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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 635640 OF 2018
Mrs. Kanika Goel …..Appellant(s)
:Versus:
State of Delhi through S.H.O.
and Anr. ....Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. These appeals take exception to the judgment and orders
passed by the High Court of Delhi at New Delhi dated 16th
November, 2017, 1st December, 2017 and 6th December, 2017,
in Writ Petition (Criminal) No.374 of 2017 and Criminal M.A.
No.2007 of 2017, whereby the writ petition filed by respondent
No.2 for issuing a writ of habeas corpus for production of his
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minor daughter M (assumed name), who was about 3 years of
age at the time of filing of the writ petition and for a direction
for return of M to the jurisdiction of the competent Court in
the United States of America in compliance with the order
dated 13th January, 2017 passed by the Circuit Court of Cook
County, Illinois, USA, came to be allowed. The Delhi High
Court directed the appellant to comply with the directions as
M was in her custody, the appellant being M’s mother.
2. The respondent No.2 asserted that he was born in India
but presently is a citizen of USA since 2005. He is working as
the CEO of a Company called ‘Get Set Learning’. The appellant
is his wife and mother of the minor child M. She is a US
Permanent Resident and a “Green Card” holder and has also
applied for US citizenship on 2nd December, 2016. At the
relevant time, she was a certified teacher in the State of Illinois
and was employed as a Special Education Classroom Assistant
in Chicago Public Schools. The respondent No.2 and the
appellant got married on 31st December, 2010 as per Sikh
rites, i.e. Anand Karaj ceremony, and Hindu Vedic rites in New
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Delhi. It was clearly understood between both the parties that
the appellant, after marriage, would reside with respondent
No.2 in the USA. Eventually, the appellant travelled to the USA
on a Fiance Visa and got married to respondent No.2 again on
19th March, 2011 at Cook County Court in Chicago, Illinois.
Before the marriage, the parties entered into a PreNuptial
Agreement dated 20th October, 2010 enforceable in accordance
with the laws of the State of Illinois, USA. The appellant then
took employment as a teacher in Chicago Public School and
also secured a US Permanent Citizen Green Card. The
appellant became pregnant and gave birth to M on 15th
February, 2014 in USA. M is thus a natural born US citizen
and was domiciled in the State of Illinois, USA from her birth
till she was clandestinely removed by the appellant in
December 2016 under the guise of undertaking a short trip to
New Delhi to meet the appellant’s parents.
3. The appellant was scheduled to return to Chicago on 7th
January, 2017 but she went missing and filed a petition under
Section 13(1) of the Hindu Marriage Act, 1955 (for short “the
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1955 Act”) being H.M.A. Case No.27 of 2017 seeking
dissolution of marriage on the ground of cruelty, along with an
application under Section 26 of the 1955 Act on 7th January,
2017 seeking a restraint order against respondent No.2 from
taking M away from the jurisdiction of Indian Courts. A notice
was issued thereon to respondent No.2, made returnable on
11th January, 2017.
4. The respondent No.2, however, filed an emergency
petition for temporary sole allocation of parental
responsibilities and parenting time in his favour or in the
alternative, an emergency order of protection for possession of
his minor daughter M, before the Circuit Court of Cook
County, Illinois on 9th January, 2017. A notice of emergency
motion was served on the appellant by email, informing her of
the proposed hearing on 13th January, 2017.
5. In the meantime, on 11th January, 2017 the Family Court
at New Delhi issued a fresh notice to respondent No.2 and
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passed an exparte order on the application filed by the
appellant under Section 151 of the Code of Civil Procedure,
restraining respondent No.2 from removing the minor child
from the jurisdiction of that Court until further orders.
6. The respondent No.2 on the other hand, caused to file a
missing person complaint on 13th January, 2017 before the
SHO, Vasant Kunj (South), P.S. New Delhi, which was
acknowledged by the Police Station on 14th January, 2017.
Besides the said complaint, respondent No.2 moved the
Circuit Court of Cook County, Illinois, USA on 13th January,
2017 when an exparte order was passed for interim sole
custody of the minor child. The said order reads thus:
“1) The child M born on 15.02.2014, in Chicago, Illinois
and having resided in Chicago solely for her entire life
(specifically at 360 East Randolph Street, Chicago, IL
60601) is also a US citizen.
2) The child is a habitual resident of the state of Illinois,
United States of America having never resided anywhere
else. Illinois is the home state of the child pursuant to the
Uniform Child Custody Jurisdiction Enforcement Act.
3) Karan Goel is the natural father of the minor child
and granted interim sole custody of the minor child. Child is
to be immediately returned to the residence located in Cook
County, Illinois, USA by Respondent.
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4) The Cook County, Illinois Court having personal and
subject matter jurisdiction over the parties and matter.
5) All further issues regarding visitation, child support
are reserved until further Order of Court.”
7. The appellant did not comply with the order of the Circuit
Court of Cook County, Illinois, therefore, respondent No.2 filed
a writ petition before the Delhi High Court on 1st February,
2017, to issue a writ of habeas corpus and direct the appellant
to produce the minor child M and cause her return to the
jurisdiction of the Court in the United States, in compliance
with the order dated 13th January, 2017 passed by the Circuit
Court of Cook County, Illinois, to enable the minor child to go
back to United States and if the appellant failed to do so
within a fixed time period, to direct the appellant to
immediately hand over the custody of the minor child to
respondent No.2 (writ petitioner) to enable him to take the
minor child to the jurisdiction of the US Court.
8. This writ petition was contested by the appellant. The
High Court issued interim orders including regarding giving
access of the minor child to respondent No.2 in the presence of
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the appellant and her parents. Finally, all the contentious
issues between the parties were answered by the High Court
by a speaking judgment and order dated 16th November, 2017,
in favour of respondent No.2, after recording a finding that the
paramount interest of the minor child was to return to USA, so
that she could be in her natural environment. To facilitate the
parties to have a working arrangement and to minimize the
inconvenience, the Division Bench of the High Court issued
directions in the following terms:
“139. In the light of the aforesaid, we are more than
convinced that respondent No.2 should, in the best interest
of the minor child M, return to USA along with the child, so
that she can be in her natural environment; receive the love,
care and attention of her father as well – apart from her
grandparents, resume her school and be with her teachers
and peers. Pertinently, respondent No.2 is ablebodied,
educated, accustomed to living in Chicago, USA, was
gainfully employed and had an income before she came to
India in December 2016 and, thus, she should not have any
difficulty in finding her feet in USA. She knows the systems
prevalent in that country, and adjustment for her in that
environment would certainly not be an issue. Accordingly,
we direct respondent no.2 to return to USA with the minor
child M. However, this direction is conditional on the
conditions laid down hereinafter.
140. Respondent No.2 has raised certain issues which need
to be addressed, so that when she returns to USA, she and
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the minor child do not find themselves to be in a hostile or
disadvantageous environment. There can be no doubt that
the return of respondent No.2 with the minor child should be
at the expense of the petitioner; their initial stay in Chicago,
USA, should also be entirely funded and taken care of by the
petitioner by providing a separate furnished accommodation
(with all basic amenities & facilities such as water,
electricity, internet connection, etc.) for the two of them in
the vicinity of the matrimonial home of the parties, wherein
they have lived till December 2016. Thus, it should be the
obligation of the petitioner to provide reasonable
accommodation sufficient to cater to the needs of respondent
No.2 and the minor child. Since respondent No.2 came to
India in December 2016 and would, therefore, not have
retained her job, the petitioner should also meet all the
expenses of respondent No.2 and the minor child, including
the expenses towards their food, clothing and shelter, at
least for the initial period of six months, or till such time as
respondent No.2 finds a suitable job for herself. Even after
respondent No.2 were to find a job, it should be the
responsibility of the petitioner to meet the expenses of the
minor daughter M, including the expenses towards her
schooling, other extracurricular activities, transportation,
Attendant/ Nanny and the like, which even earlier were
being borne by the petitioner. The petitioner should also
arrange a vehicle, so that respondent No.2 is able to move
around to attend to her chores and responsibilities.
