Gujarat High Court
Rohan Rajesh Kothari Thro Poa Rajesh S. ... vs State Of Gujarat on 5 January, 2024
Author: A.Y. Kogje
Bench: A.Y. Kogje, Rajendra M. Sareen
NEUTRAL CITATION
R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (HABEAS CORPUS) NO. 12059 of
2023
With
CRIMINAL MISC.APPLICATION (DIRECTION) NO. 1 of 2023
In R/SPECIAL CRIMINAL APPLICATION NO. 12059 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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ROHAN RAJESH KOTHARI THRO POA RAJESH S. KOTHARI
Versus
STATE OF GUJARAT
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Appearance:
MR PRABHJIT JOUHAR WITH MS AUPAMA KAUL WITH MR HRIDAY
BUCH(2372) for the Applicant(s) No. 1
MR. HARDIK MEHTA, APP for the Respondent(s) No. 1
MR MIHIR JOSHI, SENIOR COUNSEL WITH SHASHVATA U
SHUKLA(8069) for the Respondent(s) No. 2,3
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NEUTRAL CITATION
R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024
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CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE
and
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 05/01/2024
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE A.Y. KOGJE)
1. RULE. Learned Additional Public Prosecutor waives service of rule on behalf of the respondent No.1-state and learned Advocate Mr.Mihir Joshi, Senior Counsel with learned Advocate Mr.Shashvata U. Shukla waives service of rule on behalf of the respondent Nos.2 and 3.
2. This petition under Article 226 of the Constitution of India is filed with following reliefs:
"(A) Under the facts and circumstances explained above, it is prayed that this Hon'ble Court may be pleased to issue a writ or order or direction more particularly one in the nature of Writ of Habeas Corpus directing the Respondent No. 1 Police Authorities to produce the minor daughter Souumya (DOB 28.01.2020) of the Petitioner, who is a permanent resident and a citizen of the USA by birth before this Hon'ble Court, who is at presently in the unlawful detention of Respondent No. 2, and cause return of the said minor daughter Souumya to the jurisdiction of the US Court in compliance with the Orders dated 23.06.2023 and 19.07.2023 passed by the District Court, 4th District, State of Minnesota, County of Hennepin to enable the minor daughter to go back to US and if they fail to do so within a fixed time period, Respondent No.1 be directed to immediately handover the custody of the said minor child to the Petitioner to enable him to take the minor child back to the jurisdiction of US Court; and pass such other order or orders as this Hon'ble Court may deem fit and proper in the interest of justice.
(B) Your Lordships may be pleased to pass any other appropriate Page 2 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined Order that this Hoh'ble Court deems fit, in the interest of justice."
3. Learned Advocate for the petitioner submitted that the Petitioner is filing the present Writ of Habeas Corpus seeking repatriation of the minor daughter Souumya, who is a US Citizen back to the US pursuant to the Orders dated 29.06.2023 and 19.07.2023 passed by the District Court, 4 th Judicial District, Family Court Division, State of Minnesota, County of Hennepin, US. The Petitioner submits that it is in the welfare and in the interest of the minor child to be repatriated to US since the minor child from the inception of her birth i.e. 28.01.2020 till 10.02.2023 has stayed in the US.
3.1 It is a case where the Petitioner herein, who is an Indian citizen, shifted to USA in August, 2009 and was initially staying in Boston, USA and thereafter, shifted to New Jersey in the year 2011. The Petitioner has a Masters in Pharmaceutical Sciences and is currently working as a Senior Scientist with Upsher Smith Labs at Minnesota, USA. It is the second marriage of both the parties. The Petitioner met the Respondent No.2 through common friends in March, 2018 and the Respondent No.2 prior to the marriage came to US only with the intent to interact with the Petitioner in the month of May, 2018. The Respondent No.2 even prior to the solemnization of the marriage, which was solemnized in the US, stayed with the Petitioner at their Matrimonial Home in the US for approximately four months prior to their marriage. It is submitted that respondent No.2 and her parents knew the fact that respondent No.2 had to settle in the US because of the work of the Petitioner and that is the reason that the Respondent No.2 stayed in a live-in relationship with the Petitioner approximately four months prior to the marriage and therefore, Page 3 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined there was always the intention of the Respondent No.2 to settle permanently in the US.
4. That the parties got engaged at the respondent No.2's aunt house in Florida on 29-05-2018. Finally, the Respondent No.2 after staying with the Petitioner at New Jersey, USA for approximately 4 months agreed to get married to the Petitioner and therefore, the parties got married on 04.09.2018 at New Jersey, USA. The marriage of the parties was also duly registered In the US.
5. It is submitted that the Joint Property at 81 Pear Tree Lane, Franklin Park, New Jersey, USA was, bought in April,2019 in joint name of both the parties and the entire funds for the purchase of the said property In the US as well as the installments of the mortgage were paid for by the Petitioner alone, but was taken in the name of both the parties.
SUBMISSIONS OF THE PETITIONER:-
6.1 Learned Advocate for the petitioner submitted that from May, 2018 till 10th February, 2023 i.e. the time the Respondent No.2 stayed in US, not even a single complaint or even a phone call was made by the Respondent No.2 to the Police that any Domestic Violence was ever perpetrated upon the Respondent No.2 by the petitioner.
6.2 Learned Advocate for the petitioner submitted that the parties were blessed with a happy marital life and turbulence in the marriage was only caused upon the interference by the Respondent No.2's parents.
Page 4 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined 6.3 It is submitted that the parents of the Respondent No.2 came in the month of December, 2019 and stayed with them at their Matrimonial Home in the US. During this period, the respondent No.2 got pregnant. It is submitted that the respondent No.2 was put under the care of the Gynecologist Dr. Rashmi Acharya and the petitioner attended all the checkups and the Doctor's appointments with the Respondent No.2 with their Gynecologist in the US. The Petitioner had taken due care and all precautions for Respondent No.2 to have a safe delivery in the US. The parties decided to make the minor daughter a US Citizen and therefore, the delivery of the minor child was intentionally done in Hospital in the US. The Respondent No.2 did not come back to India for the delivery, but the Respondent No.2's parents also went to USA for the same. The Respondent No.2 delivered the minor daughter Souumya on 28.01.2020 in New Brunswick, New Jersey, USA. The Respondent No.2 had to stay in the Hospital in the US for 5-6 days and the entire expenditure for entire delivery in the Hospital was borne by the Petitioner.
6.4 Learned Advocate for the petitioner submitted that the Respondent No.2 was prone to angry outbursts and had a very short temper. The Respondent No.2 was also prone to depression and anxiety.
6.5 Learned Advocate for the petitioner submitted that the the Respondent No.2 also look upon employment, where work profile of the Respondent No.2 required the Respondent No.2 to be present in office physically everyday whereas the work schedule of the Petitioner was very flexible and on some days, the Petitioner could also work from home. The Petitioner would most of the time pick up the minor daughter from Page 5 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined the school and spent the rest of day with her and feeding her, playing and taking care of the minor daughter. Further, the Respondent No.2 had to work every alternate Saturday due to which the minor daughter was always taken care of by the Petitioner and the Petitioner attended to each and every need of the child.
6.6 Learned Advocate for the petitioner submitted that there were no privacy in the relationship of the parties and even all the bedroom talks between the Petitioner and the Respondent No.2 were shared by the Respondent No.2 with her mother. The Respondent No.2 made sure that she would talk to her mother everyday for more 2-3 hours and would share all the details of their marital life. The constant interference of the Respondent No.2's mother would cause turbulence in the marriage as the mother-in-law of the Petitioner started dictating terms in their marriage such as how many children the parties should have and the place the parties should live and how the minor daughter should be brought up.
6.7 Learned Advocate for the petitioner submitted that in early November, 2022, the Petitioner as well as the Respondent No.2 got leave for 3 weeks and 5 weeks respectively, therefore, the Petitioner booked the tickets for the proposed travel of the Petitioner, the Respondent No.2 and the minor child In November, 2022. The entire expenditure for the tickets was undertaken by the Petitioner wherein it was decided that the parties would be going to India on 10.02.2023 and the Petitioner would come back on 04.03.2023 and the Respondent No.2 along with minor daughter will travel back on 18.03.2023. Accordingly, the Petitioner booked the tickets for the travel to be undertaken by the parties in February, 2023 and return tickets to US were booked for March, 2023.
Page 6 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined 6.8 Learned Advocate for the petitioner submitted that the Respondent No.2 after coming to Ahmedabad clearly stayed at her parents house most of the days and resided at the house of the Petitioner's parents for 3-4 days. In between, the parents of the Petitioner hosted a function for the couple and their minor daughter in order to celebrate the marriage as well as the birth of the minor daughter, wherein more than 125 people attended the function including the relatives of the Respondent No.2. As such, the relations between the parties remained very cordial as a big function was organized in Ahmedabad on 26.02.2023 in honour of the parties and their daughter for coming for the first time to India after their marriage. The Petitioner left for the US from Ahmedabad on 04.03.2023 and the Respondent No.2 was to follow.
6.9 Learned Advocate for the petitioner submitted that the Respondent No.2 had already conceived in US for the second child prior to coming to India and was due in the month of August, 2023 and i.e. the reason that the parties while coming to India had decided that the Respondent No.2 along with minor daughter will return to US on 18.03.2023. The Respondent No.2 however kept on delaying her travel back to US and called upon the Petitioner to cancel her tickets, which were booked for 18.03.2023. The Respondent No.2 addressed a message to the Petitioner on 14.03.2023 calling upon the Petitioner to cancel her tickets. The Petitioner did not do so till 17.03.2023 till in the hope that better sense would prevail upon the Respondent No.2, who would return back since she was also due for delivery of the second child in the month of August, 2023 as both had taken a conscious decision to have the delivery of the second child in the US. The Respondent No.2 prior to coming to Page 7 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined India had already taken three appointments with her Gynecologist in the US.
6.10 Learned Advocate for the petitioner submitted that the cause of concern arose on 30.03.2023, the Petitioner for the first time came across certain emails addressed by the Respondent No.2 to her employer in the US wherein she for the first time conveyed her intention not to return to the US on the ground of having some pregnancy complications. The Petitioner also came across certain emails dated 30.03.2023 to her employer wherein the Respondent No.2 clearly mentioned that she had taken legal advice in both the countries i.e. US as well as in India and the advice the Respondent No.2 got from the Lawyers was to stay in India to make her chances higher of staying with both the kids. As such, it was clear from the said emails that the intent of the Respondent No.2 was to alienate the Petitioner from his children.
6.11 Learned Advocate for the petitioner submitted that the Petitioner requested the Respondent No.2 to come back to the US on many occasions and sent various messages to the Respondent No.2 requesting her to come back with the minor daughter so that they can stay together as a family. However, the Respondent No.2 did not pay any heed to the same. The parties were also talking through a common mediator but the Respondent No.2 was adamant and refused to come back to the US. The Petitioner having no option had to move with alacrity and filed a case seeking custody and the return of the minor daughter back to US along with the Divorce Petition before the US Court on 16-06-2023.
6.12 Learned Advocate for the petitioner submitted that the US Court Page 8 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined vide the ex-parte Order clearly recorded a finding of fact that the Respondent No.2 wife had cancelled her return ticket and remained out of US with the child and was staying in India to avoid the jurisdiction of the US Court.
6.13 Learned Advocate for the petitioner submitted that the summons of the US Court along with the pleadings and the ex-parte order dated 23.06.2023 was duly served upon the Respondent No.2 and the Respondent No.2 inspite of being duly served by personal service as well as through email, refused to join the US Court proceedings with the intent of avoiding the jurisdiction of the US Court. Thereafter, the hearing was set before the US Court on 14.07.2023. The Respondent No.2 intentionally did not appear before the US Court with the sole intention to avoid compliance of the order dated 23.06.2023 passed by the US Court. The minor child being a US Citizen, it was only the US Court, which was competent to decide and adjudicate upon the custody of the minor child. However, on 03.07.2023, the Petitioner on email received summons from the Ld. Family Court with regard to a Petition for Divorce and Custody filed by the Respondent No.2 before the Ld. Family Court at Ahmedabad.
6.14 It is submitted that the US Court noting the absence of the Respondent No.2 after being duly served, rendered findings of fact that the Respondent No.2 wife has refused to return the minor child to the US and on the contrary, commenced a separate marriage dissolution and custody proceedings in India. The US Court thereafter confirmed the ex- parte order dated 23.06.2023 and held that the ex-parte order issued on 23.06.2023 remains in full force and effect. The said order dated Page 9 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined 19.07.2023 passed by the US Court was also duly communicated and served upon the Respondent No.2 wife.
6.15 Learned Advocate for the petitioner submitted that it is in the welfare and in the interest of the minor child to be repatriated back to the US since the minor daughter from the inception of her birth i.e. from 28.01.2020 till 10.02.2023 i.e. for more than 3 years was settled in the environment in the US and had adapted herself to the social cultural milieu in the US and therefore, the unlawful retention of the minor daughter in India is totally averse to her upbringing and development.
6.16 Learned Advocate for the petitioner submitted that the minor daughter being a US Citizen and having resided in US for the last 3 years, it is only the US Court, which is the Court of Competent Jurisdiction to decide upon the issue of custody of the minor daughter. All the questions regarding the interest and the welfare of the minor daughter ought to be adjudicated upon by the US Court since the US Court is the Court having the Closest Concern and Intimate Contact with the care and custody of the minor child.
6.17 Learned Advocate for the petitioner submitted that the minor daughter being an American Citizen never Ordinarily Residing in India and therefore, US is the Ordinary Residence of the minor daughter wherein she resided for more than 3 years and the Courts in India will have no jurisdiction either under Section 9 of the Guardians & Wards Act, 1890 or under the Hindu Marriage Act to decide and adjudicate upon the custody and welfare of the minor child.
