Gujarat High Court
Dipikaben S/O Maulikbhai Parmar D/O ... vs State Of Gujarat on 25 April, 2022
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/9711/2021 ORDER DATED: 25/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 9711 of 2021
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DIPIKABEN S/O MAULIKBHAI PARMAR D/O ISHWARBHAI
BHAGWANBHAI MARWADI
Versus
STATE OF GUJARAT
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Appearance:
MR N P PANDYA(11241) for the Applicant(s) No. 1
MS MAMTA R VYAS(994) for the Applicant(s) No. 1
MR.HIREN M MODI(3732) for the Respondent(s) No. 3,4,5,6,7,8
NOTICE SERVED for the Respondent(s) No. 2
MR HK PATEL, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 25/04/2022
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. This is a petition preferred under Article 226 of the Constitution of India with a prayer to bring the corpus -
Shivansh aged 2 years before this Court in the following factual background.
2. The petitioner and respondent no.3 got married on 11.02.2016 and a son - Shivansh was born on 22.06.2019.
They lived in a join family along with the respondent nos. 3 to
8. According to the petitioner, the matrimonial disputes on account of the dowry etc. had resulted into a quarrel on 09.08.2020 which had given an eagerly turn to the Page 1 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022 R/SCR.A/9711/2021 ORDER DATED: 25/04/2022 relationship. The brother and the family members of the petitioner were called and she was driven out from the house forcibly and was not even permitted to take her minor child who was one and half year old. It is alleged that respondent no.5 had snatched away the custody of the corpus and thereafter despite repetitive requests of the petitioner, she was not handed over the custody of the child.
2.2. For meeting the child, an application under Section 97 of the Code of Criminal Procedure was moved before the Court of learned Chief Judicial Magistrate, Bharuch which came to be rejected, against which, the petitioner preferred a Revision Application before the learned Principal District and Sessions Judge, Bharuch, however, considering the scope of Section 97 of the Code of Criminal Procedure, the same was not allowed.
3. The petitioner approached this Court out of desperation.
According to us, the child was too young to be left to anyone.
She had urged this Court to give her the custody of this child with many other serious apprehensions. She also has preferred an FIR under Sections 498(a), 323, 504, 506(2) and 114 of the Indian Penal Code on 16.09.2020. The respondent no. 3 had forced her to withdraw the case and in turn to give the custody of the minor child. The prayers sought for are as Page 2 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022 R/SCR.A/9711/2021 ORDER DATED: 25/04/2022 follows:-
"(A) Your Lordships may kindly be pleased to admit and allow the present petition;
(B) Your Lordships be pleased to issue a writ of habeas corpus directing the respondent no.2 to bring and produce the corpus - namely "Shivansh" (Aged 2 years) before this Hon'ble Court from the illegal custody of respondent no.5 & 7 at the earliest;
(C) Your Lordships may be pleased to grant such other and further relief(s) as may deem just and proper in the facts and circumstances of the case."
4. This Court (Coram:- Mr. N.V.Anjaria and Dr. A.P.Thaker, JJ.) issued notice on 06.10.2021 and on the returnable date i.e. on 12.10.2021 passed the following order:-
"The petitioner who happens to be the mother, has filed this petition seeking writ of Habeas Corpus to produce the corpus-her son named Shivansh aged two years. The allegations made in the petition run as under, "It is respectfully submitted that on 9.8.2020, respondent Nos. 3 to 8 had a quarreled with the petitioner and due to serious situation, the petitioner had to called brother and family members in the presence of that brother and family members, she was driven out from the house forcibly and even not permitted to take her minor child (1.5 years) and respondent No.5 i.e. mother-in-law snatched away the custody of minor child "Shivansh" and thereafter resp. no. 5 & 7 ran away with minor child. Inspite of repeated request custody of minor child is not given to petitioner who was badly crying."
2. Pursuant to issuance of Notice on 6.10.2021, the corpus Shivansh was produced before us. We notice from the record of the petition that the proceedings under section 97 of the Criminal Procedure Code, 1973, were carried out at the instance of wife. The Page 3 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022 R/SCR.A/9711/2021 ORDER DATED: 25/04/2022 court taking view that the custody of the child with the father could not be said to be illegal custody, dismissed the application of the wife. Learned advocate for the petitioner sought to submit that in the present jurisdiction, while the court considers the issue, the said aspect may not be an influencing factor.
3. Today, the corpus was produced being in the custody of respondent No.3 father. The mother was present, father was also present and also the corpus. When we took up the case in chamber, we interacted with the petitioner mother and father. Learned advocates for both the sides Ms. Mamta Vyas and Mr. Hiren Modi participated in the discussion.
4. Spouses were impressed upon that before any decision could be reached by the court in accordance with law either interim or final, it would be in the best interest not only to their matrimonial life but predominantly for the best welfare of the two years child, that they endevour to find out an amicable solution about the living life together as well as the custody of the child which accordingly be considered by themselves.
5. Learned advocates for the respective parties readily and fairly agreed to the suggestions to submit before the court that they are inclined to make efforts to persuade the parties. Therefore, without going into any of the aspects of the matter canvassed and pleaded by both the sides and irrespective of what we gathered in course of interaction with the petitioner and respondent No.3 husband, we postpone the consideration of the matter to 22.10.2021.
