Punjab-Haryana High Court
Mr. Paramjit Singh vs State Of U.T. Chandigarh And Others on 20 April, 2011
Author: Jora Singh
Bench: Jora Singh
CRWP No.1540 of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRWP No.1540 of 2010
Date of decision: 20.05.2011
Mr. Paramjit Singh
........ Petitioner
Versus
State of U.T. Chandigarh and others
........ Respondents
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CORAM: HON'BLE MR.JUSTICE JORA SINGH
PRESENT: Ms. Monita Mehta, Advocate, for the petitioner.
Mr. Sukant Gupta, Advocate, for respondents No. 1 and 2.
Mr. Deepak Sibal, Advocate, for respondents No. 3 to 5.
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JORA SINGH, J.
Paramjit Singh, preferred this writ petition under Article 226 of the Constitution of India, for issuance of a writ in the nature of Habeas Corpus directing respondent No. 3 to release Sahir Singh and Ameya Singh, minor son and daughter of the petitioner from her illegal custody and produce them with their passports to hand over their custody to the petitioner.
Petitioner was married with Mrs. Ekta Gyani-respondent No. 3 on 27.3.2000 at Chandigarh and thereafter in Coral Gables, Miami, USA on 31.7.2000, as per USA law. After marriage, they stayed CRWP No.1540 of 2010 -2- at Miami, Florida, USA, till August 2006. Out of this wedlock two issues namely, Sahir Singh born on 22.2.2002 and Ameya Singh born on 10.10.2003. The petitioner and respondent No. 3 alongwith the detenues came to India on 14.6.2006, to enjoy summer vacation with return tickets to USA for August, 2006, with Visa for the children in June, 2006. After spending two months respondent No. 3 refused to return to USA with the petitioner along with children. Both the children were kept by respondent No. 3. Petitioner and respondent No. 3 are living separately since then. After that petitioner filed an ex parte emergency motion for return of his minor children. Till today no divorce petition by the petitioner either in USA or in India, because petitioner wanted to live with his wife and children. Notice of hearing was mailed to respondent No. 3 at her last known address on 30.7.2007, but respondent No. 3 failed to appear before the US Court in Florida, pursuant to the notice issued by US Court. There after an order (Annexure P-2) was passed by the US Court, that respondent No. 3 is illegally detaining the minor children in India. Petitioner also filed custody petition under Sections 11 and 17 of the Guardians and Wards Act, 1890, read with Section of Hindu Minority and Guardianship Act, 1956, for grant of custody of minor children, prior to his custody lawsuit in the USA. Application under Section 151 CPC (Annexure P-3) was moved requesting the compliance of the US Court order but application was disposed of vide order dated 2.6.2010 (Anneuxre P-4).
In pursuance of the notice respondents No. 3 to 5 filed reply on the allegation that pleas raised by the petitioner in the present writ petition were also raised before the learned Civil Judge (Senior Division), Chandigarh. Request of the petitioner for the custody of CRWP No.1540 of 2010 -3- minor children was rejected vide order dated 2.6.2010 (Annexure P-3) and this order was challanged by filing Civil Revision No. 6054 of 2010, "Mr. Paramjit Singh Vs. Mrs. Ekta Gyani and others", but the same was dismissed as withdrawn on 20.9.2010. In Civil Revision No. 6054 of 2010, no reference of the present writ petition. In the present Criminal Writ Petition and in Civil Revision No. 6054 of 2010, same issue has been raised. After the filing of the present writ petition, petitioner moved an application 21.9.2010, under Order XXIII Rule 1 and 3 of CPC, to withdraw the custody petition and the same was ordered to be dismissed as withdrawn, vide order dated 27.11.2010. Annexure R3/3 is the copy of order dated 27.11.2010. Petitioner also moved an application for transfer of custody petition but the same was dismissed vide order dated 20.11.2010, copy of which is Annexure R-3/4. Criminal Writ Petition No. 380 of 2008, was filed by the petitioner and on 17th April, 2008, petitioner acknowledged before the Court that petition for custody of the minor children was filed by him and the same is pending and the only prayer was to meet the children. Permission was given to the petitioner to meet the children but the petitioner was restrained to take away the children out of the house of respondent No. 3 and ultimately, on 23.4.2008, petition was dismissed as infructuous. No reference of CRWP No. 380 of 2008, in the present writ petition. As per order dated 14.6.2008 (Annexure R-3/7), interim custody of the detenues was denied to the petitioner but order dated 14.6.2010, was not challenged. After the petitioner was denied the interim custody, he moved for visitation rights. Vide order dated 15.10.2008, petitioner was allowed visitation rights then had met the children till January, 2009.
