1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICITON
CRIMINAL APPEAL NO. 968 OF 2017
PRATEEK GUPTA ….APPELLANT
versus
SHILPI GUPTA & ORS. ….RESPONDENTS
J U D G M E N T
AMITAVA ROY, J.
1. By the impugned judgment and order dated 29.04.2016 rendered
by the High Court of Delhi, in a writ petition filed by the respondent
No.1 seeking a writ in the nature of habeas corpus, the
appellant-father has been directed to hand over the custody of the
child, Master Aadvik, aged about 5 years to respondent No.1-
mother. The appellant-father is in assailment of this determination
and seeks the remedial intervention of this Court. By order dated
03.05.2016, the operation of the impugned verdict was stayed and
as the said arrangement was continued thereafter from time to
time, the custody of the child as on date has remained with the
appellant. The orders passed by this Court though attest its
earnest endeavour to secure a reconciliation through interactions
with the parents and the child, the efforts having failed, the appeal
2
is being disposed of on merits.
2. We have heard Ms. Binu Tamta, learned counsel for the appellant
and Mr. N.S. Dalal, learned counsel for the respondent No. 1
(hereafter to be referred to as “respondent”).
3. A skeletal outline of the factual backdrop is essential. The
appellant and the respondent who married on 20.01.2010 in
accordance with the Hindu rites at New Delhi had shifted to the
United States of America (for short, hereafter referred to as 'U.S.'),
as the appellant was already residing and gainfully employed there
prior to the nuptial alliance. In due course, the couple was blessed
with two sons, the elder being Aadvik born on 28.09.2012 and the
younger, Samath born on 10.09.2014. As adverted to hereinabove,
the present lis is with regard to the custody of Master Aadvik,
stemming from an application under Article 226 of the Constitution
of India filed by the respondent alleging illegal and unlawful
keeping of him by the appellant and that too in violation of the
orders passed by the Juvenile and Domestic Relations Court of
Fairfax County, passed on 28.05.2015 and 20.10.2015 directing
him to return the child to the Commonwealth of Virginia and to the
custody and control of the respondent.
4. The pleaded facts reveal that the child resided with the parents
from his birth till 07.11.2014 and thereafter from 07.11.2014 till
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06.03.2015 with the respondent-mother in the United States. This
is so, as in view of irreconcilable marital issues, as alleged by the
respondent, particularly due to the volatile temperament and
regular angry outbursts of the appellant often in front of the child,
the parties separated on or about 15.11.2014. Prior thereto, the
appellant had on 08.11.2014 left for India leaving behind the
respondent and her children in U.S. He returned on 18.01.2015 to
the U.S., but the parties continued to live separately, the
respondent with her children. The appellant however, made short
time visits in between and on one such occasion i.e. on 24.01.2015,
he took along with him Aadvik, representing that he would take him
for a short while to the Dulles Mall. According to the respondent,
she did not suspect any foul play and permitted the child to
accompany his father, but to her dismay though assured, the
appellant did not return with the child in spite of fervent insistences
and implorations of the mother. As alleged by the respondent, the
appellant thus separated the child from her from 24.01.2015 to
07.03.2015 in a pretentious and cruel move, seemingly acting on a
nefarious strategy which surfaced when on 07.03.2015, the
appellant left U.S. with the child to India without any prior
information or permission or consent of hers.
5. Situated thus, the respondent approached Juvenile and Domestic
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Relations Court Fairfax County, for its intervention and for that, on
15.05.2015, she filed “Emergency Motion For Return of Minor Child
and Established Temporary Custody”.
6. On the next date fixed i.e. 19.05.2015, after the service of the
process on the appellant, his counsel made a “special appearance”
to contest the service. On the date thereafter i.e. 28.05.2015, he
however informed the court that he was not contesting the service
upon the appellant, whereupon hearing the counsel for the parties
at length and also noticing the plea on behalf of the appellant that
he intended to return with the child in U.S. and that the delay was
because of his mother's illness, the U.S. Court passed the following
order:
“IN THE JUVENILE & DOMESTIC RELATIONS DISTRICT
COURT FOR FAIRFAX COUNTRY
SHILPI GUPTA IN re: Aadvik Gupta
D.O.B. September 28, 2012
Petitioner
Case No. JJ 431468-01-00
Vs.
Prateek Gupta
Respondent
ORDER
This cause came before this Court on the 19th May,
2015, upon the petitioner Shilpi Gupta's verified motion for
return of minor child and to establish temporary custody;
It appearing to the Court that this Court has proper
jurisdiction over the parties to this action pursuant to the
Uniform Child Custody Jurisdiction and Enforcement Act,
more specifically 20-146.24 and 20-146.32 of the Code of
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Virginia, 1950, as amended.
It further appearing to the Court that it is in the best
interest of the child, Aadvik Gupta, (hereinafter “Aadvik”)
born on September 28, 2012, that he be immediately
returned to the custody of the petitioner and to the
Commonwealth of Virginia pending any further order of
this Court and that good cause exists with which to require
that the petitioner take immediate possession of the child
by all means necessary. It is therefore adjourned and
ordered as follows:
1. Custody: The petitioner Shilpi Gupta, is hereby granted
sole legal and physical custody of the minor child, Aadvik
Gupta, pending further order of this Court.
2. Return of the Child: That the respondent, Prateek
Gupta, is hereby ordered to immediately return Aadvik to
the Commonwealth of Virginia, and to the custody and
control of the petitioner or her agents. Thereafter, the
respondent shall not remove the child from the
Commonwealth of Virginia under any circumstances
without further order of the Court.
3. Enforcement: That the all law enforcement agencies
and related agencies (including but not limited to Police
Department(s), Sheriff's Department(s), U.S. State
Department, Federal Bureau of Investigations) are hereby
directed to assist and/or facilitate the transfer of Aadvik to
the petitioner, if necessary, including taking the child into
custody from anyone who has possession of him and
placing him in the physical custody of the petitioner.
4. Passport: That once the child has been returned to
Virginia, any and all of Aadvik's passports must be
immediately surrendered to the petitioner where it will be
held until further order of this Court.
5. Removal from the Commonwealth of Virginia: That all
relevant and/or local law enforcement agencies shall do
whatever possible to prevent the removal of Aadvik Gupta,
from the Commonwealth of Virginia except at the direction
of the petitioner, Shilpi Gupta.
And this cause is continued.
Entered this 28 day of May, 2015.
Sd/-
Judge”
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7. Thereby, the Court in U.S. being satisfied that it had the proper
jurisdiction over the parties to the action before it and also being of
the opinion that it was in the best interest of the child, that he be
returned to the custody of the respondent and to the
Commonwealth of Virginia pending further orders, and that being
convinced that good cause existed to require that the
respondent-mother take immediate possession of the child by all
means necessary, granted sole legal and physical custody of the
child to the respondent pending further orders of the Court. The
appellant was directed to immediately return the child to the
Commonwealth of Virginia and to the custody and control of the
respondent or her agents with a further restraint on him not to
remove the child from the Commonwealth of Virginia under any
circumstance without the further order of the Court. Thereby, all
law enforcement and related agencies as mentioned in the order
were directed to assist and/or facilitate the transfer of the child to
the respondent, if necessary by taking the child into custody from
anyone who had his possession and by placing him in the physical
custody of the respondent.
8. As the records laid before this Court would divulge, the appellant
meanwhile on 26.05.2015 filed a petition for restitution of conjugal
rights under Section 9 of the Hindu Marriage Act, 1956 (as
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amended) and also a petition under Section 7(b) of the Guardian
and Wards Act, 1890 in the court of the Principal Judge, Family
Court, Rohini, Delhi seeking a decree for restitution of conjugal
rights between the parties and for a declaration that he was the sole
and permanent guardian of the child, respectively. Subsequent
thereto on 26.08.2015 he also instituted a suit in the High Court of
Delhi at New Delhi praying for a decree inter alia to adjudge the
proceedings initiated by the respondent in the court in U.S. to be
false, malicious, vexatious, oppressive and nullis juris, being
without jurisdiction and also to declare the order dated 28.05.2015
with regard to the return of the child to the custody of the
respondent-mother to be also null and void and not binding on him.