Page 10 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined 6.18 Learned Advocate for the petitioner submitted that the Respondent No.2 wife has retained the illegal custody of the minor daughter in breach and defiance of the Custody Order passed qua the minor child by the US Court and therefore, the law laid down by the Threes Bench of the Hon'ble Supreme Court in V. Ravi Chandran v. Union of India, reported in (2010) 1 SCC 274 is clearly applicable to the facts of the present case.
6.19 Learned Advocate for the petitioner submitted that the Hon'ble Supreme Court in Yashita Sahu Vs State of Rajasthan reported in (2020) 3 SCC 67 and also Nilanjan Bhattacharya Vs State of Karnataka reported in (2020) SCC OnLine SC 928 wherein in similar set of circumstances, children, who were US citizens, have been repatriated back to their Native Country keeping in mind the Principle of Welfare of the Child and also the Principle of Comity of Courts and also the fact that the children were US Nationals. It has been held in Yashita Sahu (supra) by the Hon'ble Supreme Court that keeping in mind the facilities of education, social security etc., available in the US, "we are of the view that the child should not be deprived of the same only on the ground that the mother does not want to go back to US."
6.20 Learned Advocate for the petitioner submitted that it is in the best interest of the child to have parental care of both the parents, if not joint then at least separate. The Hon'ble Supreme Court has held that if the wife is willing to go back to USA then all the orders with regard to custody, maintenance etc., must be looked into by the jurisdictional court in USA and, therefore in the Yashita Sahu Case directions were passed to repatriate the minor child (daughter), who was aged two and half Page 11 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined years old to US and the issue of custody and welfare was left to the U.S. court. Similarly, in the present case also, the minor child, who is a citizen of US should not be deprived of the benefits of his nationality and the fact that his father is well settled in the US and can provide better opportunities both for his education and future in the US. Therefore, it would be in the welfare of the minor child to be repatriated to US wherein he can have access to both his parents. The Respondent Wife has instituted cases in Ahmedabad Court only after the filing of the custody case in US seeking repatriation of the minor child to the USA.
6.21 Learned Advocate for the petitioner submitted that the Hon'bie Supreme Court in Shilpa Aggarwal v. Aviral Mittal reported in (2010) 1 SCC 591 a three year old minor daughter, who was a U.K. citizen and the parents were holding Indian Passports, the minor daughter was repatriated to U.K. by exercising the summary jurisdiction and the issues regarding the custody and welfare of the minor child were left to be investigated by the competent court in UK.
6.22 Learned Advocate for the petitioner submitted that as per the latest Judgment of the Hon'ble Supreme Court in Lahari Sakhamuri v. Shobhan Kodali (2019) 7 SCC 311 it has been held that two minor children aged 7 and 5 years respectively, who were U.S. citizens were directed to be repatriated to U.S. by exercising the Writ of Habeas Corpus and it was observed that the best interest of the children being of paramount importance will be served if they return to U.S. and enjoy their natural environment with love, care and attention of their parents. It was further held that the direction to return the children to foreign jurisdiction would not result in any physical, mental and psychological or other harm to the Page 12 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined children.
6.23 Learned Advocate for the petitioner submitted that the Hon'ble Supreme Court has in the cases of Dr. V. Ravi Chandran v. Union of India reported in (2010) 1 SCC 174 and Arathi Bandi v. Bandi Jagadrakshaka Rao reported in AIR 2014 SC 918 , directed that the children be returned to the country of their 'habitual residence' on the principle of 'comity of courts' for the determination of their best interests and welfare which is the prime consideration. There is no allegation or any complaint made by the Respondent No.2 wife alleging any perpetration of domestic violence or any harm caused to the child when the minor daughter was living in the US for the past more than 3 years.
6.24 Learned Advocate for the petitioner submitted that it is no longer res integra that even if orders of custody are passed by the Native Country after the child is brought in India, even in that eventuality, keeping in mind the interest and welfare of the child and the nationality of the child, the Hon'ble Supreme Court and various other Courts have repatriated the minor child back to their Native Country. The Petitioner seeks reliance upon the pronouncements of Shilpa Agarwal Vs Aviral Mittal reported in (2010) 1 SCC 592, Surya Vadanan Vs State of Tamil Nadu & Ors. reported in (2015) 5 SCC 450, Lahari Sakhamuri Vs Sobhan Kodali reported in (2019) 7 SCC 311, Yashita Sahu Vs State of Rajasthan & Ors. reported in (2020) 3 SCC 67.
6.25 Learned Advocate for the petitioner submitted that since there is no harm in repatriation of the minor child and thereafter, it is the US Court, which shall determine in whose custody the minor. The Petitioner also seeks reliance upon Rohith Thammana Gowda Vs State of Karnataka & Ors. reported in 2022 SCC OnLine SC 937 wherein in similar Page 13 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined circumstances has held that a writ court while "In exercise of summary Jurisdiction, the court must be satisfied and of the opinion that the proceedings instituted before it was in close proximity and filed promptly after the child was removed from his/her native state and brought within its territorial jurisdiction.
SUBMISSIONS OF THE RESPONDENT NO.2:-
7. Learned Senior Advocate for the respondent submitted that none of the fundamental or statutory legal rights of the Petitioner have been violated because of any alleged action or inaction by the Respondent and therefore the present petition is not maintainable.
7.1 Learned Senior Advocate for the respondent submitted that the Petitioner has an effective alternative remedy before the appropriate Forum or Court for redressal of his alleged grievances and hence the present petition is not maintainable. It is submitted that matters of child custody cannot be the subject matter of a habeas corpus petition as the same can be decided only under proceedings under the Custody Laws.
7.2 Learned Senior Advocate for the respondent submitted that the Respondent is the natural guardian and biological mother of minor Souumya for whom the present habeas corpus petition has been filed. The custody of the minor child with her own mother does not and cannot amount to illegal custody or confinement.
7.3 Learned Senior Advocate for the respondent submitted that minor Page 14 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined Souumya is not under any confinement and is moving freely under the care of his mother.
7.4 Learned Senior Advocate for the respondent narrated the side of the Respondent no.2 from her perspective that the petitioner was residing in the USA, the parents of the Petitioner visited the residence of Respondent No.2 in the second week of March, 2018 at Ahmedabad. During such visit, the mother of the Petitioner exchanged the contact details of the Petitioner with Respondent No.2 and her parents.
7.5 It is submitted that thereafter, Respondent No.2 and the Petitioner began speaking with each other over telephone and shortly thereafter even on the Skype platform. During the conversations in April, 2018, the Petitioner learnt that Respondent No. 2 had a subsisting 10 years visitor's Visa to the USA. Upon learning this, the Petitioner insisted upon parents Respondent No. 2 to visit the USA as early as possible. Due to the persistent insistence of the Petitioner, Respondent No. 2 requested her parents to permit her to travel to the US. The parents of Respondent No. 2 thought that this would be an opportunity for Respondent No. 2 to get to know the Petitioner better as well as to learn about the lifestyle of the Petitioner in the USA. Taking such facts into consideration, the parents of Respondent No.2 made travel plans for Respondent No.2 to the USA. The earliest that Respondent No.2 could travel was 18.05.2018. The Petitioner kept insisting Respondent No.2 to travel earlier, however, the same was not possible. The parents of Respondent No.2 booked a round-trip ticket from Ahmedabad to New Jersey, USA leaving on 18.05.2018 with return on 11.06.2018. Additionally, for the benefit of Respondent No.2, the father of Respondent No.2 had made arrangements for Respondent No. Page 15 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined 2's friend to visit New Jersey during the duration Respondent No. 2 stayed there.
7.6 It is submitted that respondent No.2 arrived in USA on 18.05.2018. She, along with her friend Ms. Shalvi spent three to four days in New Jersey, USA with the Petitioner. After such meeting, Respondent No.2 was scheduled to meet her aunt (father's sister) namely Ms. Alpa Anandjiwala in Florida, USA. No sooner did Respondent No.2 land in Florida, she received an intimation from the Petitioner that his application for Green-Card had been rejected.
7.7 It is submitted that since, the application of the Petitioner for a Green Card had been rejected, the Petitioner insisted upon Respondent No. 2 that she should not return to India, and instead marry him right away while she was in the US. The Petitioner claimed that since his application had been rejected, it was not possible for him to return to India for a long time. Moreover, his current Visa was scheduled to expire in September, 2018. The Petitioner further claimed that, in the event he leaves USA now, he would not be permitted to enter the country again. Respondent No. 2 was therefore, put in a very difficult position since she had planned a stay in the USA for a little above three weeks and was in no position to make such an instantaneous decision on marriage. Moreover, she wanted to consult with her parents and family before taking any decision since such decision would include moving to a completely different country with someone she had barely known for a few weeks and had met for the first time just a week before. However, the Petitioner kept insisting on an immediate decision from Respondent No.2 even though he knew that Respondent No.2 wanted her parents to meet and know the Petitioner before deciding about marriage.
Page 16 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined 7.8 It is submitted that respondent No. 2 thus consulted her parents in Ahmedabad regarding what further steps she should take. In consultation with the Petitioner, the parents of Respondent No. 2 asked Respondent No. 2 to visit the advocate of the Petitioner and understand what options were available to the Petitioner. Respondent No. 2 then returned to New Jersey, USA and along with the Petitioner, met Mr. Aditya Surti, advocate of the Petitioner in the first week of June, 2018. During such visit, Mr. Surti informed Respondent No. 2 that it was advisable that Respondent No. 2 and the Petitioner get married immediately so that the Petitioner could then file a fresh Green-Card application. The marriage to Respondent No. 2 would increase the probability of the Petitioner receiving a Green Card.
7.9 Learned Senior Advocate for the respondent submitted that the Petitioner was more concerned about his Green Card status than the vulnerable situation in which he had put Respondent No. 2. Towards this end, the Petitioner gave assurances to Respondent No. 2 for a respectable and comfortable life in the USA. The Petitioner also spoke to the parents of Respondent No.2 over telephone and made assurances regarding the safety and well-being of Respondent No. 2 as her wife. Additionally, the Petitioner manipulated Respondent No. 2 by claiming that going back to India and returning to the USA would cause unnecessary costs as well as there would be multiple difficulties in obtaining a Visa from India after marriage and therefore, it was best for Respondent No. 2 to immediately marry.
7.10 Learned Senior Advocate for the respondent submitted that on 04.09.2018 the Petitioner and Respondent No.2 got married at Crystal Page 17 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined Ballroom, Ember Restaurant, at South Brunswick, New Jersey, USA in the presence of family, relatives, colleagues and friends as per Hindu rites and rituals. Prior to the marriage, the parents of Respondent No. 2 had no occasion to meet or know the Petitioner as they had landed in USA only about a week prior to the marriage. The parents of Respondent No. 2 spent about three weeks with the Petitioner and Respondent No.2 in New Jersey and during such period, they had few interactions with the Petitioner given the short period for the preparations for the marriage. The parents of Respondent No. 2 left for India in the last week of September 2018. The parents of the Petitioner then came to stay with the parties on the next day. They too stayed with the parties for about 3 weeks and returned to India around mid-October, 2018.
7.11 It is submitted that the moment the parents of the Petitioner left for India, Respondent No. 2 started noticing a change in the behaviour of the Petitioner. The Petitioner had become quiet and reclusive and stopped having conversations with Respondent No. 2. The Petitioner became aggressive. Such aggression of the Petitioner was seen and felt in his conduct towards Respondent No. 2. The Petitioner, in fact, started controlling Respondent No. 2 and did not permit Respondent No. 2 to do anything she liked or wanted and ensured that Respondent No. 2 remained confined within the house to do all the household work and to keep the house in order. Respondent No. 2 was completely shocked and taken aback by such sudden change in the behaviour and conduct of the Petitioner. In fact, the moment his parents left, the Petitioner had a fight with Respondent No. 2 in which he screamed and yelled at Respondent No. 2 to such an extent that Respondent No. 2 was left in a complete state of shock as in the entire duration from April 2018 till October Page 18 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined 2018, the Petitioner had never shown any aggression or tendency of screaming or yelling towards Respondent No. 2 Thereafter the Petitioner stopped communicating with the parents of Respondent No. 2 and even started acting coldly with Respondent No. 2. However, at this stage Respondent No. 2 did not have any reason to be suspicious and generally thought that such behaviour was due to the teething problems of a new marriage.
7.12 Learned Senior Advocate for the respondent submitted that it was difficult for Respondent No. 2 to meet with all the household chores alone. Respondent No. 2, at times, tried to request the Petitioner to help in basic activities such as purchase or groceries, vacuuming, etc. however, the Petitioner did not even bother to either respond to Respondent No. 2's request and brushed aside the same and directed Respondent No. 2 to do all the chores as she was his wife. Moreover, the said rental accommodation was shared with two other friends of the Petitioner. The Petitioner even made Respondent No. 2 do work for the other friends who were sharing the accommodation. Respondent No. 2 tried to protest against doing work for the other friends, however, the Petitioner would shout and threaten Respondent No. 2 without paying heed to her request or even without considering the same. Respondent No. 2 thus effectively became the maid of the house and was saddled with the burden of doing all the household work for the Petitioner as well as the other friends.
