strong reliance on the judgment of
this Court in Ruchi Majoo (supra). The aforesaid
judgment would not be of any assistance to the appellant
in the facts and circumstances of the present case. In
that case, the respondent and wife had been living in
America, the child was born in America and was,
therefore, an American Citizen. The wife on account of
husband’s addiction to pornographic films, internet sex
and adulterous behavior during the couple's stay in
America took a decision to take the child to Delhi and
the husband consented to it. The parties had agreed
that the wife will stay with the minor child in India
and make the best arrangements for his schooling.
Subsequently, however, the husband objected to the wife
staying in India. On the other hand, the wife had no
intentions of returning to the country in the
foreseeable future especially after she has had a very
traumatic period on account of matrimonial discord with
the respondent husband. The wife had taken out
proceedings under Section 9 of the Guardian and Wards
Act, 1890 seeking custody of the minor child. Shortly
after the presentation of the main petition, an
application under Section 12 of the Guardian and Wards
Act read with Section 151 of the Code of Civil
Procedure, 1908 was filed by the wife/mother of the
child praying for an ex-parte interim order restraining
the respondent from removing the minor from her custody
and for an order granting interim custody of the minor
to the Appellant. On the other hand, the husband had
filed a case against the appellant alleging that she had
abducted the minor child. On his application, a Red
Corner Notice was issued against the wife. In the
meantime, the Additional District Court at Delhi had
granted interim custody to the appellant by order dated
4th April, 2009. This order was challenged by the
husband under Article 227 of the Constitution of India
before the High Court of Delhi. The Delhi High Court
accepted the petition, set aside the order of the
District Court and dismissed the custody case filed by
the mother primarily on the ground that the Court at
Delhi had no jurisdiction to entertain the claim as the
minor was not ordinarily residing at Delhi. The High
Court also held that all issues relating to the custody
of child ought to be adjudicated by the Courts in
America not only because that Court had already passed
an order to that effect in favour of the father, but
also because all the three parties namely, the parents
of the minor and the minor himself were American
citizens. The High Court then buttressed its decision on
the principle of comity of courts and certain
observations made by this Court in the earlier decisions
relied upon by the husband. It was in these
circumstances that the appeal filed by the wife/mother
against the order of the High Court was allowed. This
Court specifically took note of the following
circumstances:-
“34. The appellant’s case is that although the couple and their
son had initially planned to return to USA, that decision taken
with the mutual consent of the parties was changed to allow the
appellant to stay back in India and to explore career options
here. Master Kush was also according to that decision of his
parents, to stay back and be admitted to a school in Delhi. The
decision on both counts, was free from any duress whatsoever,
and had the effect of shifting the “ordinary residence” of the
appellant and her son Kush from the place they were living in
America to Delhi. Not only this the respondent father of the
minor, had upon his return to America sent e-mails, reiterating
the decision and offering his full support to the appellant.
This is, according to the appellant, clear from the text of the
e-mails exchanged between the parties and which are self-
explanatory as to the context in which they are sent.”
25. This Court accepted the submission of the appellant that
on the consent of the parties, the ordinary residence of
the minor had shifted to India. In coming to the
aforesaid conclusions, the Court examined the e-mails
exchanged between the parties, which totally demolished
the respondent’s defence that his consent for shifting
the residence of the minor was obtained by coercion. In
Paragraph 45 of the judgment, it is observed as follows:-
“45. It is difficult to appreciate how the respondent could in
the light of the above communications still argue that the
decision to allow the appellant and Master Kush to stay back in
India was taken under any coercion or duress. It is also
difficult to appreciate how the respondent could change his mind
so soon after the above e-mails and rush to a court in US for
custody of the minor accusing the appellant of illegal
abduction, a charge which is belied by his letter dated 19-7-
2008 and the e-mails extracted above. The fact remains that Kush
was ordinarily residing with the appellant, his mother and has
been admitted to a school, where he has been studying for the
past nearly three years. The unilateral reversal of a decision
by one of the two parents could not change the fact situation as
to the minor being an ordinary resident of Delhi, when the
decision was taken jointly by both the parents.”
26. The Court on facts rejected the contention of the
husband in that case that the minor child has been
removed from the jurisdiction of the American Courts in
contravention of the orders passed by them. In
Paragraph 64, the Court observed as follows:-
“64. Secondly, the respondent’s case that the minor was removed
from the jurisdiction of the American courts in contravention of
the orders passed by them, is not factually correct. Unlike V.
Ravi Chandran case, where the minor was removed in violation of
an order passed by the American court there were no proceedings
between the parties in any court in America before they came to
India with the minor. Such proceedings were instituted by the
respondent only after he had agreed to leave the appellant and
the minor behind in India, for the former to explore career
options and the latter to get admitted to a school. The charge
of abduction contrary to a valid order granting custody is,
therefore, untenable.”
