Gujarat High Court
Savdas Sukabhai Karavadra vs Heenaben Savdas Karavadra & 4 on 27 November, 2015
Bench: M.R. Shah, K.J.Thaker
R/SCR.A/6013/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (HABEAS CORPUS) NO. 6013 of 2015
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH Sd/
and
HONOURABLE MR.JUSTICE K.J.THAKER Sd/
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1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
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SAVDAS SUKABHAI KARAVADRA....Applicant(s)
Versus
HEENABEN SAVDAS KARAVADRA & 4....Respondent(s)
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Appearance:
MR YOGESH RAVANI, ADVOCATE with MR AMITBHAI KOTAK, ADVOCATE for the Applicant
MR DEEP D VYAS, ADVOCATE for the Respondent(s) No. 1
MR HIMANSHU K. PATEL, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 5
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CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE K.J.THAKER
Date : 27/11/2015
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] By way of this petition under Article 226 of the Constitution of India, the father of the corpus Ram who has been declared as Ward of the Court by the High Court of Justice, England & Wales, Family Division (hereinafter referred to as "High Court of Justice") has prayed for an appropriate writ of Habeas Corpus and has prayed for appropriate order directing the respondent No.1 to produce the corpus before this Court and thereafter to send the corpus / child to England as Ward of the High Page 1 of 28 HC-NIC Page 1 of 28 Created On Wed Dec 02 00:40:48 IST 2015 R/SCR.A/6013/2015 CAV JUDGMENT Court of Justice.
[2.0] Facts leading to the present Special Criminal Application in nut shell are as under:
[2.1] That the petitioner, his wife and respondent No.1 herein are Indian Domicile and citizens of Britain. It appears that the marriage between the petitioner and respondent No.1 took place as per the Hindu rites at Porbandar, Gujarat, India on 11.12.2006. That at the relevant time the petitioner was residing at Leicester, United Kingdom. After the marriage, respondent No.1 also shifted to Leicester, United Kingdom in the year 2007. That the child Ram was born out of their wedlock on 06.04.2008. That the said Ram was also admitted in a school viz.
Spinney Hill Primary School and Community Centre at Leicester. It appears that some dispute arose between the husband and wife. According to the petitioner the respondent No.1, his wife declared her intention to come to her parental house and hence, with a valid Visa from 13.11.2013 to 12.08.2014, she along with child Ram came back to India on 24.11.2013. However, on reaching India, and though the Visa was valid upto 12.05.2014, the respondent No.1 refused to return to England and even refused to send the child corpus - Ram to England. Therefore, the proceedings were initiated before the High Court of Justice between the petitioner and the respondent No.1. That the High Court of Justice passed an order on 07.02.2014 declaring the child Ram as a Ward of the High Court of Justice during his minority, namely until he is 18 years of age or until further order. That the High Court of Justice also passed further order that the respondent No.1 - mother shall cause the return of the child Ram to the jurisdiction of the England and Wales forthwith upon service of said order upon her. The respondent No.1 herein, mother was ordered to attend the said hearing on 20.02.2014 at 10.00 a.m. to confirm that the said Ward has returned to Page 2 of 28 HC-NIC Page 2 of 28 Created On Wed Dec 02 00:40:48 IST 2015 R/SCR.A/6013/2015 CAV JUDGMENT the jurisdiction of the High Court of Justice. That instead of returning to England along with the corpus / Ward and submitting to the jurisdiction of the High Court of Justice, the respondent No.1 filed reply through her Counsel. It appears that thereafter the matter again came up before the High Court of Justice - Justice Mr. Moor and a further order came to be passed by the High Court of Justice on 05.08.2014 on an application for the peremptory return of Ram. The High Court of Justice also took note of two subsequent proceedings initiated by the respondent No.1 herein, initiated in the domestic Courts at Porbandar, one for her maintenance and another under the provisions of the Hindu Guardianship and Wards Act. The High Court of Justice also noted number of proposals made on behalf of the petitioner father and the High Court of Justice directed the petitioner father to give undertaking that he may not threaten or use violence to the mother on her return; that he will not harass or pester her on her return and that to cooperate and use his best endeavor to secure accommodation for the mother and Ram in Leicester on her return. That the High Court of Justice passed an order directing the respondent No.1 to produce the Ward within the jurisdiction of the High Court of Justice. The High Court of Justice also passed an order and made it clear that on her return, Ram is to live with the mother on an interim basis and that there is no question of Ram being moved from her care without a full hearing by the Court on notice where both parties are able to make full submissions.
Despite the above further order dated 05.08,.2014, neither the respondent No.1 nor the Ward returned to United Kingdom more particularly within the jurisdiction of the High Court of Justice. That thereafter the High Court of Justice having shown the displeasure towards conduct on the part of respondent No.1 in not sending the corpus / Ward to the jurisdiction of the High Court of Justice and not obeying their earlier orders, passed the following order on 07.05.2015.
Page 3 of 28HC-NIC Page 3 of 28 Created On Wed Dec 02 00:40:48 IST 2015 R/SCR.A/6013/2015 CAV JUDGMENT "1. Ram shall remain a ward of this court until further order.
2. The mother shall immediately, and in any event no later than 10 am on 25 May 2015 return Ram or cause him to be returned to the jurisdiction of England and Wales.
3. The mother must bring Ram to the CAFCASS offices at the Queens Building, First Floor, at the Royal Courts of Justice, Strand, London at 11 am on 26 May 2015 so that he can be interviewed by the duty CAFCASS High Court Team Officer. Ram will not be removed from his mother's care other than for him to speak to the CAFCASS officer alone.
4. The matter is listed for hearing in this court at 2 pm on 26 May 2015 with a time estimate of 1 hour (subject to confirmation with the Clerk of the Rules). The CAFCASS officer who interviews Ram shall report to the court the outcome of his or her meeting with Ram. The court will also consider any application the mother might make and the issue of interim contact between Ram and his father.
5. The mother shall attend the hearing referred to at paragraph 3 herein together with any solicitor and counsel who she might instruct.