141. Considering that the petitioner had initiated
proceedings in USA and the respondent No.2 has been asked
to appear before the Court to defend those proceedings, the
petitioner should also meet the legal expenses that
respondent No.2 may incur, till the time she is not able to
find a suitable job for herself. However, if respondent no.2 is
entitled to legal aid/assurance from the State, to the extent
the legal aid is provided to her, the legal expenses may not
be borne by the petitioner.
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142. The petitioner should also undertake that after the
return of the minor child M with respondent No.2 to USA,
the custody of M shall remain with respondent No.2 and that
he shall not take the minor child out of the said custody by
use of force. He should also undertake that after respondent
No.2 lands in Chicago, USA, the visitation and custody rights
qua the parties, as may be determined by the competent
Court in USA, shall be honoured.
143. Respondent No.2 has also expressed apprehension
that the petitioner would seek to enforce the terms of the
PreNuptial Agreement entered into between the parties.
Since the said agreement has been entered into in India, its
validity has to be tested as per the Indian law. Respondent
No.2 has already initiated suit for declaration and
permanent injunction to challenge the said PreNuptial
Agreement dated 22.10.2010. We have perused the said
agreement and we are of the view the petitioner should not
be permitted to enforce the terms of this agreement in USA,
at least till the said suit preferred by the respondent No.2 is
decided. The petitioner should, therefore, give an
undertaking to this Court, not to rely upon or enforce the
said PreNuptial Agreement to the detriment of respondent
No.2 in any proceedings either in USA, or in India. The
undertaking shall remain in force till the decision in the suit
for declaration and injunction filed by respondent No.2
challenging validity of the PreNuptial Agreement. This
undertaking shall, however, not come in the way of the
petitioner while defending the said suit of the respondent
No.2.
144. With the aforesaid arrangements and directions, in our
view, respondent No.2 can possibly have no objection to
return to USA with M. The comfort that we have sought to
provide to respondent No.2, as aforesaid, is to enable her to
have a soft landing when she reaches the shores of USA, so
that the initial period of at least six months is taken care of
for her, during which period she could find her feet and live
on her own, or under an arrangement as may be determined
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by the competent Courts in USA during this period. At this
stage, we are not inclined to direct that the custody of M be
given to the petitioner so that he takes her back to USA. M is
a small child less than 4 years of age, and that too, is a
female child. Though she may be attached to the petitioner –
her father, she is bound to need her mother – respondent
no.2 more. In our view, once M returns to USA with her
mother, i.e. respondent No.2, orders for custody or coparenting
should be obtained by the parties from the
competent Courts in USA. Moreover, it would be for the
Courts in USA to eventually rule on the aspect concerning
the financial obligations and responsibilities of the parties
towards each other and towards the minor child M – for
upbringing the minor child – M independent of any
directions issued by this Court in this regard.
145. The petitioner is directed to file his affidavit of
undertaking in terms of paras 140 to 144 above within ten
days with advance copy of the respondents. The matter be
listed on 01.12.2017 for our perusal of the affidavit of
undertaking, and for passing of final orders.”
9. By this judgment and order passed by the High Court
and the directions issued, as reproduced hitherto, the
substantive issues inter se the parties were answered against
the appellant to the extent indicated. In continuation of the
aforementioned directions, a further order was passed on 1st
December, 2017 by the High Court which reads thus:
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“1. In terms of the directions contained in our judgment
dated 16.11.2017, the petitioner Karan Goel has filed the
affidavit dated 20.11.2017. A perusal of the affidavit shows
that the petitioner has undertaken and consented to abide
by all the conditions imposed upon him, so that respondent
no.2 could return to USA with the minor child.
2. Respondent no.2 has also filed a counteraffidavit to
the said affidavit of the petitioner. Respondent no.2 has
raised the issue that the petitioner has not particularized the
amounts and facilities that the petitioner would provide in
case respondent no.2 were to return to USA with the minor
child.
3. The petitioner is present in Court with his parents.
The petitioner has tendered in Court the details/particulars
of the proposed financial aid in terms of our judgment. The
said details/ particulars read as follows:
‘1. Upon Respondent No.2 giving a date/this
Hon’ble Court fixing a date on which she and minor
child M will depart from Delhi for Chicago, Illinois,
USA, the Petitioner shall do the following at least 3
[three] days prior to their departure date:
(i) Book airline tickets on United Airlines with a
nonstop flight from Delhi to USA for minor child M
and Respondent No.2;
(ii) Provide a hotel room at The Hyatt Regency
(located ~7 minute walk from minor child M’s
preschool) for the first seven (7) days after landing in
Chicago to enable Respondent No.2 to sign leases for
(a) accommodation and (b) a car; and
2. The Petitioner is/ was already paying [directly
out of his salary] the following amounts for minor child
M and shall continue to do so in compliance of the
directions of this Hon’ble Court (all amounts in US
Dollars = USD):
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(i) ~$2,100/month Preschool tuition at Bright
Horizons Lakeshore East where she was enrolled five
days a week; and
(ii) ~$232/month for health insurance via Blue
Cross Blue Shield of Illinois.
3. In addition to point 2 above, the Petitioner shall
pay the following amounts (all amounts in US Dollars
=USD) for a total of $4,200/month to Respondent No.2
in advance for the first month [by transferring the said
amount into a joint account prior to Respondent No.2
and minor child M taking off from Delhi] and
thereafter by the 28th of every month for the
subsequent month [for the initial period of six
months]:
(i) $2,600/month as rent for a fully furnished
apartment with highspeed internet, air conditioning
and heating, water, garbage disposal, and parking for
a vehicle;
(ii) $400/month for Respondent No. 2’s health
insurance;
(iii) $1,000/month in expenses for food, shelter, and
clothing for minor child M and Respondent No. 2; and
(iv) $200/month for a car lease and car insurance.
4. In case legal aid / assurance is not available /
provided to Respondent No.2, the Petitioner shall give
an additional amount of $1,500/ month to Respondent
No.2 for her legal expenses for the first six months
after her and minor child M’s return to Chicago,
Illinois, USA’.
4. We have also separately recorded the statement of
petitioner on oath, wherein he has undertaken to this Court
to abide by the offer made by him in terms of our decision.
He has also undertaken that in case of any breach of the
said stipulation, respondent no.2 may enforce the same
before the competent Court in USA.
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5. To ensure compliance of the aforesaid obligation, the
petitioner has offered that he shall deposit an amount US$
25,000 in an escrow account, which shall be operated upon
orders of the competent Court in Cook County, Illinois, USA.
The said account shall be operatable at the instance of
respondent no.2 in case of non compliance of any of the
condition and to the extent it becomes necessary, under the
orders of the said Court.
6. The petitioner seeks a short adjournment to produce
the relevant documents in that regard before this Court.
7. Since the petitioner and his parents are in India, and
it is submitted that the petitioner has not met his minor
daughter since March 2017, it is agreed that the petitioner
and his parents shall be allowed to meet the minor child M
today, tomorrow and day after tomorrow at DLF Promenade
Mall, Vasant Kunj, New Delhi.
