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[Cites 9, Cited by 0]

Andhra HC (Pre-Telangana)

Arvind Gopal Krishna Chawda vs The State Of Telangana Rep. By Its ... on 21 October, 2016

Author: Sanjay Kumar

Bench: Sanjay Kumar

        

 
THE HONBLE SRI JUSTICE SANJAY KUMAR AND THE HONBLE SRI JUSTICE M.SEETHARAMA                    

WRIT PETITION NO.20709 OF 2015     

21-10-2016 

Arvind Gopal Krishna Chawda .. Petitioner

The State of Telangana rep. by its Principal Secretary, Home Department and
others .. Respondents

Counsel for the Petitioner:  Sri Prabhijit Jauhar and
                              Sri T. Anirudh Reddy

Counsel for 1 to 5 respondents: Additional Advocate
                                 General (Telangana)

Counsel for the 6th respondent: Sri K.Vivek Reddy

<Gist:

>Head Note:     


? CASES REFERRED:      

1. (1951) Appeal Cases 352 
2. (1973) 2 SCC 674 
3. (1984) 3 SCC 698 
4. (1987) 1 SCC 42 
5. (1991) 3 SCC 451 
6. (2000) 3 SCC 14 
7. (2001) 5 SCC 247 
8. (2003) 7 SCC 250 
9. (2010) 1 SCC 174 
10. (2010) 1 SCC 591 
11. 163 (2009) DLT 627 (DB) 
12. 113 (2004) DLT 823 (DB) 
13. (2010) 4 SCC 409 
14. (2011) 6 SCC 479 
15. (1998) 1 SCC 112 
16. (2013) 15 SCC 790 
17. (2015) 5 SCC 450 

THE HONBLE SRI JUSTICE SANJAY KUMAR         
AND  
THE HONBLE SRI JUSTICE M.SEETHARAMA MURTI           

WRIT PETITION NO.20709 OF 2015     

O R D E R

(Per Honble Sri Justice Sanjay Kumar) Arvind Gopal Krishna Chawda, the petitioner herein, was hitherto married to Pulla Sunita Rani, the 6th respondent. He presently seeks a writ of habeas corpus for production of their minor children, Kashvi Chawda and Krish Chawda, citizens of the United States of America (USA), from her custody and to cause their return to the jurisdiction of the courts in New Jersey, USA, in compliance with the orders dated 20.03.2013, 13.08.2013, 31.10.2013 and 23.01.2014 passed by the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, USA (hereinafter, the American Court). In the alternative, he seeks a direction to the 6th respondent to hand over the custody of the minor children to him so that he can take them back to the jurisdiction of the American Court. A further direction is sought to the 6th respondent to deliver to the petitioner the required documents which are in her custody, such as the passports and other travel related documents of the children, to facilitate their return to the USA.

The petitioner and the 6th respondent were married at Hyderabad on 27.04.2002 as per Hindu rites. The petitioner was residing in the USA since 1996 and after their marriage; the 6th respondent joined him there in December, 2002. Kashvi, their daughter, was born on 12.07.2005 in the USA, and was therefore an American citizen by birth. The 6th respondent completed her internship as a pharmacist in the USA at this time. Krish, their son, was born on 11.04.2011 in the USA and was also an American citizen by birth. The 6th respondent left the USA with both the children on 17.03.2013 and came to India. Whether the petitioner had knowledge of this is disputed. According to him, he had no such information and came to know of it only when he called the school on 18.03.2013 to find out about the children and was told that they had not come to school. He claimed that he filed a Missing complaint with the National Centre of Missing and Exploited Children. He filed a petition for divorce and custody before the American Court on 19.03.2013. Thereupon, the American Court passed order dated 20.03.2013 for production and return of the children to its jurisdiction. The petitioner claimed that the 6th respondent received the summons from the American Court but suppressing the same, she filed a complaint under Section 498-A IPC at Hyderabad.

The petitioner asserted that, without disclosing that an interim order of custody had already been granted to him in relation to their children, the 6th respondent filed O.P.No.440 of 2013 before the Family Court, Hyderabad, for divorce and custody, wherein she filed I.A.No.195 of 2013, and obtained an ad-interim injunction dated 02.04.2013 restraining him and his family members from removing the minor children from her custody. The petitioner further asserted that the 6th respondent submitted to the jurisdiction of the American Court and faxed letter dated 11.04.2013, through her counsel, to the American Court seeking time to file her counter. The 6th respondents counsel in the USA informed the American Court, by letter dated 18.04.2013, that the 6th respondent was still finalizing her reservations to return to the USA. A similar plea was taken by the 6th respondents counsel under letter dated 22.04.2013.

The petitioner stated that the 6th respondent also filed an application before the American Court on 24.04.2013 to dissolve its restraint as to the childrens custody as turning over the children to the petitioner was not in their best interest. The American Court passed order dated 06.06.2013 holding that it had competence and jurisdiction to deal with the custody and parenting time in relation to the children. The petitioner claimed that the 6th respondent again submitted to the jurisdiction of the American Court by filing applications on 29.06.2013 and 03.09.2013. He also claimed that a consent order was passed by the American Court on 13.08.2013, recording that the 6th respondent had agreed to return to the USA on 29.08.2013 along with the children and directing the petitioner to purchase their air tickets. The petitioner claimed that he purchased the tickets as directed, but the 6th respondent flouted the order and did not return. He further claimed that he filed contempt proceedings against the 6th respondent in this regard.