6. There shall be permission to the father's solicitor to disclose a copy of this order; the order and judgment of Mr. Justice Moor dated 5 August 2014; and the order of Mr. Justice Roderic Wood dated 7 February 2014 to: the Foreign and Commonwealth Office, the Indian Embassy in London and to any relevant authorities in India. Service by email or facsimile shall be considered good service.
7. There shall be permission to the father to obtain translated copies of the items listed at paragraph 6 herein for service on the relevant Indian authorities. The costs of these Page 4 of 28 HC-NIC Page 4 of 28 Created On Wed Dec 02 00:40:48 IST 2015 R/SCR.A/6013/2015 CAV JUDGMENT translations are considered by this Court to be a reasonable and necessary disbursement on the father's public funding certificate.
8. The father's solicitor shall ensure that a copy of the court bundle together with this order is sent forthwith to the CAFCASS High Court Team."
The High Court of Justice also further requested the authorities in India or in the United Kingdom including the Indian Embassy in London who may be asked to renew or extend a visitor Visa or to issue any other Visa / Passport or other travel documents in respect of the Ward - Ram not do so and further requested all Judicial, Administrative and Law Enforcement Authorities in India to use their best endeavors to assist in taking any steps which may to them appear necessary and appropriate in safeguarding and facilitating the return to England and Wales of Ram Savdas Karvadara pursuant to the laws of India and in accordance with the spirit of cooperation and comity between the Courts of England and Wales and those in India. That thereafter the High Court of Justice passed the further order on 04.06.2015. It appears that thereafter the learned Counsel appearing on behalf of the petitioner on the request made by the High Court of Justice approached the appropriate authorities in India viz. British House, High Commission of New Delhi, Bombay; Ministry of Home Affairs, New Delhi etc. for compliance of the orders passed by the High Court of Justice dated 07.02.2014, 05.08.2014 and 07.05.2015. That by communication dated 16.04.2015, the High Commission of India, London before whom also a representation was submitted at the Open House at the High Commission of India, London, communicated / informed the petitioner that the petitioner may take legal advice for taking up the matter with the British High Commission in India through the authorities concerned Page 5 of 28 HC-NIC Page 5 of 28 Created On Wed Dec 02 00:40:48 IST 2015 R/SCR.A/6013/2015 CAV JUDGMENT in the United Kingdom and that the British High Commission in India can take up the matter with the Government Authorities concerned in India. It appears that thereafter all efforts by the High Court of Justice as well as the petitioner and their attorneys to comply with the orders passed by the High Court of Justice, by the respondent No.1 failed and despite service of the orders passed by the High Court of Justice dated 07.02.2014, 05.08.2014 and 07.05.2015 upon the respondent No.1, respondent No.1 in total defiance of the orders passed by the High Court of Justice has refused to return the Ward to the jurisdiction of the High Court of Justice, the petitioner has approached this Court praying for writ of Habeas Corpus and for the aforesaid reliefs.
[3.0] Shri Yogesh Ravani, learned advocate appearing with Shri Amit Kotak, learned advocate appearing on behalf of the petitioner has heavily relied upon the recent decision of the Hon'ble Supreme Court in the case of Surya Vadanan vs. State of Tamil Nadu & Ors. reported in (2015)5 SCC 450 in support of his submissions and prayer to issue writ of Habeas Corpus and pass an appropriate order directing the respondent No.1 to take the corpus - Ram who has already been declared as Ward of the Court to the United Kingdom and participate in the proceedings pending in the High Court of Justice. He has also relied upon the following decisions of the Hon'ble Supreme Court in support of his above submissions and prayers.
1. Sarita Sharma vs. Sushil Sharma reported (2000)3 SCC 14
2. V. Ravi Chandran vs. Union of India (2010)1 SCC 174
3. Shilpa Aggarwal vs. Aviral Mittal & Ors.
(2010)1 SCC 591 Page 6 of 28 HC-NIC Page 6 of 28 Created On Wed Dec 02 00:40:48 IST 2015 R/SCR.A/6013/2015 CAV JUDGMENT
4. Ruchi Majoo vs. Sanjeev Majoo (2011)6 SCC 479
5. Arathi Bandi vs. State of Andhra Pradesh & Ors.
(2013)15 SCC 790 [3.1] Shri Kotak, learned advocate appearing on behalf of the petitioner has vehemently submitted that as such his child - Ram was already studying in a reputed school at Leicester and without any reasonable cause he has been deprived of his education at Leicester and the respondent No.1 without any cause has left United Kingdom and initially had come to India on a limited period Visa. It is submitted that even to keep Ram in India shall not be in the interest of his son Ram. Shri Kotak, learned advocate appearing on behalf of the petitioner has stated at the Bar that he had taken admission for the child Ram in British School and all arrangements have been made for good education of Ram. It is submitted that in fact the petitioner had arranged for Open Air Tickets for traveling to England to meet with the traveling expenses of respondent No.1 as well as Ram. He has also stated at the Bar that the petitioner has also obtained property situated at 515, St. Xaviers Road, Leicester for a period of 6 months for accommodating his child and wife. He has also stated at the Bar that the petitioner has also contacted the school authority where his son was studying and the school had assured by letter dated 29.01.2015 that, on returning of child Ram, steps will be taken to find out suitable school for him in Leicester City. He has also stated at the Bar that the petitioner shall also make necessary arrangements for the maintenance of the respondent No.1 as well as his son Ram and he is ready and willing to and infact shall pay £400 for their maintenance, without prejudice. He has also stated at the Bar that the petitioner is ready and willing to abide by any further conditions that may be imposed by this Court.