In January, 2009, petitioner filed Civil Revision No. 5780 of CRWP No.1540 of 2010 -4- 2008 and vide order dated 6.1.2009, petitioner was allowed to meet the children on Saturday from 10.00 a.m. to 4.00 p.m. after imposing several conditions. One of the condition was to deposit his passport and after deposit of passport, petitioner had met the children on 10.1.2009 but after that petitioner did not meet the children, there was order of the Court. In Civil Revision 5780 of 2008, no relief was claimed by the petitioner as claimed in the present petition. Petitioner moved another application before the Family Court. Information was sought regarding past and future school reports, extra curricular activities, medical record details, amounts of money spent on school fee and other essential expenses, e-mail details etc. of the children but application was dismissed vide order dated 14.11.2009 and this order was challenged by filing Civil Revision No. 215 of 2010 and the petition was dismissed vide order dated 13.5.2010. In the custody petition, petitioner had closed his evidence and after that respondent No. 3 had also led her evidence. Matter was fixed for final hearing on 21.9.2010 but all these facts were withheld by the petitioner. Petitioner has submitted before the Courts in the United States of America that he was not aware where the children were located and respondent No. 3 has taken the children to an undisclosed location. Anexure P/2, is the order dated 16.3.2009 but in April, 2008, petitioner had filed an application for the custody of minor children under Sections 11 and 17of the Guardians and Wards Act, 1890 but interim custody was denied to the petitioner vide order dated 14.6.2008 and only visitation rights were given to the petitioner vide order dated 15.10.2008. As per order dated 15.10.2008, petitioner was allowed to meet the children till January, 2009, so, the petitioner had the knowledge where the children were but this fact was CRWP No.1540 of 2010 -5- not brought to the notice of the Court in the United State of America. Both the children are absolutely happy and going exceptionally well under the care and guardianship of respondent No. 3 and got several awards/certificates from the school in which they are studying as also national and international commendation certificates.
I have heard learned counsel for the petitioner, learned counsel of contesting respondents and have carefully gone through the file.
Learned counsel for the petitioner argued that respondent No. 3 is the legally wedded wife of the petitioner. Marriage was solemnized on 27.3.2000 at Chandigarh and in USA on 31.7.2000 and from this wedlock two children namely Sahir Singh, born on 22.2.2002 and Ameya Singh born on 10.10.2003. At present both the children are in the custody of respondent No. 3. Petitioner along with respondent No. 3 and their children came to India in the month of June, 2006, for a short summer vacation with return tickets for August, 2006, with VISA for the children but after stay of two months in India, respondent No. 3 refused to return to USA with the minor children. Petitioner, respondent No. 3 and the minor children are the citizens of USA but despite return tickets minor children were kept by respondent No. 3. Respondent No. 3 also refused to accompany the petitioner. Since June, 2006, petitioner is residing separately from respondent No. 3. Ultimately, petitioner had to file an ex parte emergency motion for return of his minor children. Order (Annexure P-1) was passed. Notice of hearing was mailed to respondent No. 3 at her last known address on July 30, 2007, but despite notice respondent No. 3 did not appear before the Court in Florida, USA. Ultimately, order Annexure P-2, was passed. In CRWP No.1540 of 2010 -6- case, orders Annexure P-1 and P-2 are not correct one then the respondents should challenge the orders before the concerned Court of United States of America. Petitioner had filed custody petition under Section 11 and 17 of the Guardians and Wards Act, 1890, read with relevant Sections of the Hindu Minority and Guardianship Act, 1956, for grant of custody of minor children before filing of custody law suit in the USA. Order of the US Court, was brought to the notice of the Court but no compliance of order passed by the US Court, then petitioner had filed an application under Section 151 CPC, Annexure P-3, requesting the compliance of the US Court order but application was dismissed vide order dated 2.6.2010 (Anneuxre P-4). Ultimately, present petition was filed when petitioner failed to get favourable order from the Guardian Judge, in pursuance or the order passed by the US Court, annexures P-1 and P-2. In support of his contention learned counsel for the petitioner has cited:
1) (2010) 1 Supreme Court Cases 591, "Shilpa Aggarwal (Ms) Vs. Aviral Mittal and another".
2) 2009 (4) RCR (Civil) 961, "Dr. V. Ravi Chandran Vs. Union of India and others".
3) CRWP No. 621 of 2010
4) (1984) 3 Supreme Court Cases 698, "Smt. Surinder Kaur Sandhu Vs. Harbax Singh Sandhu and another".
5) (1987) 1 Supreme Court Cases 42, "Mrs Elizabeth Dinshaw Vs. Arvand M. Dinshaw and another".