While so, the American Court passed order dated 31.10.2013 granting sole legal and residential custody of the children to the petitioner. Thereafter, the American Court granted a decree of divorce on 23.01.2014 and also granted sole legal and residential custody of the minor children to the petitioner pursuant to its earlier order dated 31.10.2013. As the 6th respondent refused to comply with the orders of the American Court, the petitioner stated that he came to Hyderabad, India, in the last week of October, 2014, but found them unavailable at the address furnished to the American Court. The petitioner stated that he submitted a complaint to the police authorities on 17.11.2014 but no action was taken thereupon. The petitioner stated that he approached the Supreme Court of India under Article 32 of the Constitution, seeking a writ of habeas corpus in relation to the children, but the same was dismissed by the Supreme Court, vide order dated 18.12.2014, granting him liberty to approach this Court for the said relief. The petitioner thereupon filed this writ petition asserting that the 6th respondent had unlawfully detained their children in India contrary to the orders passed by the American Court and prayed for relief.

In her counter-affidavit, the 6th respondent asserted that by virtue of the order dated 02.04.2013 passed by the Family Court, Hyderabad, in I.A.No.195 of 2013 in O.P.No.440 of 2013, her custody of the children could not be categorized as unlawful. She stated that the petitioner was contesting the said case and had also filed a petition under Order 7 Rule 11 CPC to dismiss it. Adverting to their matrimonial disputes at length, the 6th respondent stated that she left the USA on 17.03.2013 and returned to India along with both the children, after informing the petitioner and all concerned, including her daughters school, her place of work and her babysitter. She further stated that upon her return to India, she filed O.P.No.440 of 2013 for divorce on the ground of cruelty and sought permanent custody of her children. Therein, interim order dated 02.04.2013 was passed protecting her custody of the children. She stated that she also filed a complaint against the petitioner and others under Sections 498-A and 406 IPC read with Section 34 IPC along with Sections 4 and 6 of the Dowry Prohibition Act, 1961, before the Central Crime Station, Hyderabad. Crime No.151 of 2013 was thereupon registered and a charge sheet was eventually laid before the learned XIII Additional Chief Metropolitan Magistrate, Hyderabad, in C.C.No.283 of 2013. The petitioners family members filed Criminal Petition No.15183 of 2013 before this Court to quash the said criminal proceedings and it was allowed only in relation to the father and brother of the petitioner, against whom the charges were quashed, but A5, the sister of the petitioner, was directed to face trial and prove her innocence, as specific overt acts were attributed to her.

The 6th respondent stated that she came to India on 17.03.2013 because her father was admitted to a hospital owing to a heart problem. She stated that she had packed her luggage in the presence of the petitioner and his friends, including his friends wife, who came to help her pack. She further stated that the petitioner himself sent her an e-mail informing her of the flight details in this regard and therefore denied his claim that she had taken away the children clandestinely. She denied the petitioners claim that she did not disclose the receipt of summons from the American Court while filing a criminal complaint. She said that she had referred in her criminal complaint to the filing of a false complaint by the petitioner. She further stated that she intended to go back to the USA but due to a fall in the bathroom, she had to cancel her tickets as she had suffered a lumbar spine injury. She denied that she brought away the children without the petitioners knowledge and that her custody of the children was unlawful by virtue of this fact and the subsequent developments in the form of the orders of the American Court.

Sri Prabhijit Jauhar, learned counsel representing Sri T. Anirudh Reddy, learned counsel for the petitioner, would contend that be it on application of the first strike principle or the comity of courts principle, the petitioner would be entitled to custody of the children. Learned counsel would point out that the interlocutory order of custody secured by the petitioner on 20.03.2013 was earlier in point of time to the order secured by the 6th respondent on 02.04.2013 from the local Court, so as to justify application of the first strike principle. He would further state that as the children are American citizens and as the 6th respondent has also filed an application before the Family Court, Hyderabad, for securing the signatures of the petitioner to renew their American passports, her intention to continue with their American citizenship is clear and therefore, the American Court alone would have jurisdiction over them as it would have the most intimate contact with them. He would submit that the 6th respondent can take the benefit of the liberty given to her by the American Court, in the final order dated 23.01.2014, and approach the American Court for resolution of her visitation issues in relation to the children.

Per contra, Sri K.Vivek Reddy, learned counsel for the 6th respondent, would contend that a writ of habeas corpus is not the proper remedy for the petitioner. Learned counsel would point out that the petitioner has already obtained a final order of custody from the American Court and therefore, the distinction drawn between an interlocutory order and a final order of a foreign court, in matters of this nature, would come into play and contend that the only remedy for the petitioner is to seek execution of the said final order of the American Court by way of suitable proceedings instituted before a local court of competent jurisdiction. Learned counsel would further contend that in the light of the interim order dated 02.04.2013 passed by the Family Court, Hyderabad, in relation to the custody of the children, the 6th respondent cannot be said to be in unlawful custody, whereby the petitioner could take recourse to the procedural writ of habeas corpus. He would further contend that even if the order dated 02.04.2013 passed by the Family Court, Hyderabad, is unsustainable in law, it is for the petitioner to get it set aside as per the due procedure and the status of the said order cannot be decided by this Court in exercise of writ jurisdiction and at that, in relation to the procedural writ of habeas corpus. Learned counsel would assert that the children were brought to India by the 6th respondent with the knowledge and consent of the petitioner and before the passing of the first order dated 20.03.2013 by the American Court and therefore, the charge that she kidnapped them or brought them away unlawfully is not proper. Learned counsel would further contend that this Court is not divested of its parens patriae jurisdiction because of the orders passed by the American Court and that it would be well within the power of this Court to determine and decide as to what is in the best interest and welfare of the minor children.