A decree for permanent injunction against the respondent, her
agents etc. from pursuing her proceedings before the court in U.S.
was also sought for. The orders, if any, passed in these proceedings
instituted by the appellant having a bearing on those pursued by
the respondent before the court in U.S. are however not on record
and we therefore refrain from making any comment thereon.
Suffice is to state that the lodging of the proceedings by the
appellant in courts in India demonstrates in unambiguous terms,
his knowledge about the lis in the Court in U.S. and the order dated
28.08.2015, interim though, directing him to return the custody of
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the child immediately to the respondent-mother and to the
Commonwealth of Virginia, pending further orders.
9. Be that as it may, the court in U.S. on 20.10.2015 noticing inter
alia that the appellant had refused to return the child to the U.S.
and to the custody of the respondent in direct violation of its earlier
order dated 28.05.2015, ordered that the respondent be granted
sole, legal and physical custody of the child and also declared that
no visitation be granted to the appellant. It was further directed
that if either party intended to relocate his or her residence, he/she
would have to give 30 days' advance written notice of any such
intended relocation and of any intended change in address to the
other party and the court. The proceedings concluded with the
observation “This cause is final”. For immediate reference
the proceedings of 20.10.2015 is also extracted hereinbelow:
“IN THE JUVENILE & DOMESTIC RELATIONS
DISTRICT COURT FOR FAIRFAX COUNTY
Shilpi Gupta In re: Aadvik Gupta
D.O.B. September 28, 2012
Petitioner
Case No. JJ431468-01-00/02-00
Vs.
Prateek Gupta
Respondent
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CUSTODY AND VISITATION ORDER
This cause came before this Court on the 20th day of
October, 2015, upon the petitioner Shilpi Gupta’s
petitions for custody and visitation of Aadvik Gupta.
It appearing to the Court that it has jurisdiction
over the parties and the subject matter of the
above-styled matter;
It further appearing to the Court that the
respondent, Prateek Gupta, unilaterally removed
Aadvik Gupta to India without notice to or consent of
the petitioner, and has further refused to return said
child to the United States and into the custody of the
petitioner in direct violation of this Court’s order
entered on May 28, 2015.
Having considered all of the factors of 20-124.3 of
the Code of Virginia, 1950, as amended, it is hereby:
Adjudged and ordered that petitioner is granted sole
legal and physical custody of Aadvik Gupta; it is
further.
Adjudged and ordered that no visitation is granted
to the respondent at this time; and it is further;
Adjudged and ordered that pursuant to 20-124.5 of
the Code of Virginia, 1950 as amended, either party
who intends to relocate his or her residence shall give
thirty-days advance written notice of any such
intended relocation and of any intended change of
address, said notice being given to both the other
party and to this Court.
This cause is final
Entered this 20th day of October, 2015.”
10.Mentionably, before the order dated 20.10.2015 was passed, the
respondent in the face of deliberate non-compliance of the order
dated 28.05.2015 of the court in U.S. had filed a contempt petition
before it and the copy thereof was served on the appellant asking
him to show cause. It is also a matter of record that the order
dated 28.05.2015 of the court in U.S. had been published in the
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daily “The Washington Times” on 03.09.2015, whereafter the order
dated 20.10.2015 was passed in the presence of the counsel for the
appellant after affording the respondent due hearing, whereupon
the counsel of the appellant signed the order with the following
endorsement “objected to for returning the child to mother sole legal
and physical custody”. The proceedings of the order dated
20.10.2015 would also testify that he failed to appear even after
personal service. That the notice of the proceedings in U.S. Court
at both the stages had been served on the appellant is a minuted
fact. It was in this eventful backdrop, that the respondent invoked
the writ jurisdiction of the High Court of Delhi seeking a writ of
habeas corpus against the appellant for the custody of the child
alleging its illegal and unlawful charge by him.
11. In reinforcement of her imputations, the respondent elaborated that
the child was an American citizen by birth, Virginia being his home
State and that in spite of the order(s) of a court of competent
jurisdiction, the appellant had illegally detained him. Various
correspondences made by her with different authorities seeking
their intervention and assistance as the last resort before
approaching the Writ Court were highlighted.
12.In refutation, it was pleaded on behalf of the appellant that the
petition for a writ in the nature of habeas corpus was misconceived
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in absence of any imminent danger of the life or physical or moral
well-being of the child. Referring to, amongst others the proceedings
initiated by him under the Guardian and Wards Act, 1890 which
was pending adjudication, it was asserted on his behalf that as the
same assured effective and efficacious remedy in law, the prayer in
the writ petition ought to be declined. It was insisted as well that
as the issue of the custody of the child was involved, a summary
adjudication thereof was unmerited and that a proper trial was the
imperative. Apart from referring to the reasons for the acrimonious
orientation of the parties, the initiatives and efforts made by him
and his family members to fruitlessly effect a resolution of the
differences, were underlined. It was maintained on his behalf that
the parties however, as an interim arrangement made on
24.01.2015 had agreed to live separately with each parent keeping
one child in his/her custody and that in terms thereof Aadvik, the
minor whose custody is in dispute, was given in charge of the
appellant. Institution and pendency of the other proceedings before
the Indian Courts were also cited to oppose the relief of the writ of
habeas corpus. It was contended as well that the respondent being
a single working woman, she would not, in any view of the matter,
be capable of appropriately looking after both the children.
13.In rejoinder, it was asserted on behalf of the respondent that the
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proceedings instituted by the appellant were all subsequent to the
one commenced by her in the court in U.S. on 15.05.2015 and in
the face of the final order(s) passed, directing return of custody of
the child to her and the Commonwealth of Virginia, the continuance
of the child with the appellant was apparently illegal and
unauthorized, warranting the grant of writ of habeas corpus.
14.The High Court, as the impugned judgment would evince, after
traversing the recorded facts, amongst others took note of the
disinclination of the respondent-wife to join the company of her
husband in India because of his alleged past conduct and the
trauma and torture suffered by her, a plea duly endorsed by her
father present in court, granted the writ as prayed for. While
rejecting the contention of the appellant that no orders ought to be
passed in the writ petition in view of the pendency of the three
proceedings initiated by him in India, the High Court seemed to
place a decisive reliance on the decision of this Court in Surya
Vadanan vs. State of Tamil Nadu & Ors.,
1
and after subscribing
to the principle of “comity of courts” and the doctrines of “most
intimate contact” and “closest concern” returned the finding, in the
prevailing factual setting, that the domestic court had much less
concern with the child as against the foreign court which had
1 (2015) 5 SCC 450
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passed the order prior in time. It observed further that no special or
compelling reason had been urged to ignore the principle of comity
of courts which predicated due deference to the orders passed by
the U.S. Court, more particularly when the appellant was
represented before it through his counsel and had submitted to its
jurisdiction. It was held that as the child remained in the U.S.
since birth upto March, 2015, it could be safely construed that he
was accustomed to and had adapted himself to the social and
cultural milieu different from that of India. It was observed that no
plea had been raised on behalf of the appellant that the foreign
court was either incompetent or incapable of exercising its
jurisdiction or had not rendered a reasonable or fair decision in the
best interest of child and his best welfare. In the textual facts, the
conclusion of the High Court was that the most intimate contact
with the parties and their children was of the court in U.S. which
did have the closest concern for their well-being.
15.Having determined thus, the High Court directed the appellant to
produce the child in court on the date fixed for consequential
handing over of his custody to the respondent.
16.In the process of impeachment of the impugned ruling of the High
Court, the learned counsel for the appellant at the threshold has
assiduously questioned the maintainability of the writ proceeding
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for habeas corpus. According to the learned counsel, in the
attendant facts and circumstances, the custody of the child of the
appellant who is the biological father can by no means be construed
as illegal or unlawful and thus the writ proceeding is misconceived.