Learned counsel for the contesting respondents argued that no doubt petitioner is the husband of respondent No. 3 and from this wedlock two minor issues but petition is not maintainable because custody of minor children with respondent No. 3 is not illegal and CRWP No.1540 of 2010 -7- unlawful. Petitioner filed petition under the Guardians and Wards Act. After the evidence of the parties, petition was pending for final hearing. During the pendency of the petition, application under Section 151 CPC, moved but the same was dismissed vide order dated 2.6.2010 (Annexure P-4) and this order was challanged by filing Civil Revision No. 6054 of 2010, "Mr. Paramjit Singh Vs. Mrs. Ekta Gyani and others", but the same was dismissed as withdrawn on 20.9.2010 but no reference of Civil Revision No. 6054 of 2010, in the present writ petition. Same issue was raised in the Civil Writ Petition and Criminal Writ Petition. Petitioner also moved an application dated 21.9.2010, under Order XXIII Rule 1 and 3 of CPC, to withdraw the custody petition and the same was ordered to be dismissed as withdrawn, vide order dated 27.11.2010 (Annexure R3/3). Application for transfer of custody petition was filed by the petitioner but the same was dismissed by the learned Sessions Judge, Chandigarh, vide order dated 20.11.2010, copy of which is Annexure R-3/4. Earlier, Criminal Writ Petition No. 380 of 2008, was filed by the petitioner and in that petition there was no reference of the pendency of petition under the Guardians and Wards Act but only prayer was to allow him to meet the children. Petitioner was allowed to meet the children but later on CRWP No. 380 of 2008, was dismissed vide order dated 23.4.2008 (Annexure R-3/6), so, second writ petition on the same allegations is not maintainable. No reference of the earlier writ petitioner in the present writ petition. Petition is liable to be dismissed when petitioner has withheld and suppressed the material facts. Civil Revision No. 5780 of 2009, was also disposed of. While disposing the Civil Revision No. 215 of 2010, filed by the petitioner, Court observed that the petitioner is not CRWP No.1540 of 2010 -8- interested to get the decision of the petition filed by him rather, for one reason or the other, wants to delay it and to harass the respondent. In the petition under the Guardians and Wards Act, both the parties have led evidence and after evidence Court has to opine as to whether children are safe in the custody of respondent No. 3. Paramount consideration of the Court was the welfare of the children but without evidence of the parties in the present petition custody of the minor children cannot be handed over to the petitioner. No doubt, there are orders of the Court of United States of America, Annexure P-1 and P-2 but orders are not helpful to the petitioner because minor children were not declared ward of the Court. Authorities cited by the learned counsel for the petitioner are also not applicable because there was no petition under the Guardians and Wards Act. Secondly, the children were the ward of the Court then direction was given to hand over the custody of the children with liberty to aggrieved party to move an appropriate application before the concerned Foreign Court. When second petition on the same subject matter between the parties then order of the Court dismissing the earlier writ petition operates as res judicata. When petition was filed by suppressing the material facts and an attempt was made to mislead the Court then petition is liable to be dismissed. In support of his contention counsel for the contesting respondents cited:
1) (1998) 1 Supreme Court Cases 112, "Dhanwanti Joshi Vs. Madhav Unde".
2) 1994 (5) SLR, 73, "Pawan Kumar Vs. State of Haryana and another".
3) AIR 1978 Punjab and Haryana 326 Full Bench, "Charanji Lal and others Vs. Financial Commissioner Haryana, Chandigarh and others". CRWP No.1540 of 2010 -9-
4) (2000) 3 Supreme Court Cases 14, "Sarita Sharma, Vs. Sushil Sharma".
Undisputedly, respondent No. 3 Mrs. Ekta Gyani, is the legally wedded wife of the petitioner and out of this wedlock two issues namely Sahir Singh born on 22.2.2002 and Ameya Singh born on 10.10.2003, both are minor and at present are in the custody of respondent No. 3. This fact is also an admitted one that petitioner, respondent No. 3 and minor children are the citizens of USA and in the month of June, 2006, they came to India with their return tickets.
Petitioner filed petition under Sections 11 and 17 of the Guardians and Wards Act, 1890, and the petition is dated 15.4.2008. Allegation of the petitioner was that he along with respondent No.3 and two minor children came to India on 14.6.2006, with a VISA of six months for the children and after spending about two months in India, respondent No. 3 along with two minor children failed to return to USA but petition under the Guardians and Wards Act, was dismissed as withdrawn vide order dated 27.11.2010 (Annexure R-3/3). When petition was dismissed as withdrawn at that time petition was pending for final hearing after evidence of both the parties. In the main petition under the Guardians and Wards Act, petitioner had moved an application dated 2.6.2010 (Annexure P-3). Application was for the compliance of US Court order i.e. Annexure P-1 dated 7th August, 2007 and Annexure P-2 dated 16th March, 2009. Allegation of the petitioner was that petitioner has already been awarded the sole custody of both the children as well as temporary sole parental responsibility of filing motion before the Eleventh Judicial Circuit Court of Miami-Dade County, Florida because respondent No. 3 has come up before the Court for an CRWP No.1540 of 2010 -10- evidentiary hearing regarding her removal of minor children and refusal to return the children to their home and the petitioner. Relevant para of the order is reproduced as under:
"10. Since March 30, 2007, the Father has had no contact with the Wife and/or children and does not know where they reside. The Mother has moved to an unknown address and her last phone number has been disconnected. The Mother appears to be hiding the children in the Republic of India with no intention of returning them to the United States.
11. The father is awarded temporary sole custody of both minor children as well as sole parental responsibility until such time as the Mother has come before this Court for an evidentiary hearing regarding her removal of the minor children and refusal to return the children to their home and the father."
Petitioner and the minor children are the citizens of USA. Petitioner being father is the first lawful guardian of the minor children and question for adjudication is by respondent No. 3, who is not obeying the order of Circuit Court, Florida.