In reply, Sri Prabhijit Jauhar, learned counsel, would contend that the Supreme Court has, time and again, pointed out that it would be the court which has the most intimate contact with the children that would have jurisdiction and in the present case, the American Court must invariably be declared to be the court with the most intimate contact, as the children are American citizens. Learned counsel would point out that though the 6th respondent was aware of the order dated 20.03.2013 passed by the American Court, she filed O.P.No.440 of 2013 without disclosing it and merely mentioned the fact that the petitioner had filed a case for custody before the court at New Jersey. He would further point out that Kashvi, the daughter, spent over 7 years in the USA and therefore, her brief stay of over 3 years in India cannot outweigh the same. Learned counsel would assert that once the 6th respondent submitted to the jurisdiction of the American Court, it is not open to her to simply ignore the mandate of the said court, as embodied in the various orders passed by it, and that the petitioner cannot be driven through a lengthy legal process locally to secure custody of the children pursuant to the American Courts order. Learned counsel would conclude by stating that the petitioner is willing to pay for the tickets and stay of not only the children but also the 6th respondent, so that she may come back and seek resolution of her issues before the American Court. He would further assure this Court that the petitioner will take all necessary steps for withdrawal of the criminal processes set in motion at his behest against the 6th respondent in the USA and that he would not pursue any coercive measures.

Abundance of case law was pressed into service by both the learned counsel in support of their respective contentions. However, before analyzing precedential edicts, it would be apposite for this Court to consider the factual perspective.

The contents of the pleadings exchanged by the parties demonstrate in no uncertain terms that the relations between the couple were exceedingly bitter and acrimonious even by the time of the departure of the 6th respondent to India on 17.03.2013. So much so that the petitioner got drafted the petition seeking divorce and custody one day after her leaving and filed it on 19.03.2013 itself. The 6th respondent, upon her arrival in India, filed the petition for divorce and custody in the Family Court, Hyderabad, shortly thereafter, on 02.04.2013, but this may have been a counter-blast to the petitioners case, as the 6th respondent mentioned the filing of the said case in her petition. At this stage, this Court must make it clear that the differences between the couple and their allegations and counter-allegations against each other do not fall for independent consideration or resolution in this writ petition. This Court is concerned only with the custody of the minor children at the moment and to the extent the conflict between the parents has an impact on the said issue, it would be of limited relevance.

At the outset, it is patent that the 6th respondent did not violate any court order by bringing the children with her to India. The petitioner approached the American Court only thereafter and secured the first order dated 20.03.2013. Her action in bringing the children to India in the capacity of their natural guardian cannot therefore be said to be unlawful. The question is whether her continued custody of the children after passing of the orders by the American Court would assume that status. In this regard, it would be fitting to understand the scope and import of the relevant orders passed by the American Court.

Perusal of the order dated 31.10.2013 passed by the American Court reflects that as the 6th respondent failed to appear before it on 03.10.2013 and again on 09.10.2013, the American Court inferred that she would not be returning to the USA despite having been ordered to do so under the order dated 20.03.2013. The American Court accordingly granted the petitioner sole legal and residential custody of the children after considering the case.

Thereafter, by Final Judgment of Divorce dated 23.01.2014, the American Court dissolved the marriage between the petitioner and the 6th respondent and confirmed that the petitioner would have sole legal and residential custody of the children pursuant to the earlier order dated 31.10.2013, while leaving it open to the 6th respondent to propose a schedule to exercise parenting time with them and until such time that the petitioner was prepared to agree to such a schedule, all and any parenting time for the 6th respondent was subject to discussion and written agreement with the petitioner. The American Court further recorded that failure to comply with the custody provisions of the order would subject the 6th respondent to criminal penalties, including imprisonment, probation and fines.

The judgment also records that the petitioner was at liberty to sell the residential property at New Jersey which stood in his name and appropriate the complete sale proceeds thereof and also 50% of the sale proceeds of the residential property situated in Kamalapuri Colony, Hyderabad, India, which stood in the name of the 6th respondent. The petitioner was also held entitled to 50% of the sale proceeds of the property jointly held by the parties at Plot Nos.48 and 49, Dubbacherla Village and Gram Panchayat, Maheshwaram Mandal, Ranga Reddy District. The petitioner was held entitled to take sole ownership of all assets which were currently in his name and also the joint bank accounts, apart from the life insurance policy of the 6th respondent, the jewellery of the 6th respondent. Her Rite Aid Plan and her Scottrade IRA were directed to be split up equally between them. The 6th respondent was also held liable to pay child support to the petitioner to the tune of $240 per week and also maintain at least $250,000 in life insurance, naming the petitioner as the trustee, for the benefit of the children until such time they became emancipated. She was also held liable for 50% of the medical expenses of the children, apart from the legal fees of the petitioner, to the tune of $55,008.37. This Court is informed that the petitioner thereafter moved the American Court seeking to appropriate 100% of the amount payable to the 6th respondent under the her Rite Aid Plan, instead of the 50% that he was held entitled to.

To understand the scope, applicability and import of the legal principles relied upon in this case, it would be appropriate at this stage to study the decisions cited in relation thereto:

1). MARK T. McKEE V/s. EVELYN McKEE : The Privy Council observed that the welfare and happiness of an infant is the paramount consideration while deciding questions of custody and to this paramount consideration, all others must yield. The order of a foreign court of competent jurisdiction is no exception. Such an order has not the force of a foreign judgment; comity demands not its enforcement but its grave consideration. This distinction rests on the peculiar character of the jurisdiction and on the fact that an order providing for the custody of an infant cannot, in its nature, be final.

In this case, the father took the child out of the USA in violation of a court order but despite the same, it was held that the interest of the child would prevail over his conduct in doing so.