Page 7 of 28HC-NIC Page 7 of 28 Created On Wed Dec 02 00:40:48 IST 2015 R/SCR.A/6013/2015 CAV JUDGMENT [3.2] It is vehemently submitted by Shri Ravani and Shri Kotak, learned advocates appearing on behalf of the petitioner that in the present case there are number of orders passed by the High Court of Justice by which the respondent No.1 is directed to produce Ram within the jurisdiction of the High Court of Justice and even Ram has been declared as Ward of the Court. It is submitted that judicial comity requires that the Indian Courts before whom the Court proceedings are initiated by the respondent No.1, initiated subsequent to the orders passed by the High Court of Justice, to respect the orders passed by the Courts of other country. It is submitted that subsequently and as a counter blast to the proceedings before the High Court of Justice, the respondent No.1 has initiated two proceedings before the Courts at Porbandar.
Making above submissions and relying upon above decisions, it is requested to allow the present Special Criminal Application and direct the respondent No.1 to submit to the jurisdiction of the High Court of Justice and take the corpus Ram to United Kingdom and to direct her to participate in the proceedings at United Kingdom.
[4.0] Present petition is opposed by Shri Deep D. Vyas, learned advocate appearing on behalf of the respondent No.1. An affidavit in reply is filed by the respondent No.1 opposing the present petition.
It is vehemently submitted by Shri Vyas, learned advocate appearing on behalf of the respondent No.1 that as such the present proceedings can be said to be execution proceedings to execute the orders passed by the High Court of Justice, for which the present petition under Article 226 of the Constitution of India for writ of Habeas Corpus shall not be maintainable.
[4.1] It is further submitted by Shri Vyas, learned advocate appearing on behalf of the respondent No.1 that infact the petitioner was harassing Page 8 of 28 HC-NIC Page 8 of 28 Created On Wed Dec 02 00:40:48 IST 2015 R/SCR.A/6013/2015 CAV JUDGMENT and illtreating the respondent No.1 and therefore, in the larger interest of herself as well as her son Ram, both of them have come to India and are staying at her parental house. It is further submitted that infact the respondent No.1 has already initiated the proceedings for maintenance as well as under the Hindu Guardianship and Wards Act in the domestic Courts at Porbandar. It is submitted that despite the summonses by the Indian Courts / Domestic Courts having been served upon the petitioner, the petitioner has chosen not to appear in the proceedings pending in the Domestic Courts. It is submitted that therefore as such the petitioner has no respect for the Indian Courts and/or proceedings pending in the Domestic Courts. It is submitted that therefore this Court may not exercise the extraordinary jurisdiction in favour of the petitioner who as such has no respect for Indian Courts / Domestic Courts.
[4.2] It is further submitted that even as observed by the Hon'ble Supreme Court in the case of Surya Vadanan (Supra), the best interest and welfare of the child is of paramount importance. It is submitted that respondent No.1 has already made several arrangements for the betterment of the corpus Ram and also for his education in India. It is submitted that he has got admission in one of the best school in Porbandar where he is taking education. It is further submitted that even the Hon'ble Supreme Court has observed in the case of Survavandan (Supra) that merely because a parent has violated an order of the foreign Court does not mean that, that parent should be penalized for it.
[4.3] It is further submitted by Shri Vyas, learned advocate appearing on behalf of the respondent No.1 that respondent No.1 is the mother of the corpus - Ram and being the mother, she is also her legal guardian and therefore, it cannot be said that the custody of Ram with respondent No.1 is illegal in any manner. It is submitted that therefore as a mother Page 9 of 28 HC-NIC Page 9 of 28 Created On Wed Dec 02 00:40:48 IST 2015 R/SCR.A/6013/2015 CAV JUDGMENT of the minor Ram, she is also equally entitled to keep him with her and therefore, his retention cannot be said to be wrongful. It is submitted that even Custody Case No. CMA 31/2014 in respect of her son Ram is pending before the Domestic Court. It is further submitted that one another Case No.51/2014 for alimony and entitlement of rights, privileges to her and her son Ram is also pending with the Domestic Court. It is further submitted on behalf of the respondent No.1 that as such petitioner had left no stone unturned in torturing her mentally and physically and economically and virtually had drove her away throwing on road.
[4.4] It is further submitted on behalf of the respondent No.1 that she and her son Ram live blissfully and peacefully with her parents in India holding legal valid Visas.
Making above submissions, it is requested not to grant any relief as prayed in the present petition and consequently to dismiss the present petition.
[5.0] In reply Shri Ravani and Shri Kotak, learned advocates appearing on behalf of the petitioner has submitted that earlier the petitioner did not appear in the proceedings before the Domestic Courts having bonafide impression that the Domestic Courts have no jurisdiction. He has stated that however without prejudice to his rights and contentions that the Domestic Courts have no jurisdiction to entertain the proceedings which are already initiated, he shall appear either in person or through advocate in the domestic proceedings.
[6.0] Heard learned advocates appearing on behalf of the respective parties at length.
At the outset it is required to be noted that the corpus Ram - son of the petitioner as well as respondent No.1 were habitual resident in Page 10 of 28 HC-NIC Page 10 of 28 Created On Wed Dec 02 00:40:48 IST 2015 R/SCR.A/6013/2015 CAV JUDGMENT England and Wales. That all the three were staying at Leicester. That all are having British Citizenship and having British Passport. That the corpus Ram was admitted at Leicester in Spinney Hill Primary School and Community Centre. It appears that due to some internal/domestic dispute between the petitioner and respondent No.1, on a six month Visa, the respondent No.1 returned to India with the corpus Ram and since November 2013, the respondent No.1 is in India with corpus Ram and staying at her parental house at Porbandar, Gujarat, India. That as Ram remained absent in School at Leicester, the school management started inquiry. It appears that the respondent No.1 obtained Visa to enable her to come with Ram to India for holiday and their Visa was upto 12.05.2014. That the respondent No.1 also had an open ticket which was required to be exercised before 20.11.2014. However thereafter the respondent No.1 did not return to United Kingdom and therefore, the proceedings are initiated in the High Court of Justice. That an order came to be passed by High Court of Justice on 07.02.2014 declaring the child Ram Savdas Karvadara to be the Ward of the High Court of Justice during his minority and directed the respondent No.1 herein to cause the return of the child Ram to the jurisdiction of England and Wales. That the High Court of Justice passed the following order and directed as under:
"1. The child RAM SAVDAS KARAVADRA (DOB 06.04.2008) shall be and remain a Ward of this Honourable Court during his minority, namely until he is eighteen years of age or until further order.