8. Today’s meeting shall take place between 6:00 p.m. to
8:00 p.m., and on Saturday and Sunday, the meeting shall
take place from 11:00 a.m. to 2:00 p.m. The petitioner has
desired that the meeting may take place exclusively.
9. Since respondent no.2 has apprehensions, the
petitioner has offered to and has deposited his American
Passport with the Court Master. The Court Master shall seal
the same in Court and thereafter the same be handed over to
the Deputy Registrar concerned to be kept in safe custody.
The same shall not be parted with unless so ordered by this
Court.
10. The petitioner has assured that the child shall not be
taken away unauthorisedly and shall be duly returned to
respondent no.2 at the end of the meeting on each date.
11. List on 06.12.2017 for further directions. On the next
date, the child may be brought to the Court so that the
petitioner and his parents are able to meet the child in the
Children’s Room at the Mediation Centre between 2:30 p.m.
to 4:30 p.m.
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12. Order dasti under the signatures of the Court Master.”
10. Again, on 6th December, 2017, another order was passed
to formally dispose of the writ petition finally in the following
terms:
1. “Mr. Jauhar has tendered in Court the affidavit of
undertaking sworn by the petitioner along with three
annexures, which are:
(i) A statement from Citibank, USA in respect of joint
account held by the petitioner and respondent No.2;
(ii) An affidavit of Molshree A., Sharma, ESQ., a partner at
the law firm of Mandel, Lipton, Roseborough & Sharma Ltd.,
based in Chicago; and
(iii) Documents to show deposit of US$25,000 in an
escrow account operated by the aforesaid law firm.
2. The petitioner has stated that he has already deposited
US$25,000 into his attorney’s escrow account. The affidavit
of Molshree A., Sharma affirms that the said escrow account
may be operated by respondent No.2/ Kanika Goel in the
event of failure of the petitioner/ Karan Goel in meeting his
obligations as per his undertaking given to this Court.
3. We are satisfied with the aforesaid arrangement made
by the petitioner to secure the interests of respondent No.2
and the minor child in terms of our decision dated
16.11.2017.
4. In these circumstances, we now direct respondent
No.2 to return to USA along with the minor child M within
two weeks from today, failing which the minor child M shall
be handed over to the petitioner, to be taken to USA.
5. We may observe that learned counsel for respondent
No.2 has sought more time on the ground that respondent
No.2 wishes to assail the decision dated 16.11.2017 and that
the Supreme Court shall be closed for Winter Vacation in
later part of December, 2017 and early part of January,
2018. However, we are not inclined to grant any further time
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for the reason that it is imperative for respondent No.2 to
return to USA on or before 23.12.2017, and if she does not
so return, her return may not be permitted by the
Immigration Department of USA without further compliance
being made by her. We cannot permit a situation to arise
where respondent No.2 is able to defeat the direction issued
by this Court on account of her own acts & omissions.
6. The passport of the petitioner deposited in this Court
is directed to be returned forthwith. The said passport be
returned to Mr. Prabhjit Jauhar, larned counsel for the
petitioner. The said passport shall be retained by Mr. Jauhar
so as to enable the petitioner and his parents to meet the
child M, while they are in New Delhi, India. Mr. Jauhar shall
return the passport to the petitioner only at the time when
the petitioner has to return to USA, after ensuring that the
custody of the child is with respondent No.2.
7. The meeting between the petitioner and his parents,
on the one hand, and the child, on the other hand, shall be
undertaken as per the arrangement worked out by us
earlier, i.e. two hours every working day, and three hours at
the weekends, as mutually agreed between the parties.
8. The petition stands disposed of in the aforesaid
terms.”
11. Being aggrieved by the aforesaid judgment and orders,
the appellant, being the mother of the minor child M, has
approached this Court by way of Special Leave under Article
136 of the Constitution of India. This Court issued notice on
15th December, 2017, when it passed the following interim
order:
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“O R D E R
Issue notice.
As Dr. Abhishek Manu Singhvi and Mr. R.S. Suri,
learned senior counsel along with Mr. Prabhjit Jauhar,
learned counsel has entered appearance for the respondent
No.2, no further notice need be issued.
Counter affidavit be filed within two weeks. Rejoinder
affidavit, if any, be filed within a week therefrom.
Let the matter be listed on 24th January, 2018.
As an interim measure, it is directed that the
arrangements made by the High Court for the visitation
rights shall remain in force. The petitionerwife shall not
create any kind of impediment in the meeting of the father
with the child.
In the course of hearing, we have also been apprised
by Dr. Singhvi that the Green Card issued in favour of the
petitionerwife is going to expire on 22nd December, 2017.
Be that as it may, If, eventually, the petitioner loses in this
proceeding and the respondent No.2 succeeds, the expiration
of the Green Card cannot be a ground to deny the custody of
the child to the father. Needless to say, if the petitioner wife
intends to go to United States of America and gets the Green
Card renewed, it is open for her to do so. We may also record
that the husband has acceded to, as stated by the learned
counsel for the respondent No.2, that he shall not implicate
her in any criminal proceeding.”
In continuation of the aforementioned interim arrangement, a
further order was passed by this Court on 24th January, 2018,
which reads thus:
“O R D E R
Heard Mr. Kapil Sibal, learned senior counsel along
with Ms. Malavika Rajkotia, learned counsel for the
petitioner and Dr. A.M.Singhvi, learned senior counsel along
with Mr. Prabhjit Jauhar, learned counsel for the
respondents.
Though, we are not inclined to interfere with the
interim arrangement made by the High Court yet, regard
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being had to some grievances of both the parties, we intend
to pass an order clarifying the position.
Having heard learned counsel for the parties, it is
directed as follows:
(i) Whenever respondent No.2 is available in India, he
shall intimate the petitioner by Email and also
forward a copy of the said Email to the counsel for the
petitioner so that she can make the child available for
meeting with the father at Promenade Mall, Vasant
Kunj between 5.30 P.M. to 7.30 P.M. on weekdays and
11.00 A.M. to 2.00 P.M. on holidays when the school is
closed.
(ii) When the father will be meeting the child, they
shall meet without any supervision.
(iii) When the father is not in India, there can be
communication/interaction through Skype at about
7.30 P.M.(Indian Standard Time) or any other mode on
line.
(iv) The passport of the child, which is presently with
the father, shall be handed over to the mother for a
period of one week so that she can take appropriate
steps to complete certain formalities for admission of
the child in a school. This direction is without
prejudice to the final result in the special leave
petition. The passport shall be returned by
Ms.Malavika Rajkotia, learned counsel for the
petitioner to Mr.Prabhjit Jauhar, learned counsel for
the respondents.
Let the matter be listed on 19.02.2018 at 2.00 P.M. for
final disposal.”
These are the relevant interim orders, which were to operate
until the final disposal of the appeals. On 18th May, 2018, a
grievance was made before this Court about noncooperation
by the appellant, which has been recorded as under:
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“O R D E R
As mentioned in the first hour, the matter is taken up
today. Be it noted, we have listed the matter today as it
relates to the conversation right of the father with the child.
In the course of hearing, Mr. Prabhjit Jauhar, learned
counsel appearing for the respondentfather submitted that
the directions issued by this Court on earlier occasion
relating to Skype contact are not being complied with.
Ms. Malavika Rajkotia, learned counsel appearing for
the appellant submitted that there has been no deviation
and in any case, the mother does not intend to anyway
affect, indict or intervene in the right to converse by Skype.