2). KANU SANYAL V/s. DISTRICT MAGISTRATE, DARJEELING :

The Supreme Court observed that a writ of habeas corpus is essentially a procedural writ and deals with the machinery of justice and not substantive law. The object of the writ was to secure the release of a person who is illegally restrained of his liberty and is a command to a person who is alleged to have that person unlawfully in his custody requiring him to bring such person before the court.
3). SMT.SURINDER KAUR SANDHU V/s. HARBAX SINGH SANDHU :
The child, a British citizen, was brought to India by the father without the knowledge of the mother. On the same day, the mother obtained an order from the foreign court declaring the child as a ward of the said court. The order required the father to hand over the custody of the minor child to the mother. The mother approached the Supreme Court aggrieved by the order of the Punjab and Haryana High Court dismissing her writ petition for production and custody of her minor son. The Supreme Court observed that jurisdiction was not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or, for the time being, lodged. To allow assumption of jurisdiction by another State in such circumstances, per the Supreme Court, would only result in encouraging forum-shopping. In matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offspring of the marriage. The Supreme Court noted the following principles regarding custody of minor children:
(1) The modern theory of the conflict of laws recognizes and prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case;
(2) Though the Hindu Minority and Guardianship Act, 1956, constitutes the father as the natural guardian of a minor son, it cannot supersede the paramount consideration as to what is conducive to the welfare of the minor;
(3) The domestic court would consider the welfare of the child as of paramount importance and the order of a foreign court is only a factor to be taken into consideration.

Taking note of the fact that the matrimonial home was in England, establishing sufficient contact or ties with that State, the Supreme Court ordained that it would be just and reasonable for the court of that State to assume jurisdiction to enforce obligations which were incurred therein by the spouses. The custody of the child was therefore directed to be handed over to the mother.

4). MRS ELIZABETH DINSHAW V/s. ARVAND M.DINSHAW : The Supreme Court observed that a parent doing wrong by removing children out of the country should not be permitted to gain advantage of such wrongdoing and the court should pay regard to the order of the foreign court in relation to the childs custody, unless satisfied beyond reasonable doubt that to do so would inflict serious harm on the child. The Supreme Court further observed that quite independent of the above consideration, whenever a question arises before a court pertaining to the custody of a minor child, the matter is to be decided not on consideration of legal rights of the parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor.

5). Y.NARASIMHA RAO V/s. Y.VENKATA LAKSHMI : The Supreme Court observed that the rule for recognizing a foreign matrimonial judgment in this country is as under: The jurisdiction assumed by the foreign court as well as the grounds on which the relief was granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule are:

(1) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties were married;
(2) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties were married;
(3) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.
6). SARITA SHARMA V/s. SUSHIL SHARMA : In this case, a District Court in Texas, USA, passed an order for the care and custody of the children of a couple of Indian origin. The children were however both American citizens. The children were placed in the care of the father, Sushil Sharma, and only visiting rights were given to the mother, Sarita Sharma. However, Sarita Sharma brought the children to India without informing the Texas Court.

Sushil Sharma thereafter obtained a divorce decree from the foreign court and also an order that the sole custody of the children should be with him. He then moved the Delhi High Court for a writ of habeas corpus seeking custody of the children. The writ petition was allowed and the passports of the children were directed to be handed over to the father who was given liberty to take them back to the USA without hindrance. Aggrieved thereby, Sarita Sharma appealed to the Supreme Court. On merits, the Supreme Court held that it was not proper for the Delhi High Court to allow the writ petition and direct the mother to hand over custody of the children to the father so as to enable him to take them to the USA. What was in the interest of the children required a full length thorough inquiry and the Supreme Court therefore opined that the High Court should have directed the father to initiate appropriate proceedings in which such an inquiry could be held. The Supreme Court opined that ordinarily, the mother would be better suited to care for and bring up a daughter as opposed to the father.

7). SYED SALEEMUDDIN V/s. DR. RUKHSANA : The Supreme Court reiterated that on an application seeking a writ of habeas corpus for custody of minor children, the principal consideration for the court is to ascertain whether the custody of the children is unlawful and whether the welfare of the children required that the present custody should be changed so that the children should be left in the care and custody of somebody else.

8). SAIHBA ALI V/s. STATE OF MAHARASHTRA : The Supreme Court observed that custody of minor children, once awarded to the paternal grandmother by a competent court, could not be held to be illegal custody unless and until the said order is set aside and therefore, the mother of the children could not maintain a petition for a habeas corpus to seek custody.

9). V.RAVI CHANDRAN (DR.) V/s. UNION OF INDIA : In this case, the mother removed her minor child, a foreign national, from the USA in violation of a custody order passed by the Family Court, State of New York. This custody order was passed with her consent and the consent of the father, who was also a foreign national. The father applied for modification of the custody order and was granted temporary sole legal and physical custody of the minor child and the mother was directed to immediately turn over the minor child and his passport to the father. Her custodial time with the child was suspended. The foreign court also ordered that the issue of custody of the child would be heard by the jurisdictional family court in the USA. On these facts, the father moved a petition for a writ of habeas corpus in the Supreme Court for production of the child and for his custody. The Supreme Court, upon considering a large number of decisions, concluded that the comity of nations does not require a court to blindly follow an order made by a foreign court and only due weight has to be given to the views formed by the court of the foreign country, of which the child was a national. The Supreme Court observed that the comity of courts demands not the enforcement of a foreign courts order but only its grave consideration, and the weight and persuasive effect of a foreign judgment would ultimately depend on the facts and circumstances of the case. The Supreme Court reiterated that the welfare of the child is the first and paramount consideration, whatever be the orders that may have been passed by the foreign court, and the domestic court was bound to consider as to what was in the best interest of the child and the order of the foreign court would be only one of the circumstances to be taken into account, though it is not conclusive one way or the other. The Supreme Court cautioned that one of the considerations that a domestic court should keep in mind is that there should be no danger to the moral or physical health of the child in repatriating him or her to the jurisdiction of the foreign country. The Supreme Court stated that while considering whether a child should be removed to the jurisdiction of the foreign court or not, the domestic court may either conduct a summary inquiry or an elaborate inquiry. On facts, it was held that an elaborate inquiry was not required to be conducted in that case as there was nothing on record which could remotely suggest that it would be harmful for the child to return to the native country. Further, though the child was found to have been in India for almost two years since he was removed from the USA by the mother, the Supreme Court took note of the fact that the application for return of the child was made promptly after his removal. The Supreme Court further observed that one of the factors to be kept in mind in exercise of summary jurisdiction in the interest of the child is that the application for custody/return of the child should be made promptly and quickly after the child is removed as delay may result in the child developing roots in the country to which he has been removed. However, on facts, the Supreme Court found that he had been moved from school to school and therefore, the said eventuality also did not arise.