Application Annexure P-3 2.6.2010, was dismissed vide order 2.6.2010 (Anneuxre P-4). Evidence of the petitioner was also closed by order and the petition was adjourned to 30.7.2010, for evidence of the respondent.
Order dated 2.6.2010 (Annexure P-4), was challenged by filing Civil Revision No. 6054 of 2010. Allegation of the petitiner was that petition under the Guardians and Wards Act, was filed to ensure CRWP No.1540 of 2010 -11- the compliance of the US Court order. Custody of the minor children was granted to the petitioner as per order of the U.S. Court and no such similar petition was filed in any Court but Civil Revision No. 6054 of 2010 was dismissed as withdrawn after the arguments of the learned counsel for the petitioner were heard at length. Judgment dated 20.9.2010 (Annexure R-3/2) has become final. While filing the application under Order XXIII Rules 1 and 3 CPC, allegation of the petitioner was that there is a technical snag in the petition as the cause of action for filing the petition arose on 7.8.2007, when the petitioner was awarded sole custody of both the minor children as well as temporary sole parental responsibility from Circuit Court of the Eleventh Judicial Circuit in Miami-Dade County, Florida, USA and the actual custody has already been granted to the petitioner by the US Court and the petition under the Guardians and Wards Act, was filed to ensure the compliance of the US Court order but the petitioner has inadvertently prayed for grant of custody. So the appropriate forum was the executing Court since custody has already been granted to the petitioner. While accepting the application, Court observed that parties have led their evidence and case is fixed for final arguments.
Petitioner also moved an application for transfer of the case but the same was dismissed vide order dated 20.11.2010 by the learned Sessions Judge, Chandigarh. Criminal Revision No. 6054 of 2010 was dismissed 20.9.2010 but no reference of the present petition filed on 18.8.2010.
CRWP No. 380 of 2008, filed by the petitioner on the allegation that he along with his wife and children came to India from USA but after that wife and the children failed to join the company of the CRWP No.1540 of 2010 -12- petitioner to USA. In March, 2007, respondent No. 3 filed complaint against the petitioner under the Domestic Violence Act, 2005, which followed by a petition for divorce filed in April, 2007 but the petitioner failed to live with respondent No. 3 and the minor children. Petition under Section 9 of the Hindu Marriage Act, 1955, for restitution of conjugal rights was filed in August 2007. Petition for custody of the minor children was also filed in April, 2008 and the same is pending so he wants to remain with the children for a short duration. Ultimately, the petitioner was allowed to meet the minor children in the presence of warrant officer and CRWP No. 380 of 2008, was dismissed having become infructuous vide order dated 23.4.2008 (Annexure R-3/6).
Petitioner also filed Civil Revision No. 215 of 2010. Revision was against the order dated 14.11.2009, passed by the Guardians Judge, Chandigarh, whereby his application for supplying information with regard to past and future school reports, school records, extra curricular activities i.e. sports, music, hobby etc., medical record, details of the amount spent on the school fee and other essential expenses, e-mail details and telephone number of the children was dismissed. Ultimately, Civil Revision No. 215 of 2010 was also dismissed vide order dated 13.5.2010 (Annexure R-3/10). While dismissing the petition Court observed that petitioner is not interested to get the decision of the petition filed by him rather, for one reason or the other, wants to delay it and to harass the respondent. All this shows that on the same allegation Civil Revision No. 6054 of 2010 was filed and after hearing arguments of the learned counsel for the petitioner at length when the Court was not inclined to issue notice to the second party then the petition was got dismissed as withdrawn. While filing CRWP No.1540 of 2010 -13- Civil Revision No. 6054 of 2010, no reference of the present Criminal Writ Petition. In CRWP No. 380 of 2008, petitioner admitted that petition for custody of the minor children under the Guardians and Wards Act, is pending but only request was to meet the children. Petition was allowed to meet the children and after that CRWP No. 380 of 2008, was dismissed as having become infructuous, so, I am of the opinion that second writ petition on the same allegation deserves to be dismissed.
In Dhanwanti Joshi's case (supra) ex parte order passed under the Guardians and Wards Act giving permanent custody of child to mother, subsequently proceeding initiated by the father claiming custody of the child inter alia on the ground of having superior financial capacity so as to be able to give immediate American education to the child then Hon'ble Supreme Court opined that superior financial capacity cannot be the sole consideration for change of custody from mother to father. No substantial change in the circumstances have been established, previous order in favour of the mother was binding on the father and the subsequent proceeding was barred by res judicata.
In the present case, application under Section 151 CPC, was moved to ensure the compliance of the US Court order but that application was dismissed. Against the order, Civil Revision No. 6054 of 2010 was filed. Allegation of the petitioner was that no compliance of the US Court order but after arguments by the learned counsel for the petitioner at length, revision petition was dismissed as withdrawn. Same allegation in the present petition that no compliance of the US Court order. In CRWP No. 380 of 2008, only request of the petitioner CRWP No.1540 of 2010 -14- was to meet children. Ultimately, writ petition was dismissed vide order Annexure R-3/6. Civil Revision No. 215 of 2010, was also dismissed on 13.5.2010, with observation that petitioner is not interested to get the decision of the petition filed by him rather, for one reason or the other, wants to delay it and to harass the respondent. When the party suppressed the material facts then Court justified in declining the relief in favour of the party who attempted to mislead the Court.