Ms. Rajkotia has assured this Court that her client has not
given any occasion to raise any grievance and if any
grievance is nurtured by the father, the same shall be duly
addressed, so that the order of this Court is duly complied
with.
We are sure, the parties shall behave like compliant
litigants.”
The hearing was concluded and the interim arrangement as
directed by this Court was to be observed by the parties until
the pronouncement of the final judgment.
12. The appellant, being the mother of the minor child M,
has assailed the decision of the High Court for having
overlooked the rudimentary principles governing the issue of
invoking jurisdiction to issue a writ of habeas corpus in
respect of a minor child who was in lawful custody of her
mother. According to the appellant, the High Court has
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completely glossed over or to put it differently, misconstrued
and misapplied the principles of paramount interest of the
minor girl child of tender age of about 4 years. Similarly, the
High Court has glossed over the doctrine of choice and dignity
of the mother of a minor girl child keeping in mind the
exposition in K.S. Puttaswamy & Anr. Vs. Union of India &
Ors.1
The High Court has also failed to take into account that
the intimate contact of the minor child would be her mother
who was her primary care giver and more so, when she was at
the relevant time in the company of her mother. The
appellant, being the mother, had a fundamental right to look
after her minor daughter which cannot be whittled down or
trivialized on the considerations which found favour with the
High Court. The welfare and paramount interest of the minor
girl child would certainly lean towards the mother, all other
things being equal. The role of the mother of a minor girl child
cannot be reduced to an appendage of the child and the
mother cannot be forced to stay in an unfriendly environment
1 (2017) 10 SCC 1
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where she had been victim of domestic violence inflicted on
her. This would be so when the mother was also a working
woman whose career would be at stake in the event the
directions given by the High Court were to be complied with in
letter and spirit. The High Court ought to have adopted a child
rights based approach but the reasons which weighed with the
High Court, clearly manifest that it was influenced by the
values of preconstitutional morality standard. The approach
of the High Court, of delineating an arrangement, which it
noted as the lowest prejudice option to the mother, has no
place for deciding the issue of removing the custody of a minor
girl child of tender age from her mother and giving it to her
father for being taken away to her native country. The High
Court has misunderstood and misapplied the principle
expounded in Nithya Anand Raghavan Vs. State (NCT of
Delhi) & Anr.,
2
and Prateek Gupta Vs. Shilpi Gupta &
Ors.3
The High Court has completely overlooked the autonomy
of the appellant inasmuch as the directions given by the High
2 (2017) 8 SCC 454
3 (2018) 2 SCC 309
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Court would virtually subjugate all her rights and would
compel her to stay in an unfriendly environment at the cost of
her career and dignity. The arrangement directed by the High
Court can, by no standard, be said to be a just and fair
muchless collaborative arrangement to be worked out between
the parents, without compromising on the paramount interest
and welfare of the minor girl child. The High Court committed
a manifest error in answering the issue of best interest of the
minor girl child, inter alia on the basis of the provisions of the
Juvenile Justice Act and disregarding the crucial fact that the
minor girl child was presently staying with her mother along
with her extended family, which she would be completely
deprived of if taken away to a place within the jurisdiction of
the US Court by respondent No.2 her father. It was also
contended that in the process of reasoning out the plea taken
by the appellant regarding the circumstances in which she fled
from USA with the minor girl child due to domestic violence
inflicted on her, the said issue has been trivialized. It is
contended that as the marriage between the appellant and
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respondent No.2 was solemnized in New Delhi as per Anand
Karaj ceremony and Hindu Vedic rites, the fact that the
appellant went to the United States to stay with her husband,
would make no difference to her status and nationality, much
less have any bearing on the issue of best interest of the
minor girl child.
13. On the other hand, the respondent No.2 would submit
that the High Court analysed all the relevant aspects of the
matter keeping in mind the legal principles expounded in the
recent decisions of this Court and recorded its satisfaction
about the best interest of the minor girl child coupled with the
necessity of the minor girl child to be produced before the
Circuit Court of Cook County, Illinois, USA, which had
intimate contact with the minor girl child, inasmuch as the
minor girl child was born and was domiciled within the
jurisdiction of that Court before she was clandestinely
removed by the appellant to India. It is contended that since
both the father as well as the minor girl child are US citizens
and the mother is a permanent resident of US and domiciled
23
in that country, only the Courts of that country will have
jurisdiction to decide the matrimonial issues between the
parties, including custody of the minor girl child and her
guardianship. Further, at the tender age of about 3 years, the
minor girl child had hardly spent any time in India so as to
suggest that she has gained consciousness in India and thus
it would be in the best interest of the child to be taken away
to the US. It is contended by respondent No.2 that the High
Court has analysed all the relevant facts before recording the
finding that the welfare and best interest of the minor girl
child would be served by returning to United States. As that
finding is based on tangible material on record as adverted to
by the High Court, this Court should be loath to overturn the
same and, more so, when the High Court has issued directions
to balance the equities and also facilitate return of the minor
child to be produced before the Court of competent
jurisdiction. The directions so issued are no different than the
directions given by this Court in Nithya Anand Raghavan’s
case, (supra). It is contended by respondent No.2 that this
24
Court may primarily examine the directions issued by the High
Court and if necessary, issue further directions to safeguard
the interest of the appellant, but in no case should the plea
taken by the appellant, that the minor girl child should not
return to US, be accepted. It is contended that the sole
consideration in a proceeding such as this, must be to
ascertain the welfare of the minor girl child and not to
adjudicate upon the rights of the father or the mother. While
doing so, the Court may take into account all such aspects to
ascertain as to whether any harm would be caused to the
minor child or for that matter, has been caused in the past
during her stay in US. From the order passed by the US
Court, it is evident that the custody of the minor girl child with
the appellant had become unlawful and for which reason, this
Court in exercise of its jurisdiction for issuance of a writ of
habeas corpus, must direct the appellant to give the custody of
the minor girl child to her father. It is contended that the
argument regarding health or personal matters raised by the
appellant are only arguments of causing prejudice and should
25
have no bearing for answering the matters in issue,
particularly in the context of the equitable directions passed
by the High Court. The Court must keep in mind that the
minor girl child is presently staying in India without a valid
Visa after her Visa obtained for travelling to India expired. The
respondent No.2 would submit that no interference with the
directions issued by the High Court is warranted in the fact
situation of the present case.
14. We have heard Ms. Malavika Rajkotia, learned counsel
appearing for the appellant and Ms. Meenakshi Arora, learned
senior counsel appearing for the respondent No.2.
15. We shall first advert to the analysis made by the High
Court in respect of the contentious issues. That can be
discerned from paragraph 102 onwards of the impugned
judgment. The High Court was conscious of the fact that it
must first examine the issue regarding the welfare and best
interest of the minor child. It noted that the minor girl child
was about 3 years when the writ petition for habeas corpus
26
was preferred on 1st February, 2017. It then noted that the
respondent No.2 – father of the minor girl child had acquired
citizenship of the USA in 2005 and holds an American
Passport. He is living in the USA since 1994 and is thus
domiciled in the USA. He had acquired a Bachelors’ degree in
Economics and obtained MBA qualification from the University
of Chicago. He was an Education Software Entrepreneur. The
appellant wife is the biological mother of the minor child M,
who has acquired permanent resident status of the USA i.e.