10). SHILPA AGGARWAL V/s. AVIRAL MITTAL : The parents in this case were both British citizens of Indian origin. They had a minor child who was also a foreign national. They had matrimonial differences as a result of which, the mother came to India with the minor child and refused to return. The father thereupon initiated proceedings before the High Court of Justice, Family Division, United Kingdom, and the foreign court directed the mother to return the minor child to its jurisdiction. Soon thereafter, the father filed a writ petition in the Delhi High Court seeking custody of the child. In its decision reported in AVIRAL MITTAL V/s. STATE , the Delhi High Court observed that the interest of the child would always be to have the benefit of the company of both parents but where such an ideal situation is not possible, the question would arise as to which of the parents is in a better position to look after the child. Observing that normally a female child, as observed in SARITA SHARMA6 and the earlier judgment of the Delhi High Court in PAUL MOHIMDER GAHUN V/s. STATE OF NCT OF DELHI , would be better taken care of by the mother, the Delhi High Court cautioned that this would again depend upon the conduct of the parents. In its final conclusion, the Delhi High Court effectively dismissed the writ petition and granted time to the mother to take the child on her own to the United Kingdom and participate in the proceedings before the foreign court, failing which the child was to be handed over to the father to be taken to the United Kingdom as a measure of interim custody, leaving it open to the foreign court to determine which parent would be best suited to have custody of the child. Aggrieved thereby, the mother appealed to the Supreme Court. The Supreme Court observed that there were two contrasting principles of law, namely, comity of courts and welfare of the child and that in matters of custody of minor children, the sole and predominant criterion is the interest and welfare of the minor child. It was further pointed out that the domestic court could not be guided entirely by the fact that one of the parents violated an order passed by a foreign court. On these principles, the Supreme Court agreed with the view of the High Court that the foreign court had not directed that the custody of the child should be handed over to the father but that the child should be returned to its jurisdiction so as to enable it to determine as to who would be best suited to have the custody of the child.

11). VIKRAM VIR VOHRA V/s. SHALINI BHALLA : The Supreme Court observed that in a matter relating to custody of a child, the court must remember that it is dealing with a very sensitive issue concerning the care and affection that a child requires in the growing stages of his or her life. The Supreme Court stated that this was the reason why custody orders were always considered interlocutory orders and by the nature of such proceedings, custody orders cannot be made rigid and final and would always be capable of being altered and moulded keeping in mind the needs of the child.

12). RUCHI MAJOO V/s. SANJEEV MAJOO : The wife came to India with her child consequent to some differences with her husband. All the members of the family were foreign nationals. After the mother came to India with the child, the father approached the Superior Court of California, County of Ventura in the USA, seeking a divorce and obtained a protective custody warrant order which required the mother to appear before the foreign court. She however did not obey it and instituted proceedings before the Guardian Court at Delhi. The Guardian Court passed an ex parte ad-interim order to the effect that the father should not interfere with the custody of the mother over her minor child. Aggrieved by this order, the father challenged the same under Article 227 of the Constitution before the Delhi High Court and succeeded on the ground that the Guardian Court had no jurisdiction to entertain the matter as the child was not ordinarily resident in Delhi. The Delhi High Court further observed that it was the foreign court that had to decide the childs custody, as the child and the parents were American citizens. Aggrieved thereby, the mother went before the Supreme Court.

The Supreme Court culled out the following principles:

(1) The welfare of the child is of paramount consideration and simply because a foreign court had taken a particular view concerning the welfare of the child, it was not enough for the courts in this country to shut out an independent consideration of the matter, as the principle of comity of courts simply demanded consideration of a foreign courts order and not necessarily its enforcement.
(2) One of the factors to be considered whether a domestic court should hold a summary inquiry or an elaborate inquiry for repatriating the child to the jurisdiction of the foreign court is the time gap in moving the domestic court for repatriation. The longer the time gap, the lesser the inclination of the domestic courts to go in for a summary inquiry.
(3) An order of foreign court is one of the factors to be considered for the repatriation of a child to the jurisdiction of the foreign court. But that would not override the consideration of the welfare of the child. Therefore, even where the removal of the child from the jurisdiction of the foreign court goes against the order of the foreign court, giving custody of the child to the parent who approached the foreign court would not be warranted if it were not in the welfare of the child.
(4) Where a child has been removed from the jurisdiction of a foreign court in contravention of an order passed by that foreign court where the parties had set up their matrimonial home, the domestic court must consider whether to conduct an elaborate or summary inquiry on the question of custody of the child. If an elaborate inquiry is to be held, the domestic court may give due weight to the order of the foreign court depending upon the facts and circumstances in which such an order has been passed.
(5) A constitutional court exercising summary jurisdiction for the issuance of a writ of habeas corpus may conduct an elaborate inquiry into the welfare of the child whose custody is claimed and a Guardian Court (if it has jurisdiction) may conduct a summary inquiry into the welfare of the child, depending upon the facts of the case.
(6) Since the interest and welfare of the child is paramount, a domestic court 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.