In Pawan Kumar's case (supra) Hon'ble Supreme Court held that suppression of material facts and attempt to mislead the Court-High Court, justified in declining the relief in favour of a party who makes attempt to mislead the Court.
In Charanji Lal's case (supra) Full Bench of this Court held that petition under Articles 226 and 227 of the Constitution of India, suppression of material facts then petition is liable to be dismissed.
In the present petition sole allegation of the petitioner is that no compliance of the US Court orders Annexures P-1 and P-2. Not a word in the petition regarding the welfare of the children. While handing over the custody to the husband or wife, paramount consideration of the Court is the welfare of the children. Respondent No. 3 with the children was already in India in the month of June, 2006 and after that order Annexure P-1, on 7.8.2007 and Annexure P-2 dated 16.3.2009. No allegation of the petitioner that against the order of US Court, children were brought from USA to India without obtaining orders from the concerned Court.
In Sarita Sharma's case (supra) in para No. 6 Hon'ble Supreme Court observed as under:
CRWP No.1540 of 2010 -15-
"6. Therefore, it will not be proper to be guided entirely by the fact that the appellant Sarita had removed the children from USA despite the order of the Court of that country. So also, in view of the facts and circumstances of the case, the decree passed by the American Court though a relevant factor, cannot override the consideration of welfare of the minor children. We have already stated earlier that in USA respondent Sushil is staying along with his mother aged about 80 years. There is no one else in the family. The respondent appears to be in the habit of taking excessive alcohol. Though it is true that both the children have American citizenship and there is a possibility that in USA they may be able to get better education, it is doubtful if the respondent will be in a position to take proper care of the children when they are so young. Out of them, one is a female child. She is aged about 5 years. Ordinarily, a female child should be allowed to remain with the mother so that she can be properly looked after. It is also not desirable that two children are separated from each other. If a female child has to stay with the mother, it will be in the interest of both the children that they both stay with the mother. Here in India also proper care of the children is taken and they are at present studying in good schools. We have not found the appellant wanting in taking proper care of the CRWP No.1540 of 2010 -16- children. Both the children have a desire to stay with the mother. At the same time it must be said that the son, who is elder than the daughter, has good feelings for his father also. Considering all the aspects relating to the welfare of the children, we are of the opinion that in spite of the order passed by the Court in USA it was not proper for the High Court to have allowed the habeas corpus writ petition and direct the appellant to hand over custody of the children to the respondent and permit him to take them away to USA. What would be in the interest of the children requires a full and thorough inquiry and, therefore, the High Court should have directed the respondent to initiate appropriate proceedings in which such an inquiry can be held. Still there is some possibility of the mother returning to USA in the interest of children. Therefore, we do not desire to say anything more regarding entitlement of the custody of the children. The chances of the appellant returning to USA with the children would depend upon the joint efforts of the appellant and the respondent to get the arrest warrant cancelled by explaining to the Court in USA the circumstances under which she had left USA with the children without taking permission of the Court. There is a possibility that both of them may thereafter be able to approach the Court which passed the decree to CRWP No.1540 of 2010 -17- suitably modify the order with respect to the custody of the children and visitation rights."
In the abovesaid authority American Court by its order putting the children to the care of respondent husband but appellant wife exercising her visitation right, brought the children from the residence of respondent despite the Court's order. Writ petition seeking writ of habeas corpus filed by the husband. In view of the conduct of the wife removing the children from USA without obtaining the order from the concerned Court, High Court directed the wife to hand over custody of the children to respondent-husband and permitting him to take the children to USA then held that conduct of removing the children from USA is a relevant fact but it cannot override the aspects relating to welfare of the children. So High Court erred in restoring the custody of the children to respondent-husband on the sole ground of breach of American Court's order. High Court should have directed the respondent to initiate proceedings for holding a full-fledged inquiry as to what would be in the interest of children. Ultimately, appeal filed by the wife to set aside the order of the High Court was allowed and writ petition filed by the respondent-husband dismissed.
Learned counsel for the petitioner argued that in view of the orders Annexure P-1 and P-2, custody of minor children be handed over to him and in case respondent No. 3 has any grievance then she should contest the matter before the US Court.
In Shilpa Aggarwal's case (supra) three-and-a-half year old female child presently in her mother's custody after being brought to India from UK. Father obtained interim order from English Court that CRWP No.1540 of 2010 -18- the child would remain ward of court during her minority or until further orders. In the background of such an order passed by English Court, principles relating to comity of courts and child's best interests considered and Supreme Court of India holding that appellant mother ought to act according to interim order of English Court. She should defend her case, if any, in English Court of competent jurisdiction. Position clarified that English court had not separated the child from mother but had only directed the mother to submit to jurisdiction of English courts because the child was a British national, parties had worked for gain in UK and also acquired status of permanent residents in UK. So, it is the English Court which has the most intimate contact with issue involved in this case. Mother was directed to return the minor to jurisdiction of court of competent jurisdiction in England and Wales. Father however made responsible for arranging journey and stay of mother and child in UK for at least a month. Relevant paras No. 29 to 32, 35 and 36 are reproduced as under:
"29. There is yet another aspect of the matter on which the High Court has stressed. The High Court noticed the fact that both the appellant wife and the respondent husband had set up their matrimonial home in Scotland and thereafter in England since 2003. Both the parents had been working for gain in the UK and while the minor child was holding a British passport, the parents had acquired permanent resident status in the UK.