6. In the meantime, the parties through their advocates and well wishers shall try to arrive at an amicable solution and report to the court. Learned advocates shall also take instructions about the parties undergoing the mediation process with the High Court Mediation Center, if at all becomes necessary.
7. In the interregnum, the petitioner mother is at liberty to visit the child who is presently at the place Page 4 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022 R/SCR.A/9711/2021 ORDER DATED: 25/04/2022 of respondent No.3 husband. Learned advocate for the respondent No.3 assures the court that as and when the petitioner mother goes to the house of the husband, shall be allowed and will be accommodated in all respects for facilitating interaction with the corpus.
With the above observations, list the matter on 22.10.2021."
4.1. This Court (Coram:- Mr. S.H.Vora and Mr. Aniruddha P. Mayee, JJ.) on 22.11.2021 noticing that the parties were unable to arrive at any amicable solution, chose to handover the custody of the child to the petitioner - mother till the next date of hearing so as to ensure that he is not deprived of mother's love and affection. The order passed is as follows:-
"1. Today the petitioner and respondent no.3, parents of Corpus are present before us but Corpus - Shivansh aged 2 years is not brought before the Court on account of his illhealth, as stated by respondent no.3.
2. We have considered previous orders and it appears that the parties have yet not solved their matrimonial issue, but learned advocates appearing for the respective parties have assured us that they will make efforts to find out best solution in the interest of minor Corpus.
3. Pending hearing of the present petition and till amicable solution is found out either at intervention of learned advocates for the respective parties or through Mediation Center, we direct respondent no.3
- husband to hand over custody of the child to the petitioner - mother till next date of hearing, so that child is not deprived of mother's love and affection. During the time, the Corpus is in custody of the petitioner - mother, respondent no.3 is at liberty either to stay at petitioner's place or is at liberty to Page 5 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022 R/SCR.A/9711/2021 ORDER DATED: 25/04/2022 visit the place at his convenience, so that Corpus enjoys love and affection of both the parents. Present arrangement / order is passed without prejudice to rights of both the sides and predominantly for the best welfare of the child. Respondent no.3 to hand over the custody of the Corpus today itself. Stand over to 08.12.2021."
The Court while so doing also had permitted the respondent no.3 - father to stay at the petitioner's place or at liberty to visit the place at his convenience so that the corpus enjoys love and affection of both the parents.
4.2. As noted by the Court on 08.12.2021, the interim arrangement worked positively and both the parents were with the child because of it. Attempts were made thereafter also for the parties to amicably settle the disputes. The Court had requested the parties to continue to adjudicate and the process of mediation also was made available to them.
4.3. Unfortunately, the mediation could not succeed, however, interim arrangement made earlier continued.
5. Affidavit-in-reply came to be filed by the respondent no.3 where he has questioned the very maintainability of the petition. Relying on the decision of Delhi High Court in case of Shella vs. State of NCT of Delhi [(2008) 149 DLT 476 (DB)] it is urged that the custody of the child can be agitated before Page 6 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022 R/SCR.A/9711/2021 ORDER DATED: 25/04/2022 an appropriate statutory forum. Relying on the decision of Delhi High Court it is urged that the welfare of the child shall be given a prime consideration and issuance of writ of habeas corpus is not considerable.
5.1. The decision in case of Dr. (Mrs.) Veena Kapoor vs. Shri Virender Kumar Kapoor [(1981) 3 SCC 92] also speaks of the paramount consideration to be the welfare of the minor and not the legal rights of the parties. The decision of Sumedha Nagpal vs. State of Delhi and Others [(2000) 9 SCC 745] also pressed into service.
5.2. It is also the say of the respondent - husband that after having failed to get the order in favour under Section 97 of the Code of Criminal Procedure and in Revision, instead of preferring an application under the Guardians and Wards Act,1980 this petition has been preferred by way of a shortcut, moreover, it is alleged that it was only with a goal to get the interim custody that she had agreed to shift to Bharuch or Vadodara, however, her intent has been questioned. It is denied that she was ill-treated at any point of time.
5.3. It is further contended that allegations of activities like liquor consumption and selling of the same in the locality at Page 7 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022 R/SCR.A/9711/2021 ORDER DATED: 25/04/2022 the proposed premise in the Bharuch which is owned by the family of the respondent is completely baseless.
6. The rejoinder affidavit has been filed by the petitioner -
wife where it has been stated that the respondent no.3 was permitted to meet the child and he resided at the place of petitioner for 15 days and thereafter also he came to meet the child and in fact everyday he used to make video calling.
However, because the child is only two and a half years old, is not staying at one place for talking to the respondent no.3.
Therefore, the allegation that the wife does not permit the child to speak to the father is also not true.
6.1. Reliance is placed on the judgment of this Court in Special Criminal Application No. 9903 of 2021 and Special Criminal Application No. 9907 of 2020 where the child's custody is given to the mother because the child being of very young age.
7. Having heard both the sides and also having considered the chronology of events, we deem it appropriate, at the outset to note that the Apex Court in case of Yashita Sahu vs. State of Rajasthan [2020 (3) SCC 67] has made it extremely clear that jurisdiction under Article 226 of the Constitution of India is permissible to be invoked in a custody Page 8 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022 R/SCR.A/9711/2021 ORDER DATED: 25/04/2022 matter. This objection of preferring the petition under Article 226 of the Constitution of India, in wake of this decision is unsustainable.