7.13 Learned Senior Advocate for the respondent submitted that Petitioner and Respondent No.2 came to know that Respondent No.2 was pregnant. Since the first trimester is crucial, she once again requested the Page 19 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined Petitioner to purchase the essentials mentioned herein above, however, the Petitioner did not budge. Respondent No. 2, while speaking to her parents mentioned the irrational and unreasonable stand of the Petitioner. Looking to the condition of Respondent No. 2, the father of Respondent No. 2 made immediate arrangement for the transfer of USD 3000 to the account of the Petitioner. It was only after such transfer that the Petitioner agreed to purchase the aforementioned essentials in the new accommodation.
7.14 Learned Senior Advocate for the respondent submitted that Respondent No. 2, on account of her pregnancy was not in a position to do various household chores. The Petitioner, even during such times, instead of understanding the condition of Respondent No. 2 would taunt Respondent No. 2 and claim that she was weak and did not have a decent upbringing else she would have known that all women are able to do household chores during pregnancy. The Petitioner, instead of providing help or support, would ensure that he gets Respondent No. 2 to do all the household work irrespective of the physical constrains that the pregnancy caused.
7.15 Learned Senior Advocate for the respondent submitted that the Petitioner continued to act in an extremely miserly manner even for basic essential requirements of Respondent No.2. On account of pregnancy, Respondent No. 2 had put on weight and hence needed clothes for herself. Respondent No. 2 therefore requested the Petitioner to purchase essentials such as winter jackets, over coats, inner wear, maternity pants and tops. The Petitioner again refused to make any such expense and told Respondent No. 2 that for this duration, she could use his clothes Page 20 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined but that he would not purchase any such essentials for her. Respondent No. 2 was extremely shocked at such an unreasonable stand of the Petitioner who refused to provide even essentials to her in the last trimester of the pregnancy.
7.16 It is submitted that delivery of Respondent No. 2 was due in January 2020, and since Respondent No. 2 could no longer do the chores around the house, Respondent No. 2 requested her mother to come and live with the parties in December, 2019. The father of Respondent No. 2 also accompanied his wife to the USA. The Petitioner was well aware about such arrangement, However, immediately after the parents of Respondent No. 2 arrived in the US, the Petitioner again began behaving in a very rude and hostile manner, towards the parents of Respondent No. 2. The Petitioner misbehaved with the father of Respondent No. 2 to such an extent that on one occasion the Petitioner, without any care for his age or relation, insulted the father of Respondent No. 2 by haughtily asking as to what he and his wife were doing in his house and that only his own parents should come to live in his house. Both parents of Respondent No. 2 were extremely hurt and embarrassed by the conduct and words.
7.17 It is submitted that in March 2020, the COVID-19 pandemic erupted across the world and all international travel came to be suspended. During such period, most companies in the USA had shut down and a complete lock-down had been imposed in various places including Franklin Park, New Jersey on account of which, the Petitioner was confined to his residence. At such time, Respondent No. 2 hoped that the Petitioner would use this opportunity to get to know their newly born child Souumya better and interact with the child so as to develop a Page 21 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined lifelong bond. Even the mother of Respondent No. 2 encouraged the Petitioner to interact with the child. However, the Petitioner had no intention of assisting or helping either Respondent No. 2 or her mother in doing the daily activities necessary for the child Souumya or to interact or engage with Souumya in any meaningful way.
7.18 It is submitted that the Petitioner did not make any attempts to look after or help Respondent No. 2 in the activities of the newly born child or the household. In fact, the Petitioner by staying home had become addicted to an online game called 'Counter-Strike' for hours together and the Petitioner would not even bother about the newly born child in the house. In fact, to make his gaming easier, the Petitioner had purchased several expensive gaming accessories.
7.19 Learned Senior Advocate for the respondent submitted that somewhere in the month of mid-September, 2020, the father of the Petitioner also arrived in USA. After his arrival, Respondent No.2, for the first time, learnt that the mother of the Petitioner regularly suffered attacks of vertigo. Respondent No. 2 therefore became more cautious with the minor child Souumya while with the mother of the Petitioner. Respondent No. 2 always acted keeping the best interests of Souumya in mind. The Petitioner and his mother, however, always tried to distance the Respondent from her child.
7.20 It is submitted that one evening, somewhere in end of September, 2020, the mother of the Petitioner was not feeling well and while Respondent No. 2 was attending to the child, the Petitioner created a ruckus in respect of the unwashed utensils lying in the kitchen.
Page 22 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined Respondent No. 2 explained to the Petitioner that she was attending to the child and hence would do the work after the child went to sleep. The Petitioner without blinking an eye and without any reasonable basis began screaming and yelling at Respondent No. 2 that she was not interested in doing any work and only wanted to make baseless excuses using the minor child as a cover. After Souumya slept, Respondent No. 2 went and completed all the household chores including the unwashed utensils, however, the Petitioner continued to fight with Respondent No. 2 and claimed that she was lazy. Respondent No. 2 protested and informed the Petitioner that household work takes time and cannot be done instantly. Such protests were met with the rage and anger of the Petitioner wherein the Petitioner used abusive language, insulted Respondent No. 2 and also insulted the parents of Respondent No. 2. The Petitioner was yelling so loudly that his parents who were in the room on the other side of the house came rushing into their room. It was very clear that even the parents of the Petitioner were afraid of the rage and anger of the Petitioner and were also scared as to what steps the Petitioner would take in such rage and anger. The Petitioner never had any control over his anger.
7.21 It is submitted that respondent No. 2 at that time was extremely fearful for the safety and well-being of herself and child. When the parents of the Petitioner reached the room of the parties, Respondent No. 2 believed that they would try to calm the Petitioner down. Instead, Respondent No. 2 was shocked to see that the parents of the Petitioner joined the Petitioner in insulting Respondent No. 2 and her family. Seeing the support of his parents, the Petitioner in the middle of the argument physically manhandled Respondent No. 2 and pulled her out of Page 23 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined the room and told her to get lost from his house as it was his. Respondent No. 2 for her own safety and well-being of the child freed herself from the Petitioner and rushed back into the room and closed the door as she feared for her safety and that of the minor child.
7.22 Learned Senior Advocate for the respondent submitted that thereafter on 12.03.2023, while Respondent No. 2 was in India and was on a call with the Petitioner and was explaining to him about Souumya's condition, the Petitioner suddenly began yelling on top of his voice at Respondent No. 2 questioning her as to why she did not visit the mother of the Petitioner or his maternal grandmother on their respective birthdays. Respondent No. 2 calmly responded that since Souumya was unwell it was not possible to physically drag her to meet them in-person, and hence she was unable to visit them. The Petitioner did not even bother to listen to the response of Respondent No. 2 and simply started using abusive language and insulting Respondent No.2. In fact, the Petitioner even suggested that even if Souumya was had 105 fever and Respondent No. 2 was unwell due to her pregnancy, she should have gone to visit his mother and grandmother. Respondent No. 2 was extremely hurt by such unreasonable and irrational expectation of the Petitioner. Thereafter, on the next day, Respondent No.2 called the Petitioner to have a conversation since he had abruptly left the conversation in his rage on the previous day. During this conversation, Respondent No. 2 calmly suggested that the Petitioner should feel sorry for his irrational behaviour towards the minor child and herself. Upon hearing this, the Petitioner again began to yell at Respondent No. 2 and said that he did not wish to keep any relations with Respondent No. 2 and/or the minor child. He also, once again told Respondent No. 2 that Page 24 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined he did not wish to have any relations with the parents or the relatives of Respondent No. 2. Before Respondent: No. 2 could respond, the Petitioner hung up the phone. Respondent No. 2 was extremely hurt by the words and behaviour of the Petitioner, especially since Respondent No. 2 was pregnant and neither the Petitioner nor his family had even bothered to inquire or discuss about the unborn child. Respondent No. 2 regularly gave updates to the Petitioner about her medical check-ups as well as about her dates of sonography. Even on such dates, there would be no inquiry from the Petitioner or his family about the development and growth of the unborn child. Respondent No. 2 was extremely hurt by the complete lack of care or concern by the Petitioner and his family towards the unborn child of the parties. Respondent No. 2 had, during her conversations with the Petitioner indicated that she may not be in a position to travel as there was a chance that such long-distance travel would be detrimental to the health of both Respondent No. 2 and the unborn child. The Petitioner, instead of understanding the situation, only accused Respondent No. 2 of using her pregnancy as an excuse.
7.23 It is submitted that suddenly thereafter, the Petitioner called back and started abusing Respondent No. 2 and her parents. He also directed Respondent No. 2 not to come back to USA. He said she could live or die with the minor child in India but not return to USA. He clearly said that he does not want to stay with Respondent No. 2 any longer. Saying the above, the Petitioner cut the call once again. Respondent No. 2 was in a very precarious condition as she was pregnant and with minor child. Respondent No. 2 feared returning to USA as she would be met with the wrath of the Petitioner. Respondent No. 2 was unable to travel to USA due to her pregnancy. It was under such circumstances that Respondent Page 25 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined No. 2 was constrained to file Family Suit No.1628 of 2023.
7.24 Learned Senior Advocate for the respondent submitted that Respondent No.2 came across the medical files of the Petitioner. Respondent No. 2 for the first time, learnt that the Petitioner was on Fluoxetine 20mg capsules since January, 2021. Upon further inquiry, Respondent No. 2 learnt that the Petitioner suffered from recurrent episodes of major depressive disorder since 2021. The Petitioner also suffered from Generalized anxiety disorder with history of ADHD and situational anxiety.
7.25 It is submitted that the Petitioner has a documented medical history of suffering from recurrent episodes of major depressive disorder, general anxiety disorder with a history of Attention Deficit Hyperactivity Syndrome (ADHD) and situational anxiety. The Petitioner also suffered from memory loss, anger issues and social anxiety.
7.26 Learned Senior Advocate for the respondent submitted that both Respondent No.2 and the Petitioner are governed by the provisions of the Hindu Marriage Act, 1955 and Hindu Minority and Guardianship Act, 1956 and under which Respondent No. 2 is entitled to retain the legal custody of minor Souumya. Respondent No. 2's custody of minor Souumya is required to be protected, notwithstanding the ex-parte order passed by the court in USA. The Petitioner has dis-entitled himself from claiming custody of minor Souumya by his very conduct during and after both the pregnancies of Respondent No.2. The Petitioner chose to initiate divorce proceedings against the answering Respondent when she was in her most vulnerable state in very last trimester of her pregnancy.
Page 26 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined 7.27 It is submitted that looking to the tender age of minor Souumya who is a girl child of only three and half years, it is in her best interest that she remains with Respondent No. 2. The parents of Respondent No. 2 are available to help Respondent No. 2 in taking care of her in a way that will be impossible for the Petitioner to do so. The Petitioner lives alone in USA and his parents are in India. The Petitioner's immigration status also prevents his parents from going to the US to live with him for an extended length of time.
7.28 It is submitted that Souumya is well-settled and well-integrated in India, while living with Respondent No.2. Every morning she wakes up and performs pooja with her maternal grandfather after which she attends Hugs and Cuddles Pre-School, a preeminent school for young children in Ahmedabad. Souumya's daily routine is well looked after by Respondent No.2 in the presence of her maternal grandparents. She has a well- balanced diet of milk, fruits, home-cooked dal, vegetables, roti and rice for breakfast, lunch and dinner. Souumya has also been in regular contact with her paternal grandparents, and she used to frequently spend the entire day with them several times before her school started in June, 2023. She attends mythology classes every Saturday at Kathaa Kids, Ahmedabad and goes to Soccer (Football) Class twice a week. Souumya has also made friends with the children in the neighbourhood and goes on regular playdates with Anaira, Tara, Reyansh, Jayraaj and many other kids. Souumya bedtime routine includes spending time with her family and storytelling sessions by her mother and maternal grandparents.
8. Having considered the rival submissions of the parties and having Page 27 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined perused the documents on record, the chronology of events appears to be as under:
Sr. Date Particulars No. 1 March, 2018 Petitioner met Respondent No.2 through family and
prior to marriage the Respondent No.2 came to US in May 2018. Parties stayed in live-in relationship for 4 months prior to the marriage, in the US.
2 04-09-2018 Parties got married at New Jersey USA. Marriage was duly registered in USA. Soon after marriage Respondent No.2 got her visitor's visa converted to H4 Visa.
3 March, 2019 Parties were staying in a rented accommodation in New Jersey, USA.
4 April, 2019 Property at 81 Pear Tree Lane Franklin Park, New Jersey USA was bought in joint name of both the parties.
5 May, 2019 Respondent No.2 conceived in US in May 2019. 6 28-01-2020 Minor daughter Soumya was born. She is a US citizen as such holds US passport.
7 February, The Petitioner purchased a new joint property at 2022 Rogers, Minnesota and the parties shifted to the said house in November, 2022.
8 06-06-2022 Respondent No.2 started a job at J.P. Morgan Chase. 9 15-08-2022 Minor daughter started attending day care at Tender Learning Center when she was going from 8 am to 4.30 p.m. 10 01-09-2022 Minor daughter started attending part time school at Wayzata Early Learning School twice a week.
11 November, Petitioner booked the tickets for the proposed travel of 2022 the Petitioner, Respondent No.2 and the minor child from 10/2/2023. Return tickets were also booked for 04.03.2023 for Petitioner and Respondent No.2 along with minor child were slated to travel back on 18.03.2023 Page 28 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined 12 December, The Respondent No.2 came to know that she had 2022 conceived for the second child.
13 10-02-2023 Parties came to India and soon after the travel they went to Mumbai for the purpose of getting stamping on their US visas.
14 26-02-2023 Big function was organized in Ahmedabad in honour of the parties and their daughter for coming for the first time to India, attended by relatives from both the sides. At least 125 relatives from both the sides attended the said function.
15 04-03-2023 Petitioner went back to US and after his return the Respondent No.2 told Petitioner to cancel her tickets the following week.