30 It is not as if the High Court was oblivious of the fact that it was the paramount duty of the court to CRWP No.1540 of 2010 -19- look after the interests of the minor child. It has referred to the celebrated decision of this Court in Elizabeth Dinshaw case, wherein it was emphasized that in the matters of custody of minor children, the sole and predominant criterion is the interest and welfare of the minor. Further, while relying upon the judgment in Sarita Sharma case, the High Court did consider the decision in Surinder Kaur case, where the facts were very similar. Yet, the High Court, relying on the decision of this Court in Sarita Sharma case came to the conclusion that the courts in this country cannot be guided entirely by the fact that one of the parents had violated the order passed by a competent foreign court. Choosing to rely on the doctrine of comity of courts, the High Court directed the appellant to return the minor child to the jurisdiction of the UK Court as the said Court was closest to the issue involving the custody of the child and would thoroughly examine the claim of the appellant Respondent 1 to be entrusted with the custody of the child.
31. Although Mr. Shishodia relied heavily on the decision in Surinder Kaur case, it cannot be ignored that the said case had duly considered the principle that the interest of the minor is paramount in any decision relation to custody. It is but natural that in a matrimonial tussle both the parents would want the CRWP No.1540 of 2010 -20- custody of the minor child. In this tussle, we have to decide who would be more suited to have custody of the child. In our view, the High Court appears to have taken the correct approach in a matter like this.
32. Although, on first impression, it would appear that the interests of the minor child would be best served if she is allowed to remain with the appellant, we cannot loose sight of the order dated 26.11.2008, passed by the High Court of Justice, Family Division, UK, which admittedly is an exparte order and, inter alia, reads as follows:
"IT IS ORDERED THAT:
1. The minor, Elina Mittal (date of birth 20-2-2006), shall remain a ward of court during her minority or until further order;
2. The defendant mother, Shilpa Aggarwal, do within 14 days of service of this order upon her cause the said minor to be returned to the jurisdiction of England and Wales;
3. Following the return of the said minor to England and Wales, the defendant mother shall thereafter be forbidden (whether by herself or by instructing or encouraging any other person) from causing or permitting the minor to be removed from the jurisdiction of England CRWP No.1540 of 2010 -21- and Wales without the permission of a High Court Judge;
4. Within 72 hours of the return of the said minor to England and Wales, the defendant mother must deliver up to the plaintiff father's solicitors, Messrs Lyons Davidson of Victoria House, 51 Victoria Street, Bristol BSI 6 AD all passports all passports and international travel documents for the child on the basis that those documents will be held by that firm to the order of the Court and will not be released to either party without the permission of a High Court Judge;
5. Within 72 hours of the return of the said minor to England and Wales, the defendant mother must provide the plaintiff father's solicitors, Messrs Lyons Davidson of Victoria House, 51 Victoria Street, Bristol BSI 6 AD with full details in writing of any address at which she intends to reside with the child and a contact telephone number for herself; she must also provide to the father's solicitors in writing full details of any new address to which she intends to move with the child prior to such move taking CRWP No.1540 of 2010 -22- place;
6. There be liberty to the defendant mother to apply to vary or discharge any provision of this order upon giving 24 hours' notice to the plaintiff father's solicitors, Messrs Lyons Davidson of Victoria House, 51 Victoria Street, Bristol BSI 6 AD (of PMM/CLP; Telephone No. 01179046000); any such application shall be supported by a sworn affidavit;
7. The application shall be adjourned and listed at risk for further directions before a High Court Judge sitting at the Royal Courts of Justice, Strand London at 10.30 a.m. on 15-12-2009 (time estimate ½ hour);
8. The costs of this application be reserved:
AND NOW THEREFORE this Court respectfully invites all judicial and administrative bodies in the Republic of India to render assistance in ensuing that the minor Elina Mittal is returned as soon as possible to the jurisdiction of England and Wales.
35. The fact that the minor child has been declared a ward of English Court till she attains majority, is also a matter of considerable importance in CRWP No.1540 of 2010 -23- considering whether the impugned order of the High Court should be interfered with or not.
36. We are satisfied form the materials produced before us and the submissions made on behalf of the parties that the High Court did not commit any error in relying on the doctrine of comity of courts since the question of what is in the interest of the minor still has to be considered by the UK Court and the interim order passed in the proceedings initiated by respondent No. 1 is only of an interim nature with a view to return the child to the jurisdiction of the said Court."