Further the appellant being in-charge of the child on the basis of an
agreement between the parties, which also stands corroborated by
various SMS and e-mails exchanged between them during the
period from January, 2015 to 07.03.2015, the departure of the
appellant with the child from the U.S. to India and its custody with
him is authorized and approved in law. The learned counsel argued
as well that during the interregnum, after the appellant had
returned to India with the child, the couple had been in touch with
each other with interactions about the well-being of the child and
thus in law and on facts, there is no cause of action whatsoever for
the writ of habeas corpus as prayed for. That in passing the
impugned order, the High Court had visibly omitted to analyze the
perspectives pertinent for evaluating the interest or welfare of the
child has been underlined to urge that on that ground alone, the
assailed ruling is liable to be interfered with. The learned counsel
dismissed any binding effect of the order of the U.S. Court on the
ground that the same had been obtained by the respondent by
resorting to fraud in withholding the relevant facts from it and
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deliberately projecting wrongly that the safety of the child was in
danger in the custody of the appellant. The order of the court in
U.S. having thus been obtained by resorting to fraud, it is non est in
law, she urged. Even otherwise, India being not a signatory to the
Hague Convention of “The Civil Aspects of International Child
Abduction”, the order of the U.S. Court was not per se enforceable
qua the appellant and as in any view of the matter, the principle of
comity of courts was subject to the paramount interest and welfare
of the child, the High Court had fallen in error in relying on the
rendition of this Court in Surya Vardanan1
which in any event,
was of no avail to the respondent in the singular facts of the case.
According to the learned counsel, the parties are Indian nationals
and citizens having Indian passports and they are only residents of
U.S. on temporary work visa. It has been argued that the
respondent is all alone in U.S. with the younger child on a
temporary work visa which would expire in 2017 and her parents
and other family members are all in India. It has been pleaded as
well that when the child was brought to India by the appellant, he
was aged 2½ years, by which age he could not be considered to
have been accustomed and adapted to the lifestyle in U.S. for the
application of the doctrines of “intimate contact” and “closest
concern” by a court of that country. According to the learned
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counsel, the child after his return to India, has been admitted to a
reputed school and has accustomed himself to a desired congenial
family environment, informed with love and affection, amongst
others of his grand-parents for which it would be extremely harsh to
extricate him herefrom and lodge him in an alien setting, thus
adversely impacting upon the process of his overall grooming. That
the removal of the child by the appellant to India had not been in
defiance of any order of the court in U.S. and that the issue, more
particularly with regard to his custody as per the Indian law is
presently pending in a validly instituted proceeding here has also
been highlighted in endorsement of the challenge to the impugned
judgment and order. The decisions of this Court in Dhanwanti
Joshi vs. Madhav Unde2
, Sarita Sharma vs. Sushil Sharma3
and
Surya Vadanan1 have been adverted to in consolidation of the
above arguments.
17.In his contrasting response, the learned counsel for the respondent,
while edifying the sanctified status of a mother and her revered role
qua her child in its all round development, urged with reference to
the factual background in which the child had been removed from
his native country, that his continuing custody with the appellant is
patently illegal and unauthorized besides being ruthless and
2 (1998) 1 SCC 112
3 (2000) 3 SCC 14
17
inconsiderate vis-à-vis the respondent-mother and his younger
sibling. Heavily relying on the determination of this Court in Surya
Vadanan1
, the learned counsel has insisted that the High Court
had rightly invoked the principle of comity of courts and the
doctrines of “intimate contact” and “closest concern” and therefore,
no interference is called for in the ultimate interest and well-being
of the child. It was urged that the orders passed by the court in U.S.
directing the return of the child to the custody of the respondent
and the Commonwealth of Virginia is perfectly legal and valid, the
same having been rendered after affording due opportunity to the
appellant and also on an adequate appreciation of the aspects
bearing on the welfare of the child. The orders thus being binding
on the appellant, the defiance thereof is inexcusable in law and only
displays a conduct unbecoming of a father to justify retention of the
custody of the child in disobedience of the process of law. The High
Court as well on a due consideration of the facts and the law
involved had issued its writ for return of the custody of the child to
the respondent after affording a full-fledged hearing to both the
parties for which no interference is warranted, he urged. The
learned counsel however denied that there was ever any agreement
or understanding between the couple, under which they agreed that
each parent would have the custody of one child as represented by
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the appellant. In the case in hand as a final order has been passed
by the court in U.S. with regard to the custody of the child in favour
of the respondent after discussing all relevant aspects, the
impugned order of the High Court being in conformance with the
letter and spirit thereof, no interference is merited, he urged. While
placing heavy reliance on the decision of this Court in Surya
Vadanan1 , it was also insisted that the return of the elder child to
the custody of the mother was indispensably essential also for the
proper growth and grooming of the younger child in his company
and association, sharing the common bond of love, affection and
concern.
18.The recorded facts and the contentious assertions have received our
due attention. A brief recapitulation of the state of law on the issue
at the outset is the desideratum.
19. A three Judge Bench of this Court in Nithya Anand Raghavan
vs. State (NCT of Delhi) and another4
did have the occasion to
exhaustively revisit the legal postulations qua the repatriation of a
minor child removed by one of the parents from the custody of the
other parent from a foreign country to India and its retention in the
face of an order of a competent foreign court directing its return to the
place of abode from which it had been displaced. The appeal before
4 (2017) 8 SCC 454
19
this Court arose from a decision of the High Court in a Writ Petition
filed by the father alleging that the minor daughter of the parties had
been illegally removed from his custody in United Kingdom (for short,
hereafter referred to as “UK”), thus seeking a writ of habeas corpus for
her production. By the verdict impugned, the High Court directed the
appellant-mother therein to produce the minor child and to comply
with an earlier order passed by the High Court of Justice, Family
Division, Principal Registry, United Kingdom within three weeks or in
the alternative to handover the custody of the daughter to the
respondent-father therein within that time. The proceeding in which
the Court in the UK had passed the order dated 08.01.2016 had been
initiated by the respondent/father after the appellant/mother had
returned to India with the minor.
20. A brief outline of the factual details, would assist better the
comprehension of the issues addressed therein. The parties to start
with, were Indian citizens and were married as per the Hindu rites and
customs on 30.11.2006 which was registered before the SDM Court,
Chennai, whereafter on the completion of the traditional formalities,
they shifted to U.K. in early 2007 and set up their matrimonial home
in Watford (U.K.). Differences surfaced between them so much so that
as alleged by the wife, she was subjected to physical and mental
abuse. She having conceived in and around December, 2008, left U.K.
20
for Delhi in June, 2009 to be with her parents and eventually was
blessed with a girl child, Nethra in Delhi. The husband soon joined
the mother and the child in Delhi whereafter, they together left for
U.K. in March, 2010. Skipping over the intervening developments,
suffice it to state that the mother with the child who had meanwhile
been back on a visit to India, returned to London in December, 2011,
whereafter the minor was admitted in a Nursery School in U.K. in
January, 2012. In December, 2012, the daughter was granted
citizenship of U.K. and subsequent thereto, the husband also acquired
the same. Meanwhile from late 2014 till early 2015, the daughter was
taken ill and was diagnosed to be suffering from cardiac disorder for
which she was required to undergo periodical medical reviews. As
imputed by the wife, the father however, dis-played total indifference
to the daughter’s health condition. Finally on 02.07.2015, the
appellant-mother returned to India along with the daughter because of
alleged violent behavior of the respondent and also informed the
school that the ward would not be returning to U.K. for her well-being
and safety.
The appellant thereafter filed a complaint on 16.12.2015 against
the respondent with the Crime Against Women Cell, New Delhi, which
issued notice to the respondent and his parents to appear before it.