8. So far as the custody of the minor child is concerned, as mentioned herein above, by way of an order passed by this Court on dated 12.10.2021, while permitting the mediation between the parties, the Court had directed the custody of the child to the mother so as not to deprive the young child of the mother's love, care and warmth. This had continued by the Court in its order dated 21.11.2021 by directing the husband to handover the custody till the next date of hearing and also balanced it by permitting the father to visit him and also staying with the wife if he so choose. This has continued all throughout. There was also a talk of settlement where the parties seriously participated. There are proposals of staying at Anand as the respondent no.3 has three family houses at Anand and his job is also in the private school as a teacher in Anand and therefore, the ideal situation which was proposed was to be at Anand which may not also make him spent any amount of rent, however, the past events had made the petitioner apprehensive and that had not accepted as proposal by the wife. What had been proposed by her was to start living at Vadodara as she would work and continue to help the Page 9 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022 R/SCR.A/9711/2021 ORDER DATED: 25/04/2022 husband and it will be neutral place from Bharuch and Anand.
We also had requested learned APP Mr. Patel to mediate between the parties second time after the institutional place of mediation had failed. He made his best of the efforts however, it did not yield any result.
8.1. This eventually led this Court to hear the matter on merits. Being conscious of the fact that Section 97 application and Revision of the said order had not yielded any result in the favour of the petitioner, we cannot fail to recognize the fact that Section 97 of the Code of Criminal Procedure got completely different flavour.
8.2. Ordinarily, when the custody is either of the spouses, the search warrant would not be issued since it is for the District Magistrate, SubDivisional Magistrate or Magistrate of the First Class has a reason to believe that the person who is confined under any circumstances and the confinement amounts to an offence, he may issue search warrant and the person to whom such warrant is directed may search for the person so confined, and such search shall be made in accordance therewith, and the person, if found shall be immediately taken before the Magistrate.
8.3. This if has not been acceded to and also confirmed by Page 10 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022 R/SCR.A/9711/2021 ORDER DATED: 25/04/2022 the Revisional Court, it is understandable, however, that would not take away the right of the mother to approach this Court under Article 226 of the Constitution of India and non-
favour of these orders under Section 97 and thereafter the Revisional Court will not act as hampering ground for the party to approach this Court which ordinarily does not entertain this for deciding fully and finally the rights and obligations in the custody matter. That would not mean that the Court cannot visualize horizon which has been widen by the Apex Court in the decision of Yashita Sahu (supra) and permitted the mother to approach this Court for the custody of her child who was one and a half years of age when she was allegedly driven away.
8.4. Without entering into those disputes and allegations and counter allegations, the fact remains that she was not permitted to take the child with her or leaving of her matrimonial home was under the circumstances when it was not feasible for her to take the child with her, the age of the child is too young for the Court to entertain this and not deprive the child of the warmth and care of the mother.
9. The Court also cannot be oblivious of the statutory requirement of the Hindu Minor and Guardians' Act, 1956 Page 11 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022 R/SCR.A/9711/2021 ORDER DATED: 25/04/2022 which provides under Section 6 the natural guardian of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property in the case of a boy or an unmarried girl with the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.
10. The Apex Court has made it extremely clear right from the case of Ruchi Majoo vs. Sanjeev Majoo [AIR 2011 SC 1952] till the last decision that the paramount consideration for any Court in case of the custody of the minor is solitary test determining the welfare of the child and in what manner those considerations need to be regarded have been highlighted. It would be apt to reproduce some of the findings and observations of the said decision:-
"34. A survey of law on the subject would, in that view, be necessary and can start with a reference to the decision of this Court in Smt. Satya V. Shri Teja Singh, (1975) 1 SCC 120. That was a case in which the validity of a decree fordivorce obtained by the husband from a Court in the State of Naveda (USA) fell for examination. This Court held that the answer to the question depended upon the Rules of private International Law. Since no system of Private International Law existed that could claim universal recognition, the Indian Courts had to decide the issue regarding the validity of the decree in accordance with the Indian law. Rules of Private International Law followed by other countries could not be adopted mechanically, especially when principles underlying such rules varied greatly and were moulded by the distinctive social, political and economic conditions Page 12 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022 R/SCR.A/9711/2021 ORDER DATED: 25/04/2022 obtaining in different countries. This Court also traced the development of law in America and England and concluded that while British Parliament had found a solution to the vexed questions of recognition of decrees granted by foreign courts by enacting "The recognition of Divorces and Legal Separations Act, 1971" our Parliament had yet to do so. In the facts and circumstances of that case the Court held thatthe husband was not domiciled in Naveda and that his brief stay in that State did not confer any jurisdiction upon the Naveda Court to grant a decree dissolving the marriage, he being no more than a bird of passage who had resorted to the proceedings there solely to find jurisdiction and obtain a decree for divorce by misrepresenting the facts as regards his domicile in that State. This Court while refusing to recognize the decree observed:
"True that the concept of domicile is not uniform throughout the world and just as long residence does not by itself establish domicile, a brief residence may not negative it. But residence for a particular purpose falls to answer the qualitative test for, the purpose being accomplished the residence would cease. The residence must answer "a qualitative as well as a quantitative test", that is, the two elements of factum et animus must concur. The respondent went to Naveda forum-hunting, found a convenient jurisdiction which would easily purvey a divorce to him and left it even before the ink on his domiciliary assertion was dry. Thus the decree of the Naveda Court lacks jurisdiction. It can receive no recognition in our courts." (emphasis ours)
35. In Dhanwanti Joshi v. Madhav Unde 1998(1) SCC 112, one of the questions that fell for consideration was whether the bringing away of a child to India by his mother contrary to an order of US Court would have any bearing on the decision of the Courts in India while deciding about the custody and the welfare of the child. Relying upon McKee v. KcKee, 1951 AC 352: 1951(1) All ER 942 and J v. C 1970 AC 668:1969(1) All ER 788, this Court held Page 13 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022 R/SCR.A/9711/2021 ORDER DATED: 25/04/2022 that it was the duty of the Courts in the country to which a child is removed to consider the question of custody, having regard to the welfare of the child. In doing so, the order passed by the foreign court would yield to the welfare of the child and that Comity of Courts simply demanded consideration of any such order issued by foreign courts and not necessarily their enforcement. This court further held that the conduct of a summary or elaborate inquiry on the question of custody by the Court in the country to which the child has been removed will depend upon the facts and circumstance ofeach case. For instance summary jurisdiction is exercised only if the court to which the child had been removed is moved promptly and quickly, for in that event, the Judge may well be persuaded to hold that it would be better for the child that the merits of the case are investigated in a court in his native country, on the expectation that an early decision in the native country would be in the interests of the child before the child could develop roots in the country to which he had been removed. So also the conduct of an elaborate inquiry may depend upon the time that had elapsed between the removal of the child and the institution of the proceedings for custody. This would mean that longer the time gap, the lesser the inclination of the Court to go for a summary inquiry. The court rejected the prayer for returning the child to the country from where he had been removed and observed:
"31. The facts of the case are that when the respondent moved the courts in India and in theproceedings of 1986 for habeas corpus and under Guardians and Wards Act, the courts in India thought it best in the interests of the child to allow it to continue with the mother in India, and those orders have also become final. The Indian courts in 1993 or 1997, when the child had lived with his mother for nearly 12 years, or more, would not exercise a summary jurisdiction to return the child to USA on the ground that its removal from USA in 1984 was contrary to orders of US courts."
36. We must at this stage refer to two other decisions of this Court, reliance upon which was Page 14 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022 R/SCR.A/9711/2021 ORDER DATED: 25/04/2022 placed by the learned counsel for the parties. In Sarita Sharma v. Sushil Sharma (2000) 3 SCC 14 this Court was dealing with an appeal arising out of a habeas corpus petition filed before the High Court of Delhi in respect of two minor children aged 3 years and 7 years respectively. It was alleged that the children were in illegal custody of Sarita Sharma their mother. The High Court had allowed the petition and directed the mother to restore the custody of the children to Sushil Sharma who was in turn permitted to take the children to U.S.A. without any hindrance. One of the contentions that was urged before this Court was that theremoval of children from U.S.A. to India was against the orders passed by the American Court, which orders had granted to the father the custody of the minor children. Allowing the appeal and setting aside the judgment of the High Court, this Court held that the order passed by the U.S. courts constituted but one of the factors which could not override the consideration of welfare of the minor children. Considering the fact that the husband was staying with his mother aged about 80 years and that there was no one else in the family to lookafter the children, this Court held that it was not in the interest of the children to be put in the custody of the father who was addicted to excessive alcohol. Even this case arose out of a writ petition and not a petition under the Guardians and Wards Act.
37. In V. Ravi Chandran (Dr.) (2) v. Union of India and Ors. (2010) 1 SCC 174 also this Court was dealing with a habeas corpus petition filed directly before it under Article32 of the Constitution. This Court held that while dealing with a case of custody of children 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 whether the court could conduct an elaborate enquiry on the question of custody or deal with the matter summarily and order the parent to return the custody of the child to the country from which he/she was removed, leaving all aspects relating to child's welfare to be investigated by Court in his own country. This Court held that in Page 15 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022 R/SCR.A/9711/2021 ORDER DATED: 25/04/2022 case an elaborate enquiry was considered appropriate, the order passed by a foreign court may be given due weight depending upon the circumstances of each case in which such an order had been passed. Having said so, this Court directed the child to be sent back to U.S. and issued incidental directions in that regard.
38. In Shilpa Aggarwal (Ms.) v. Aviral Mittal & Anr. (2010) 1 SCC 591 this Court followed the same line of reasoning. That was also a case arising out of a habeas corpus petition before the High Court of Delhi filed by the father of the child. The High Court had directed the return of the child to England to join the proceedings before the courts of England and Wales failing which the child had to be handed over to the petitioner-father to be taken to England as a measure of interim custody leaving it for the court in that country to determine which parent would be best suited to have the custody of the child. That direction was upheld by this Court with the observation that since the question as to what is in the interest of the minor had to be considered by the court in U.K. in terms of the order passed by the High Court directing return of the child to the jurisdiction of the said court did not call for any interference.