2. The Respondent mother shall cause the return of the child RAM SAVDAS KARAVADRA (DOB 06.04.2008) to the jurisdiction of England and Wales forthwith upon service of this order upon her.
3. The Applicant father's application for summary return in Wardship shall be listed for directions/determination before a High Court Judge of the Family Division, Royal Page 11 of 28 HC-NIC Page 11 of 28 Created On Wed Dec 02 00:40:48 IST 2015 R/SCR.A/6013/2015 CAV JUDGMENT Courts of Justice, Strand, London, WC2A 2LL on 28th February 2014 at 10:30 am T/E 30 mins, subject to confirmation with the Clerk of the Rules.
4. The Respondent mother, HEENA BEN KARAVADRA is ordered to attend the said hearing on 28th February 2014 at 10:00 am, to confirm that the said ward has returned to this jurisdiction.
5. Liberty is granted to the Respondent mother to apply to vary or discharge the orders herein for 48 hours notice to the solicitors for the Proposed Applicant.
6. Permission is given to the Applicant's solicitors to serve a copy of this order outside the jurisdiction of England of Wales by email or fax, the Foreign and Commonwealth Office, or the authorities of India and the British High Commission / Consulate in India.
7. Costs Reserved.
AND WHEREAS RAM SAVDAS KARAVADRA (DOB
06.04.2008) being a British Citizen having been born here on 6th April 2008;
AND WHEREAS this court has been informed that RAM SAVDAS KARAVADRA (DOB 06.04.2008) travelled with the Respondent to India on or about 25th November 2013;
AND WHEREAS this court has been informed that RAM SAVDAS KARAVADRA (DOB 06.04.2008) is currently being retained in India by HEENA BEN KARAVADRA at Rajwadi Meera Nagar, 2 G.I.D.C. (Understrial Area) Porbandar 360 575, Gujrat, India;
AND WHEREAS this court indicating, notwithstanding where the child was living, that the Applicant and Respondent both have parental responsibility for the children and neither party is entitled to remove the children permanently from the jurisdiction of England and Wales without the consent of the other party or an order of the English courts;
AND WHEREAS RAM SAVDAS KARAVADRA (DOB Page 12 of 28 HC-NIC Page 12 of 28 Created On Wed Dec 02 00:40:48 IST 2015 R/SCR.A/6013/2015 CAV JUDGMENT 06.04.2008) is the subject of proceedings in the Family Division of the High Court of Justice of England and Wales and is a Ward of Court;
AND WHEREAS in consequence of the fact that applications have been made to this court on behalf of RAM SAVDAS KARAVADRA (DOB 06.04.2008) this Court is empowered and required to exercise its jurisdiction over him and to ascertain his best interests in order to facilitate and promote those best interests.
AND WHEREAS this Honourable court is anxious to ensure that RAM SAVDAS KARAVADRA (DOB 06.04.2008) is returned to England and Wales forthwith;
TO: HEENA BEN KARAVADRA YOU MUST OBEY THE DIRECTIONS CONTAINED IN THIS ORDER AND IN PARTICULAR PARAGRAPHS 2 AND 4 HEREIN. IF YOU DO NOT YOU WILL BE GUILTY OF CONTEMPT OF COURT AND YOU MAY BE SENT TO PRISON, FINED OR YOUR ASSETS SEIZED AND THE COURT RESPECTFULLY REQUESTS;
8. Any person not within the jurisdiction of this Court who is in a position to do so to cooperate in assisting and securing the immediate return to England and Wales, of the Ward, RAM SAVDAS KARAVADRA (DOB 06.04.2008)
9. All judicial, administrative and law enforcement authorities of India are requested to use their best endeavours to assist in taking any steps which may to them appear necessary and appropriate in locating, safeguarding and facilitating the return to England and Wales of the said minor child pursuant to the laws of India."
It appears that thereafter a further order came to be passed by Mr. Justice Moor of High Court of Justice on 05.08.2014 having noted that though the mother has accepted service of the earlier order, she has not complied with the same and she is, therefore, in breach of the earlier order dated 07.02.2014. That thereafter passed a detailed order and issued the following directions as under:
Page 13 of 28HC-NIC Page 13 of 28 Created On Wed Dec 02 00:40:48 IST 2015 R/SCR.A/6013/2015 CAV JUDGMENT "1. The said minor RAM SAVDAS KARAVADRA do remain a Ward of this Honourable Court during his respective minority or until further order.
2. The Respondent mother shall cause the return of the child RAM SAVDAS KARAVADRA to the jurisdiction of England and Wales forthwith upon service of this order upon her.
3. The child RAM SAVDAS KARAVADRA shall upon his return to the jurisdiction of England and Wales shall not be removed from this jurisdiction until further order.
4. The application shall be restored before a Judge of the High Court Family division sitting at the Royal Courts of Justice, Strand, London WC2A 2LL within 48 working hours of RAM SAVDAS KARAVADRA being returned to the jurisdiction. Upon the applicant solicitors liaising with the clerk of the rules. Her Majesty's court service shall ensure that a suitable Gujarati translator is available to assist the mother at his hearing.
5. The child RAM SAVDAS KARAVADRA shall remain in the care and control of the respondent mother until further order.
6. No person shall cause RAM SAVDAS KARAVADRA to be removed from the care and control of the respondent mother without a further order of this Honourable court at a hearing at which the applicant father and the respondent mother have been given notice and an opportunity, if so advised, to obtain legal assistance and representation.
7. A transcript of the judgment given today by Mr. Justice MOOR shall be prepared by the applicant on an expedited Page 14 of 28 HC-NIC Page 14 of 28 Created On Wed Dec 02 00:40:48 IST 2015 R/SCR.A/6013/2015 CAV JUDGMENT basis. The court certifying that the costs associated with preparing the transcript is necessary to assist in the return of the child forthwith to this jurisdiction and is a proper disbursement upon the applicant father's public funding certificate.