In Dr. V. Ravi Chandran's case (supra) relevant paras No. 6, 20, 21 and 23 are reproduced as under:
"6. On June 28, 2007 respondent No. 6 brought minor Adithya to India informing the petitioner that she would be residing with her parents in Chennai. On August 08, 2007, the petitioner filed the petition for modification (Custody) and Violation Petitioner (Custody) before the Family Court of the State of New York on which a show cause notice came to be issued to respondent No. 6. on that very day, the petitioner was granted temporary sole legal and physical custody of Adithya and respondent No.6 was directed to immediately turn over the minor child and his passport to the petitioner and further her CRWP No.1540 of 2010 -24- custodial time with the minor child was suspended and it was ordered that the issue of custody of Adithya shall be heard in the jurisdiction of the United States Courts, specifically, the Albany County Family Court.
20. While dealing with a case of custody of a child removed by a parent from one country to another in contravention to 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 CRWP No.1540 of 2010 -25- a foreign judgment must depend on the circumstances of each case. 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. The indication given in McKee v. McKee2 that there may be cases in which it is proper for a court in one jurisdiction to make an order directing that a child be returned to a foreign jurisdiction without investigating the merits of the dispute relating to the care of the child on the ground that such an order is in the best interest of the child has been explained in re. L (minors)6 and the said view has been approved by this Court in Dhanwanti Joshi9. Similar view taken by the Court of Appeal in re. H5 has been approved by this Court in Elizabeth Dinshaw8.
21. Do the facts and circumstances of the present case warrant an elaborate enquiry into the question of custody of minor Adithya and should the parties be relegated to the said procedure before appropriate forum in this country in this regard? In our judgment, CRWP No.1540 of 2010 -26- this is not required. Admittedly, Adithya is an American citizen, born and brought up in United States of America. He has spent his initial years there. The natural habitat of Adithya is in United States of America. As a matter of fact, keeping in view the welfare and happiness of the child and in his best interest, the parties have obtained series of consent orders concerning his custody/parenting rights, maintenance etc. from the competent courts of jurisdiction in America. Initially, on April 18, 2005, a consent order governing the issues of custody and guardianship of minor Adithya was passed by the New York State Supreme Court whereunder the court granted joint custody of the child to the petitioner and respondent no. 6 and it was stipulated in the order to keep the other party informed about the whereabouts of the child. In a separation agreement entered into between the parties on July 28, 2005, the consent order dated April 18, 2005 regarding custody of minor son Adithya continued. In September 8, 2005 order whereby the marriage between the petitioner and respondent no. 6 was dissolved by the New York State Supreme Court, again the child custody order dated April 18, 2005 was incorporated. Then the petitioner and respondent no. 6 agreed for modification of the custody order and, accordingly, the Family Court of CRWP No.1540 of 2010 -27- the State of New York on June 18, 2007 ordered that the parties shall share joint legal and physical custody of the minor Adithya and, in this regard, a comprehensive arrangement in respect of the custody of the child has been made. The fact that all orders concerning the custody of the minor child Adithya have been passed by American courts by consent of the parties shows that the objections raised by respondent no. 6 in counter affidavit about deprivation of basic rights of the child by the petitioner in the past; failure of petitioner to give medication to the child; denial of education to the minor child; deprivation of stable environment to the minor child; and child abuse are hollow and without any substance. The objection raised by the respondent no. 6 in the counter affidavit that the American courts which passed the order/decree had no jurisdiction and being inconsistent to Indian laws cannot be executed in India also prima facie does not seem to have any merit since despite the fact that the respondent no. 6 has been staying in India for more than two years, she has not pursued any legal proceeding for the sole custody of the minor Adithya or for declaration that the orders passed by the American courts concerning the custody of minor child Adithya are null and void and without jurisdiction. Rather it transpires from the counter CRWP No.1540 of 2010 -28- affidavit that initially respondent no. 6 initiated the proceedings under Guardianship and Wards Act but later on withdrew the same. The facts and circumstances noticed above leave no manner of doubt that merely because the child has been brought to India by respondent no. 6, the custody issue concerning minor child Adithya does not deserve to be gone into by the courts in India and it would be in accord with principles of comity as well as on facts to return the child back to the United States of America from where he has been removed and enable the parties to establish the case before the courts in the native State of the child, i.e. United States of America for modification of the existing custody orders. There is nothing on record which may even remotely suggest that it would be harmful for the child to be returned to his native country.
23. In a case such as the present one, we are satisfied that return of minor Adithya to United States of America, for the time being, from where he has been removed and brought here would be in the best interest of the child and also such order is justified in view of the assurances given by the petitioner that he would bear all the traveling expenses and make living arrangements for respondent no. 6 in the United Sates of America till the necessary orders are passed by the competent court; that the petitioner would CRWP No.1540 of 2010 -29- comply with the custody/parenting rights as per consent order dated June 18, 2007 till such time as the competent court in United States of America takes a further decision; that the petitioner will request that the warrants against respondent no. 6 be dropped; that the petitioner will not file or pursue any criminal charges for violation by respondent no. 6 of the consent order in the United States of America and that if any application is filed by respondent no. 6 in the competent court in United States of America, the petitioner shall cooperate in expeditious hearing of such application. The petitioner has also stated that he has obtained confirmation from Martha Hunt Elementary School, Murphy, Texas, 75094, that minor son Adithya will be admitted to school forthwith."