39. We do not propose to burden this judgment by referring to a long line of other decisions which have been delivered on the subject, for they do not in our opinion state the law differently from what has been stated in the decisions already referred to by us. What, however, needs to be stated for the sake of a clear understanding of the legal position is that the cases to which we have drawn attention, as indeed any other case raising the question of jurisdiction of the court to determine mutual rights and obligation of the parties, including the question whether a court otherwise competent to entertain the proceedings concerning the custody of the minor, ought to hold a summary or a detailed enquiry into the matter and whether it ought to decline jurisdiction on the principle of comity of nations or the test of the closest contact evolved by this Court in Smt. Surinder Page 16 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022 R/SCR.A/9711/2021 ORDER DATED: 25/04/2022 Kaur Sandhu v. Harbax Singh Sandhu and Anr. (1984) 3 SCC 698 have arisen either out of writ proceedings filed by the aggrieved party in the High Court orthis Court or out of proceedings under the Guardian & Wards Act. Decisions rendered by this Court in Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and Anr. (1987) 1 SCC 42, Sarita Sharma's case (supra), V. Ravi Chandran's case (supra), Shilpa Aggarwal's case (supra) arose out of proceedings in the nature of habeas corpus. The rest had their origin in custody proceedings launched under the Guardian & Wards Act. Proceedings in the nature of Habeas Corpus are summary in nature, where the legality of the detention of the alleged detenue is examined on the basis of affidavits placed by the parties. Even so, nothing prevents the High Court from embarking upon a detailed enquiry in cases where the welfare of a minor is in question, which is the paramount consideration for the Court while exercising its parens patriae jurisdiction. A High Court may, therefore, invoke its extra ordinary jurisdiction to determine the validity of the detention, in cases that fall within its jurisdiction and may also issue orders as to custody of theminor depending upon how the court views the rival claims, if any, to such custody. The Court may also direct repatriation of the minor child for the country from where he/she may have been removed by a parent or other person; as was directed by this Court in Ravi Chandran's & Shilpa Agarwal's cases (supra) or refuse to do so as was the position in Sarita Sharma's case (supra). What is important is that so long as the alleged detenue is within the jurisdiction of the High Court no question of its competence to pass appropriate orders arises. The writ court's jurisdiction to make appropriate orders regarding custody arises no sooner it is found that the alleged detenue is within its territorial jurisdiction.
40. In cases arising out of proceedings under the Guardian & Wards Act, the jurisdiction of the Court is determined by whether the minor ordinarily resides within the area on which the Court exercises such jurisdiction. There is thus asignificant difference between the jurisdictional facts relevant to the Page 17 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022 R/SCR.A/9711/2021 ORDER DATED: 25/04/2022 exercise of powers by a writ court on the one hand and a court under the Guardian & Wards Act on the other. Having said that we must make it clear that no matter a Court is exercising powers under the Guardian & Wards Act it can choose to hold a summary enquiry into the matter and pass appropriate orders provided it is otherwise competent to entertain a petition for custody of the minor under Section 9(1) of the Act. This is clear from the decision of this Court in Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC 112, which arose out of proceedings under the Guardian & Wards Act. The following passage is in this regard apposite:
"We may here state that this Court in Elizabeth Dinshaw v. Arvand M. Dinshaw (1987) 1 SCC 42 while dealing with a child removed by the father from USA contrary to the custody orders of the US Court directed that the child be sent back to USA to the mother not only because of the principle of comity but also because, on facts, -- which were independently considered -- it was in the interests of the child to be sent back to the native State. There the removal of the child by the father and the mother's application in Indiawere within six months. In that context, this Court referred to H. (infants), Re (1966) 1 ALL ER 886 which case, as pointed out by us above has been explained in L. Re (1974) 1 All ER 913, CA as a case where the Court thought it fit to exercise its summary jurisdiction in the interests of the child. Be that as it may, the general principles laid down in McKee v. McKee (1951) 1 All ER 942 and J v. C (1969) 1 All ER 788 and the distinction between summary and elaborate inquiries as stated in L. (infants), Re (1974) 1 All ER 913, CA are today well settled in UK, Canada, Australia and the USA. The same principles apply in our country. Therefore nothing precludes the Indian courts from considering the question on merits, having regard to the delay from 1984 -- even assuming that the earlier orders passed in India do not operate as constructive res judicata."Page 18 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022
R/SCR.A/9711/2021 ORDER DATED: 25/04/2022
41. It does not require much persuasion for us to hold that the issue whether the Court should hold a summary or a detailed enquiry would arise only if the Court finds that it has the jurisdiction to entertain the matter. If the answer to the question touching jurisdiction is in the negative the logical result has to be an order of dismissal of the proceedings or return of the application for presentation before the Court competent to entertain the same. A Court that has no jurisdiction to entertain a petition for custody cannot pass any order or issue any direction for the returnof the child to the country from where he has been removed, no matter such removal is found to be in violation of an order issued by a Court in that country. The party aggrieved of such removal, may seek any other remedy legally open to it. But no redress to such a party will be permissible before the Court who finds that it has no jurisdiction to entertain the proceedings.