On facts, the Supreme Court held that the repatriation of the minor to the USA on the principle of comity of courts did not appear to be an acceptable option worthy of being exercised at that hour and his custody was directed to be continued with his mother. The Supreme Court observed that the comity of courts principle normally ensures that foreign judgments and orders are unconditionally conclusive of the matter in controversy, but interest and welfare of the minor being paramount, a competent court in this country would be entitled and indeed duty-bound to examine the matter independently, taking the foreign judgment, if any, only as an input for its final adjudication. The decisions of the Supreme Court in DHANWANTI JOSHI V/s. MADHAV UNDE and SARITA SHARMA6 were stated to support this proposition. The Supreme Court observed that the duty of a court exercising parens patriae jurisdiction, involving custody of minor children, would be to treat the welfare of the minor as of paramount consideration. The court would therefore approach the issue regarding the validity and enforcement of a foreign decree or order carefully and simply because a foreign court has taken a particular view on any aspect concerning the welfare of the minor, it would not be enough for the courts in this country to shut out independent consideration of the matter. The Supreme Court was of the opinion that objectivity and not abject surrender is the mantra in such cases but that would not mean that the order passed by a foreign court is not even a factor to be kept in view, though it is one thing to consider the foreign judgment to be conclusive and another to treat it as a factor or consideration that would go into the making of a final decision. The Supreme Court further observed that though proceedings in the nature of habeas corpus were summary in nature, nothing prevents the High Court from embarking upon a detailed enquiry in cases where the welfare of a minor was in question, which is the paramount consideration for the Court while exercising parens patriae jurisdiction. The High Court was therefore held to have power, in exercise of its extraordinary jurisdiction, to determine the validity of such custody in cases that fall within its jurisdiction and also issue orders as to the custody of the minor depending upon how the Court views the rival claims, if any, to such custody. The Supreme Court therefore condemned the practice of repatriating a minor child to a foreign country on the comity of courts principle simplicitor.

13). ARATHI BANDI V/s. BANDI JAGADRAKSHAKA RAO : The mother and father were ordinarily residents of the USA and they had a minor child. Their matrimonial differences had already taken shape as a lis before a Seattle court in the USA. In violation of the order passed by the foreign court, the mother brought the child to India. As she did not return the child to the jurisdiction of the foreign court, bailable warrants were issued for her arrest by the foreign court. The father initiated proceedings in this Court for a writ of habeas corpus seeking production and custody of the child to enable him to take the child back to the USA. This Court passed quite a few orders in the case but the mother did not abide by some of them resulting in this Court issuing non-bailable warrants for her arrest. Aggrieved thereby, the mother went before the Supreme Court. Observing that the mother had come to India in defiance of the order passed by the foreign court and had also ignored the orders passed by the High Court, the Supreme Court opined that no relief could be granted to her. The Supreme Court further culled out the following principles:

(1) It is the duty of courts in all countries to see that a parent doing wrong by removing a child out of the country does not gain any advantage of his or her wrongdoing.
(2) In a given case relating to the custody of a child, it may be necessary to have an elaborate inquiry with regard to the welfare of the child or a summary inquiry without investigating the merits of the dispute relating to the care of the child on the ground that such an order is in the best interests of the child.
(3) Merely because a child has been brought to India from a foreign country does not necessarily mean that the domestic court should decide the custody issue. It would be in accord with the principle of comity of courts to return the child to the jurisdiction of the foreign court from which he or she has been removed.
14). SURYA VADANAN V/s. STATE OF TAMIL NAIDU : In this case, the Supreme Court was dealing with custody of children who were British citizens. The father, Surya Vadanan, was also a resident and citizen of the United Kingdom but at the time of her marriage, the mother, Mayura, was an Indian citizen. She thereafter joined her husband in the United Kingdom and acquired British citizenship. In effect, the parents as well as the children were all citizens of the United Kingdom. The mother, Mayura, had matrimonial problems and came to India along with her two daughters on 13.08.2012. She thereafter refused to go back and filed for divorce before the Family Court, Coimbatore, on 23.08.2012. She also filed an application for custody of her daughters but no orders were passed thereon. Upon coming to know of her intention not to return with his daughters, Surya tried to solve the issue by coming to India but having failed in this exercise, he returned to the United Kingdom. He thereafter received summons from the Family Court, Coimbatore, in the divorce petition filed by Mayura and decided to initiate legal action. He petitioned the High Court of Justice in the United Kingdom to make his children wards of the Court. On 13.11.2012, the High Court of Justice in the United Kingdom passed an interlocutory order making the children wards of the court and requiring Mayura to return them to its jurisdiction. Mayura filed a written statement in response to this petition and Surya filed his rejoinder thereto. Thereupon, the High Court of Justice in the United Kingdom passed order dated 29.11.2012 reiterating its earlier order and renewing its direction for repatriation of the wards to England, the county of their habitual residence. As Mayura failed to comply with this order also, Surya filed a writ petition in the Madras High Court seeking a writ of habeas corpus on the ground that Mayuras custody of the children was illegal. This writ petition was effectively dismissed by the High Court on the ground that it could not be said that the custody of Mayura was illegal as she was their legal guardian. Aggrieved thereby, Surya approached the Supreme Court. The Supreme Court observed that the comity of courts principle is essentially a principle of self-restraint applicable when a foreign court is seized of the issue of the custody of a child prior to the domestic court. The Supreme Court observed that there may be a situation where the foreign court, though seized of the issue, does not pass any effective or substantial order or direction and in such an 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, unless there are very good reasons not to do so. The Supreme Court observed that there was complete unanimity amongst judicial precedents that the best interest and welfare of the child are of paramount importance.