8. Liberty is granted to the Respondent mother to apply to vary or discharge the orders herein on 48 hours notice to the solicitors for the Proposed Applicant.
9. Permission is given to the Applicant's solicitors to serve a copy of this order outside the jurisdiction of England of Wales by email or fax, the Foreign and Commonwealth Office, or the authorities of India and the British High Commission / Consulate in India.
10. Service of this order may be effected by the applicant solicitors:
i) serving a sealed copy by courier or register post at the address given in the mother's statement dated 12 June 2014; and
ii) serving a sealed copy by courier or register post on the mother's Indian advocate at the address given in their letter addressed to the applicant solicitors dated 12 June 2014
11. Upon the court concluding that it is appropriate to invite the International Judicial Liaison - The Office of the Head of International Family Justice to:
i) Liaise with the requisite judicial liaison office in the Republic of India;
ii) Make available to the requisite judicial liaison officer in the Republic of India a transcript of the Page 15 of 28 HC-NIC Page 15 of 28 Created On Wed Dec 02 00:40:48 IST 2015 R/SCR.A/6013/2015 CAV JUDGMENT judgment given today by Mr. Justice MOOR and a copy of this order;
iii) Make enquiries, as to what steps can be taken to ensure the forthwith return of this honourable court's Ward to this jurisdiction.
12. No order for costs save if sought in the absolute discretion of the applicant solicitors a detailed public funding assessment of the applicant costs.
AND THE COURT RESPECTFULLY REQUESTS:
13. Any person not within the jurisdiction of this Court who is in a position to do so to cooperate in assisting and securing the immediate return to England and Wales, of the Ward, RAM SAVDAS KARAVADRA.
14. All judicial, administrative and law enforcement authorities of India are requested to use their best endeavours to assist in taking any steps which may to them appear necessary and appropriate in locating, safeguarding and facilitating the return to England and Wales of the said minor child pursuant to the laws of India.
15. In particular the court respectfully invites the assistance of the 2nd Edition Senior Civil Court, Porbandar, Gujarat where the mother appears to have commenced an application on or about 16 June 2014 Civil Miscellaneous Application number 18/14 in relation to maintenance for herself and possibly the child, in affecting the return of its ward to the jurisdiction of England and Wales forthwith.
It appears that thereafter the respondent No.1 filed a reply in the proceedings before the High Court of Justice. In the first reply inter alia Page 16 of 28 HC-NIC Page 16 of 28 Created On Wed Dec 02 00:40:48 IST 2015 R/SCR.A/6013/2015 CAV JUDGMENT she stated that she is not having a single penny and that she along with her son reside with her parents and that she has no money to travel from Porbandar to London. She also filed the reply on merits also. One another reply came to be filed by her on 09.12.2014. In the reply dated 09.12.2014, she requested to grant the following reliefs.
"(1) She be made financially safe right from the beginning to end of the case in U.K. to enable her to cover all expenses, towards litigations, accommodation, livelihood and other recurring and unforeseen expenses.
(2) She be provided full security during her stay in U.K. till safe return to India."
It appears that in the subsequent proceedings the High Court of Justice took note of the statement of respondent No.1 dated 09.12.2014 in which she sought the assurance from that Court and thereafter passed the following order on 07.05.2014.
"1. Ram shall remain a ward of this court until further order.
2. The mother shall immediately, and in any event no later than 10 am on 25 May 2015 return Ram or cause him to be returned to the jurisdiction of England and Wales.
3. The mother must bring Ram to the CAFCASS offices at the Queens Building, First Floor, at the Royal Courts of Justice, Strand, London at 11 am on 26 May 2015 so that he can be interviewed by the duty CAFCASS High Court Team Officer. Ram will not be removed from his mother's care other than for him to speak to the CAFCASS officer alone.
4. The matter is listed for hearing in this court at 2 pm on 26 May 2015 with a time estimate of 1 hour (subject to Page 17 of 28 HC-NIC Page 17 of 28 Created On Wed Dec 02 00:40:48 IST 2015 R/SCR.A/6013/2015 CAV JUDGMENT confirmation with the Clerk of the Rules). The CAFCASS officer who interviews Ram shall report to the court the outcome of his or her meeting with Ram. The court will also consider any application the mother might make and the issue of interim contact between Ram and his father.
5. The mother shall attend the hearing referred to at paragraph 3 herein together with any solicitor and counsel who she might instruct.
6. There shall be permission to the father's solicitor to disclose a copy of this order; the order and judgment of Mr. Justice Moor dated 5 August 2014; and the order of Mr. Justice Roderic Wood dated 7 February 2014 to: the Foreign and Commonwealth Office, the Indian Embassy in London and to any relevant authorities in India. Service by email or facsimile shall be considered good service.
7. There shall be permission to the father to obtain translated copies of the items listed at paragraph 6 herein for service on the relevant Indian authorities. The costs of these translations are considered by this Court to be a reasonable and necessary disbursement on the father's public funding certificate.
8. The father's solicitor shall ensure that a copy of the court bundle together with this order is sent forthwith to the CAFCASS High Court Team."
[6.1] Despite the above orders, the respondent No.1 has failed to take Ram to United Kingdom and submit to the jurisdiction of the High Court of Justice and as such in clear defiance of the various orders passed by the High Court of Justice has continued to stay more particularly continued to keep the corpus - Ram in India. As observed hereinabove, Page 18 of 28 HC-NIC Page 18 of 28 Created On Wed Dec 02 00:40:48 IST 2015 R/SCR.A/6013/2015 CAV JUDGMENT corpus Ram is already declared as Ward of the High Court of Justice and there are specific directions directing the respondent No.1 to take the corpus to United Kingdom and return Ram to the jurisdiction of the England and Wales. From the various orders passed by the High Court of Justice, it appears that even the Court has observed that services of International Judicial Liaison Office should be used in communicating with the relevant Indian Court. Even the High Court of Justice has also requested all Judicial, Administrative, Law Enforcement Authorities in India to use their best endeavors to assist in taking any steps which may to them appear necessary and appropriate in safeguarding and facilitating the return to England and Wales, of ward Ram pursuant to the laws of India and in accordance with the spirit of cooperation and comity between the Courts of England and Wales and those in India.