According to the appellant, neither the respondent nor his parents did
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respond to the said notice and instead as a counter-blast, he filed a
custody/wardship petition on 08.01.2006 before the High Court of
Justice, Family Division, U.K. praying for the restoration of his
daughter to the jurisdiction of that Court. The Court in U.K. on
08.01.2016 passed an ex-parte order inter alia directing the appellant
to return the daughter to U.K. and to attend the hearing of the
proceedings. Within a fortnight therefrom, the respondent also filed a
writ petition before the High Court of Delhi against the appellant-wife
seeking a writ of habeas corpus for production of the minor before the
Court. By the impugned Judgment and Order, the High Court
directed the appellant to produce the daughter and comply with the
orders passed by the U.K. Court or hand over the minor to the
respondent-father within three weeks therefrom.
Assailing this determination, it was urged on behalf of the
appellant inter alia that the High Court had wrongly assigned
emphasis on the principle of comity of courts in complete disregard of
the paramount interest and welfare of the child, more particularly in
view of the vicious environment at her matrimonial home in U.K. in
which she (appellant) had been subjected to physical and verbal abuse
and had even placed the child at risk with his behaviour. The fact
that India not being a signatory to the Hague Convention intended to
prevent parents from abducting children across the borders, the
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principle of comity of courts did not merit precedence over the welfare
of the child, an aspect overlooked by the High Court, was underlined.
It was asserted that the impugned order did also disregard the parens
patriae jurisdiction of the Indian court within whose jurisdiction the
child was located as well as the welfare of the child in question in
mechanically applying the principle of comity of courts. That though
the welfare of the child in situations of the like as well, is of
paramount consideration, this Court in Shilpa Aggarwal vs. Aviral
Mittal and another5
and in Surya Vadanan1
had deviated from this
governing precept and had directed the child and mother to return to
the jurisdiction of the foreign court by mis-interpreting the concept of
‘intimate contact’ of the child with the place of repatriation, was
highlighted for reconsideration of the views expressed therein. It was
urged that the decision in Surya Vadanan1 had a chilling effect of
assigning dominance to the principle of comity of courts over the
welfare of a child, which mentionably undermined the perspective of
the child, thus encouraging multiplicity of proceedings
It was insistingly canvassed that the view adopted in Surya
Vadanan1 was in direct conflict with an earlier binding decision in V.
Ravi Chandran (Dr.) vs. Union of India and others6
in which a
three-Judge Bench had categorically held that under no circumstance
5 (2010)1 SCC 591
6 (2010) 1 SCC 174
23
can the principle of welfare of the child be eroded and that a child can
seek refuge under the parens patriae jurisdiction of the Court. While
dismissing the initiative of the respondent before the UK Court to be
one in retaliation of the appellant’s allegation of abuse and violence
and noticeably after she had filed a complaint with the Crime Against
Women Cell (CAWC), New Delhi, it was also urged that the U.K. Court
had passed ex parte order without affording any opportunity to her to
present her case. It was canvassed further that the writ petition filed
by the respondent seeking a writ of habeas corpus which is envisaged
for urgent and immediate relief was also a designed stratagem of his
bordering on the abuse of the process of the court and thus ought to
have been discouraged by the High Court. It was underlined as well
that the High Court in passing the impugned direction had also
overlooked that the respondent had defaulted in the discharge of his
parental duty towards the child, who was suffering from serious
health problems, thus compromising in all respects the supervening
consideration of overall well-being of the child.
In refutation, it was maintained on behalf of the respondent that
the child was a British citizen and brought up in U.K. and as he had
acquired its citizenship and the appellant was also a permanent
resident of U.K., they had the abiding intention to permanently settle
there along with the child and thus the U.K. Court had the closest
24
concern and intimate contact with the child as regards her welfare and
custody and thus indubitably had the jurisdiction in the matter. It was
urged on behalf of the respondent by referring amongst others to the
rendering in Surya Vadanan1
that the child had clearly adapted to
the social and cultural milieu of U.K. and thus it was in its best
interest to be rehabilitated there. That there was no material to
suggest that the return of the child to U.K. would result in
psychological, physical or cultural harm to her or that the U.K. Court
was incompetent to take a decision in the interest and welfare of the
child, was underlined. It was insisted as well that there was no
compelling reason for the High Court to ignore the principle of comity
of courts and that as acknowledged by the High Court, better medical
facilities were available in U.K. to treat the child. The steps taken by
the respondent towards the child’s boarding and travelling expenses
together with the expenditure incurrable for the school and other
incidental aspects and his undertaking not to pursue any criminal
proceeding against the appellant for kidnapping the child with the
avowed desire of reinstating his home was highlighted to demonstrate
his bona fides. That there was no delay on the part of the respondent
in filing the writ petition, which he did immediately after coming to
learn that the appellant was disinclined to return the child to U.K.,
was stressed upon as well.
25
In this disputatious orientation, this Court premised its
adjudication on the necessity to comply with the direction issued by
the foreign court against the appellant to produce the minor child
before the U.K. Court where the issue regarding wardship was pending
for consideration and also to ascertain as to which Court could
adjudicate the same.
While recalling that the concept of forum convenience has no
place is wardship jurisdiction, this Court at the outset dwelt upon the
efficacy of the principle of comity of courts as applicable to India in
respect of child custody matters and for that purpose, exhaustively
traversed the relevant decisions on the issue. It referred to the verdict
in Dhanwanti Joshi2
, which recorded the enunciation of the Privy
Council in Mark T. Mckee vs. Evelyn Mckee7
, which in essence
underlined the paramountcy of the consideration of welfare and
happiness of the infant to be of decisive bearing in the matter of
deciding its custody with the observation that comity of courts
demanded not its enforcement but its grave consideration. In that
case, a decree of divorce was passed in USA and custody of the child
was given to the father and later varied in favour of the mother. At
that stage, the father took away the child to Canada, whereafter in the
habeas corpus proceedings by the mother, though initially the
7 (1951) AC 352 (PC)
26
decisions of the lower courts went against her, the Supreme Court of
Canada gave her custody and the said Court held that the father could
not have the question of custody retried in Canada once the question
was adjudicated in favour of the mother in the U.S.A. earlier. The
above observation was made by the Privy Council on appeal to it which
held that in the proceedings relating to the custody before the
Canadian Court, the welfare and happiness of the infant was of
paramount consideration and the order of a foreign court in USA as to
the custody can be given due weight in the circumstances of the case
but such an order of a foreign court was only one of the factors which
must be taken into consideration. The duty of the Canadian Court to
form any independent judgment on the merits of the matter with
regard to the welfare of the child was emphasized. It recorded as well
that this view was sustained in L (minors) (Wardship: Jurisdiction),
In. re8
, which reiterated that the limited question which arose in the
latter decisions was whether the court in the country in which the
child was removed could conduct (a) summary enquiry or (b) an
elaborate enquiry in the question of custody. It was explicated that in
case of (a) a summary enquiry, the court would return custody to the
country from which the child was removed unless such return could
be shown to be harmful to the child and in case of (b) an elaborate
8 (1974) 1 WLR 250 (CA)
27
enquiry, the court could go into the merits to determine as to where
the permanent welfare lay and ignore the order of the Foreign Court or
treat the fact of removal of the child from another country as only one
of the circumstances and the crucial question as to whether the court
(in the country to which the child is removed) would exercise the
summary or elaborate procedure is to be determined according to the
child's welfare. It was indicated that the summary jurisdiction to
return the child is invoked, for example, if the child had been removed
from its native land to another country where, may be, his native
language is not spoken, or the child gets divorced from the social
customs and contacts to which he has been accustomed, or its
education in his native land is interrupted and the child is being
subjected to a foreign system of education, for these are all acts which
could psychologically disturb the child. It was mentioned as well that
the summary jurisdiction is exercised only if the court to which the
child has been removed is moved promptly and quickly, for in that
event, the Judge may be well persuaded that it will be better for the
child that those facets be investigated in the court in his native
country on the expectation that an early decision in the native country
could be in the interest of the child before it would develop roots in the
country to which he had been removed. It was expounded in the
alternative, that the Court might as well think of conducting an
28
elaborate enquiry on merits and have regard to the other facts of the
case and the time that has elapsed after the removal of the child and
consider, if it would be in the interest of the child not to have it
returned from the country to which it had been removed, so much so
that in such an eventuality, the unauthorized removal of the child
from the native country would not come in the way of the court in the
country to which the child has been removed, to ignore the removal
and independently consider whether the sending back of the child to
its native country would be in the paramount interest of the child.