16 17-03-2023 Both the parties exchanged various WhatsApp messages between themselves.
17 30-03-2023 The Respondent No.2 wife sent an email to her employers informing them that she was going to stay in India. The said email came to the knowledge of the Petitioner in May, 2023.
18 02-04-2023 The Respondent No.2 again sent a WhatsApp message to the Petitioner that she has not decided when to come back to US.
19 16-06-2023 Petitioner filed a case seeking custody and the return of the minor daughter back to US along with Divorce Petition before the US court.
20 23-06-2023 US court directed the Respondent No.2 to immediately return the minor child to the state of Minnesota.
Summons of the US Court along with pleadings and exparte order was duly served upon the Respondent No.2.
21 30-06-2023 Respondent No.2 after receipt of the summons and the order dated 23.06.2023 passed by the US Court, filed a Petition before the Family Court for grant of decree of divorce and for custody of the minor Soumya.
22 14-07-2023 Matter was posted for hearing via Zoom before the US Court.
23 19-07-2023 US court thereafter confirmed the exparte order dated Page 29 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined 23.06.2023 and reiterated that order 23.06.2023 shall remain in full force.
24 07-09-2023 Petitioner filed the present Habeas Corpus Petition seeking return of the minor daughter Soumya back to US in compliance with the Order dated 23.06.2023 and 19.07.2023 passed by the US Court.
8.1 It appears that Respondent No. 2 was previously married to one Sharmil Gaurang Patwa in January, 2014. Since, Respondent No. 2 and Mr. Patwa were incompatible, they approached the Family Court at Ahmedabad in the year 2015 by filing Family Suit No.170 of 2015. Vide order dated 03.09.2015, Judgment and order in the said proceedings was passed, inter-alia, dissolving the marriage between Respondent No. 2 and Mr. Patwa. The Petitioner who had been residing in the United States of America since 2009 was married to one Ms. Mirali Vasant in 2012, the Petitioner had divorced the said Ms. Mirali.
9. From the pleadings of the respectable parties, the issues that arise for consideration, (a) whether in the facts of the case, a petition for habeas corpus is maintainable? (b) effect of other proceedings initiated with alacrity by the petitioner father in U.S. Court on the principle of comity of courts, (c) Whether the minor can be said to be in unlawful custody? (d) Requirement of summary or elaborate inquiry regarding welfare of the child, (e) in the facts of the case, what will be in the best interest of the child.
10. It will be fruitful to refer to the case law on the issues that would arise for consideration in the facts of the cases:-
10.1 In case of Smt. Surinder Kaur Sandhu v/s. Harbax Singh Sandhu Page 30 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined and another reported in (1984) 3 SCC 698 . The Apex Court had pronounced upon the issue where the conflict is between laws of two sovereign States. It was held that the State having most intimate contact with the issue, will have jurisdiction. In the facts of the case, the petitioner was the mother and the respondent-husband, who had brought the child from UK to India, despite there being the order in favour of wife. It is the case where the husband was convicted and sentenced to the term of three years for offence for negotiating with hit-man to have wife (petitioner) ran over by the car and thereby attempt to commit her murder. On the issue of custody, it was held that in the matters relating to the matrimony and custody, the law of that place must govern, which has closest concern with the well-being of the spouses and welfare of the offspring of marriage. Therefore, jurisdiction must follow upon functional lines and is not attracted by operation or creation of fortuitous circumstances, such as the circumstances as to where the child has brought or at the relevant time being lodged. The Apex Court in Para-10 held it to be Courts duty and function to protect wife against burden of litigation in an inconvenient forum, which she and her husband had left voluntarily in order to make their living in England, where the birth was given to the child, whose custody is in question. The custody was given to the mother.
10.2 In case of Mrs. Elizabeth Dinshaw v/s. Arvand M. Dinshaw and another reported in (1987) 1 SCC 42 , it was held that it is duty of the Courts to see that a parent whose act of removing the child out of the country of origin, does not get advantage for being wrongdoing and therefore, the Court is required to pay regard to the orders of the proper Court. However, it also provided for exception where there is satisfaction Page 31 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined beyond reasonable doubt that to do so would seriously inflict harm on the child. The Court also proceeded to hold that independent of the consideration of Foreign Court of appropriate jurisdiction having pronounced whenever the custody issue of minor child arises, the matter is required to be decided not on the consideration of legal rights of the parties, but on the sole and paramount criteria of what would best serve the interest and welfare of the minor. It was observed in this very judgment that the mother would have genuine love and affection for the child and she could be safely trusted to look after the child, educate him and attend in every possible way to his proper upbringing. Under this judgment, the child was repatriated to USA holding that the child is not taken roots in India and was still accustomed and acclimatized to the conditions prevailing in the country of origin i.e. USA and that the child's presence in India was attributed to illegal act of abduction by father and therefore, even if after coming to India, father had put child in school in India, the same would not act in the interest of the child and therefore, order of repatriation to USA with the mother. In this case also the custody was given to the mother.
10.3 In case of Aviral Mittal v/s. State and another reported in 2009 (112) DRJ 635, which was before the High Court of Delhi. The petitioner before the High Court was father and respondent was mother, who had set up their matrimonial home in UK, where the child was born and was three and half years old and by birth had acquired British passport, whereas the parents continued to hold Indian passport. Family came to India where the petitioner father left for UK after visit and was to be shortly joined by the respondent-mother and the child later on. However, later on mother refused to join the father on account of their internal Page 32 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined matrimonial disputes. The Delhi High Court had observed that allegation against each other in the petition and counter Affidavits were serious in nature to the extent that mother was lacking in taking care of the child, as she was doing job. At the same time, mother had made allegations against father regarding neglect as husband and as father of the child.
The Court ultimately, found that allegations reflected that it is no holds barred fight in respect of the conduct of the parties, while residing in UK for 5 years and therefore, to determine truth in this allegations, would be necessary while considering the aspect of custody of minor child and these allegations having been made against each other in UK applying principles of Comity directed the respondent No.2 to join proceedings in UK along with the child.
10.4 Aforesaid judgment was the subject matter of scrutiny in case of Shilpa Aggarwal v/s. Aviral Mittal and another reported in (2010) 1 SCC 591, wherein the judgment of the Delhi High Court was upheld. Approving the decision of the Delhi High Court, the Apex Court held that the High Court had taken note of the fact that the English Court has not directed that the custody should be handed over to the father, but only to the extent that the child should be returned to the jurisdiction of UK Court, which would then proceed to determine as to who would be best suited to have custody of the child. Therefore, according to the Apex Court, the High Court had taken into consideration both the questions relating to the Comity of Courts as well as interest of the minor child, which even according to the Apex Court is one of the most important consideration in the matters relating to custody of minor child. The Apex Court being satisfied from the material produced before the Court, did not interfere with the order of the Delhi High Court, as the issue of the Page 33 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined paramount interest of the child was yet to be considered and it was only by way of interim arrangement, the child was returned to the jurisdiction of the said Court.
10.5 In case of V. Ravi Chandran v/s. Union of India and others reported in (2010) 1 SCC 174 , the facts examined by the Court were that the petitioner was of Indian origin and citizen of USA, who married the respondent in India and out of marriage, the child was born in USA. On account of the dispute between the husband and wife, the Court of competent jurisdiction in USA was approached and Consent Order came to be passed with regard to the alternate custody of the child on weekly basis. In violation of the aforesaid order, the respondent-wife removed the child from USA to India and started residing with her parents in Chennai. On account of this development, the petitioner-father moved the Court in USA for modification of custody and action for violation of the Court's order. It was in this facts situation that writ of Habeas Corpus was moved before the Apex Court and the Apex Court while allowing the partly writ petition held that the Court in the country to which the child has been removed must first considered the question whether the Court would conduct elaborate inquiry on the question of custody or by dealing with matter summarily ordered the parents to return the custody of the child to the country from which the child was removed and whether aspect of the child welfare be investigated in the country of origin. Where the Court is of the view that elaborate inquiry is necessary, then the Court is bound to consider the welfare and happiness of the child as paramount consideration, requiring it to go into the relevant aspect of the welfare of the child. However, where the Court decides to exercise its jurisdiction summarily to return the child to its own country keeping in Page 34 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined view the jurisdiction of the Court in the native country, which has closest concern and most intimate contact with the issue arising in the case. The Court may leave aspect relating to the welfare of the child to be investigated by the Court of its origin. Glaring aspect in the facts of the aforesaid case is that both the parties had subjected themselves to the Court in USA and were already under the Order of the USA Court. Therefore, the Apex Court had directed repatriation of the child to USA. The Apex Court had also taken into consideration chronology of events in the facts of the case, wherein promptly father had moved the Habeas Corpus before the Apex Court and it took two years for CBI to trace out the child and bring both the mother and the child before the Apex Court and therefore, period that had lapsed in between, could not have been treated as period during which the child had grown roots in the Indian Society. The Apex Court had therefore, addressed such facts of the case. The Apex Court had also concluded that the facts of the case and particularly, merely because the child was brought to India by the mother, issue of custody of the minor child does not deserve to be gone into by the Courts in India and therefore, it would attract the principles of Comity for returning the child to USA.
10.6 In case of Nithya Anand Raghavan v/s. State (NCT of Dehi) and another reported in (2017) 8 SCC 454 . The Apex Court pronounced upon the power of Indian Courts to decline the relief of return of child brought within its jurisdiction, if it is satisfied that the child is settled in the new environment and it would expose the child to physical and psychological harm and therefore, overriding consideration must be interest and welfare of the child. Emphasis upon the welfare of the child to be of paramount importance. In the facts of the case, the child was removed from UK by Page 35 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined the mother in violation of interim order of the UK Court, which had directed the mother to produce the child before such Court on the issue of wardship, which was pending adjudication. In this judgment, it was held that the High Court should undertake elaborate inquiry by considering questions on merits bearing in mind the welfare of the child as paramount importance and considering Foreign Court order only as one of the factor, which is required to be taken into consideration. It held that the High Court in the interest and for the welfare of the child, is not denuded of the powers to deny relief of return of child to UK Court on being satisfied that there is possibility of child being exposed to harm, physical or psychological and where such facts are found, then Foreign Court order must yield to the welfare of the child and the principles of 'Comity of Courts' and 'first strike' would lose its significance. The Apex Court in Para-42, has held as under:
"42. The consistent view of this court is that if the child has been brought within India, the Courts in India may conduct (a) summary inquiry or (b) an elaborate inquiry on the question of custody. In the case of a summary inquiry, the Court may deem it fit to order return of the child to the country from where he/she was removed unless such return is shown to be harmful to the child. In other words, even in the matter of a summary inquiry, it is open to the Court to decline the relief of return of the child to the country from where he/she was removed irrespective of a pre-existing order of return of the child by a foreign Court. In an elaborate inquiry, the Court is obliged to examine the merits as to where the paramount interests and welfare of the child lay and reckon the fact of a pre-existing order of the foreign Court for return of the child as only one of the circumstances. In either case, the crucial question to be considered by the Court (in the country to which the child is removed) is to answer the issue according to the child's welfare. That has to be done bearing in mind the totality of facts and circumstances of each case independently. Even on close scrutiny of the several decisions pressed before us, we do not find any contra view in this behalf. To put it differently, the principle of comity of courts cannot be given primacy or more Page 36 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined weightage for deciding the matter of custody or for return of the child to the native state."
The Apex Court in Para-47, has held as under:
"47. In a habeas corpus petition as aforesaid, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person (private respondent named in the writ petition). For considering that issue, in a case such as the present one, it is enough to note that the private respondent was none other than the natural guardian of the minor being her biological mother. Once that fact is ascertained, it can be presumed that the custody of the minor with his/her mother is lawful. In such a case, only in exceptionable situation, the custody of the minor (girl child) may be ordered to be taken away from her mother for being given to any other person including the husband (father of the child), in exercise of writ jurisdiction. Instead, the other parent can be asked to resort to a substantive prescribed remedy for getting custody of the child."
Ultimately, the Court proceeded to hold as under:
"66. The invocation of first strike principle as a decisive factor, in our opinion, would undermine and whittle down the wholesome principle of the duty of the Court having jurisdiction to consider the best interests and welfare of the child, which is of paramount importance. If the Court is convinced in that regard, the fact that there is already an order passed by a foreign Court in existence may not be so significant as it must yield to the welfare of the child. That is only one of the factors to be taken into consideration. The interests and welfare of the child are of paramount consideration. The principle of comity of courts as observed in Dhanwanti Joshi's case (supra), in relation to non-convention countries is that the Court in the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the foreign Court as only a factor to be taken into consideration. While considering that aspect, the Court may reckon the fact that the child was abducted from his or her country of habitual residence but the Court's overriding consideration must be the child's welfare.Page 37 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024
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67. The facts in all the four cases primarily relied upon by the respondent no.2, in our opinion, necessitated the Court to issue direction to return the child to the native state. That does not mean that in deserving cases the Courts in India are denuded from declining the relief to return the child to the native state merely because of a pre-existing order of the foreign Court of competent jurisdiction. That, however, will have to be considered on case to case basis - be it in a summary inquiry or an elaborate inquiry. We do not wish to dilate on other reported judgments, as it would result in repetition of similar position and only burden this judgment.
68. In the present case, we are of the considered opinion that taking the totality of the facts and circumstances of the case into account, it would be in the best interests of the minor (Nethra) to remain in custody of her mother (appellant) else she would be exposed to harm if separated from the mother. We have, therefore, no hesitation in overturning the conclusion reached by the High Court. Further, we find that the High Court was unjustly impressed by the principle of comity of courts and the obligation of the Indian Courts to comply with a pre- existing order of the foreign Court for return of the child and including the "first strike" principle referred to in Surya Vadanan's case (supra).