[6.2] It appears that instead of complying with the orders passed by the High Court of Justice and instead of returning to United Kingdom and submit to the jurisdiction of the High Court of Justice and participate in the proceedings before the High Court of Justice, the respondent No.1 has initiated two proceedings before the domestic Courts, one under the Hindu Guardianship and Wards Act and another, for her maintenance and the maintenance of the corpus Ram. It appears that both the aforesaid proceedings are initiated by the respondent No.1 after the proceedings before the High Court of Justice were initiated. No further order has been passed by the domestic Courts in any of the proceedings. In backdrop of the above, the present proceedings / petition is required to be considered.
[6.3] Identical question came to be considered by the Hon'ble Supreme Court in the case of Surya Vadanan (Supra). In the case before the Hon'ble Supreme Court also, there was an interim / interlocutory order Page 19 of 28 HC-NIC Page 19 of 28 Created On Wed Dec 02 00:40:48 IST 2015 R/SCR.A/6013/2015 CAV JUDGMENT passed by the foreign (United Kingdom) competent Court of jurisdiction first in point of time making child a Ward of the Court and there was a violation of such order by a parent and the aggrieved parent approached the Madras High Court for a writ of Habeas Corpus and the High Court of Madras dismissed the said writ petition, against which one of the parent approached the Hon'ble Supreme Court. After considering the earlier decisions of the Hon'ble Supreme Court in the case of (1) Sarita Sharma vs. Sushil Sharma reported in (2000)3 SCC 14; (2) V. Ravi Chandran vs. Union of India reported in (2010)1 SCC 174; (3) Shilpa Aggarwal vs. Aviral Mittal & Ors. reported in (2010)1 SCC 591; Ruchi Majoo vs. Sanjeev Majoo reported in (2011)6 SCC 479 and Arathi Bandi vs. State of Andhra Pradesh & Ors. reported in (2013)15 SCC 790, the Hon'ble Supreme Court in the case of Surya Vadanan (Supra) while emphasizing to adhere to the principle of "comity of Courts" in paras 46 to 56 has observed and held as under:
"46. The principle of the comity of courts is essentially a principle of selfrestraint, applicable when a foreign court is seized of the issue of the custody of a child prior to the domestic court. There may be a situation where the foreign court though seized of the issue does not pass any effective or substantial order or direction. In that event, if the domestic court were to pass an effective or substantial order or direction prior in point of time then the foreign court ought to exercise self restraint and respect the direction or order of the domestic court (or vice versa), unless there are very good reasons not to do so.
47. From a review of the above decisions, it is quite clear that there is complete unanimity that the best interests and welfare of the child are of paramount importance. However, it should be clearly understood that this is the final goal or the final objective to be achieved it is not the beginning of the exercise but the end.
48. Therefore, we are concerned with two principles in a case such as the present. They are:
(i) The principle of comity of courts and
(ii) The principle of the best interests and the welfare of the child.
These principles have been referred to "contrasting principles of law"
but they are not 'contrasting' in the sense of one being the opposite of the other but they are contrasting in the sense of being different Page 20 of 28 HC-NIC Page 20 of 28 Created On Wed Dec 02 00:40:48 IST 2015 R/SCR.A/6013/2015 CAV JUDGMENT principles that need to be applied in the facts of a given case.
49. What then are some of the key circumstances and factors to take into consideration for reaching this final goal or final objective? First, it must be appreciated that the "most intimate contact" doctrine and the "closest concern" doctrine of Surinder Kaur Sandhu are very much alive and cannot be ignored only because their application might be uncomfortable in certain situations. It is not appropriate that a domestic court having much less intimate contact with a child and having much less close concern with a child and his or her parents (as against a foreign court in a given case) should take upon itself the onerous task of determining the best interests and welfare of the child. A foreign court having the most intimate contact and the closest concern with the child would be better equipped and perhaps best suited to appreciate the social and cultural milieu in which the child has been brought up rather than a domestic court. This is a factor that must be kept in mind.
50. Second, there is no reason why the principle of "comity of courts" should be jettisoned, except for special and compelling reasons. This is more so in a case where only an interim or an interlocutory order has been passed by a foreign court (as in the present case). In McKee which has been referred to in several decisions of this court, the Judicial Committee of the Privy Council was not dealing with an interim or an interlocutory order but a final adjudication. The applicable principles are entirely different in such cases. In this appeal, we are not concerned with a final adjudication by a foreign court the principles for dealing with a foreign judgment are laid down in Section 13 of the Code of Civil Procedure. In passing an interim or an interlocutory order, a foreign court is as capable of making a prima facie fair adjudication as any domestic court and there is no reason to undermine its competence or capability. If the principle of comity of courts is accepted, and it has been so accepted by this court, we must give due respect even to such orders passed by a foreign court. The High Court misdirected itself by looking at the issue as a matter of legal rights of the parties. Actually, the issue is of the legal obligations of the parties, in the context of the order passed by the foreign court.
51. If an interim or an interlocutory order passed by a foreign court has to be disregarded, there must be some special reason for doing so. No doubt we expect foreign courts to respect the orders passed by courts in India and so there is no justifiable reason why domestic courts should not reciprocate and respect orders passed by foreign courts. This issue may be looked at from another perspective. If the reluctance to grant respect to an interim or an interlocutory order is extrapolated into the domestic sphere, there may well be situations where a Family Court in one State declines to respect an interim or an Page 21 of 28 HC-NIC Page 21 of 28 Created On Wed Dec 02 00:40:48 IST 2015 R/SCR.A/6013/2015 CAV JUDGMENT interlocutory order of a Family Court in another State on the ground of best interests and welfare of the child. This may well happen in a case where a person ordinarily resident in one State gets married to another person ordinarily resident in another State and they reside with their child in a third State. In such a situation, the Family Court having the most intimate contact and the closest concern with the child (the court in the third State) may find its orders not being given due respect by a Family Court in the first or the second State. This would clearly be destructive of the equivalent of the principle of comity of courts even within the country and, what is worse, destructive of the rule of law.