42. We have while dealing with question No.1 above held that the Court at Delhi was in the facts and circumstances of the case competent to entertain the application filed by the appellant. What needs to be examined is whether the High Court was right in relying upon the principle of comity of courts and dismissing the application. Our answer is in the negative. The reasons are not far to seek. The first and foremost of them being that `comity of courts' principle ensures that foreign judgments and orders are unconditionally conclusive of the matter in controversy. Thisis all the more so where the courts in this country deal with matters concerning the interest and welfare of minors including their custody. Interest and welfare of the minor being paramount, a competent court in this country is entitled and indeed duty bound to examine the matter independently, taking the foreign judgment, if any, only as an input for its final adjudication. Decisions of this Court in Dhanwanti Joshi, and Sarita Sharma's cases, (supra) clearly support that proposition."
Page 19 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022R/SCR.A/9711/2021 ORDER DATED: 25/04/2022 10.1. In Yashita Sahu's case (supra) the Apex Court has given the elaborate reasons as the paramount interest should be the welfare of the child. Apt would be to reproduce those findings and observations:-
"13. In the fast shrinking world where adults marry and shift from one jurisdiction to another there are increasing issues of jurisdiction as to which country's courts will have jurisdiction. In many cases the jurisdiction may vest in two countries. The issue is important and needs to be dealt with care and sensitivity. Though the interest of the child is extremely important and is, in fact, of paramount importance, the courts of one jurisdiction should respect the orders of a court of competent jurisdiction even if it is beyond its territories. When a child is removed by one parent from one country to another, especially in violation of the orders passed by a court, the country to which the child is removed must consider the question of custody and decide whether the court should conduct an elaborate enquiry on the question of child's custody or deal with the matter summarily, ordering the parent to return the custody of the child to the jurisdiction from which the child was removed, and all aspects relating to the child's welfare be investigated in a court in his/her own country.
14. Reference in this regard may be made to the judgment in Elizabeth Dinshaw (supra) wherein this Court was dealing with a case where the wife was an American citizen whereas the husband was a citizen of India. They got married in America and a child was born to them in the year 1978. In 1980, differences arose between the couple and the wife filed a petition for divorce. The jurisdictional court in America had dissolved the marriage by a decree of divorce on 23.04.1982 and by the same decree it was directed that the wife would have the care, custody and control of the child till he reaches the age of 18 years. The husband was given visitation rights. Taking advantage of the weekend visitation rights, the husband picked up the child from school on Page 20 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022 R/SCR.A/9711/2021 ORDER DATED: 25/04/2022
11.01.1986 and brought him to India. The wife filed a petition under Article 32 of the Constitution of India before this Court. Not only was the petition entertained, but the same was allowed and we would like to refer to certain important observations of this Court in Para 8:
"8. 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 parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor. We have twice interviewed Dustan in our chambers and talked with him. We found him to be too tender in age and totally immature to be able to form any independent opinion of his own as to which parent he should stay with. The child is an American citizen. Excepting for the last few months that have elapsed since his being brought to India by the process of illegal abduction by the father, he has spent the rest of his life in the United States of America and he was doing well in school there.
In our considered opinion it will be in the best interests and welfare of Dustan that he should go back to the United States of America and continue his education there under the custody and guardianship of the mother to whom such custody and guardianship have been entrusted by a competent court in that country. We are also satisfied that the petitioner who is the mother, is full of genuine love and affection for the child and she can be safely trusted to look after him, educate him and attend in every possible way to his proper upbringing. The child has not taken root in this country and he is still accustomed and acclimatized to the conditions and environments obtaining in the place of his origin in the United States of America. The child's presence in India is the result of an illegal act of abduction and the father who is guilty of the said act cannot claim any advantage by stating that he has already put the child in some school in Pune. The conduct of the father has not Page 21 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022 R/SCR.A/9711/2021 ORDER DATED: 25/04/2022 been such as to inspire confidence in us that he is a fit and suitable person to be entrusted with the custody and guardianship of the child for the present." In V. Ravi Chandran (Dr.) (2) vs. Union of India (UOI) and Ors.5 it was held as follows:
"29. While dealing with a case of custody of a child removed by a parent from one country to another in contravention of the orders of the court where the parties had set up their matrimonial home, the court in the country to which 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 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 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 interest of the child...." 5 (2010) 1 SCC 174 Page 22 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022 R/SCR.A/9711/2021 ORDER DATED: 25/04/2022
15. In Nithya Anand Raghavan (supra), this Court took the following view: "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 for deciding the matter of custody or for return of the child to the native State."
Thereafter, another bench of this Court in Lahari Sakhamuri (supra), while interpreting the judgment in Nithya Anand Raghavan (supra) held as follows :
"41...the doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding custody of the minor child, citizenship of the parents and the child etc., cannot override the consideration of the best interest and the welfare of the child and the direction to return the child to the foreign jurisdiction must not result in any physical, mental, psychological, or other harm to the child."Page 23 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022
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16. We are of the considered view that the doctrine of comity of courts is a very healthy doctrine. If courts in different jurisdictions do not respect the orders passed by each other it will lead to contradictory orders being passed in different jurisdictions. No hard and fast guidelines can be laid down in this regard and each case has to be decided on its own facts. We may however again reiterate that the welfare of the child will always remain the paramount consideration. Welfare of the child - the paramount consideration
17. It is well settled law by a catena of judgments that while deciding matters of custody of a child, primary and paramount consideration is welfare of the child. If welfare of the child so demands then technical objections cannot come in the way. However, while deciding the welfare of the child it is not the view of one spouse alone which has to be taken into consideration. The courts should decide the issue of custody only on the basis of what is in the best interest of the child.