This Court recalled its mandate in Elizabeth Dinshaw vs.
Arvand M. Dinshaw & Anr.9
, directing the father of the child
therein, who had removed it from USA contrary to the custody orders
of U.S. Court, to repatriate it to USA to the mother not only because of
the principle of comity but also because on facts, which on
independent consideration merited such restoration of the child to its
native State, in its interest. The following observations in Dhanwanti
Joshi2 qua the state of law vis-a-vis the countries who are not the
signatories of the Hague Convention are of formidable significance and
as noticed in Nithya Anand Raghavan4 , are extracted hereinbelow:
“33. So far as non-Convention countries are
concerned, or where the removal related to a period
before adopting the Convention, the law is that the
court in the country to which the child is removed
9 (1987) 1 SCC 42
29
will consider the question on merits bearing the
welfare of the child as of paramount importance and
consider the order of the foreign court as only a factor
to be taken into consideration as stated in McKee v.
McKee unless the Court thinks it fit to exercise
summary jurisdiction in the interests of the child and
its prompt return is for its welfare, as explained in
Re [L. (Minors) (Wardship : Jurisdiction). As recently
as 1996-1997, it has been held in P. (A minor) (Child
Abduction: Non-Convention Country), Re: by Ward ,
L.J. [1996 Current Law Year Book, pp. 165-166] that
in deciding whether to order the return of a child who
has been abducted from his or her country of
habitual residence—which was not a party to the
Hague Convention, 1980—the courts' overriding
consideration must be the child's welfare. There is no
need for the Judge to attempt to apply the provisions
of Article 13 of the Convention by ordering the child's
return unless a grave risk of harm was established.
See also A. (A Minor) (Abduction: Non-Convention
Country) [Re, The Times, 3-7-1997 by Ward, L.J.
(CA) (quoted in Current Law, August 1997, p. 13].
This answers the contention relating to removal of
the child from USA.”
Here again the court in the country to which the child is removed
was required to consider the question on merits bearing on its welfare
as of paramount significance and take note of the order of the foreign
court as only a factor to be taken into consideration as propounded in
Mckee7
, unless the court thought it fit to exercise the summary
jurisdiction of the child and its prompt return to its native country for
its welfare. In elaboration of the above exposition, this Court in
Nithya Anand Raghavan4
propounded thus:
“40. The Court has noted that India is not yet a
signatory to the Hague Convention of 1980 on “Civil
Aspects of International Child Abduction”. As regards
30
the non-Convention countries, the law is that the court
in the country to which the child has been removed
must consider the question on merits bearing the
welfare of the child as of paramount importance and
reckon the order of the foreign court as only a factor to
be taken into consideration, unless the court thinks it
fit to exercise summary jurisdiction in the interests of
the child and its prompt return is for its welfare. In
exercise of summary jurisdiction, the court must be
satisfied and of the opinion that the proceeding
instituted before it was in close proximity and filed
promptly after the child was removed from his/her
native state and brought within its territorial
jurisdiction, the child has not gained roots here and
further that it will be in the child's welfare to return to
his native state because of the difference in language
spoken or social customs and contacts to which
he/she has been accustomed or such other tangible
reasons. In such a case the court need not resort to an
elaborate inquiry into the merits of the paramount
welfare of the child but leave that inquiry to the foreign
court by directing return of the child. Be it noted that
in exceptional cases the court can still refuse to issue
direction to return the child to the native state and
more particularly in spite of a pre-existing order of the
foreign court in that behalf, if it is satisfied that the
child's return may expose him to a grave risk of harm.
This means that the courts in India, within whose
jurisdiction the minor has been brought must
“ordinarily” consider the question on merits, bearing in
mind the welfare of the child as of paramount
importance whilst reckoning the pre-existing order of
the foreign court if any as only one of the factors and
not get fixated therewith. In either situation—be it a
summary inquiry or an elaborate inquiry—the welfare
of the child is of paramount consideration. Thus, while
examining the issue the courts in India are free to
decline the relief of return of the child brought within
its jurisdiction, if it is satisfied that the child is now
settled in its new environment or if it would expose the
child to physical or psychological harm or otherwise
place the child in an intolerable position or if the child
is quite mature and objects to its return. We are in
31
respectful agreement with the aforementioned
exposition.”
The above excerpt would in no uncertain terms underscore the
predication that the courts in India, within whose jurisdiction the
minor has been brought “ordinarily” while examining the question on
merits, would bear in mind the welfare of the child as of paramount
and predominant importance while noting the preexisting order of the
foreign court, if any, as only one of the factors and not get fixated
therewith and that in either situation, be it a summary enquiry or
elaborate enquiry, the welfare of the child is of preeminent and
preponderant consideration, so much so that in undertaking this
exercise, the courts in India are free to decline the relief of repatriation
of the child brought within its jurisdiction, if it is satisfied that it had
settled in its new environment or that it would be exposed thereby to
physical harm or otherwise, if it is placed in an intolerable or
unbearable situation or environment or if the child in a given case, if
matured, objects to its return.
Sustenance of this view was sought to be drawn from the verdict
of another three-Judge Bench of this Court in V. Ravichandran6
, as
expressed in paragraphs 27 to 30 in the following terms:
“27. … However, in view of the fact that the child had lived
with his mother in India for nearly twelve years, this Court
held that it would not exercise a summary jurisdiction to
return the child to the United States of America on the
32
ground that its removal from USA in 1984 was contrary to
the orders of US courts. It was also held that whenever a
question arises before a court pertaining to the custody of a
minor child, the matter is to be decided not on
considerations of the legal rights of the parties but on the
sole and predominant criterion of what would best serve the
interest of the minor.”
(emphasis supplied)
Again in paras 29 and 30, the three-Judge Bench observed
thus: (SCC pp. 195-96)
“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
33
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 [L. (Minors) (Wardship :
Jurisdiction), (1974) 1 WLR 250 (CA)] and the said view has
been approved by this Court in Dhanwanti Joshi [Dhanwanti
Joshi. Similar view taken by the Court of Appeal in H.
(Infants) (1966) 1 WLR 381 has been approved by this Court
in Elizabeth Dinshaw.”
(emphasis supplied)
The quintessence of the legal exposition on the issue was
succinctly synopsised in the following terms:
“42. The consistent view of this Court is that if the child
has been brought within India, the courts in India may
conduct: (a) summary inquiry; or (b) an elaborate inquiry
on the question of custody. In the case of a summary
inquiry, the court may deem it fit to order return of the
child to the country from where he/she was removed
unless such return is shown to be harmful to the child.
In other words, even in the matter of a summary inquiry,
it is open to the court to decline the relief of return of the
child to the country from where he/she was removed
irrespective of a pre-existing order of return of the child
by a foreign court. In an elaborate inquiry, the court is
obliged to examine the merits as to where the paramount
interests and welfare of the child lay and reckon the fact
of a pre-existing order of the foreign court for return of
the child as only one of the circumstances. In either
case, the crucial question to be considered by the court
(in the country to which the child is removed) is to
answer the issue according to the child's welfare. That
has to be done bearing in mind the totality of facts and
circumstances of each case independently. Even on close
scrutiny of the several decisions pressed before us, we do
not find any contra view in this behalf. To put it
differently, the principle of comity of courts cannot be
given primacy or more weightage for deciding the matter
of custody or for return of the child to the native State.”
21. Thus the state of law as approved in Nithya Anand Raghavan4
34
is that if a child is brought from a foreign country, being its native
country to India, the court in India may conduct (a) summary enquiry,
or (b) an elaborate enquiry on the question of custody, if called for. In
the case of a summary enquiry, the court may deem it fit to order the
return of the child to the country from where he/she has been
removed unless such return is shown to be harmful to the child.