52. What are the situations in which an interim or an interlocutory order of a foreign court may be ignored? There are very few such situations. It is of primary importance to determine, prima facie, that the foreign court has jurisdiction over the child whose custody is in dispute, based on the fact of the child being ordinarily resident in the territory over which the foreign court exercises jurisdiction. If the foreign court does have jurisdiction, the interim or interlocutory order of the foreign court should be given due weight and respect. If the jurisdiction of the foreign court is not in doubt, the "first strike"
principle would be applicable. That is to say that due respect and weight must be given to a substantive order prior in point of time to a substantive order passed by another court (foreign or domestic).
53. There may be a case, as has happened in the present appeal, where one parent invokes the jurisdiction of a court but does not obtain any substantive order in his or her favour and the other parent invokes the jurisdiction of another court and obtains a substantive order in his or her favour before the first court. In such an event, due respect and weight ought to be given to the substantive order passed by the second court since that interim or interlocutory order was passed prior in point of time. As mentioned above, this situation has arisen in the present appeal Mayura had initiated divorce proceedings in India before the custody proceedings were initiated by Surya in the U.K. but the foreign court passed a substantive order on the custody issue before the domestic court. This situation also arose in Ruchi Majoo where Ruchi Majoo had invoked the jurisdiction of the domestic court before Rajiv Majoo but in fact Rajiv Majoo obtained a substantive order from the foreign court before the domestic court. While the substantive order of the foreign court in Ruchi Majoo was accorded due respect and weight but for reasons not related to the principle of comity of courts and on merits, custody of the child was handed over to Ruchi Majoo, notwithstanding the first strike principle.
54. As has been held in Arathi Bandi a violation of an interim or an interlocutory order passed by a court of competent jurisdiction Page 22 of 28 HC-NIC Page 22 of 28 Created On Wed Dec 02 00:40:48 IST 2015 R/SCR.A/6013/2015 CAV JUDGMENT ought to be viewed strictly if the rule of law is to be maintained. No litigant can be permitted to defy or decline adherence to an interim or an interlocutory order of a court merely because he or she is of the opinion that that order is incorrect that has to be judged by a superior court or by another court having jurisdiction to do so. It is in this context that the observations of this court in Sarita Sharma and Ruchi Majoo have to be appreciated. If as a general principle, the violation of an interim or an interlocutory order is not viewed seriously, it will have widespread deleterious effects on the authority of courts to implement their interim or interlocutory orders or compel their adherence. Extrapolating this to the courts in our country, it is common knowledge that in cases of matrimonial differences in our country, quite often more than one Family Court has jurisdiction over the subject matter in issue. In such a situation, can a litigant say that he or she will obey the interim or interlocutory order of a particular Family Court and not that of another? Similarly, can one Family Court hold that an interim or an interlocutory order of another Family Court on the same subject matter may be ignored in the best interests and welfare of the child? We think not. An interim or an interlocutory is precisely what it is interim or interlocutory and is always subject to modification or vacation by the court that passes that interim or interlocutory order. There is no finality attached to an interim or an interlocutory order. We may add a word of caution here merely because a parent has violated an order of a foreign court does not mean that that parent should be penalized for it. The conduct of the parent may certainly be taken into account for passing a final order, but that ought not to have a penalizing result.
55. Finally, this court has accepted the view that in a given case, it might be appropriate to have an elaborate inquiry to decide whether a child should be repatriated to the foreign country and to the jurisdiction of the foreign court or in a given case to have a summary inquiry without going into the merits of the dispute relating to the best interests and welfare of the child and repatriating the child to the foreign country and to the jurisdiction of the foreign court.
56. However, if there is a preexisting order of a foreign court of competent jurisdiction and the domestic court decides to conduct an elaborate inquiry (as against a summary inquiry), it must have special reasons to do so. An elaborate inquiry should not be ordered as a matter of course. While deciding whether a summary or an elaborate inquiry should be conducted, the domestic court must take into consideration:
(a) The nature and effect of the interim or interlocutory order passed by the foreign court.
(b) The existence of special reasons for repatriating or not repatriating the child to the jurisdiction of the foreign court.Page 23 of 28
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(c) The repatriation of the child does not cause any moral or physical or social or cultural or psychological harm to the child, nor should it cause any legal harm to the parent with whom the child is in India. There are instances where the order of the foreign court may result in the arrest of the parent on his or her return to the foreign country.[35] In such cases, the domestic court is also obliged to ensure the physical safety of the parent.
(d) The alacrity with which the parent moves the concerned foreign court or the concerned domestic court is also relevant. If the time gap is unusually large and is not reasonably explainable and the child has developed firm roots in India, the domestic court may be well advised to conduct an elaborate inquiry."
That the Hon'ble Supreme Court has clearly observed and held that a violation of an interim / interlocutory order passed by the Court of competent jurisdiction ought to be viewed strictly if the Rule of Law is to be maintained.
[6.4] Now, applying the law laid down by the Hon'ble Supreme Court in the case of Surya Vadanan (Supra) to the facts of the case on hand which are similar to those in the case of Surya Vadanan (Supra), in the present case there are various interim orders passed by the High Court of Justice declaring Ram as Ward of the Court and directing respondent No.1 to return Ram to the jurisdiction of the England and Wales and despite having served with the interim orders passed by the High Court of Justice, the respondent No.1 has failed to take Ram to the jurisdiction of England and Wales.
As observed hereinabove, she has initiated the proceedings in the domestic Courts after the first interim / interlocutory order passed by the High Court of Justice and after Ram being declared as Ward of the Court and as on today no further orders are passed by the domestic Courts and/or no order has been passed by any of the domestic Courts which can be said to be in conflict with the interim / interlocutory orders passed by the High Court of Justice.