The Supreme Court however cautioned that it must be clearly understood that this is the final goal/objective to be achieved and that, it is not the beginning of the exercise but the end. The Supreme Court opined that the principles of comity of courts and best interest and welfare of the child were not contrasting, in the sense of one being the opposite of the other, but were contrasting in the sense of being different principles that need to be applied on the facts of a given case. The Supreme Court opined that the most intimate contact doctrine and the closest concern doctrine are very much alive and cannot be ignored only because their application might be uncomfortable in certain situations. The Supreme Court further opined that it would not be 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 interest and welfare of the child. A foreign court, having the most intimate contact and closest concern with the child, would be better equipped and perhaps best suited to appreciate the social and cultural milieu in which the child had been brought up rather than a domestic court. This, according to the Supreme Court, is a factor that must be kept in mind. Secondly, the Supreme Court was of the opinion that the principle of comity of courts should not be jettisoned, except for special and compelling reasons. This is more so in a case where only an interim or an interlocutory order had been passed by a foreign court. Referring to MCKEE1, wherein the Privy Council was not dealing with an interlocutory order but a final adjudication, the Supreme Court observed that the applicable principles would be entirely different in such cases. The Supreme Court specifically pointed out that it was not concerned with a final adjudication by a foreign court in relation to which the principles laid down in Section 13 CPC would have application. The Supreme Court was of the opinion that in the event an interlocutory order has been passed by a foreign court, it must be given due respect and disregarding the same must be only for some special reason. Dealing with situations in which an interlocutory order of a foreign court may be ignored, the Supreme Court stated that very few such situations would arise and that it is of primary importance to determine first, whether 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, and if it does, the interlocutory order of the foreign court should be given due weight and respect. In the event 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). Finally, dealing with the issue of holding an elaborate inquiry to decide whether the child should be repatriated to the foreign country or whether a summary inquiry should be gone into in relation to the best interest and welfare of the child, the Supreme Court observed that if there was a pre-existing order of a foreign court of competent jurisdiction and the domestic court decides to conduct an elaborate inquiry, it must have special reasons to do so as such elaborate inquiry should not be ordered as a matter of course. While deciding whether a summary or an elaborate inquiry should be conducted, the Supreme Court observed that the domestic court must take into consideration the following factors:

(1) The nature and effect of the interim or interlocutory order passed by the foreign court.
(2) The existence of special reasons for repatriating or not repatriating the child to the jurisdiction of the foreign court.
(3) The repatriation of the child should 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. In such cases, the domestic court is also obliged to ensure the physical safety to the parent.
(4) The alacrity with which the parent moves the foreign court concerned or the domestic court concerned is also relevant. If the time gap is unusually large and is not reasonably explainable and the child has developed firm roots in India, the domestic court may be well advised to conduct an elaborate inquiry.

Dealing with the facts of the case before it, the Supreme Court observed that the parents and the children were all foreign nationals and that the children had grown up in that different milieu. It was also noted that the mother had not taken steps to give up her foreign citizenship and had not taken such steps even in relation to her children. That being so, the Supreme Court was of the opinion that there was no reason why the courts in India should not encourage her and the children to submit to the jurisdiction of the foreign court which had the most intimate contact with them and closest concern apart from being located in the country of their citizenship. Further, as the orders passed by the foreign court were only interlocutory in nature, no finality attached to them and nothing prevented the mother from contesting the correctness of the interlocutory orders and to have them vacated or modified or even set aside. The Supreme Court further found that there was nothing on record to indicate that any prejudice would be caused to the children if they were taken to the United Kingdom and subjected to the jurisdiction of the foreign court as the said foreign court had the most intimate contact with them and also the closest concern with their well being. Another crucial aspect that was considered by the Supreme Court was the fact that the children had been in Coimbatore for about two years and the question arose whether they had adjusted to life in India and had taken root in India, whereby their repatriation to the United Kingdom would not be in their interest. The Supreme Court observed that it is always difficult to say whether a person has taken root in a country other than that of his or her nationality and in a country other than where he or she was born and brought up. From the material on record, the Supreme Court held that it could not be said that life had changed so much for the children that it would be better for them to remain in India than to be repatriated to the United Kingdom. The Supreme Court accordingly directed the father to arrange for the return of the wife and children to the United Kingdom and also pay maintenance to the wife and children until a decision was taken by the foreign court. He was also directed to ensure that all coercive processes that may result in penal consequences against the mother should be dropped or should not be pursued. In the event the mother did not comply with the directions, the father was held entitled to take the children back with him to the United Kingdom for further proceedings.

Before proceeding to consider the factual milieu of the present case in the aforestated legal backdrop, it may be noted that the parens patriae jurisdiction of this Court is traceable to Clause 17 of the Letters Patent which endows this Court with jurisdiction over the person and estates of all infants within its territory. That apart, the common thrust of all the judgments hereinabove is that the welfare and interest of the children should be the paramount consideration that should weigh with this Court while deciding custody battles between parents over their children.

Considering the tender age of Krish, the son, who is just about five years and odd as on date, this Court only met and interacted with Kashvi, the daughter, who is about 11 years of age, in camera. She came across as a warm and friendly child, comfortable in her surroundings. She stated that she is presently studying in Oakridge International School at Hyderabad, while her brother, Krish, is a student of Little Angels School. Kashvi would have been about seven years and three months by the time she left the USA on 17.03.2013 and was brought to India by the 6th respondent. She has hazy memories of her life in the USA but stated with confidence that she is very happy in India. When pointedly asked as to whether she felt happier here or had better memories of the USA, she stated that she feels happier here and that she is doing well in school and has several friends. When asked whether she wanted to have contact with her father, the petitioner herein, she said that she had some recollection of him but showed no particular interest in rebuilding her relationship with him. Speaking for her brother, she stated that he has no recollection whatsoever of his life in the USA. This would be so as he was less than two years of age when he came away to India. She further stated that her mother, the 6th respondent, takes good care of her and that she also has the love and affection of her maternal grand parents. She specifically said that she has no interest in returning to the USA, leaving her life here. This Court found no evidence of tutoring and the childs earnestness and sincerity came through in clear terms.