18. The child is the victim in custody battles. In this fight of egos and increasing acrimonious battles and litigations between two spouses, our experience shows that more often than not, the parents who otherwise love their child, present a picture as if the other spouse is a villain and he or she alone is entitled to the custody of the child. The court must therefore be very vary of what is said by each of the spouses.
19. A child, especially a child of tender years requires the love, affection, company, protection of both parents. This is not only the requirement of the child but is his/her basic human right. Just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents. A child is not an inanimate object which can be tossed from one parent to the other. Every separation, every reunion may have a traumatic and psychosomatic Page 24 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022 R/SCR.A/9711/2021 ORDER DATED: 25/04/2022 impact on the child. Therefore, it is to be ensured that the court weighs each and every circumstance very carefully before deciding how and in what manner the custody of the child should be shared between both the parents. Even if the custody is given to one parent the other parent must have sufficient visitation rights to ensure that the child keeps in touch with the other parent and does not lose social, physical and psychological contact with any one of the two parents. It is only in extreme circumstances that one parent should be denied contact with the child. Reasons must be assigned if one parent is to be denied any visitation rights or contact with the child. Courts dealing with the custody matters must while deciding issues of custody clearly define the nature, manner and specifics of the visitation rights.
20. The concept of visitation rights is not fully developed in India. Most courts while granting custody to one spouse do not pass any orders granting visitation rights to the other spouse. As observed earlier, a child has a human right to have the love and affection of both the parents and courts must pass orders ensuring that the child is not totally deprived of the love, affection and company of one of her/his parents.
21. Normally, if the parents are living in the same town or area, the spouse who has not been granted custody is given visitation rights over weekends only. In case the spouses are living at a distance from each other, it may not be feasible or in the interest of the child to create impediments in the education of the child by frequent breaks and, in such cases the visitation rights must be given over long weekends, breaks, and holidays. In cases like the present one where the parents are in two different continents effort should be made to give maximum visitation rights to the parent who is denied custody.
22. In addition to 'Visitation Rights', 'Contact rights' are also important for development of the child Page 25 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022 R/SCR.A/9711/2021 ORDER DATED: 25/04/2022 specially in cases where both parents live in different states or countries. The concept of contact rights in the modern age would be contact by telephone, email or in fact, we feel the best system of contact, if available between the parties should be video calling. With the increasing availability of internet, video calling is now very common and courts dealing with the issue of custody of children must ensure that the parent who is denied custody of the child should be able to talk to her/his child as often as possible. Unless there are special circumstances to take a different view, the parent who is denied custody of the child should have the right to talk to his/her child for 510 minutes everyday. This will help in maintaining and improving the bond between the child and the parent who is denied custody. If that bond is maintained the child will have no difficulty in moving from one home to another during vacations or holidays. The purpose of this is, if we cannot provide one happy home with two parents to the child then let the child have the benefit of two happy homes with one parent each.
23. As far as the present case is concerned, keeping in view what we have held above, we are not going into various allegations and counter allegations made by both the spouses. However, we record the statement of the husband that he has no intention of divorcing his wife. We can only hope that the couple can either by themselves or through mediation settle their disputes which would not only be in their own interest but also in the interest of Kiyara. Having said so, since at this stage the dispute between them remains unresolved we shall list out the factors and weigh them in a proper manner to see what is best in the interest of the child:
24. Age of the child - the child is less than 3 years old. She is a girl and, therefore, there can be no manner of doubt that she probably requires her mother more than her father. This is a factor in favour of the wife.
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25. Nationality of the child The child is a citizen of USA by birth. Her father was already working in the USA when he got married. We are told that the mother had visited the USA once before marriage and when she got married it was done with the knowledge that she may have to settle down there. The child was born in a hospital in the USA and the mother did not come back to India for delivery which indicates that at that time the parents wanted the child to be a citizen of USA. Since the child is a citizen of USA by birth and holds a passport of that country, while deciding the issue of custody we have to take this factor into consideration.
26. Proceedings in the Norfolk Court It is the wife who approached the court of competent jurisdiction, i.e. Norfolk Juvenile and Domestic Relations District Court, in the USA. She first applied for an emergency order and also instituted a petition seeking sole legal and physical custody of the child. After the husband put in appearance on the basis of the agreement, a consent order was passed which directed both the parties to live in the matrimonial home till 01.12.2018. It further directed that if the matter could not be settled by that date then the wife would make her own arrangements for residence etc. Provision was also made for shared parenting. The wife in total violation of the said order brought the child back to India.