Axiomatically thus, even in case of a summary enquiry, it is open to
the court to decline the relief of return of the child to the country from
where he/she has been removed irrespective of a pre-existing order of
return of a child by a foreign court, in case it transpires that its
repatriation would be harmful to it. On the other hand, in an
elaborate enquiry, the court is obligated to examine the merits as to
where the paramount interest and welfare of the child lay and take
note of the pre-existing order of the foreign court for the return of the
child as only one of the circumstances. As a corollary, in both the
eventualities whether the enquiry is summary or elaborate, the court
would be guided by the pre-dominant consideration of welfare of the
child assuredly on an overall consideration on all attendant facts and
circumstances. In other words, the principle of comity of courts is not
to be accorded a yielding primacy or dominance over the welfare and
well-being of the child which unmistakeably is of paramount and
decisive bearing.
35
22. This Court in Nithya Anand Raghavan4 also had to examine as
to whether a writ of habeas corpus was available to the father qua the
child which was in the custody of the mother, more particularly in the
face of ex-parte order of the court in U.K. against her and directing her
for its return to its native country by declaring it to remain as a ward
of that court during its minority or until further orders. This Court
noted that this order had remained not only unchallenged by the
appellant mother but also no application had been made by her before
the foreign court for its modification. This Court however was firstly of
the view that this order per se did not declare the custody of the minor
with the appellant mother to be unlawful or that till it returned to
England, its custody with the mother had become or would be treated
as unlawful inter alia for the purposes of considering a petition for
issuance of writ of Hebeas Corpus. In this regard, the decision of this
Court, amongst others in Syed Saleemuddin vs. Dr. Rukhsana &
Ors.10, was adverted to, wherein it had been proclaimed that the
principal duty of the court moved for the issuance of writ of habeas
corpus in relation to the custody of a minor child is to ascertain
whether such custody is unlawful or illegal and whether the welfare of
the child requires, that his present custody should be changed and
the child ought to be handed over to the care and custody of any
10 (2001) 5 SCC 247
36
person. It was once again emphasized that while doing so, the
paramount consideration must be, the welfare of the child.
The observation in Elizabeth Dinshaw9
that in such matters,
the custody must be decided not by reference to the legal rights of the
parties but on the sole and predominant criterion as to what would
best serve the interest and welfare of the minor and that to that
extent, the High Court would exercise its parens patriae jurisdiction,
as the minor is within its jurisdiction was reminisced. In the facts of
the case also, noting the supervening fact that the appellant was the
biological mother and natural guardian of the minor child, the remedy
of writ of habeas corpus invoked for enforcement of the directions of
the foreign court was declined, however leaving the respondent/father
to take recourse to such other remedy as would be available in law for
the enforcement of the order passed by the foreign court for securing
the custody of the child. It was held that the appellant being the
biological mother and natural guardian of the child, it could be
presumed that its custody with her was lawful.
23. This Court in Nithya Anand Raghavan4 next turned to the
contextual facts to record that the parents of the child were of Indian
origin and that the minor was an Indian citizen by birth as she was
born in Delhi and that she had not given up her Indian citizenship
though she was granted UK citizenship subsequent thereto. That the
37
child was admitted to a primary school in UK in September 2013 and
that she had studied there in July 2015 was noted. It was mentioned
as well that till she accompanied her mother on 02.07.2015 to India,
no proceeding of any kind had been filed in the UK Court, either in
relation to any matrimonial dispute between the parents or for her
custody. In India, the child had been living with her grand-parents
and other family members and relations unlike in U.K., where she
lived in a nuclear family of three with no other relatives. That she had
been studying in India for last over one year and had spent equal time
in both the countries up to the first six years of her life was taken note
of as well. This Court also expressed that the child would be more
comfortable and secured to live with her mother here in India, who
can provide her with motherly love, care, guidance and the required
upbringing for her desired grooming of personality, character and
faculties. That being a girl child, the custody, company and
guardianship of the mother was of utmost significance was felt. It was
also recorded that being a girl child of the age of about seven years,
she ought to be ideally in the company of her mother in absence of
circumstances that such association would be harmful to her. That
there was no restraint order passed by any court or authority in U.K.
before the child had travelled with her mother to India was accounted
for as well. This Court noticed most importantly, that the child was
38
suffering from cardiac disorder, which warranted periodical medical
reviews and appropriate care and attention, which it felt could be
provided only by the mother as the respondent/father being employed
would not be in a position to extend complete and full attention to his
daughter. That the appellant/mother had neither any intention to
return to UK nor according to her if the child returns to UK, she would
be able to secure the desired access to her to the child to provide care
and attention was noted in express terms. On an evaluation of the
overall facts and circumstances, this Court thus was of the unhesitant
opinion that it would be in the interest of the child to remain in the
custody of her mother and that her return to UK would prove harmful
to her. While concluding thus, it was stated that this arrangement
notwithstanding the appellant/mother ought to participate in the
proceedings before the UK Court so long as it had the jurisdiction to
adjudicate the matter before it. It was observed as well that, as the
scrutiny involved with regard to the custody had arisen from a writ
petition filed by the respondent/father for issuance of writ of a habeas
corpus and not to decide the issue of grant or otherwise of the custody
of the minor, all relevant aspects would have to be considered on their
own merit in case a substantive proceeding for custody is made before
any court of competent jurisdiction, including in India, independent of
any observation made in the judgment.
39
To complete the narrative, the analysis of the other relevant
pronouncements rendered on the issue would be adverted to in
seriatim. In V. Ravi Chandran6
, a writ of habeas corpus for
production of minor son from the custody of his mother was sought
for by his father. The child was born in US and was an American
citizen and was about eight years of age when he was removed by the
mother from U.S., in spite of her consent order on the issue of custody
and guardianship of the minor passed by the competent U.S. Court.
The minor was given in the joint custody to the parents and a restraint
order was operating against the mother when it was removed from
USA to India. Prior to his removal, the minor had spent few years in
U.S.. All these factors weighed against the mother as is discernible
from the decision, whereupon this Court elected to exercise the
summary jurisdiction in the interest of the child, whereupon the
mother was directed to return the child to USA within a stipulated
time.
24. In Shilpa Aggarwal5
, the minor girl child involved was born in
England having British citizenship and was only 3½ years of age at
the relevant time. The parents had also acquired the status of
permanent residents of U.K. In the facts and circumstances of the
case, this Court expressed its satisfaction that in the interest of the
minor child, it would be proper to return her to U.K. by applying the
40
principle of comity of courts. The Court was also of the opinion that
the issue regarding custody of the child should be decided by the
foreign court from whose jurisdiction the child was removed and
brought to India. A summary enquiry was resorted to in the facts of
the case.
25. In Arathi Bandi vs. Bandi Jagadrakshaka Rao and others11
the minor involved was a male child who was born in USA and had
acquired the citizenship of that country by birth. The child was
removed from USA by the mother in spite of a restraint order and a
red corner notice operating against her had been issued by a court of
competent jurisdiction in USA. This Court therefore held that the facts
involved were identical to those in V. Ravi Chandran6 and further
noticed that the mother of the child also had expressed her intention
to return to USA and live with her husband though the latter was not
prepared to cohabit with her.
26. In Surya Vadanan1
, the two minor girls aged 10 years 6 years
respectively were British citizens by birth. Following intense
matrimonial discords, the mother had left UK and had come to India
with her two daughters. She also instituted a proceeding in the Family
Court at Coimbatore seeking dissolution of marriage. The husband,
finding the wife to be unrelenting and disinclined to return to U.K.