Green Card and had also applied for American citizenship on
2
nd December, 2016. The respondent No.2 and appellant were
classmates during their schooling and revived their contacts in
2000. Eventually, they decided to get married and thereafter
reside in USA where the respondent No.2 had his work place
and home. The marriage was solemnized in New Delhi in
India on 31st October, 2010 as per Anand Karaj ceremony, and
Hindu Vedic rites in the presence of the elders of both the
families. After the appellant arrived in USA, they performed
27
civil marriage before the competent Court in USA on 19th
March, 2011.
16. The High Court adverted to the accomplishment of the
appellant in her education and occupation. The High Court
noted that the couple started their matrimonial life in the
United States and lived as a couple in that country. They
made the United States their home and their entire married
life, except the duration during which they were on short visits
to India, had been spent in the USA. They gave birth to a girl
child M in USA on 15th February, 2014 at North Western
Memorial Hospital, Chicago, Illinois, USA. The minor child M
is a US citizen by birth and grew up there until she was
clandestinely removed by the appellant to India on 25th
December, 2016. The minor child had, in fact, started
attending preschool in Chicago and had a full time schedule
at school from August, 2016. Thus, the mental development of
M while she was in USA till the end of 2016, had taken place
to such an extent that she was very well aware and conscious
of her surroundings. She was perceiving and absorbing from
28
her surroundings and communicated not only with her
parents, but also with her other relatives, her peers at the preschool,
her instructors, teachers and other care givers. The
American way of life and systems were already in the process
of being learnt and experienced by M when she came to India
in December, 2016. The environment which M was
experiencing during her growth was the natural environment
of Chicago, USA. Both her parents were looking after her
proper upbringing. The Court also noted that the paternal
grandparents of the minor child M were visiting and
interacting with her. The Court then adverted to the decisions
in Surinder Kaur Sandhu Vs. Harbax Singh Sandhu and
Anr.4
, Aviral Mittal Vs. State5
, Shilpa Aggarwal Vs. Aviral
Mittal and Anr.6
, Dr. V. Ravi Chandran Vs. Union of India
& Ors.7
, and Nithya Anand Raghavan (supra), to opine that
the Court in the US seemed to be the most appropriate Court
to decide the issue of custody of M, considering that it had
4 (1984) 3 SCC 698
5 (2009) 112 DRJ 635
6 (2010) 1 SCC 591
7 (2010) 1 SCC 174
29
intimate contact with the parties and the child. It went on to
observe that it was neither inclined nor in a position to
undertake a detailed enquiry into aspects of custody, visitation
and coparenting of the minor child in the facts and
circumstances of the case, considering all the events unfolded
in, circumstances developed in and evidences were located in
the USA. After having said this, it examined the compelling
reasons disclosed by the appellant to dissuade the Court from
issuing directions for return of M to her native country and the
environment where she was born and being brought up. That
analysis has been done in paragraph 114 onwards. The High
Court considered the grievances of the appellant in
paragraphs 114 to 117 in the following words:
“114. The allegations of respondent no.2 against the
petitioner and his mother are that the petitioner’s mother
follows a strict ecofriendly lifestyle and imposes the same on
the couple, which even caused chronic backache to the
respondent since she was forced to sleep on a hard ecofriendly
mattress. She claim that all her day to day affairs
were influenced by the lifestyle of her mother in law, such as
not using plastic products, non stick cookware, personal
care products etc. The respondent had no voice in the
matter. The petitioner took minimal interest in household
affairs, while his mother interfered in the lives of the parties
30
by tracking their schedules. The petitioner and his mother
did not respect the respondents privacy and the plan of the
parties to bear a child were disclosed to the petitioner’s
mother in advance. She even imposed lifestyle changes upon
the respondent. The petitioner’s mother also did not permit
the respondent to maintain a secular household. She was
not permitted to celebrate both Sikh and Hindu festivals and
the petitioner insisted that they celebrate only Sikh festivals.
Respondent no.2 states that she was diagnosed with a
grave’s disease in October 2014. The petitioner and his
mother insisted that the respondent undergoes surgery
rather than taking medication, since medication would have
made it difficult for her to conceive in future. She claims that
the petitioner even threatened her with divorce in case she
prioritised her own health at the cost of expanding their
family. The respondent makes several other allegations
against the petitioner and his mother complaining of cruelty
and indifference on their part towards her.
115. The above allegations per se do not suggest any grave
undesirable conduct or deviant behavior on the part of the
petitioner, or his mother qua the child M – even if they were
to be assumed to be true for the time being. The allegations
even remotely, not such as to suggest that the minor child M
may be exposed to any adversity, harm, undesirable
influence, or danger if she were to be allowed to meet them
or spend time with them in USA. There is nothing to suggest
that the petitioner – father of M, or her grandmother would
leave a bad and undesirable influence on M. These
allegations are not such as to persuade this Court not to
send the child M back to her country of origin and initial
upbringing. On the contrary, the petitioner appears to be an
educated person who is gainfully managing his business,
and the photographs on record show healthy bonding
between M and her father. He also appears to have actively
participated in the upbringing of M – if the averments made
by him in his petition are to be believed. In fact, respondent
no.2 had also expressed her willingness to let M interact
with the petitioner and to allow him visitation rights, which
31
would not have been the case if she considered him to be a
bad influence on, or a potential threat to her daughter. The
fact that the petitioner’s mother is a pediatrician, in fact, is a
reassuring fact that M would be taken good care of medically
in her tender years. The photographs filed by the petitioner
along with the petition show M to be having a healthy and
normal upbringing while she was in USA. She is seen
enjoying the love, care and company of her parents and
others – including children of her age. There is no reason
why she should be allowed to be uprooted from the
environment in which she was naturally growing up, and to
be retained in an environment where she would not have the
love, care and attention of her father and paternal
grandparents, apart from her peers, teachers, school and
other care givers who were, till recently, with her.
116. From the allegations made by respondent No.2, it
appears that she may have had issues of living with and
adjusting with the petitioner and his parents – particularly
the motherinlaw. However, there is absolutely nothing
placed on record to even remotely suggest that so far as the
petitioner is concerned, his conduct qua M and his presence
with M, or for that matter, even the grandparents, could be
said to be detrimental to or harmful for M. It certainly
cannot be said that if M were to be returned to her place of
origin where she spent the initial three years of her life –
considering that those three years constitute more than
3/4th of her entire existence on this planet till date, would
be detrimental to her interest in any manner whatsoever.
117. The parties started their married life in USA, and as
clearly appears from their conduct, their mutual
commitment was to spend their married life and to raise
their children in USA. There is absolutely nothing to suggest
that the parties mutually ever agreed to or intended to shift
from their place of residence to a place in India, though
respondent no.2 may have unilaterally so desired. In such a
situation, in our view, respondent No.2 cannot breach her
maternal commitment without any valid justification and
32
remain in return to India with M – who is an American
citizen and would, obviously, be attached to her father and
grandparents; her home; her Nanny; her teachers &
instructors and her peers and friends, all of whom are in
USA.”
17. After having said this, the High Court considered the
argument of the appellant that she was the primary care giver
qua M but disregarded the same by observing that that alone
cannot be made the basis to reject the prayer for return of the
minor girl child to her native country, and more so, when the
minor girl child deserves love, affection and care of her father
as well. The Court found that nothing prevents the appellant
from returning to the USA if she so desires. Further, the fact
that the minor girl child would make new friends and have
new care givers and teachers in India at a new school, cannot
be the basis to deny her the love and affection of her biological
father or parenting of grandparents which was equally
important for the grooming and upbringing of the child. The
Court then went on to notice that the expression “best interest
of child” is wide in its connotation and cannot be limited only
to love and care of the primary care giver i.e. the mother. It
33
then adverted to the provisions of the Juvenile Justice (Care
and Protection of Children) Act, 2015, while making it clear
that it was conscious of the fact that the said Act may not
strictly apply to the case on hand for examining the issue of
best interest of the child. In paragraphs 124 to 126 of the
impugned judgment, it went on to observe thus:
“124. Thus, all decisions regarding the child should be based
on primary consideration that they are in the best interest of
the child and to help the child to develop to full potential.