In the light of the material placed on record and our personal interaction with Kashvi, the older child, we now undertake examination of the legal principles applicable to this case. It is fairly well settled that the fact that a foreign court of competent jurisdiction has passed an order in relation to the custody of the minor child would not, by itself, be a decisive factor for this Court to hold in favour of the party to the dispute who secured such an order. This Court would still have to undertake an enquiry as to what would be in the best interest and welfare of the children. This Court finds that the American Court had no occasion to actually have any interaction with the children, as the American Court was approached only after the children left to India. The order dated 31.10.2013 passed by the American Court puts this beyond doubt, as it observed therein that it could not make any findings as to the childrens preferences because it had not spoken with them and that they were too young to have the capacity and maturity to make an intelligent decision on that issue. As Kashvi is now nearly 11 years of age and appears to be a well-balanced child of good intellect, the latter observation of the American Court may no longer hold good.

As regards the first strike principle, this Court finds that the said principle would have application only between interlocutory orders of custody passed by two different Courts and as per the principle, the first such order, in point of time, would normally prevail. In the present case, the petitioner has already secured a final custody order from the American Court on 23.01.2014. It is therefore not a fit case to apply the first strike principle at this stage in relation to the interlocutory order dated 20.03.2013 passed by the American Court. The said interlocutory order is deemed to have merged in the final order dated 23.01.2014 and therefore does not survive for independent consideration now. Strong reliance placed on SURYA VADANAN17 is therefore of no avail as that was a case dealing with an interlocutory custody order and not a final one, as pointed out specifically by the Supreme Court itself.

Further, once the final custody order was passed by the American Court, it is for the petitioner to take recourse to appropriate proceedings in terms of Indian law for securing execution thereof. Such an exercise cannot be undertaken by this Court in exercise of writ jurisdiction and more particularly, by way of the procedural writ of habeas corpus. The provisions of Section 13 CPC may also have application in this regard and the 6th respondent cannot be denied the benefit thereof by permitting the petitioner to seek execution of such an order through writ proceedings.

No doubt, the American Courts interlocutory orders and final order would normally be taken into consideration by this Court in its enquiry as to the custody of the children. However, one crucial factor which dilutes the strength of those orders in the present case, in terms of what the Supreme Court ordained time and again, is that the petitioner, having secured custody orders from the American Court, failed to act upon them immediately. The first such custody order secured by him is dated 20.03.2013 but it appears that the petitioner was under the impression that the 6th respondent would appear before the American Court and contest his claim. This understanding and expectation on his part however stood extinguished by 31.10.2013, when the American Court passed an order giving him sole legal and residential custody over the children duly noting the fact that the 6th respondent showed no inclination to return to the USA despite being ordered to do so. In spite of the illusions that he may have had in this regard being dispelled by 31.10.2013, the petitioner did nothing in the matter till December, 2014, when he approached the Supreme Court under Article 32 of the Constitution. This is despite the fact that the petitioner secured the final custody order as long back as in January, 2014. No reasonable explanation whatsoever is forthcoming as to why the petitioner did not choose to take steps immediately and more particularly, after January, 2014.

In the meanwhile, the stay of the children in India continued and as matters stand today, Krish, the son, has no inkling of his life or his roots in America, while Kashvi, the daughter, has settled down comfortably in her life at Hyderabad and is happy with her schooling and her activities under her mothers tutelage. The failure on the part of the petitioner to move with alacrity and the consequential delay would therefore have to count against him. As pointed out by the Supreme Court time and again, this is a vital factor while assessing the best interest of the children. In this regard it may be noted that no hard and fast rule can be laid down as to what length of time would be sufficient for a displaced child to develop roots in and affinity towards the country to which he or she has been removed. Even a year during the formative years would be sufficient in this regard as opposed to several years in an older child. In the present case, Krish, the son, has developed a bond with his mother and his maternal grandparents apart from having no roots whatsoever in the country of his birth. To separate him from those with whom he has such strong emotional bonds and send him to a father, who is a complete stranger to him, would neither be in his best interest nor good for his emotional well-being. Kashvi, the daughter, spent over seven years, a major part of her life, in the USA but her formative years, when she developed consciousness and bonding towards her surroundings and people, were after she left the USA and came to India. Her schooling is taking place in one of the better known schools of Hyderabad and she is clear in her mind as to where and with whom she wants to stay. It is therefore too late in the day for the petitioner to seek to uproot these children on the strength of the American Courts orders secured by him long ago.

That apart, when posed a query by this Court, Sri Prabhijit Jauhar, learned counsel, stated that the petitioner was residing alone in the USA after he divorced the 6th respondent and that he is presently employed. When asked by the Court as to how he proposes to take care of the children, if they are returned to his custody, the learned counsel stated that the petitioner would take his mother to the USA and that she would care for the childrens well-being. However, the material placed on record indicates that the petitioners father is very much alive and it is not known as to how long he can expect his mother to leave her husband and her life here and devote herself to the care and well-being of his children in the USA.

On the above analysis, this Court finds that despite the first interlocutory order of custody having been passed by the American Court as long back as on 20.03.2013, three days after the departure of the children from American soil, the delay on the part of the petitioner in seeking implementation thereof and the later final order of custody dated 23.01.2014, has resulted in the children acclimatizing themselves to Indian life and conditions. Krish, the son, has no contact whatsoever with American life as he came away to India when he was less than two years of age. Kashvi, the daughter, was just over seven years of age when she came to India and has now adjusted comfortably to her life here and is happy and secure with her school, friends and family in India. This Court is therefore of the considered opinion that it is not in the interest or welfare of these children to be displaced from their settled life in India and be transported back to what would now be an alien life in the USA. This Court however leaves it open to the petitioner to seek suitable orders from the competent court for visitation rights, if he is interested, so that the children are not denied the love and affection of a father, once he establishes such a bond.

Subject to the above observation, the writ petition is dismissed. Pending miscellaneous petitions, if any, shall also stand dismissed. No order as to costs.

______________________ SANJAY KUMAR, J ____________________________ M.SEETHARAMA MURTI, J 21st OCTOBER, 2016