11 (2013) 15 SCC 790
41
with her daughters, petitioned the High Court of Justice in U.K. for
making the children as the wards of the Court, which passed an order
granting the prayer and required the mother to return the children to
its jurisdiction. This order was passed even before any formal order
could be passed on the petition filed by the wife seeking divorce. This
order was followed by another order of the U.K. Court giving
peremptory direction to the wife to produce the two daughters before
the U.K. Court and was supplemented by a penal notice to her. It was
thereafter that the husband moved the Madras High Court for a writ of
habeas corpus on the ground that the wife had illegal custody of the
two daughters. On the following considerations as extracted
hereinbelow, relief as prayed for by the husband was granted:
“56. However, if there is a pre-existing order of a
foreign court of competent jurisdiction and the
domestic court decides to conduct an elaborate
inquiry (as against a summary inquiry), it must have
special reasons to do so. An elaborate inquiry should
not be ordered as a matter of course. While deciding
whether a summary or an elaborate inquiry should be
conducted, the domestic court must take into
consideration:
(a) The nature and effect of the interim or
interlocutory order passed by the foreign court.
(b) The existence of special reasons for
repatriating or not repatriating the child to the
jurisdiction of the foreign court.
(c) The repatriation of the child does not cause
any moral or physical or social or cultural or
psychological harm to the child, nor should it
cause any legal harm to the parent with whom
the child is in India. There are instances where
42
the order of the foreign court may result in the
arrest of the parent on his or her return to the
foreign country. In such cases, the domestic
court is also obliged to ensure the physical
safety of the parent.
(d) The alacrity with which the parent moves
the foreign court concerned or the domestic
court concerned, is also relevant. If the time
gap is unusually large and is not reasonably
explainable and the child has developed firm
roots in India, the domestic court may be well
advised to conduct an elaborate inquiry.”
27. Vis-à-vis the renditions in V. Ravi Chandran6
, Shilpa
Aggarwal5
and Arathi Bandi11, this Court in Nithya Anand
Raghavan4
distinguished the facts involved therein from the one
under its scrutiny. While underlining that the considerations which
impelled the court to adopt its summary approach/jurisdiction in
directing the return of the child to its native country, did not in any
way discount or undermine the predominant criterion of welfare and
interest of the child even to outweigh neuter or offset the principle of
comity of courts, it disapproved the primacy sought to be accorded to
the order of the foreign court on the issue of custody of minor in
Surya Vadanan1 though negated earlier in Dhanwanti Joshi2
and
reiterated that whether it was a case of summary enquiry or an
elaborate enquiry, the paramount consideration was the interest and
welfare of the child so much so that the preexisting order of a foreign
court could be taken note of only as one of the factors. The alacrity or
43
the expedition with which the applicant/parent moves the foreign
court or the domestic court concerned, for custody as a relevant factor
was also not accepted to be of any definitive bearing. This notion of
“first strike principle” was not subscribed to and further the
extrapolation of that principle to the courts in India as predicated in
Surya Vadanan1
was also held to be in-apposite by adverting inter
alia to Section 14 of the Guardians and Wards Act, 1890 and Section
10 of the Civil Procedure Code.
28. The following passage from Nithya Anand Raghavan4
discarding the invocation of “first strike” principle as a definitive factor
in furtherance of the applicability of the principle of comity of courts is
quoted as hereunder:
“66. The invocation of first strike principle as a decisive
factor, in our opinion, would undermine and whittle down
the wholesome principle of the duty of the court having
jurisdiction to consider the best interests and welfare of the
child, which is of paramount importance. If the Court is
convinced in that regard, the fact that there is already an
order passed by a foreign court in existence may not be so
significant as it must yield to the welfare of the child. That
is only one of the factors to be taken into consideration.
The interests and welfare of the child are of paramount
consideration. The principle of comity of courts as observed
in Dhanwanti Joshi case in relation to non-Convention
countries is that the court in the country to which the
child is removed will consider the question on merits
bearing the welfare of the child as of paramount
importance and consider the order of the foreign court as
only a factor to be taken into consideration. While
considering that aspect, the court may reckon the fact that
the child was abducted from his or her country of habitual
residence but the court's overriding consideration must be
the child's welfare.”
44
In conclusion, qua the decisions relied upon by the
respondent-father, the facts contained therein were held to be
distinguishable and it was observed that though the factual backdrop
as obtained therein necessitated the court to issue direction to return
the child to the native State, it did not follow that in deserving cases,
the Courts in India were denuded of their powers to decline the relief
to relocate the child to the native State merely because of a
pre-existing order of foreign court of competent jurisdiction. The law
laid down in Dhanwanti Joshi2
and approved by a three Judge
Bench of this Court in V. Ravi Chandran6
was enounced to be the
good law, thus reiterating that so far as non-convention countries are
concerned, the court in the country in which the child is removed
while examining the issue of its repatriation to its native country,
would essentially bear in mind that the welfare of the child was of
paramount importance and that the existing order of foreign court was
only a factor to be taken note of. It was reiterated that the summary
jurisdiction to return the child could be exercised in cases where the
child had been removed from his native land to another country where
his native language is not spoken or the child gets divorced from social
customs and contacts to which he is accustomed or if his education in
his native land is interrupted and the child is subjected to foreign
45
system of education, thus adversely impacting upon his psychological
state and overall process of growth. Though a prompt and expeditious
move on the part of the applicant parent for the repatriation of the
child in a court in the country to which it had been removed may be a
relevant factor, the overwhelming and determinative consideration
unfailingly has to be in the interest and welfare of the child. It was
observed that in the facts of the case, the minor child after attaining
majority would be free to exercise her choice to go to U.K and stay
with her father but till that eventuality, she should stay in the custody
of mother unless the court of competent jurisdiction trying the issue of
custody of the child did order to the contrary. Visitation right to the
respondent-father however was granted and directions were issued so
as to facilitate the participation of the appellant- mother in the
pending proceedings before the U.K. Court, inter alia by requiring the
respondent-husband to bear the necessary costs to meet the
expenditure towards all relevant aspects related thereto. The
impugned judgment of the High Court issuing the writ of habeas
corpus in favour of the respondent-husband was thus set aside.
29. The dialectics and determinations in Nithya Anand Raghavan4
have been alluded to in pervasive details as the adjudication therein
by a Bench of larger coram has forensically analyzed all the
comprehensible facets of the issue, to which we deferentially
46
subscribe.
30. The decisions cited at the Bar and heretofore, traversed present
fact situations with fringe variations, the common and core issue
being the justifiability or otherwise factually and/or legally, of the
relocation of a child removed from its native country to India on the
basis of the principle of comity of courts and doctrines of “intimate
contact” and “closest concern”.
31. The following observations in Ruchi Majoo vs. Sanjeev Majoo12
bearing on the parens patriae jurisdiction of Indian courts in cases
involving custody of minor children are apt as well:
“Recognition of decrees and orders passed by foreign
courts remains an eternal dilemma inasmuch as
whenever called upon to do so, courts in this country
are bound to determine the validity of such decrees
and orders keeping in view the provisions of Section 13
of the Code of Civil Procedure, 1908, as amended by
the Amendment Acts of 1999 and 2002. The duty of a
court exercising its parens patriae jurisdiction as in
cases involving custody of minor children is all the
more onerous. Welfare of the minor in such cases
being the paramount consideration; the court has to
approach the issue regarding the validity and
enforcement of a foreign decree or order carefully.
Simply because a foreign court has taken a particular
view on any aspect concerning the welfare of the
minor is not enough for the courts in this country to
shut out an independent consideration of the matter.
Objectivity and not abject surrender is the mantra in
such cases. That does not, however, mean that the
order passed by a foreign court is not even a factory to
be kept in view. But it is one thing to consider the
foreign judgment to be conclusive and another to
12
(2011) 6 SCC 479
47
treat it as a factor or consideration that would go into
the making of a final decision.”