69. We once again reiterate that the exposition in the case of Dhanwanti Joshi (supra) is a good law and has been quoted with approval by a three-judge bench of this Court in V. Ravi Chandran (supra). We approve the view taken in Dhanwanti Joshi (supra), inter alia in paragraph 33 that so far as non-convention countries are concerned, the law is that the Court in the country to which the child is removed while considering the question must bear in mind the welfare of the child as of paramount importance and consider the order of the foreign Court as only a factor to be taken into consideration. The summary jurisdiction to return the child be exercised in cases where the child had been removed from its native land and removed to another country where, may be, his native language is not spoken, or the child gets divorced from the social customs and contacts to which he has been accustomed, or if its education in his native land is interrupted and the child is being subjected to a foreign system of education, - for these are all acts Page 38 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined which could psychologically disturb the child. Again the summary jurisdiction be exercised only if the court to which the child has been removed is moved promptly and quickly. The overriding consideration must be the interests and welfare of the child."
10.7 In case of Lahari Sakhamuri v/s. Sobhan Kodali reported in (2019) 7 SCC 311, where the brief facts of the case which manifests from the voluminous record placed before us are that the appellant (Lahari Sakhamuri) and respondent (Sobhan Kodali) are the parents of the minor children. Appellant (Lahari Sakhamuri) went to USA for her masters in September, 2004 and thereafter started working in USA. She is a Biomedical Engineer by profession. Respondent (Sobhan Kodali) is also highly qualified and went to USA in July 2005 and is presently a Cardiologist by profession. Their marriage was solemnized according to Hindu rites in Hyderabad on 14th March, 2008. From this wedlock, son, namely, Arthin and daughter Neysa were born on 14th March, 2012 and 13th October, 2014 and both are US citizens and also hold US passports. The couple purchased house in Pennsylvania on 29th January, 2016 in their joint names and moved to their new home. The son started going to a school in September 2014 and a daughter in December, 2016. Both the children being there in US from their birth, the social and cultural value of US certainly was embedded in both of them. This fact cannot be ruled out that something certainly has gone wrong in their marital relations and it went to an extent where the appellant (Lahari Sakhamuri) took a decision to file petition for divorce and custody of the minor children in US on 21 st December, 2016 on the premise that there was a complete irretrievable breakdown of marriage under the Divorce Code, 1980 prevalent in US. It may be relevant to note that along with the application filed for divorce and custody of minor children, there is a Page 39 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined prescribed format which has to be filled disclosing the details of any wrong, if happened physically or abuse has been committed and the fact is that she was completely silent and positive in assertion in her application. Although both the parties were residing together in the same house, with joint legal custody of their children who were residing with them and there was no criminal/abuse history ever in the past. The Apex Court by referring to the essence of the judgment in case of Nithya Anand Raghavan (supra) that doctrine of comity of courts intimate connect, orders passed by Foreign Court having jurisdiction in the matter regarding custody of minor child, citizenship of the parents and the child etc., cannot over right consideration of the best interest and welfare of the child and that directions to return the child to the Foreign jurisdiction must not result in any physical, mental or psychological harm to the child and thereafter, proceeded to hold on the facts as under:
"46. It was her own admission in the declaration form annexed to the application that no mode of domestic violence or abuse was ever subjected upon her or upon the minor children by the respondent (Sobhan Kodali). The respondent (Sobhan Kodali) had purchased to and fro tickets of the appellant (Lahari Sakhamuri) and of minor children as also of his mother in law who was staying together in their matrimonial home, US with return tickets of 24th April, 2017 but after coming to India on 23rd March, 2017, because of the alleged death of her maternal grandmother, the appellant (Lahari Sakhamuri) refused to return back and was advised to file a Guardianship Petition before the Family Court, Hyderabad on 12 th April, 2017 and took the ex-parte order concealing the material facts from the Family Court that such a petition is pending in US filed at her instance and there was an order passed on 21 st December, 2016 restraining both the parties not to change residence of the children which would affect the other parties ability to exercise custodial rights.
47. It is not in dispute that both the minor children, from the very inception of their birth, till removal from the US on 23 rd March, 2017 Page 40 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined were living with their parents in US. This fact was admitted by the appellant (Lahari Sakhamuri) also in the guardianship petition filed before the Family Court, Hyderabad and also in the divorce and custody petition filed by her in US and only after hearing learned counsel for the parties, order was passed by the US Court on 22nd May, 2017 on the emergency custody petition granting temporary physical custody of the children with further direction to the appellant (Lahari Sakhamuri) to return along with the children to the jurisdiction of US Court on 2nd June, 2017. In case she was aggrieved by the order dated 22nd May, 2017 passed by the US Court after affording an opportunity of hearing which she contested through her Attorney, all the courses were available to her to assail the order of the Court. Since the appellant (Lahari Sakhamuri) failed in returning the children to the jurisdiction of the US Court despite order dated 22nd May, 2017, there was no option left with the respondent (Sobhan Kodali) but to file a Habeas Corpus Petition and pray that the children be repatriated back to US in compliance of the order of the US Court."
10.8 In case of Yashita Sahu v/s. State of Rajasthan and others reported in (2020) 3 SCC 67, the Court had pronounced upon maintainability of the habeas corpus petition in the child custody matter. The facts of the case indicated that the petitioner-wife and the respondent-husband married in India and proceeded for work in USA, where the child was born out of the wedlock and became citizen of USA. On account of differences, wife had applied for emergency protection order before US Court of competent jurisdiction and was granted ex-parte preliminary order of protection. Pending proceeding before the US Court, wife left USA and came to India and therefore, husband filed proceedings for emergency relief before the same US Court, which passed the order in favour of the husband. The US Court granted sole and legal custody of the child to the husband and directed the wife to return to USA along with the child. At the same time, warrant was issued against wife for violating the order of US Court. In this decision, the Court has after Page 41 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined taken into consideration various previous judgment of the Apex Court has authoritatively pronounced upon the issue of maintainability of writ of Habeas Corpus, comity of courts and welfare of the child as paramount consideration, which may be extensively relied upon, the Apex Court has held as under:
"10. It is too late in the day to urge that a writ of habeas corpus is not maintainable if the child is in the custody of another parent. The law in this regard has developed a lot over a period of time but now it is a settled position that the court can invoke its extraordinary writ jurisdiction for the best interest of the child. This has been done in Elizabeth Dinshaw vs. Arvand M. Dinshaw & Ors.1, Nithya Anand Raghavan vs. State (NCT of Delhi) & Anr. 2 and Lahari Sakhamuri vs. Sobhan Kodali among others. In all these cases the writ petitions were entertained. Therefore, we reject the contention of the appellantwife that the writ petition before the High Court of Rajasthan was not maintainable.
11. We need not refer to all decisions in this regard but it would be apposite to refer to the following observations from the judgment in Nithya Anand Raghavan (supra):
"46. The High Court while dealing with the petition for issuance of a writ of habeas corpus concerning a minor child, in a given case, may direct return of the child or decline to change the custody of the child keeping in mind all the attending facts and circumstances including the settled legal position referred to above. Once again, we may hasten to add that the decision of the court, in 1 (1987) 1 SCC 42 2 (2017) 8 SCC 454 3 (2019) 7 SCC 311 each case, must depend on the totality of the facts and circumstances of the case brought before it whilst considering the welfare of the child which is of paramount consideration. The order of the foreign court must yield to the welfare of the child. Further, the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court. Indubitably, the writ petitioner can take recourse to such other remedy as may be permissible in law for enforcement of the order passed by the foreign court or to resort to Page 42 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined any other proceedings as may be permissible in law before the Indian Court for the custody of the child, if so advised.
47. In a habeas corpus petition as aforesaid, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person (private Respondent named in the writ petition)..."
12. Further, in the case of Kanika Goel vs. State of Delhi, it was held as follows:
"34. As expounded in the recent decisions of this Court, the issue ought not to be decided on the basis of rights of the parties claiming custody of the minor child but the focus should constantly remain on whether the factum of best interest of the minor child is to return to the native country or otherwise. The fact that the minor child will have better prospects upon return to his/her native country, may be a relevant aspect in a substantive proceedings for grant of custody of the minor child but not decisive to examine the threshold issues in a habeas corpus petition. For the purpose of habeas corpus petition, the Court ought to focus on the obtaining circumstances of the minor child having been removed from the native country and taken to a place to encounter alien environment, language, custom, etc. interfering with his/her overall growth and grooming and whether continuance there will be harmful..."
13. In the present case since the wife brought the minor to India in violation of the orders of the jurisdictional court in USA, her custody of the child cannot be said to be strictly legal. However, we agree with the learned counsel for the appellant that the High Court could not have directed the appellantwife to go to the USA. The wife is an adult and no court can force her to stay at a place where she does not want to stay. Custody of a child is a different issue, but even while deciding the issue of custody of a child, we are clearly of the view that no direction can be issued to the adult spouse to go and live with the other strained spouse in writ jurisdiction.
Comity of Courts
14. In the fast shrinking world where adults marry and shift from one jurisdiction to another there are increasing issues of jurisdiction as to which country's courts will have jurisdiction. In many cases the Page 43 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined jurisdiction may vest in two countries. The issue is important and needs to be dealt with care and sensitivity. Though the interest of the child is extremely important and is, in fact, of paramount importance, the courts of one jurisdiction should respect the orders of a court of competent jurisdiction even if it is beyond its territories. When a child is removed by one parent from one country to another, especially in violation of the orders passed by a court, the country to which the child is removed must consider the question of custody and decide whether the court should conduct an elaborate enquiry on the question of child's custody or deal with the matter summarily, ordering the parent to return the custody of the child to the jurisdiction from which the child was removed, and all aspects relating to the child's welfare be investigated in a court in his/her own country.
15. Reference in this regard may be made to the judgment in Elizabeth Dinshaw (supra) wherein this Court was dealing with a case where the wife was an American citizen whereas the husband was a citizen of India. They got married in America and a child was born to them in the year 1978. In 1980, differences arose between the couple and the wife filed a petition for divorce. The jurisdictional court in America had dissolved the marriage by a decree of divorce on 23.04.1982 and by the same decree it was directed that the wife would have the care, custody and control of the child till he reaches the age of 18 years. The husband was given visitation rights. Taking advantage of the weekend visitation rights, the husband picked up the child from school on 11.01.1986 and brought him to India. The wife filed a petition under Article 32 of the Constitution of India before this Court. Not only was the petition entertained, but the same was allowed and we would like to refer to certain important observations of this Court in Para 8:
"8. Whenever a question arises before a court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor. We have twice interviewed Dustan in our chambers and talked with him. We found him to be too tender in age and totally immature to be able to form any independent opinion of his own as to which parent he should stay with. The child is an American citizen. Excepting for the last few months that have elapsed since his being brought to India by the process of illegal abduction by Page 44 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined the father, he has spent the rest of his life in the United States of America and he was doing well in school there.
In our considered opinion it will be in the best interests and welfare of Dustan that he should go back to the United States of America and continue his education there under the custody and guardianship of the mother to whom such custody and guardianship have been entrusted by a competent court in that country. We are also satisfied that the petitioner who is the mother, is full of genuine love and affection for the child and she can be safely trusted to look after him, educate him and attend in every possible way to his proper upbringing. The child has not taken root in this country and he is still accustomed and acclimatized to the conditions and environments obtaining in the place of his origin in the United States of America. The child's presence in India is the result of an illegal act of abduction and the father who is guilty of the said act cannot claim any advantage by stating that he has already put the child in some school in Pune. The conduct of the father has not been such as to inspire confidence in us that he is a fit and suitable person to be entrusted with the custody and guardianship of the child for the present."
16. In V. Ravi Chandran (Dr.) (2) vs. Union of India (UOI) and Ors.5 it was held as follows:
"29. While dealing with a case of custody of a child removed by a parent from one country to another in contravention of the orders of the court where the parties had set up their matrimonial home, the court in the country to which child has been removed must first consider the question whether the court could conduct an elaborate enquiry on the question of custody or by dealing with the matter summarily order a parent to return custody of the child to the country from which the child was removed and all aspects relating to child's welfare be investigated in a court in his own country. Should the court take a view that an elaborate enquiry is necessary, obviously the court is bound to consider the welfare and happiness of the child as the paramount consideration and go into all relevant aspects of welfare of child including stability and security, loving and understanding care and guidance and full development of the child's character, personality and talents. While doing so, the order of a foreign court as to his custody may be given due weight; the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case.Page 45 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024
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30. However, in a case where the court decides to exercise its jurisdiction summarily to return the child to his own country, keeping in view the jurisdiction of the court in the native country which has the closest concern and the most intimate contact with the issues arising in the case, the court may leave the aspects relating to the welfare of the child to be investigated by the court in his own native country as that could be in the best interest of the child...." 5 (2010) 1 SCC 174
17. In Nithya Anand Raghavan (supra), this Court took the following view:
"42. The consistent view of this Court is that if the child has been brought within India, the courts in India may conduct: (a) summary inquiry; or (b) an elaborate inquiry on the question of custody. In the case of a summary inquiry, the court may deem it fit to order return of the child to the country from where he/she was removed unless such return is shown to be harmful to the child. In other words, even in the matter of a summary inquiry, it is open to the court to decline the relief of return of the child to the country from where he/she was removed irrespective of a preexisting order of return of the child by a foreign court. In an elaborate inquiry, the court is obliged to examine the merits as to where the paramount interests and welfare of the child lay and reckon the fact of a preexisting order of the foreign court for return of the child as only one of the circumstances. In either case, the crucial question to be considered by the court (in the country to which the child is removed) is to answer the issue according to the child's welfare. That has to be done bearing in mind the totality of facts and circumstances of each case independently. Even on close scrutiny of the several decisions pressed before us, we do not find any contra view in this behalf. To put it differently, the principle of comity of courts cannot be given primacy or more weightage for deciding the matter of custody or for return of the child to the native State."