27. These observations clearly are of no assistance to the
appellant herein. She had participated in the
proceedings in America for two years prior to fleeing to
India in the defiance of the orders passed by the Court
of competent jurisdiction restraining her from taking
the child to India for a period of more than 5 days.
The appellant, therefore, can not be allowed to take
advantage of her own wrong. Therefore, the present case
would be squarely covered by the ratio of law in the
case of V. Ravichandran (supra).
28. The Courts have taken cognizance of growing practice of
children being removed from one country to another just
to put pressure/influence the legal proceedings that are
usually pending in these cases in relation to
irretrievable breakdown of marriage. In the case of Re
H. (Infants) (supra), Willmer, L.J., as long as 1961,
observed as follows :
“…….The sudden and unauthorized removal of children from one
country to another is far too frequent nowadays, and, as it
seems to me, it is the duty of all courts in all countries to do
all they can to ensure that the wrongdoer does not gain an
advantage by his wrongdoing.”
29. Further, in V. Ravichandran’s case (supra), even though
the Court had directed that the child will be taken back
to America, this Court took assurances from the husband
that he would bear all the travelling expenses and make
suitable arrangements for respondent No.6 in the U.S.A.
He had also given an undertaking that he would take out
necessary application for the removal of the Red Corner
Notice so that the wife was not arrested on arrival in
America.
30. After the arguments in this matter had been concluded,
we interviewed at length the husband and wife.
The wife
was prepared to go back to the USA and live with her
husband.
However, the husband was not prepared to
cohabit with the wife.
Sadly, therefore, there was no
chance of reconciliation between the parties.
We are
conscious of the fact that the child has now been
residing in India since 17th July, 2008. He is now 8
years of age.
In spite of the manner in which the child
has been brought to India, it is quite evident that he
has been studying at one of the best English medium
schools.
When we interviewed the child, it appeared
that he had been thoroughly brain washed against the
father.
We, therefore, permitted the father to be alone
with the child for about three hours in the chamber of
Nijjar, J. and after the meeting the child seemed to be
not wholly averse to meeting the father again.
All said
and done, in such circumstances, the Court is left with
making a very unpleasant decision.
Either way, certain
collateral damage being caused to the child can not be
avoided.
The facts narrated above would clearly
indicate that the mother is singularly responsible for
removal of the child from the jurisdiction of U.S.
Courts.
In view of the above, we are constrained to
pass the following order:-
31. The directions issued by the High Court in the impugned
order are upheld with the following additions and
modifications:-
Direction No.(iv) of the High Court shall be substituted by the
following :
“(iv) The petitioner shall make necessary arrangements for the
stay of the respondent No.7 and the child in suitable
accommodation in a locality according to her status prior to the
dissolution of marriage for a period of three months on their
landing in USA.”
Direction No.(vi) – Prior to making any travel arrangements for
the 7th respondent and Anand, the petitioner shall move the
Court of Competent Jurisdiction in USA for withdrawal of the
bailable warrants issued against the respondent No.7 to enable
her to attend the custody proceedings in the US Courts.
Direction No.(viii) – Upon the bailable warrants having been
withdrawn, the petitioner shall personally escort respondent
No.7 and Anand from India to the USA.
32. With these observations, the judgment of the High Court
is upheld and the Criminal Appeals No.934-936 of 2013 @
SLP(Crl.) Nos. 10606-10608 of 2010 are hereby dismissed.
33. Before parting with this order, we may also notice here
that the respondent (husband) filed a Criminal Appeal
No. 937 of 2013 @ SLP(Crl.)No.3335 of 2012, challenging
the order dated 23rd December, 2011 of the High Court of
Andhra Pradesh.
As noticed earlier, the aforesaid order
was passed in the criminal petition filed by the
respondent husband, seeking quashing of the criminal
complaint filed by the appellant/wife against the
respondent himself and his parents under Sections 498-A,
506 of IPC and Sections 4 & 6 of the Dowry Prohibition
Act, 1961.
Since no arguments were advanced in the
aforesaid matter, let this appeal be listed for
arguments separately.
……………………………..J.
[Surinder Singh Nijjar]
New Delhi ………………………………J.
July 16, 2013 [Pinaki Chandra
Ghose]
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[1] (1984) 3 SCC 698
[2] (2010) 1 SCC 174
[3] (2010) 1 SCC 591
[4] (1998) 1 SCC 112
[5] (2000) 3 SCC 14
[6] (2011) 6 SCC 479
[7] (1987) 1 SCC 42
[8] (1966) 1 W.L.R. 381 (Ch & CA) ; (1966) 1 All ER 886
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