Page 24 of 28HC-NIC Page 24 of 28 Created On Wed Dec 02 00:40:48 IST 2015 R/SCR.A/6013/2015 CAV JUDGMENT [6.5] In view of the above and as observed by the Hon'ble Supreme Court in the case of Surya Vadanan (Supra), Judicial Comity requires that the respondent No.1 herein must be directed to take Ram to the jurisdiction of the England and Wales more particularly the High Court of Justice. As observed hereinabove, as such the High Court of Justice has also observed that till any further orders are passed, Ram shall be in the custody of the mother - respondent No.1. Therefore and considering the decision of the Hon'ble Supreme Court in the case of Surya Vadanan (Supra), we are of the opinion that this is a fit case to exercise extraordinary powers under Article 226 of the Constitution of India and to issue Writ of Habeas Corpus and/or appropriate writ or order directing the respondent No.1 to take her son Ram who is already declared as Ward of the Court by the High Court of Justice to United Kingdom and within the jurisdiction of England and Wales (if she so chooses). However, certain directions are also required to be issued to the petitioner to safeguard the interest of the respondent No.1 as well as the corpus Ram and for their safe passage and travel to United Kingdom as well as for their maintenance at Leicester, United Kingdom, as it is the case on behalf of the respondent No.1 and so stated in her statement before the High Court of Justice dated 09.12.2014 that she is not having any money to return to United Kingdom and that she is wholly dependent upon her parents.
[7.0] In view of the above and for the reasons stated above, present petition succeeds and accordingly, we direct as follows:
1. That respondent No.1 - Heenaben Savdas Karavadra is hereby directed to comply with the orders dated 07.02.2014, 05.08.2014 and 07.05.2015 passed by the High Court of Justice and is hereby directed to take the corpus Ram to the jurisdiction of England and Wales more particularly jurisdiction of the High Page 25 of 28 HC-NIC Page 25 of 28 Created On Wed Dec 02 00:40:48 IST 2015 R/SCR.A/6013/2015 CAV JUDGMENT Court of Justice, Family Division, England and Wales and submit to the jurisdiction of the High Court of Justice, Family Division, England and Wales forthwith and the respondent No.1 is also hereby directed to participate (if she so chooses) in the proceedings pending with the High Court of Justice;
2. That the petitioner herein - Savdas Sukhabhai Karavadra shall pay the airfare or purchase the tickets for travel of the respondent No.1 as well as son Ram to United Kingdom and later, if necessary, for their return to India. He shall also make all arrangements for their comfortable stay at Leicester as assured by him before the High Court of Justice as well as before this Court, subject to further orders of High Court of Justice;
3. That the petitioner herein Savdas Sukhabhai Karavadra shall also pay maintenance to respondent No.1 - Heenaben Savdas Karavadra and his son Ram at a reasonable figure to be decided by the High Court of Justice or any other Court having jurisdiction to take a decision in the matter. Until then, and to meet minimum out of pocket expenses, the petitioner Savdas Sukhabhai Karavadra will give to the respondent No.1 - Heenaben Savdas Karavadra prior to her departure from India, an amount equivalent to £ 1000 (One Thousand Pounds Only);
4. That in the event respondent No.1 - Heenaben Savdas Karavadra does not comply with the directions given by us, the petitioner Savdas Sukhabhai Karavadra will be entitled to take son Ram with him to the United Kingdom for further proceedings in the High Court of Justice. To enable this, respondent No.1 -
Heenaben Savdas Karavadra will deliver to petitioner Savdas Page 26 of 28 HC-NIC Page 26 of 28 Created On Wed Dec 02 00:40:48 IST 2015 R/SCR.A/6013/2015 CAV JUDGMENT Sukhabhai Karavadra the passport of Ram.
All the aforesaid directions shall be without prejudice to the rights and contentions of the respective parties in the proceedings pending before the High Court of Justice, Family Division, England and Wales and/or even pending in the domestic Courts. Rule is made absolute to the aforesaid extent. An amount of Rs.50,000/ which is already deposited by the petitioner pursuant to our earlier order dated 19.10.2015 shall be paid to the respondent No.1 - Heenaben Savdas Karavadra by the Registry by Account Payee Cheque forthwith.
Sd/ (M.R. SHAH, J.) Sd/ (K.J. THAKER, J.) FURTHER ORDER At this stage, Shri Vyas, learned advocate for the respondent No.1 has submitted that looking to the fact that corpus Ram is studying in the school at Porbandar and is in the midst of the academic year and examination shall be conducted by the school in the month of March / April 2016, suitable observations be made that the direction issued by this Court be implemented in the first week of May 2016 or examination of the corpus is over whichever is earlier.
Shri Ravani, learned advocate for Shri Kotak, learned advocate for the petitioner has opposed the prayer made by the learned advocate for the respondent by submitting that it will be open for the respondent No.1 to make a request before the High Court of Justice, England & Wales, Family Division so that appropriate further order can be passed by the High Court of Justice and thereafter if any further order is passed by the High Court of Justice either corpus can be send back to India for Page 27 of 28 HC-NIC Page 27 of 28 Created On Wed Dec 02 00:40:48 IST 2015 R/SCR.A/6013/2015 CAV JUDGMENT examination and / or he can be admitted in the school in Leicester. Considering the fact that by and large 2/3rd term is over and looking to the larger interest of the corpus and his education, it is directed that the direction contained in the present order be implemented from the first week of May 2016 or when the examination of the corpus at academic school at Porbandar is concluded / over, whichever is earlier. It is directed that respondent No.1 shall intimate to the petitioner as well as send a communication to the High Court of Justice the examination programme of the corpus and schedule of examination within a period of two weeks from today.
Sd/ (M.R. SHAH, J.) Sd/ (K.J. THAKER, J.) Ajay Page 28 of 28 HC-NIC Page 28 of 28 Created On Wed Dec 02 00:40:48 IST 2015