18. Thereafter, another bench of this Court in Lahari Sakhamuri (supra), while interpreting the judgment in Nithya Anand Raghavan (supra) held as follows :
"41...the doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding custody of the minor child, citizenship of the parents and the child etc., cannot Page 46 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined override the consideration of the best interest and the welfare of the child and the direction to return the child to the foreign jurisdiction must not result in any physical, mental, psychological, or other harm to the child."
19. We are of the considered view that the doctrine of comity of courts is a very healthy doctrine. If courts in different jurisdictions do not respect the orders passed by each other it will lead to contradictory orders being passed in different jurisdictions. No hard and fast guidelines can be laid down in this regard and each case has to be decided on its own facts. We may however again reiterate that the welfare of the child will always remain the paramount consideration. Welfare of the child - the paramount consideration.
20. It is well settled law by a catena of judgments that while deciding matters of custody of a child, primary and paramount consideration is welfare of the child. If welfare of the child so demands then technical objections cannot come in the way. However, while deciding the welfare of the child it is not the view of one spouse alone which has to be taken into consideration. The courts should decide the issue of custody only on the basis of what is in the best interest of the child.
21. The child is the victim in custody battles. In this fight of egos and increasing acrimonious battles and litigations between two spouses, our experience shows that more often than not, the parents who otherwise love their child, present a picture as if the other spouse is a villain and he or she alone is entitled to the custody of the child. The court must therefore be very vary of what is said by each of the spouses.
22. A child, especially a child of tender years requires the love, affection, company, protection of both parents. This is not only the requirement of the child but is his/her basic human right. Just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents. A child is not an inanimate object which can be tossed from one parent to the other. Every separation, every reunion may have a traumatic and psychosomatic impact on the child. Therefore, it is to be ensured that the court weighs each and every circumstance very carefully before deciding how and in what manner Page 47 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined the custody of the child should be shared between both the parents. Even if the custody is given to one parent the other parent must have sufficient visitation rights to ensure that the child keeps in touch with the other parent and does not lose social, physical and psychological contact with any one of the two parents. It is only in extreme circumstances that one parent should be denied contact with the child. Reasons must be assigned if one parent is to be denied any visitation rights or contact with the child. Courts dealing with the custody matters must while deciding issues of custody clearly define the nature, manner and specifics of the visitation rights."
10.9 After considering practically all the judgments of the Apex Court in Child custody cases, in case of Yashita Sahu (supra), the Apex Court has indeed given primacy to the welfare and best interest of the child.
10.10 The petitioner has relied upon the decision of the Apex Court in case of Nilanjan Bhattacharya v/s. State of Karnataka and others reported in 2020 SCC Online SC 928 to support his submission that in the present case to ascertain welfare of the child, no elaborate inquiry is required to be undertaken in the facts of the case, as the petitioner with alacrity has moved both the Court in USA and the High Court in Habeas jurisdiction.
10.11 To which, learned Senior Advocate for the respondent has submitted that issue of elaborate inquiry was never before the Apex Court as the petitioner had challenged correctness of two conditions imposed by the High Court, while ordering repatriation of the child into USA. Moreover, petition filed before the Apex Court was not contested by the respondent-mother and hence, it cannot be said that the Apex Court had decided upon the issue, which is canvassed by the petitioner.
10.12 The Apex Court in case of Rohith Thammana Gowda v/s. State of Page 48 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined Karnataka and others reported in 2022 SCC Online SC 937 , in Appeal, the Apex Court was examining the judgment and order of Karnataka High Court in Habeas jurisdiction, where the petitioner was resident of USA for two decades and had entered into marriage with Hindu rites and rituals in Bangalore and thereafter, matrimonial home was in USA. Son was born in the year 2011 in Washington, who became US citizen and was studying in Elementary School till 2019-2020. When matrimonial difference between husband and wife arose, because of which respondent- wife in March-2020 shifted to India with the child without knowledge of the husband. When the husband realized about missing child from their matrimonial home, he had lodged the complaint in USA and alleged kidnapping by wife and later on came to know about the whereabouts of both wife and the child, for which he filed Writ Petition in Karnataka High Court and also filed Custody Petition in the US Court, where ex- parte order dated 26-10-2020 came to be passed, wherein wife was directed to return child to USA. Wife also participated in the proceedings before US Court and moved motion for vacating ex-parte order, which came to be vacated and thereafter, wife filed petition challenging jurisdiction of US Court. However, US Court proceeded to uphold jurisdiction over minor child. Jurisdiction issue proceeded to Higher Forum on the subject of maintenance / child and spousal support. It is in this proceeding that directions were issued to return the child to USA.
In these facts also, the Apex Court in Para-8 and Para-14 to Para-16 has held as under:
"8. At the outset we may state that in a matter involving the question of custody of a child it has to be borne in mind that the question 'what is the wish/desire of the child' is different and distinct from the question 'what would be in the best interest of the child'. Certainly, Page 49 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined the wish/desire of the child can be ascertained through interaction but then, the question as to 'what would be in the best interest of the child' is a matter to be decided by the court taking into account all the relevant circumstances. When couples are at loggerheads and wanted to part their ways as parthian shot they may level extreme allegations against each other so as to depict the other unworthy to have the custody of the child. In the circumstances, we are of the view that for considering the claim for custody of a minor child, unless very serious, proven conduct which should make one of them unworthy to claim for custody of the child concerned, the question can and shall be decided solely looking into the question as to, 'what would be the best interest of the child concerned'. In other words, welfare of the child should be the paramount consideration. In that view of the matter we think it absolutely unnecessary to discuss and deal with all the contentions and allegations in their respective pleadings and affidavits."
xxxxxxxxxxx "14. The High Court, after taking note of the various proceedings initiated by the appellant before the US Courts formed an opinion that he had initiated such proceedings only with an intention to enhance his chance of success in the Habeas Corpus Writ Petition and to pre- empt any move by the wife (respondent No.3) for custody by approaching the Indian Courts. In other words, the initiation of proceedings before the US Court was motivated and definitely not in good faith and was also not in the best interests of the son. In this context, it is relevant to note that US Court concerned had, admittedly, ordered for the return of the child and owing to the non- compliance with the said order initiated action for contempt. The spousal support order passed by the US Court was also suspended for the reason of noncompliance with the order for return of the child. When US Court was moved and the court had passed orders the above mentioned observation can only be regarded as one made at a premature stage and it was absolutely uncalled for and it virtually affected the process of consideration of the issue finally. When the US Court passed such orders and not orders on the custody of the child it ought not to have been taken as permission for respondent No.3 to keep the custody of the child. At any rate, after the order for return of the child and orders for contempt such a plea of the respondent No.3 ought not to have been entertained.
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15. Considering the fact that the marriage between the appellant and respondent No.3 was conducted in Bengaluru in accordance with Hindu rites and ceremonies, the High Court held that the US Courts got no jurisdiction to entertain any dispute arising out of the marriage. This conclusion was arrived at without taking into account the efficacy of the order passed by the US Court. It was not strictly for the return of respondent No.3 but was an order intending to facilitate the return of a naturalised citizen of America holding an American Passport. Paragraph 85 of the impugned judgment would reveal that the High Court had enquired about the desire and comfort of the child with respect to his schooling and stay during the interaction. The court found that the child expressed no difficulty in his schooling or his stay in Bengaluru and ultimately satisfied that the child is comfortable and secure with staying with his mother.
16. The child in question is a boy, now around 11 years and a naturalised US citizen with an American passport and his parents viz., the appellant and respondent No.3 are holders of Permanent US Resident Cards. These aspects were not given due attention. So also, the fact that child in question was born in USA on 03.02.2011 and till the year 2020 he was living and studying there, was also not given due weight while considering question of welfare of the child. Merely because he was brought to India by the mother on 03.03.2020 and got him admitted in a school and that he is now feeling comfortable with schooling and stay in Bengaluru could not have been taken as factors for considering the welfare of the boy aged 11 years born and lived nearly for a decade in USA. The very fact that he is a naturalised citizen of US with American passport and on that account he might, in all probability, have good avenues and prospects in the country where he is a citizen. This crucial aspect has not been appreciated at all. In our view, taking into account the entire facts and circumstances and the environment in which the child had born and was brought up for about a decade coupled with the fact that he is a naturalised American citizen, his return to America would be in his best interest. In this case it is also to be noted that on two occasions American courts ordered to return the child to USA. True that the first order to that effect was vacated at the instance of respondent No.3. However, taking into account all aspects, we are of the view that it is not a fit case where courts in India should refuse to acknowledge the orders of the Page 51 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined US Courts directing return of the minor child to the appellant keeping in view the best interests of the child. In our view, a consideration on the point of view of the welfare of the child would only support the order for the return of the child to his native country viz., USA. For, the child is a naturalised American citizen with American passport. He has been brought up in the social and culture value milieu of USA and, therefore, accustomed to the lifestyle, language, custom, rules and regulations of his native country viz., USA. Further, he will have better avenues and prospects if he returns to USA, being a naturalised American citizen."
The important factor in the aforesaid case is that both the parents had subjected to the jurisdiction of the U.S. Court, where in the midst of proceedings in U.S. Court, the child was brought to India. Moreover, considering age of the child being 11 years, the Court therein concluded regarding best interest of the child.
10.13 In yet another judgment of the Apex Court in case of Rajeswari Chandrasekar Ganesh v/s. State of Tamil Nadu and others reported in 2022 SCC Online SC 885 , the Court was considering the case on the facts, where the petitioner is mother, who entered into marriage with the respondent- husband in the year 2008 as per Hindu Rituals at Chennai and thereafter, migrated to USA. In October, 2009, daughter was born and in the year 2013, son was born. The Court had also taken into consideration the facts in detail about the petitioner-wife single handedly taking care of two children, while children started attending school and the husband secured full time job in another State of USA. It is thereafter, the respondent- husband surreptitiously took away legal documents of the family and managed to take away children from the petitioner on the basis of false complaint of mental ill health of the petitioner-wife. This has made the petitioner to file emergency motion Page 52 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined restraining removal of the minor children from jurisdiction of Higher Court, which was passed in favour of the petitioner. Despite the orders passed by the US Court, without permission of the US Court or informing the petitioner removed the children from their school and thereafter, much litigation shared parenting plan was arrived at between the parties under the order of the Court of Common Pleas, Division of Domestic Relations, Cuyahoga Country, Ohlo. Despite, Shared Parenting Agreement, things were not smooth between the parties and again, both the parties were resorted to proceedings before the US Court, but ultimately in August, 2021, husband had removed the children from USA and left for India in August, 2021. This was done without knowledge and consent of the petitioner-wife. The Court examined the issue on the standpoint of maintainability of Writ Petition and after examining all the previous decisions on the point by the Apex Court has concluded that the Petition is maintainable for issuance of Writ of Habeas Corpus. The Court also on the facts found that interest and welfare of the children will be best served, if they are repatriated back to USA with the petitioner-mother and thereby gave various directions to be complied with by the respondent- father.
10.14 Learned Advocate for the petitioner has relied upon unreported decision of the Nagpur Bench passed in Criminal Writ Petition No.693 of 2021 dated 27-09-2022 and has submitted that facts of the case before the Nagpur Bench was quite identical to that of the present facts and there also, minor child of four years old was ordered to be repatriated to USA with the petitioner-father. According to the petitioner, decision of the Nagpur Bench was subject matter of challenge before the Apex Court in Special Leave to Appeal (Criminal) No.10381 of 2022 dated 05-12- Page 53 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined 2023. Decision of the Nagpur Bench was confirmed. In the facts of the aforesaid case, it would be relevant to observe that petitioner before the Nagpur Bench was husband and the respondent being mother with whom the child was in India. However, on 30-12-2020, the respondent-wife had subjected herself to the jurisdiction of Competent Court in Arizona, USA against the petitioner and thereafter, the respondent-wife left matrimonial house along with minor child to live with her brother at Texas in USA and it was claimed by the respondent-wife that to avoid service of the order of protection by the Competent Court at Arizona, USA. The petitioner-husband moved to India in January, 2021 and thereafter, in February, 2021, the respondent-wife and the minor child came to India to reside with her parents at Nagpur. In India, efforts were made to settle matrimonial dispute. However, as common terms were not arrived at, the petitioner-husband initiated legal proceedings for separation and custody in Superior Court at Arizona, for which Summons were issued. At the same time, the respondent-wife filed Divorce Petition in the Family Court at Nagpur and also various applications under the provision of Prevention of Woman From Domestic Violence Case. Facts therefore, indicates that the respondent-wife had voluntarily subjected herself to the jurisdiction of the US Courts. Not only that, but on facts, the Nagpur Bench arrived at conclusion that no harm would be caused to the minor child, if he is returned to the jurisdiction of the said Court and to facilitate the same, some additional directions came to be passed by the Bench.