When involvement of one of the parents is not shown to be
detrimental to the interest of the child, it goes without saying
that to develop full potential of the child, it is essential that
the child should receive the love, care and attention of both
his/ her parents, and not just one of them, who may have
decided on the basis of his/ her differences with the other
parent, to relocate in a different country. Development of
full potential of the child requires participation of both the
parents. The child, who does not receive the love, care and
attention of both the parents, is bound to suffer from
psychological and emotional trauma, particularly if the child
is small and of tender age. The law also recognizes the fact
that the primary responsibility of care, nutrition and
protection of the child falls primarily on the biological family.
The “biological family” certainly cannot mean only one of the
two parents, even if that parent happens to be the primary
care giver.
125. The JJ Act encourages restoration of the child to be reunited
with his family at the earliest, and to be restored to
the same socioeconomic and cultural status that he was in,
before being removed from that environment, unless such
34
restoration or repatriation is not in his best interest. The
present is not a case where respondent No.2 fled from USA
or decided to stay back in India on account of any such
conduct of the petitioner which could be said to have been
detrimental to her own interest, or the interest of the minor
child M. The decision of respondent No.2 to stay back in
India is entirely personal to her, and her alone. It is not
based on consideration of the best welfare of the minor child
M. In fact, the best interest of the child M has been sidelined
by respondent no.2 while deciding to stay back in India with
M.
126. Pertinently, respondent No.2 in her statement in
response to the missing person report made by the petitioner
on 14.01.2017 vide DD No.20B dated 14.01.2017 at PS –
Vasant Kunj (South), New Delhi, inter alia, stated that ‘the
parties came to New Delhi, India with their daughter M on
20.12.2016. She further stated that during this time, I
realized that I do not want to continue with his suppressed
marriage and file for divorce and custody petition against K
G in the Hon’ble Court Sh. Arun Kumar Arya, Principle
Judge, Family Courts, Patiala House, New Delhi via HMA
No.27/17……’. Thus, it appears from the statement of
respondent No.2 that the realization that she did not want to
continue in her marriage dawned upon her only when she
came to India, and it is not that when she left the shores of
USA in December 2016, she left with a clear decision in her
mind that she would not return to USA for any specific and
justifiable reason.”
18. Reference was then made to the provisions of the
Convention on the Rights of the Child adopted by the General
Assembly of the United Nations dated 20th November, 1989,
which was ratified by the Government of India on 11th
35
December, 1992, and the resolution by the Government of
India issued by the Ministry of Human Resource Development
vide Resolution No.615/98 C.W., dated 9th February, 2004
framing the “National Charter for Children, 2003” and the
Court observed in paragraph 138 as follows:
“138. Thus, best welfare of the child, normally, would lie in
living with both his/ her parents in a happy, loving and
caring environment, where the parents contribute to the
upbringing of the child in all spheres of life, and the child
receives emotional, social, physical and material support to
name a few. In a vitiated marriage, unfortunately, there is
bound to be impairment of some of the inputs which are,
ideally, essential for the best interest of the child. Then the
challenge posed before the Court would be to determine and
arrive at an arrangement, which offers the best possible
solution in the facts and circumstances of a given case, to
achieve the best interest of the child.”
19. On a perusal of the impugned judgment, it is noticed that
the High Court has taken note of all the relevant decisions
including the latest threeJudge Bench decision of this Court
in Nithya Anand Raghavan’s case, (supra), which has had
occasion to exhaustively analyse the earlier decisions on the
subject matter under consideration. The exposition in the
36
earlier decisions has been again restated and reaffirmed in
the subsequent decision of this Court in Prateek Gupta Vs.
Shilpi Gupta & Ors., (supra). Let us, therefore, revisit these
two decisions. In paragraph 40 of the Nithya Anand
Raghavan’s case, (supra), this Court observed 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 the nonConvention
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 preexisting 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
37
question on merits, bearing in mind the welfare of the child
as of paramount importance whilst reckoning the preexisting
order of the foreign court if any as only one of the
factors and not get fixated therewith. In either situation—be
it a summary inquiry or an elaborate inquiry—the welfare of
the child is of paramount consideration. Thus, while
examining the issue the courts in India are free to
decline the relief of return of the child brought within its
jurisdiction, if it is satisfied that the child is now settled
in its new environment or if it would expose the child to
physical or psychological harm or otherwise place the
child in an intolerable position or if the child is quite
mature and objects to its return. We are in respectful
agreement with the aforementioned exposition.”
(emphasis supplied)
Again in paragraph 42, the Court observed thus:
“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
preexisting 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 preexisting 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
38
for deciding the matter of custody or for return of the child to
the native State.”
(emphasis supplied)
It will be apposite to also advert to paragraphs 46 & 47 of the
reported decision, which read thus:
“46. The High Court while dealing with the petition for
issuance of a writ of habeas corpus concerning a minor
child, in a given case, may direct return of the child or
decline to change the custody of the child keeping in mind
all the attending facts and circumstances including the
settled legal position referred to above. Once again, we may
hasten to add that the decision of the court, in each
case, must depend on the totality of the facts and
circumstances of the case brought before it whilst
considering the welfare of the child which is of
paramount consideration. The order of the foreign court
must yield to the welfare of the child. Further, the
remedy of writ of habeas corpus cannot be used for mere
enforcement of the directions given by the foreign court
against a person within its jurisdiction and convert that
jurisdiction into that of an executing court. Indubitably,
the writ petitioner can take recourse to such other remedy as
may be permissible in law for enforcement of the order
passed by the foreign court or to resort to any other
proceedings as may be permissible in law before the Indian
Court for the custody of the child, if so advised.
47. In a habeas corpus petition as aforesaid, the High
Court must examine at the threshold whether the minor
is in lawful or unlawful custody of another person
(private respondent named in the writ petition). For
considering that issue, in a case such as the present one,
it is enough to note that the private respondent was
none other than the natural guardian of the minor being
her biological mother. Once that fact is ascertained, it
can be presumed that the custody of the minor with
his/her mother is lawful. In such a case, only in
39
exceptionable situation, the custody of the minor (girl
child) may be ordered to be taken away from her mother
for being given to any other person including the
husband (father of the child), in exercise of writ
jurisdiction. Instead, the other parent can be asked to
resort to a substantive prescribed remedy for getting custody
of the child.”
(emphasis supplied)
Again in paragraph 50, the Court expounded as under:
“50. The High Court in such a situation may then examine
whether the return of the minor to his/her native state
would be in the interests of the minor or would be harmful.
While doing so, the High Court would be well within its
jurisdiction if satisfied, that having regard to the totality
of the facts and circumstances, it would be in the
interests and welfare of the minor child to decline return
of the child to the country from where he/she had been
removed; then such an order must be passed without
being fixated with the factum of an order of the foreign
court directing return of the child within the stipulated
time, since the order of the foreign court must yield to
the welfare of the child. For answering this issue, there
can be no straitjacket formulae or mathematical
exactitude. Nor can the fact that the other parent had
already approached the foreign court or was successful in
getting an order from the foreign court for production of the
child, be a decisive factor. Similarly, the parent having
custody of the minor has not resorted to any substantive
proceeding for custody of the child, cannot whittle down the
overarching principle of the best interests and welfare of the
child to be considered by the Court. That ought to be the
paramount consideration.”