27. We are not in agreement with the contention raised on behalf of the wife that she could not understand the order of the Norfolk Court. This is not the first time that the wife had approached the court. The wife is educated. She was working in Walmart in the USA. She had contacted an NGO and on 09.09.2017 had sent an email to Parsipanny Police Department against her husband. On 03.05.2018, the husband obtained an emergency protection order against the wife. Thereafter, the wife along with the minor daughter returned to India on 16.05.2018 and went back to the USA on 16.07.2018. The complaint filed by the husband is said to have been dismissed on 26.07.2018. On 25.08.2018 the wife called the Page 27 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022 R/SCR.A/9711/2021 ORDER DATED: 25/04/2022 Police as according to her she was scared for her safety and that of her minor daughter. According to her she applied for an emergency protective order on 25.08.2018 which was passed in her favour. The wife also instituted a petition seeking sole legal and physical custody of the minor child before the Norfolk Court on 29.08.2018. On 26.09.2018 the consent order was passed. It would also be pertinent to mention that even according to the wife she had been sending emails to the Indian Embassy in Washington for help. The wife also applied for Supplemental Nutrition Assistance Program which, according to her is a nutrition programme to help low income Americans to put food on the table.
28. The wife is aware of her rights. She has been taking the help of the Police, Magistrate, the Domestic Court and Federal Programmes, when the need arose. She was also working with Walmart and we are unable to accept her contention that because of lack of translator she could not understand what was happening. We are also unable to agree with the contention now raised that her counsel coerced her to enter into the agreement. In any event if she has any grievance with regard to the manner in which the settlement was arrived at, the proper course was to raise the issue before the Norfolk Court. No Indian Court can sit in appeal over the orders of the Norfolk Court. We are clearly of the view that the plea she has set up is only to justify her patent violation of the orders of the Norfolk Court.
29. Obviously, the child who is less than three years old cannot be heard in the matter but keeping in view the facilities of education, social security etc., which would be available in USA, we are of the view that the child should not be deprived of the same only on the ground that the mother does not want to go back to USA.
30. Visa issue Learned counsel for the appellantwife has laid great emphasis on the fact that the visa/work permit of the husband is expiring in 2020. That by Page 28 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022 R/SCR.A/9711/2021 ORDER DATED: 25/04/2022 itself is no ground to deny custody of the child to the husband. If his visa/work permit is extended no problem will arise but if his visa/work permit is not extended, we shall be making directions in this regard in the latter part of the judgment. Whether the work visa/work permit of the husband is to be extended or not is for the authorities in the USA to decide and this Court cannot comment on the same. We cannot pass an order presuming that the visa will not be extended.
31. There are various factors to be taken into consideration while deciding what is best in the interest of the child. No hard and fast rules can be laid down and each case has to be decided on its own merits. We are also not oblivious of the fact that when two parents are at war with each other it is impossible to provide a completely peaceful environment to the child. The court has to decide what is in the best interest of the child after weighing all the pros and cons of both the respective parents who claim custody of the child. Obviously, any such order of custody cannot give a perfect environment to the child because that perfect environment would only be available if both the parents put the interest of the child above their own differences. Even if parents separate, they may reach an arrangement where the child can live in an environment which is reasonably conducive to her/his development. As far as the present case is concerned other than the age of the child nothing is in favour of the mother. She herself approached the jurisdictional court in Norfolk. She entered into an agreement on the basis of which a consent order was passed. She has violated that order with impunity and come back to India and, this is a factor which we have to hold against her.
32. In view of the above discussion, we are clearly of the view that it is in the best interest of the child to have parental care of both the parents, if not joint then at least separate. We are clearly of the view that if the wife is willing to go back to USA then all orders with regard to custody, maintenance etc., must be Page 29 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022 R/SCR.A/9711/2021 ORDER DATED: 25/04/2022 looked into by the jurisdictional court in USA. A writ court in India cannot, in proceedings like this direct that an adult spouse should go to America. We are, therefore, issuing directions in two parts. The first part will apply if the appellantwife is willing to go to USA on terms and conditions offered by the husband in his affidavit. The second part would apply if she is not willing to go to USA, how should the husband be granted custody of the child."
11. Noticing presently the age of the corpus even though the child as mentioned in case of Yashita Sahu is required to have the love and warmth of both the parents and it is his right to so do it, however, considering his age, the mother's interim custody shall need to be continued by the Court.
11.1. While so doing, there is a special right of the father which shall need to be regarded. The father shall meet the child on every weekend.
12. We also still have lot of hope in the relationship and it is only because of the place of residence since the spouses do not agree which is not working out as eventually the right of the final custody shall need to be decided by way of a statutory provision, the parties shall need to go before the concerned Court.
12.1. This arrangement shall continue to operate.
Additionally, they shall also be referred to the Buddha Page 30 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022 R/SCR.A/9711/2021 ORDER DATED: 25/04/2022 Counseling Centre established by the Forensic Science Laboratory. Let the counseling in case of the spouses work positively for both of them. If they help them arriving amicable settlement, it would be in the best interest of the child.
13. None of these observations shall act in prejudice to the either side at the time of leading evidence before the competent Court.
14. The complaint of the mother-in-law with regard to the kidnapping of the child, in light of this order of the Court may not survive, however, for its ritually burrier, the parties may approach the appropriate forum for quashment. It is also expected that the complaint filed by the wife under Section 498(A) and other provisions also she may choose to withdraw so as to create a better atmosphere for settlement between the parties.
(SONIA GOKANI, J) (MAUNA M. BHATT,J) Bhoomi Page 31 of 31 Downloaded on : Sat Dec 24 15:37:06 IST 2022