10.15 In case of Dhanwanti Joshi v/s. Madhav Unde reported in (1998) 1 SCC 112 had on occasion to consider the issue of conducting an elaborate inquiry or Summary inquiry to repatriate the child to its Native Jurisdiction. In this case, the appellant wife had removed the minor from Page 54 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined the Jurisdiction of the US Court and brought the child to India while the respondent father continued in USA, when he filed a divorce case and claimed custody of child. The father filed Habeas Corpus in Bombay High Court but failed. The second round of litigation was claim of permanent guardianship by the appellant mother. The Apex Court in this regard considered the superior financial condition of the father, but still proceeded to hold against him as under:
"22. We shall next consider the point which solely appealed to the Family Court and the High Court in the present proceedings namely that the respondent is financially well- off and can take care of the child better and give him superior education is USA. Lindley, L.J. in Re. vs. McGrath (Infants) 1893 (1) Ch. 143 (148) stated that:
"....the welfare of the child is not to be measured by money alone nor by physical comfort only. The word 'welfare' must be taken in its wides sense. The moral and religious welfare must be considered as well as its physical well-being. Nor can the ties of affection be disregarded."
23. As to the "secondary" nature of material considerations, Hardy Boys, J. of the New Zealand Court said in Walker vs. Walker & Harrison (See 1981 N.Z.Recent Law 257) (cited by British Law Commission, working Paper No. 96 Para 6.10) "Welfare is an all-encompassing word. It includes material welfare, both in the sense of adequacy of resources to provide a pleasant home and a comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However, while material considerations have their place they are secondary matters. More important are the stability and the security, the loving and understanding care and guidance, the warm and compassionate relationships, that are essential for the full development of the child's own character, personality and talents"
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24. From the above, it is clear that the High Court in the case before us was clearly in error in giving sole or more importance to the superior financial capacity of the husband as stated by him in his evidence. Assuming that his financial capacity is superior to that of his wife, that in out opinion cannot be the sole ground for disturbing the child from his mother's custody. As of today, the child is getting good education and is doing well in his studies. The proposal of an immediate American education which the father is prepared to finance cannot, in our opinion, be a sufficient ground for shifting the child to the father's custody, ignoring the fact that for the last more than 12 years, the child has been in the mother's custody. Thee is also, no basis, having regard to the oral evidence adduced by the parties, for holding that the mother is permanently residing at Bombay leaving the child at Pune. The appellant's categorical evidence that whenever she had to go to Bombay from Pune, her mother used to come from Bombay to pune to take care of the child, leaves no doubt in our mind that the mother is residing mostly at Pune and goes to Bombay occasionally for very short periods in connection with certain official duties in her employment. the appellant has also reiterated before us that she has been residing at Pune and she has a flat there. As contended by her, the child is a citizen of USA by both and he can go to USA in his own right in future whenever it is so decided. Further the evidence of the respondent and of his brother that in the event the child is allowed to go to USA with the respondent, the respondent's brother and the latter's wife have agreed to proceed to USA, leaving their three daughters in India (of whom o e has been married recently) or anticipating the migration of their daughters, appears to us to be too artificial and a make believe affair rather than real. It appears to us that the effort on the part of the respondent here is only to impress the Court that the child will have company of these persons in case the child is allowed to proceed to USA. This evidence has not appealed to us."
10.16 The Court may now refer to the decision in case of Kanika Goel v/s. State of Delhi through Station House Officer and another reported in (2018) 9 SCC 578. Here also Hon'ble Apex Court has extensively dealt with the previous case laws on the issue of maintainability of a writ of Habeas Corpus, the Nature of Custody of Minor Child with mother and Page 56 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined option to resort to elaborate or Summary Inquiry regarding for return of the Child to the Native Country. The facts are that the Husband armed with an Order of US Court filed Habeas Petition in Delhi High Court for production and return of 3 years old daughter to jurisdiction of US Court. The Delhi High Court directed the wife to comply with direction of US Court and hence, wife challenged the said decision before the Apex Court. The Court may with benefit quote the Para-30 to 33 of the aforesaid judgment as under:
"30. In the subsequent judgment of two Judges of this Court in Prateek Gupta (supra), after analysing all the earlier decisions, in paragraphs 49 to 51 the Court noted thus:
"49. The gravamen of the judicial enunciation on the issue of repatriation of a child removed from its native country is clearly founded on the predominant imperative of its overall well-being, the principle of comity of courts, and the doctrines of "intimate contact and closest concern" notwithstanding. Though the principle of comity of courts and the aforementioned doctrines qua a foreign court from the territory of which a child is removed are factors which deserve notice in deciding the issue of custody and repatriation of the child, it is no longer res integra that the ever overriding determinant would be the welfare and interest of the child. In other words, the invocation of these principles/doctrines has to be judged on the touchstone of myriad attendant facts and circumstances of each case, the ultimate live concern being the welfare of the child, other factors being acknowledgeably subservient thereto. Though in the process of adjudication of the issue of repatriation, a court can elect to adopt a summary enquiry and order immediate restoration of the child to its native country, if the applicant/parent is prompt and alert in his/her initiative and the existing circumstances ex facie justify such course again in the overwhelming exigency of the welfare of the child, such a course could be approvable in law, if an effortless discernment of the relevant factors testify irreversible, adverse and prejudicial impact on its physical, mental, psychological, social, cultural existence, thus exposing it to visible, continuing and irreparable detrimental and Page 57 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined nihilistic attentuations. On the other hand, if the applicant/parent is slack and there is a considerable time lag between the removal of the child from the native country and the steps taken for its repatriation thereto, the court would prefer an elaborate enquiry into all relevant aspects bearing on the child, as meanwhile with the passage of time, it expectedly had grown roots in the country and its characteristic milieu, thus casting its influence on the process of its grooming in its fold.
50. The doctrines of "intimate contact" and "closest concern" are of persuasive relevance, only when the child is uprooted from its native country and taken to a place to encounter alien environment, language, custom etc., with the portent of mutilative bearing on the process of its overall growth and grooming.
51. It has been consistently held that there is no forum convenience in wardship jurisdiction and the peremptory mandate that underlines the adjudicative mission is the obligation to secure the unreserved welfare of the child as the paramount consideration."
31. Again, in paragraph 53 of the judgment, the Court observed thus:
(Prateek Gupta (supra)):
"53. ...The issue with regard to the repatriation of a child, as the precedential explications would authenticate has to be addressed not on a consideration of legal rights of the parties but on the sole and preponderant criterion of the welfare of the minor. As aforementioned, immediate restoration of the child is called for only on an unmistakable discernment of the possibility of immediate and irremediable harm to it and not otherwise. As it is, a child of tender years, with malleable and impressionable mind and delicate and vulnerable physique would suffer serious set-back if subjected to frequent and unnecessary translocation in its formative years. It is thus imperative that unless, the continuance of the child in the country to which it has been removed, is unquestionably harmful, when judged on the touchstone of overall perspectives, perceptions and practicabilities, it ought not to be dislodged and extricated from Page 58 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined the environment and setting to which it had got adjusted for its well-being."
32. After these decisions, it is not open to contend that the custody of the female minor child with her biological mother would be unlawful, for there is presumption to the contrary. In such a case, the High Court whilst exercising jurisdiction under Article 226 for issuance of a writ of habeas corpus need not make any further enquiry but if it is called upon to consider the prayer for return of the minor female child to the native country, it has the option to resort to a summary inquiry or an elaborate inquiry, as may be necessary in the fact situation of the given case. In the present case, the High Court noted that it was not inclined to undertake a detailed inquiry. The question is, having said that whether the High Court took into account irrelevant matters for recording its conclusion that the minor female child, who was in custody of her biological mother, should be returned to her native country. As observed in Nithya Anand Raghavan's case (supra), the Court must take into account the totality of the facts and circumstances whilst ensuring the best interest of the minor child. In Prateek Gupta's case (supra), the Court noted that the adjudicative mission is the obligation to secure the unreserved welfare of the child as the paramount consideration. Further, the doctrine of "intimate and closest concern" are of persuasive relevance, only when the child is uprooted from its native country and taken to a place to encounter alien environment, language, custom etc. with the portent of mutilative bearing on the process of its overall growth and grooming.
33. The High Court in the present case focused primarily on the grievances of the appellant and while rejecting those grievances, went on to grant relief to respondent No.2 by directing return of the minor girl child to her native country. On the totality of the facts and circumstances of the present case, in our opinion, there is nothing to indicate that the native language (English) is not spoken or the child has been divorced from the social customs to which she has been accustomed. Similarly, the minor child had just entered preschool in the USA before she came to New Delhi along with her mother. In that sense, there was no disruption of her education or being subjected to a foreign system of education likely to psychologically disturb her. On the other hand, the minor child M is under the due care of her mother and maternal grandparents and other relatives since her arrival in New Page 59 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined Delhi. If she returns to US as per the relief claimed by the respondent No.2, she would inevitably be under the care of a Nanny as the respondent No.2 will be away during the day time for work and no one else from the family would be there at home to look after her. Placing her under a trained Nanny may not be harmful as such but it is certainly avoidable. For, there is likelihood of the minor child being psychologically disturbed after her separation from her mother, who is the primary care giver to her. In other words, there is no compelling reason to direct return of the minor child M to the US as prayed by the respondent No.2 nor is her stay in the company of her mother, along with maternal grandparents and extended family at New Delhi, prejudicial to her in any manner, warranting her return to the US."
11. The petition therefore, requires this Court to examine following issues (i) whether the custody of minor is illegal with the respondent mother. It is undisputed that both the parents of the child are Hindus and Hindu Laws apply to them. [2013 (7) SCC 426] Section-6 of Hindu Minority and Guardianship Act, 1956 provide for Natural Guardians of a Hindu Minor according to it custody of minor, who has not completed age of 5 years shall ordinarily be with the mother. The minor here is only 3 years of age moreover, she is a female child.
11.1 In the opinion of the Court, Section-6 of Hindu Minority and Guardianship Act, 1956 not only recognize the right of a Natural Parent to be a guardian, which any of the Parent would be able to establish by way of leading evidence to claim such Right, but more than that it recognizes a 'Silent Right' of the Minor to be with the mother till the age of 5 years. Therefore, it cannot be said that the minor is in illegal custody to make out a cause of action to issue the writ of Habeas.
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12. Whether a writ of Habeas Corpus is maintainable in a custody claim. The issue is no more res integra on account of authoritative pronouncement of the Hon'ble Apex Court in case of Yashita Sahu (supra), where in Para-10, by referring to previous decision of the Apex Court in Mrs. Elizabeth Dinshaw (supra), Nithya Anand Raghavan (supra) and Lahari Sakhamuri (supra) held that writ would be maintainable.
13. On the issue of Comity of Court, the Court finds that along with the petition, two orders of the US Courts are produced, the operative part reads as under:
"IT IS ORDERED :
1. Respondent shall immediately return the minor child, Souumya Rohan Kothari, born, January 28, 2020, to the State of Minnesota.
2. Petitioner's request for service by alternate means is granted. To effectuate service of the Summons and Petition for Dissolution of Marriage, Petitioner's attorney's office may file the following:
a. An Affidavit of Service that Petitioner's attorney's office has emailed Respondent at her personal email, as follows:<[email protected]>; and b. An Affidavit of Service that Petitioner's attorney's office has sent via registered mail to Respondent's last known address, as follows: 14 Arjav Society, Satellite Road, Ahmedabad, Gujarat 380015 India.
3. All remaining requests for relief are hereby RESERVED."
"IT IS HEREBY ORDERED:
1. Valuation Date. The date of the Initial Case Management Page 61 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined Conference will be the valuation date. This does not preclude either party from arguing that another date is fair and equitable. See Minn. Stat. § 518.58, subdivision1.
2. Discovery. Formal discovery is not prohibited. However, the parties must engage in informal discovery and exchange of documents to the greatest extent possible. In the event discovery issues arise during the pendency of the proceeding, either party may contact the Court's scheduling clerk to schedule a conference call.
3. Motions. If a party wants to bring a formal motion during this proceeding, that party must make a request to schedule a motion hearing by letter. The letter must only identify the issues a party wants the Court to address by formal motion.
4. Confidential Information. Parties are notified that documents containing social security numbers and financial account numbers (bank statements, credit card statements, tax returns, paystubs, etc.) must be filed confidentially as Sealed Financial Source Documents along with Form 11.2 available at www.mncourts.gov/forms and at the Hennepin County Self-Help Center at the Family Justice Center. Failure to do so means that such information will be accessible by the public. It is the parties' responsibility to protect such identifying numbers and sensitive financial information, not court administration's responsibility.
5. Answer and Counterpetition/Default Hearing. Wife is ordered to file an Answer and Counterpetition in this matter on or by July 29, 2023. If Wife fails to file an Answer and Counterpetition in this matter on or by July 29, 2023, the Court will schedule this matter for a Default Hearing.Page 62 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024
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6. The Court's ex parte order issued on June 23, 2023, remains in full force and effect."