(emphasis supplied)
In paragraphs 67 and 69, the Court propounded thus:
40
“67. The facts in all the four cases primarily relied upon by
Respondent 2, in our opinion, necessitated the Court to
issue direction to return the child to the native state. That
does not mean that in deserving cases the courts in India are
denuded from declining the relief to return the child to the
native state merely because of a preexisting order of the
foreign court of competent jurisdiction. That, however, will
have to be considered on case to case basis — be it in a
summary inquiry or an elaborate inquiry. We do not wish to
dilate on other reported judgments, as it would result in
repetition of similar position and only burden this judgment.
xxx xxx xxx
69. …………… The summary jurisdiction to return the
child be exercised in cases where the child had been
removed from its native land and removed to another
country where, may be, his native language is not
spoken, or the child gets divorced from the social
customs and contacts to which he has been accustomed,
or if its education in his native land is interrupted and
the child is being subjected to a foreign system of
education, for these are all acts which could
psychologically disturb the child. Again the summary
jurisdiction be exercised only if the court to which the child
has been removed is moved promptly and quickly. The
overriding consideration must be the interests and welfare of
the child.”
(emphasis supplied)
20. At this stage, we deem it apposite to reproduce
paragraphs 70 and 71 of the reported judgment, which may
have some bearing on the final order to be passed in this case.
The same read thus:
“70. Needless to observe that after the minor child (Nethra)
attains the age of majority, she would be free to exercise her
41
choice to go to the UK and stay with her father. But until she
attains majority, she should remain in the custody of her
mother unless the court of competent jurisdiction trying the
issue of custody of the child orders to the contrary. However,
the father must be given visitation rights, whenever he visits
India. He can do so by giving notice of at least two weeks in
advance intimating in writing to the appellant and if such
request is received, the appellant must positively respond in
writing to grant visitation rights to Respondent 2 Mr Anand
Raghavan (father) for two hours per day twice a week at the
mentioned venue in Delhi or as may be agreed by the
appellant, where the appellant or her representatives are
necessarily present at or near the venue. Respondent 2 shall
not be entitled to, nor make any attempt to take the child
(Nethra) out from the said venue. The appellant shall take all
such steps to comply with the visitation rights of Respondent
2, in its letter and spirit. Besides, the appellant will permit
Respondent 2 Mr Anand Raghavan to interact with Nethra
on telephone/mobile or video conferencing, on school
holidays between 5 p.m. to 7.30 p.m. IST.
71. As mentioned earlier, the appellant cannot disregard the
proceedings instituted before the UK Court. She must
participate in those proceedings by engaging solicitors of her
choice to espouse her cause before the High Court of Justice.
For that, Respondent 2 Anand Raghavan will bear the costs
of litigation and expenses to be incurred by the appellant. If
the appellant is required to appear in the said proceeding in
person and for which she is required to visit the UK,
Respondent 2 Anand Raghavan will bear the air fares or
purchase the tickets for the travel of appellant and Nethra to
the UK and including for their return journey to India as
may be required. In addition, Respondent 2 Anand Raghavan
will make all arrangements for the comfortable stay of the
appellant and her companions at an independent place of
her choice at reasonable costs. In the event, the appellant is
required to appear in the proceedings before the High Court
of Justice in the UK, Respondent 2 shall not initiate any
coercive process against her which may result in penal
consequences for the appellant and if any such proceeding is
already pending, he must take steps to first withdraw the
same and/or undertake before the court concerned not to
pursue it any further. That will be condition precedent to
42
pave way for the appellant to appear before the court
concerned in the UK.”
21. In the subsequent judgment of two Judges of this Court
in Prateek Gupta (supra), after analysing all the earlier
decisions, in paragraphs 49 to 51 the Court noted thus:
“49. 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 wellbeing, 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 everoverriding determinant would
be the welfare and interest of the child. In other words, the
invocation of these principles/doctrines has to be judged on
the touchstone of myriad attendant facts and circumstances
of each case, the ultimate live concern being the welfare of
the child, other factors being acknowledgeably subservient
thereto. Though in the process of adjudication of the
issue of repatriation, a court can elect to adopt a
summary enquiry and order immediate restoration of the
child to its native country, if the applicant/parent is
prompt and alert in his/her initiative and the existing
circumstances ex facie justify such course again in the
overwhelming exigency of the welfare of the child, such
a course could be approvable in law, if an effortless
discernment of the relevant factors testify irreversible,
adverse and prejudicial impact on its physical, mental,
psychological, social, cultural existence, thus exposing it
to visible, continuing and irreparable detrimental and
nihilistic attenuations. 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
43
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.
50. 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.
51. It has been consistently held that there is no forum
convenience in wardship jurisdiction and the peremptory
mandate that underlines the adjudicative mission is the
obligation to secure the unreserved welfare of the child as
the paramount consideration.”
(emphasis supplied)
Again, in paragraph 53 of the judgment, the Court observed
thus:
“53. .... 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 setback 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
44
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 wellbeing.”
(emphasis supplied)
22. After these decisions, it is not open to contend that the
custody of the female minor child with her biological mother
would be unlawful, for there is presumption to the contrary. In
such a case, the High Court whilst exercising jurisdiction
under Article 226 for issuance of a writ of habeas corpus need
not make any further enquiry but if it is called upon to
consider the prayer for return of the minor female child to the
native country, it has the option to resort to a summary
inquiry or an elaborate inquiry, as may be necessary in the
fact situation of the given case. In the present case, the High
Court noted that it was not inclined to undertake a detailed
inquiry. The question is, having said that whether the High
Court took into account irrelevant matters for recording its
conclusion that the minor female child, who was in custody of
her biological mother, should be returned to her native
country. As observed in Nithya Anand Raghavan’s case
45
(supra), the Court must take into account the totality of the
facts and circumstances whilst ensuring the best interest of
the minor child. In Prateek Gupta’s case (supra), the Court
noted that the adjudicative mission is the obligation to secure
the unreserved welfare of the child as the paramount
consideration. Further, the doctrine of “intimate and closest
concern” are of persuasive relevance, only when the child is
uprooted from its native country and taken to a place to
encounter alien environment, language, custom etc. with the
portent of mutilative bearing on the process of its overall
growth and grooming. The High Court in the present case
focused primarily on the grievances of the appellant and while
rejecting those grievances, went on to grant relief to
respondent No.2 by directing return of the minor girl child to
her native country. On the totality of the facts and
circumstances of the present case, in our opinion, there is
nothing to indicate that the native language (English) is not
spoken or the child has been divorced from the social customs
to which she has been accustomed. Similarly, the minor child
46
had just entered preschool in the USA before she came to
New Delhi along with her mother. In that sense, there was no
disruption of her education or being subjected to a foreign
system of education likely to psychologically disturb her. On
the other hand, the minor child M is under the due care of her
mother and maternal grandparents and other relatives since
her arrival in New Delhi. If she returns to US as per the relief
claimed by the respondent No.2, she would inevitably be
under the care of a Nanny as the respondent No.2 will be away
during the day time for work and no one else from the family
would be there at home to look after her. Placing her under a
trained Nanny may not be harmful as such but it is certainly
avoidable. For, there is likelihood of the minor child being
psychologically disturbed after her separation from her
mother, who is the primary care giver to her. In other words,
there is no compelling reason to direct return of the minor
child M to the US as prayed by the respondent No.2 nor is her
stay in the company of her mother, along with maternal
47
grandparents and extended family at New Delhi, prejudicial
to her in any manner, warranting her return to the US.