32. The gravamen of the judicial enunciation on the issue of
repatriation of a child removed from its native country is clearly
founded on the predominant imperative of its overall well-being, the
principle of comity of courts, and the doctrines of “intimate contact
and closest concern” notwithstanding. Though the principle of comity
of courts and the aforementioned doctrines qua a foreign court from
the territory of which a child is removed are factors which deserve
notice in deciding the issue of custody and repatriation of the child, it
is no longer res integra that the ever overriding determinant would be
the welfare and interest of the child. In other words, the invocation of
these principles/doctrines has to be judged on the touchstone of
myriad attendant facts and circumstances of each case, the ultimate
live concern being the welfare of the child, other factors being
acknowledgeably subservient thereto. Though in the process of
adjudication of the issue of repatriation, a court can elect to adopt a
summary enquiry and order immediate restoration of the child to its
native country, if the applicant/parent is prompt and alert in his/her
initiative and the existing circumstances ex facie justify such course
again in the overwhelming exigency of the welfare of the child, such a
course could be approvable in law, if an effortless discernment of the
relevant factors testify irreversible, adverse and prejudicial impact on
48
its physical, mental, psychological, social, cultural existence, thus
exposing it to visible, continuing and irreparable detrimental and
nihilistic attentuations. On the other hand, if the applicant/parent is
slack and there is a considerable time lag between the removal of the
child from the native country and the steps taken for its repatriation
thereto, the court would prefer an elaborate enquiry into all relevant
aspects bearing on the child, as meanwhile with the passage of time, it
expectedly had grown roots in the country and its characteristic
milieu, thus casting its influence on the process of its grooming in its
fold.
33. The doctrines of “intimate contact” and “closest concern” are of
persuasive relevance, only when the child is uprooted from its native
country and taken to a place to encounter alien environment,
language, custom etc., with the portent of mutilative bearing on the
process of its overall growth and grooming.
34. It has been consistently held that there is no forum convenience
in wardship jurisdiction and the peremptory mandate that underlines
the adjudicative mission is the obligation to secure the unreserved
welfare of the child as the paramount consideration.
35. Reverting to the present facts, the materials as available, do
substantiate lingering dissensions between the parties. They are living
separately since 2014 with one child each in their company and
49
charge. The children are US citizens by birth. Noticeably, the child
Aadvik, who is the subject matter of the lis and custody was barely 2½
years old when he came over to India and had stayed here since then.
Today, he is a little over 5 years old. In other words, he has spent half
of his life at this age, in India. Considering his infant years of stay in
US, we construe it to be too little for the required integration of his
with the social, physical, psychological, cultural and academic
environment of US to get totally upturned by his transition to this
country, so much so that unless he is immediately repatriated, his
inherent potentials and faculties would suffer an immeasurable set
back. The respondent-mother also is not favourably disposed to return
to India, she being a working lady in US and is also disinclined to
restore her matrimonial home. The younger son is with her. There is
no convincing material on record that the continuation of the child in
the company and custody of the appellant in India would be
irreparably prejudicial to him. The e-mails exchanged by the parties as
have been placed on records do suggest that they had been in touch
since the child was brought to India and even after the first order
dated 28.05.2015 was passed by the court in US. In the said e-mails,
they have fondly and keenly referred to both the sons staying in each
other’s company, expressing concern about their illness and general
well-being as well. As has been claimed by the appellant, the child is
50
growing in a congenial environment in the loving company of his
grand-parents and other relatives. He has been admitted to a reputed
school and contrary to the nuclear family environment in US, he is
exposed to a natural process of grooming in the association of his
elders, friends, peers and playmates, which is irrefutably
indispensable for comprehensive and conducive development of his
mental and physical faculties. The issue with regard to the
repatriation of a child, as the precedential explications would
authenticate has to be addressed not on a consideration of legal
rights of the parties but on the sole and preponderant criterion of
the welfare of the minor. As aforementioned, immediate restoration of
the child is called for only on an unmistakable discernment of the
possibility of immediate and irremediable harm to it and not
otherwise. As it is, a child of tender years, with malleable and
impressionable mind and delicate and vulnerable physique would
suffer serious set-back if subjected to frequent and unnecessary
translocation in its formative years. It is thus imperative that unless,
the continuance of the child in the country to which it has been
removed, is unquestionably harmful, when judged on the touchstone
of overall perspectives, perceptions and practicabilities, it ought not to
be dislodged and extricated from the environment and setting to
which it had got adjusted for its well-being.
51
36. Noticeably, a proceeding by the appellant seeking custody of the
child under the Guardian and Wards Act, 1890 has been instituted,
which is pending in the court of the Principal Judge, Family Court,
Rohini, Delhi. This we mention, as the present adjudication pertains
to a challenge to the determination made in a writ petition for habeas
corpus and not one to decide on the entitlement in law for the custody
of the child.
37. In Nithya Anand Raghavan4
as well, this Court while
maintaining the custody of the child in favour of the mother in
preference to the applicant-father had required the mother to
participate in the proceeding before the foreign court initiated by the
respondent-father therein. It was observed that the custody of the
child would remain with the respondent-mother till it attained
majority, leaving it at liberty then to choose its parent to reside with.
The arrangement approved by this Court was also made subject to the
decision with regard to its custody, if made by a competent Court.
38. In the overwhelming facts and circumstances, we see no reason
to take a different view or course. In view of order dated 03.05.2016 of
this Court, the child has remained in the custody of the
appellant-father. To reiterate, no material has been brought on record,
persuasive and convincing enough, to take a view that immediate
restoration of the custody of the child to the respondent-mother in the
52
native country is obligatorily called for in its interest and welfare. The
High Court, as the impugned judgment and order would demonstrate,
did not at all apply itself to examine the facts and circumstances and
the other materials on record bearing on the issue of welfare of the
child which are unmistakably of paramount significance and instead
seems to have been impelled by the principle of comity of courts and
the doctrines of “intimate contact” and “closest concern” de hors
thereto. The appellant being the biological father of Aadvik, his
custody of the child can by no means in law be construed as illegal or
unlawful drawing the invocation of a superior Court’s jurisdiction to
issue a writ in the nature of habeas corpus. We are, in the textual
facts and on an in-depth analysis of the attendant circumstances,
thus of the view that the dislodgment of the child as directed by the
impugned decision would be harmful to it. Having regard to the nature
of the proceedings before the US Court, the intervening developments
thereafter and most importantly the prevailing state of affairs, we are
of the opinion that the child, till he attains majority, ought to continue
in the custody, charge and care of the appellant, subject to any order
to the contrary, if passed by a court of competent jurisdiction in an
appropriate proceeding deciding the issue of its custody in accordance
with law. The High Court thus, in our estimate, erred in law and on
facts in passing the impugned verdict.
53
39. The impugned judgment and order is thus set aside. We however
direct that the parties would participate in the pending proceedings
relating to the custody of the child, if the same is pursued and the
court below, before which the same is pending, would decide the same
in accordance with law expeditiously without being influenced in any
way, by the observations and findings recorded in this determination.
40. The appeal is thus allowed.
…...................................CJI.
[DIPAK MISRA ]
….....................................J
[AMITAVA ROY ]
NEW DELHI;
DECEMBER 6, 2017.
54
ITEM NO.1501 COURT NO.5 SECTION II-C
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 968/2017
PRATEEK GUPTA Appellant(s)
VERSUS
SHILPI GUPTA & ORS. Respondent(s)
Date : 06-12-2017 This appeal was called on for Judgment today.
For Appellant(s) Mr. Braj Nath Patel, Adv.
Ms. Sweta, Adv.
Ms. Romila, Adv.
Ms. Binu Tamta, AOR
For Respondent(s) Mr. N. S. Dalal, Adv.
Mr. D. P. Singh, Adv.
Mr. R. C. Kaushik, AOR
Hon'ble Mr. Justice Amitava Roy pronounced the reportable
Judgment of the Bench comprising Hon'ble The Chief Justice of India
and His Lordship.
The appeal is allowed.
Pending Interlocutory Applications, if any, stand disposed of.
(JAYANT KUMAR ARORA) (RENU DIWAN)
COURT MASTER ASSISTANT REGISTRAR
(Signed reportable Judgment is placed on the file)