14. The Court no doubt on the principle of Comity of court requires to respect of the jurisdiction of the Foreign Courts. However, the orders indicate that order are ex-parte and proceedings are yet pending. On the correlated issue of 'Summary Inquiry' and 'Elaborate Inquiry', the Apex Court in case of Prateek Gupta v/s. Shilpi Gupta and others reported in (2018) 2 SCC 309, in Para-29 and Para-32 has held as under:
"29. The above observation was made by the Privy Council on appeal to it which held that in the proceedings relating to the custody before the Canadian Court, the welfare and happiness of the infant was of paramount consideration and the order of a foreign court in USA as to the custody can be given due weight in the circumstances of the case but such an order of a foreign court was only one of the factors which must be taken into consideration. The duty of the Canadian Court to form any independent judgment on the merits of the matter with regard to the welfare of the child was emphasized. It recorded as well that this view was sustained in L (minors) (Wardship:
Jurisdiction), In. re8, which reiterated that the limited question which arose in the latter decisions was whether the court in the country in which the child was removed could conduct (a) summary enquiry or
(b) an elaborate enquiry in the question of custody. It was explicated that in case of (a) a summary enquiry, the court would return custody to the country from which the child was removed unless such return could be shown to be harmful to the child and in case of (b) an elaborate (1974) 1 WLR 250 (CA) enquiry, the court could go into the merits to determine as to where the permanent welfare lay and ignore the order of the Foreign Court or treat the fact of removal of the child from another country as only one of the circumstances and the crucial question as to whether the court (in the country to which the child is removed) would exercise the summary or elaborate procedure is to be determined according to the child's welfare. It was indicated that the summary jurisdiction to return the child is invoked, for example, if the child had been removed from its native land to another country where, Page 63 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined may be, his native language is not spoken, or the child gets divorced from the social customs and contacts to which he has been accustomed, or its education in his native land is interrupted and the child is being subjected to a foreign system of education, for these are all acts which could psychologically disturb the child. It was mentioned as well that the summary jurisdiction is exercised only if the court to which the child has been removed is moved promptly and quickly, for in that event, the Judge may be well persuaded that it will be better for the child that those facets be investigated in the court in his native country on the expectation that an early decision in the native country could be in the interest of the child before it would develop roots in the country to which he had been removed. It was expounded in the alternative, that the Court might as well think of conducting an elaborate enquiry on merits and have regard to the other facts of the case and the time that has elapsed after the removal of the child and consider, if it would be in the interest of the child not to have it returned from the country to which it had been removed, so much so that in such an eventuality, the unauthorized removal of the child from the native country would not come in the way of the court in the country to which the child has been removed, to ignore the removal and independently consider whether the sending back of the child to its native country would be in the paramount interest of the child.
xxxxxx
32. The above excerpt would in no uncertain terms underscore the predication that the courts in India, within whose jurisdiction the minor has been brought "ordinarily" while examining the question on merits, would bear in mind the welfare of the child as of paramount and predominant importance while noting the preexisting order of the foreign court, if any, as only one of the factors and not get fixated therewith and that in either situation, be it a summary enquiry or elaborate enquiry, the welfare of the child is of preeminent and preponderant consideration, so much so that in undertaking this exercise, the courts in India are free to decline the relief of repatriation of the child brought within its jurisdiction, if it is satisfied that it had settled in its new environment or that it would be exposed thereby to physical harm or otherwise, if it is placed in an intolerable or unbearable situation or environment or if the child in a given case, if matured, objects to its return."
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15. The 'Summary Inquiry' and the 'Elaborate Inquiry' will obviously be for ascertaining the best interest of the minor. The Court is to examine the issue in 'Writ Jurisdiction'. The 'Elaborate Inquiry' will have to be based on the evidence, which come on record requiring the parties to lead evidence in support of the respective contentions asserting the best interest of child. While 'Summary Inquiry' will have to be based on the pleadings made on the record of the Court. The 'Writ Jurisdiction' will also be on the pleadings consisting of the averment made and contentions raised in the petition and counter reply on affidavit, but not require leading of evidence by examining witnesses.
16. The Court has also interacted with the parties individually and jointly, in person and also in presence of the respective Advocates. The respondent No.2 has refused to go back to USA on the grounds, she narrated to the Court in Chamber, which the Court refrains from referring to due to the pendency of the litigation both before the US Court and Family Court in India.
17. The petitioner has pleaded the following circumstances as reasons for Repatriation of minor to US:-
(i) The entire marital life of the parties for more than 4.5 years is in the US and the entire evidence of the marital discord, if any, is in the US. The parties did not stay even for a single day in India prior to 10.2.2023.
(ii) US Court is the most Competent Court to adjudicate upon the marital and custody issue between the parties. The petitioner husband Page 65 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined had filed a substantive petition for divorce and custody before the US Court on 16.06.2023
(iii) Both parties were gainfully employed in the US and had bought a joint house in the US. The wife was also earning USD 37,000 USD per annum.
(iv) There is no material on record to even remotely suggest that there will be any psychological or physical harm caused to the minor child in case the minor child is repatriated back to the US. The Counter Affidavit filed by the Respondent No.2 does not spell out any circumstances or specific instance pointing out any harm being effected upon the child while in the US.
(v) Not a single complaint filed by the Respondent in her 4.5 years of marital life to show that she was perpetrated any physical, mental or economic violence while in the US.
(vi) It is only in the welfare of the child to be repatriated back to US since it is the fundamental right of the child to have the company and love and affection of both the parents. The parents had intended to settle in US and stayed in US for 4.5 years.
(vii)The Respondent has not assailed or challenged the US Court order and notice was given to the Respondent to appear before the US Court and orders dated 23.06.2023 and 19.07.2023 were passed by the US Court after compliance of Principles of natural justice and Respondent intentionally chose not to appear.
(viii) The Petitioner has annexed the various photographs Page 66 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined evidencing the emotional and psychological bond between the daughter and the father.
(ix) The petitioner is a Masters in Pharmaceutical Sciences and is working as a Senior Scientist with Upsher Smith Labs at Minnesota and having a stable income and also having the option to work from home.
(x) The petitioner mother is also willing to shift initially to the US to take care of the minor child and she has a valid US Visa till December, 2024.
(xi) The Respondent No.2 cannot deprive the minor child to have the company of her father since that is her basic right on the premise that she does not want to go back to US where the parties had permanently settled.
(xii)The Petitioner as well as his mother are able give love, care and protection required for the minor child.
18. On the other hand, the respondent has cited following circumstances:
(i) Souumya being a girl child needs proper attention and care which only a mother can provide in her physical and mental growth. It is only a mother who can properly educate her daughter for womanhood.
(ii) Looking to the tender age of minor Souumya who is a girl child of only three and half years, it is in her best interest that she remains with her mother- responded No.2.Page 67 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024
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(iii) The family background of the answering Respondent being a joint family steeped in our Indian culture is also much more favorable for her overall upbringing rather than being brought up by a single parent in the US. During all this time in India, Souumya has participated in all Indian festivals, religious activities and has been learning prayers from her mother and maternal grandparents.
(iv) Souumya is well-settled and well-integrated in India, while living with Respondent No.2. Every morning she wakes up and performs pooja with her maternal grandfather after which she attends Hugs and Cuddles Pre-School, a preeminent school for young children in Ahmedabad. Souumya's daily routine is well looked after by Respondent No.2 in the presence of her maternal grandparents. She has a well-balanced diet of milk, fruits, home-cooked dal, vegetables, roti and rice for breakfast, lunch and dinner. Souumya has also been in regular contact with her paternal grandparents, and she used to frequently spend the entire day with them several times before her school started in June, 2023. She attends mythology classes every Saturday at Kathaa Kids, Ahmedabad and goes to Soccer (Football) Class twice a week. Souumya has also made friends with the children in the neighborhood and goes on regular playdates.
19. The entire narration of the reasons in Para 17 here in above does not reflect the well being and welfare of the child and her interest. Our High Court in case of Sejalben Arpit Shah v/s. State of Gujarat reported in 2019 AIR CC 2721 , has held in Para-52 and 53 referring to 'Tender Years Rule' as under:
Page 68 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined "52. We are of the view that the mother should not be deprived of her right especially considering the tender age and child being a girl child. The grandparents may be taking very good care of Priyanshi, but at the same time, they cannot be a substitute for natural mother.
In fact, there is no substitute for mother's love in this world. It appears that the grandparents are old. The respondent no.3 is a professional and must be keeping himself quite busy as a Chartered Accountant. Considering the totality of facts and circumstances, the welfare of the child lies with the mother. At this stage, we deem fit to quote few observations of the Supreme Court in the case of Vivek Singh (Supra) as those are very apt so far as the case on hand is concerned. In Vivek Singh (Supra), the Supreme Court had to deal with almost an identical problem like the one on hand. The Supreme Court has observed as under:-
This Court cannot turn a blind eye to the fact that there have been strong feelings of bitterness, betrayal, anger and distress between the appellant and the respondent, where each party feels that they are 'right' in many of their views on issues which led to separation. The intensity of negative feeling of the appellant towards the respondent would have obvious effect on the psyche of Saesha, who has remained in the company of her father, to the exclusion of her mother. The possibility of appellant's effort to get the child to give up her own positive perceptions of the other parent, i.e., the mother and change her to agree with the appellant's view point cannot be ruled out thereby diminishing the affection of Saesha towards her mother. Obviously, the appellant, during all this period, would not have said anything about the positive traits of the respondent. Even the matrimonial discord between the two parties would have been understood by Saesha, as perceived by the appellant. Psychologist term it as 'The Parental Alienation Syndrome'. It has at least two psychological destructive effects:
(i) First, it puts the child squarely in the middle of a contest of loyalty, a contest which cannot possibly be won. The child is asked to choose who is the preferred parent. No matter whatever is the choice, the child is very likely to end up feeling painfully guilty and confused. This is because in the overwhelming majority of cases, what the child wants and needs is to continue a relationship with each parent, as independent as possible from their own conflicts.Page 69 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024
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(ii) Second, the child is required to make a shift in assessing reality. One parent is presented as being totally to blame for all problems, and as someone who is devoid of any positive characteristics. Both of these assertions represent one parent's distortions of reality.
The aforesaid discussion leads us to feel that continuous company of the mother with Saesha, for some time, is absolutely essential. It may also be underlying that the notion that a child's 4 The Parental Alienation Syndrome was originally described by Dr. Richard Gardner in "Recent Developments in Child Custody Litigation", The Academy Forum Vol. 29 No.2: The American Academy of Psychoanalysis, 1985). primary need is for the care and love of its mother, where she has been its primary care giving parent, is supported by a vast body of psychological literature. Empirical studies show that mother infant "bonding" begins at the child's birth and that infants as young as two months old frequently show signs of distress when the mother is replaced by a substitute caregiver. An infant typically responds preferentially to the sound of its mother's voice by four weeks, actively demands her presence and protests her absence by eight months, and within the first year has formed a profound and enduring attachment to her. Psychological theory hypothesizes that the mother is the center of an infant's small world, his psychological homebase, and that she "must continue to be so for some years to come." Developmental psychologists believe that the quality and strength of this original bond largely determines the child's later capacity to fulfill her individual potential and to form attachments to other individuals and to the human community.
53. The "tender years rule" has found statutory recognition and the legislative policy underlying thereto is based not only on the social philosophy but also in realities and points in the direction that the custody of minor children who have not completed the age of 5 years should ordinarily be with the mother irrespective of the fact that the father is the natural guardian of such minors. When moved for a writ of Habeas Corpus and in exercising the general and inherent jurisdiction in a child custody case, the Court is required to bear this legislative prescription in mind while judging the issue as to the welfare of the child. In the present case, Priyanshi is just 14 months old. The parties are Hindus and the "tender years rule", as statutorily Page 70 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined recognized, is immediately attracted in their case and should not be ignored in judging her welfare."
20. Over and above, the most relevant consideration for the Court is the birth of sibling on 20-08-2023 in India. In the opinion of the Court, the emotional bonding of the minor with the new born sibling will be at the highest and strongest today both for minor and the sibling. The trauma that both will face, can only be imagined, if both are torn apart. This singular consideration will out weigh all the other considerations, when the Court is to consider whether any harm will fall upon the minor, if she is repatriated to USA to face the 'Custody Battle." It is pertinent to observe here that the petitioner has initiated proceedings in US Court only for repatriating the minor and for divorce from the respondent. There is no claims for restitution of the Matrimonial Rights, which has come on record. There are also no proceedings to claim repatriation or custody of the sibling.
21. The judgment of the Hon'ble Apex Court as discussed in preceding paras by and large, emphasis on the welfare of the child to be of paramount consideration and that the child wherever found to be minor will have to be given in custody of the mother, on the basis of the "Tender Years Rule".
22. In totality on the facts and circumstances of the case, the Court is of the view that welfare of the minor child; Souumya lies in continuing her custody with her mother, the Respondent No.2. Whereas on Order of repatriation will only mean to send back the child only to face the Court Page 71 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024 NEUTRAL CITATION R/SCR.A/12059/2023 JUDGMENT DATED: 05/01/2024 undefined proceedings in the U.S. Court, while her mother and Siblings are in India, which will not be in best interest of both, minor and her sibling.
23. With regard to the proceedings before the U.S. Court, the Court notices that in the very proceedings initiated by the father in the U.S. Court, option was given to the Respondent No.2 to appear through Video Conferencing with the advent of Technology making it possible to attend Court proceedings far and wide and the Courts across the world adopting such Technology to facilitate the litigants. The Court sees no reason why such Technology not be deployed and adopted in the present case as well without disturbing the present situation of the minor Souumya and her Sibling.
24. Finally, the Court lays down following modalities for the parties so that the pain of custody battle of adults is eased for the minors.
(a) The petitioner should have free access to minor; Souumya via Mobile phone / Electronic device at any reasonable time as per Indian Standard time.
(b) Whenever the petitioner is in India, minor; Souumya to reside with the petitioner at her Paternal grand parents home in Ahmedabad. It is open for the Respondent No.2 to also stay along.
(c) The Respondent No.2 shall facilitate weekly visit of minor; Souumya to her Paternal grand parents in Ahmedabad for a whole day.
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(d) The Paternal grandparents be given full telephonic access to minor; Souumya during reasonable hours of the day.
25. With the aforesaid, the petition stands disposed of with aforesaid directions. Rule is discharged.
26. In view of the order passed in the main matter, Criminal Misc.Application No. 1 of 2023 in Special Criminal Application No. 12059 of 2023, dose not survive and accordingly, the same stands disposed of.
Sd/-
(A.Y. KOGJE, J) Sd/-
(RAJENDRA M. SAREEN,J) PARESH SOMPURA Page 73 of 73 Downloaded on : Thu Jan 11 20:32:56 IST 2024