23. As expounded in the recent decisions of this Court, the
issue ought not to be decided on the basis of rights of the
parties claiming custody of the minor child but the focus
should constantly remain on whether the factum of best
interest of the minor child is to return to the native country or
otherwise. The fact that the minor child will have better
prospects upon return to his/her native country, may be a
relevant aspect in a substantive proceedings for grant of
custody of the minor child but not decisive to examine the
threshold issues in a habeas corpus petition. For the purpose
of habeas corpus petition, the Court ought to focus on the
obtaining circumstances of the minor child having been
removed from the native country and taken to a place to
encounter alien environment, language, custom etc. interfering
with his/her overall growth and grooming and whether
continuance there will be harmful. This has been the
48
consistent view of this Court as restated in the recent threeJudge
Bench decision in Nithya Anand Raghavan (supra),
and the twoJudge Bench decision in Prateek Gupta (supra).
It is unnecessary to multiply other decisions on the same
aspect.
24. In the present case, the minor child M is a US citizen by
birth. She has grown up in her native country for over three
years before she was brought to New Delhi by her biological
mother (appellant) in December 2016. She had joined a preschool
in the USA. She had healthy bonding with her father
(respondent No.2). Her paternal grandparents used to visit
her in the USA at some intervals. She was under the care of a
Nanny during the day time, as her parents were working.
Indeed, the work place of her father is near the home. The
biological father (respondent No.2) of the minor child M has
acquired US citizenship. Both father and mother of the minor
child M were of Indian origin but domiciled in the USA after
marriage. The mother (appellant) is a permanent resident of
49
the USAGreen Card holder and has also applied for US
citizenship. In her affidavit filed before the Delhi High Court
dated 30th November, 2017, she admits that her legal status
was complicated as she has ceased to be an Indian citizen and
her status of citizenship of the USA is in limbo.
25. Be that as it may, the father filed a writ petition before
the Delhi High Court for issuance of a writ of Habeas Corpus
for production of the minor child and for directions for her
return to USA without any loss of time. Given the fact that the
parties performed a civil marriage on 19th March, 2011 in the
USA and cohabited in the native country and gave birth to
minor child M who grew up in that environment for at least
three years, coupled with the fact that the father and minor
child M are US citizens and mother is a permanent resident of
USA, the closest contact and jurisdiction is possibly that of the
Circuit Court of Cook County, Illinois, USA. However, we may
not be understood to have expressed any final opinion in this
regard. At the same time, it is indisputable that the appellant
50
and respondent No.2 first got married on 31st October, 2010
as per Sikh rites, i.e. Anand Karaj ceremony, and Hindu Vedic
rites and that marriage was solemnised in New Delhi at which
point of time the appellant was admittedly a citizen of India.
Presently, she is only a Green Card holder (permanent
resident) of the US. It is, therefore, debatable whether the
Family Court at New Delhi, where the appellant has already
filed a petition for dissolution of marriage, has jurisdiction in
that behalf including to decide on the question of custody and
guardianship in respect of the minor child M. For that reason,
it may be appropriate that the said proceedings are decided
with utmost promptitude in the first place before the appellant
is called upon to appear before the US Court and including to
produce the minor child M before that Court.
26. It is not disputed that the appellant and minor child are
presently in New Delhi and the appellant has no intention to
return to her matrimonial home in the U.S.A. The appellant
has apprehensions and serious reservations on account of her
past experience in respect of which we do not think it
51
necessary to dilate in this proceedings. That is a matter to be
considered by the Court of Competent Jurisdiction called upon
to decide the issue of dissolution of marriage and/or grant of
custody of the minor child, as the case may be. For the time
being, we may observe that the parties must eschew from
pursuing parallel proceedings in two different countries. For,
the first marriage between the parties was performed in New
Delhi as per Anand Karaj Ceremony and Hindu Vedic rites on
31st October, 2010 and the petition for dissolution of marriage
has been filed in New Delhi. Whereas, the civil marriage
ceremony on 19th March, 2011 at Circuit Court of Cook
County, Illinois, USA, was performed to complete the
formalities for facilitating the entry of the appellant into the US
and to obtain US Permanent Resident status. It is appropriate
that the proceedings pending in the Family Court at New Delhi
are decided in the first place including on the question of
jurisdiction of that Court. Depending on the outcome of the
said proceedings, the parties will be free to pursue such other
52
remedies as may be permissible in law before the Court of
Competent Jurisdiction.
27. As aforesaid, it is true that both respondent No.2 and
also the minor child M are US citizens. The minor girl child
has a US Passport and has travelled to India on a tenure Visa
which has expired. That does not mean that she is in unlawful
custody of her biological mother. Her custody with the
appellant would nevertheless be lawful. The appellant has
already instituted divorce proceedings in the Family Court at
Patiala House, New Delhi. The respondent No.2 has also filed
proceedings before the Court in the US for custody of the
minor girl child, directing her return to her natural
environment in the US. In such a situation, the arrangement
directed by this Court in the case of Nithya Anand
Raghavan (supra), as exposited in paragraphs 7071, may be
of some help to pass an appropriate order in the peculiar facts
of this case, instead of directing the biological mother to return
to the US along with the minor girl child, so as to appear
53
before the competent court in the US. In that, the custody of
the minor girl child M would remain with the appellant until
she attains the age of majority or the Court of competent
jurisdiction, trying the issue of custody of the minor child,
orders to the contrary, with visitation and access rights to the
biological father whenever he would visit India and in
particular as delineated in the interim order passed by us
reproduced in paragraph 11 (eleven) above.
28. A fortiori, dependant on the outcome of the proceedings,
before the Family Court at New Delhi, the appellant may then
be legally obliged to participate in the proceedings before the
US Court and must take all measures to effectively defend
herself in the said proceedings by engaging solicitors of her
choice in the USA to espouse her cause before the Circuit
Court of Cook County, Illinois, USA. In that event, the
respondent No.2 shall bear the cost of litigation and expenses
to be incurred by the appellant to pursue the proceedings
before the Courts in the native country. In addition, the
respondent No.2 will bear the air fares or purchase the tickets
54
for the travel of the appellant and the minor child M to the
USA and including their return journey for India, as may be
required. The respondent No.2 shall also make all suitable
arrangements for the comfortable stay of the appellant and her
companions at an independent place of her choice, at a
reasonable cost. Further, the respondent No.2 shall not
initiate any coercive/penal action against the appellant and if
any such proceeding initiated by him in that regard is
pending, the same shall be withdrawn and not pursued before
the concerned Court any further. That will be the condition
precedent to facilitate the appellant to appear before the
Courts in the USA to effectively defend herself on all matters
relating to the matrimonial dispute and including custody and
guardianship of the minor child.
29. The appellant and respondent No.2 must ensure early
disposal of the proceedings for grant of custody of the minor
girl child to the appellant, instituted and pending before the
Family Court at Patiala House, New Delhi. All contentions
available to the parties in that regard will have to be answered
55
by the Family Court on its own merits and in accordance with
law.
30. We, accordingly, set aside the impugned judgment and
orders of the High Court and dispose of the writ petition in the
aforementioned terms. The appeals are allowed with no order
as to costs.
.………………………….CJI.
(Dipak Misra)
…………………………..….J.
(A.M. Khanwilkar)
…………………………..….J.
(Dr. D.Y. Chandrachud)
New Delhi;
July 20, 2018.