In Criminal Writ Petition No. 621 of 2010, petition for custody of minor son of the petitioner and respondent No. 3. Dispute amongst the husband and wife. Ultimately, issue regarding custody of the child was decided by Provincial Court of British Columbia on May 12, 2008, vide which the Court ordered that the primary residence of the child would be with respondent No. 3 whereas the petitioner would have reasonable access to child on some days of the week. It was also ordered that respondent No. 3 would not change the child's address from the Lower Mainland of British Columbia, without the written permission of the husband i.e. the petitioner or permission of the Court CRWP No.1540 of 2010 -30- and neither parent would take the child to India without the written permission of the other parent or permission of the Court but despite the aforementioned order passed by the Court of competent jurisdiction, wife brought the minor child to India. Ultimately, wife was directed to hand over the custody of the minor child to the father along with passport and Care Card with liberty to wife to move an appropriate application before the Provincial Court of British Columbia, for modification/amendment of the order dated May 12, 2008.
In Smt. Surinder Kaur Sandhu's case (supra) parents of the minor child were Indian citizens who later on settled in England. Child becoming British citizen by birth but father brought back the child to India then mother obtained order of English Court directing her husband to deliver custody of the child to her and on that basis filed writ petition in High Court of India for production and custody of the child. Hon'ble Supreme Court held that English Court having the most intimate contact with the issue and jurisdiction over the matter, held, its order binding upon the Indian Court. Relevant para No. 10 of the judgment is reproduced as under:
"10. We may add that the spouses had set up their matrimonial home in England where the wife was working as clerk and the husband as a bus driver. The boy is the British citizen, having been born in England, and he holds a British passport. It cannot be controverted that, in these circumstances, the English Court had jurisdiction to decide the question of his custody. The modern theory of Conflict of CRWP No.1540 of 2010 -31- Laws recognizes and, in any event, prefers the jurisdiction of the State which has the mot intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum-shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offsprings of marriage. The spouses in this case had made England their home where this boy was born to them. The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing him to India, not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the peace of that home. The fact that the matrimonial home of the spouses was in England, establishes sufficient contacts or ties with that State in order to make it reasonable and just for the courts of that State to assume jurisdiction to enforce obligations which were incurred therein by the spouses. (See International CRWP No.1540 of 2010 -32- Shoe Company v. State of Washington, which was not a matrimonial case but which is regarded as fountainhead of the subsequent developments of jurisdictional issues like the one involved in the the instant case.) It is out duty and function to protect the wife against the burden of litigating in an inconvenient forum which she and her husband had left voluntarily in order to make their living in England, where they gave birth to this unfortunate boy."
In Mrs. Elizabeth Dinshaw's case (supra) American Court granted decree for child's custody to mother and visitation right to father of the child but father secretly brought the child to India against the express orders of the American Court. Mother filed habeas corpus petition then Hon'ble Supreme Court held that mother entitled to the child's custody with liberty to take the child to the USA. Father may, if he so desires, tender unconditional apology before the American Court for contempt and seek permission for restoration of visitation rights. Relevant para No. 8 of the judgment is reproduced as under:
"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 he 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 CRWP No.1540 of 2010 -33- immature to be able to form any independent opinion of his own as to which parent he should stay with. The child is an American citizen. Excepting for the last few months that have elapsed since his being brought to India by the process of illegal abduction by the father, he has spent the rest of his life in 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 CRWP No.1540 of 2010 -34- inspire confidence in us that he is a fit and suitable person to be entrusted with the custody and guardianship of the child for the present."
In the present case, facts are different from the facts of the above cited authorities cited by the learned counsel for the petitioner. There was no petition under the Guardians and Wards Act, either by the wife or the husband filed in the Court of Guardian Judge, in India. Secondly, there was no other petition where same issue was involved but same issue was involved in Civil Revision No. 6054 of 2010 and Criminal Writ petition 380 of 2008 but after arguing at length petition was got dismissed as withdrawn. Thirdly, the detenues i.e. the minor son or daughter was the ward of the concerned foreign Court. In the present case minor children were not brought to India against the order of the foreign Court. As per orders, Annexures P-1 and P-2, passed by the foreign Court, minor children were not declared ward of the foreign Court till attained majority.
As discussed earlier petition under the Guardians and Wards Act, was instituted by the petitioner and after evidence of both the parties, petition was pending for final order. Guardian Judge, was to opine as to whether custody of minor children was to be given to the petitioner or was to remain with the wife, keeping in view the welfare of the children but petition under the Guardians and Wards Act, was got dismissed as withdrawn. Something could be said if there was no petition under the Guardians and Wards Act and against the orders Annexures P-1 and P-2 of the foreign Court, minor children would have been brought to India by respondent No.3. When there is a order of the foreign Court then parties are to be directed to comply with the order CRWP No.1540 of 2010 -35- and order of the foreign Court is to be respected but in this case conduct of the petitioner is to delay the proceedings and harass respondent No.3 on one pretext or the other, that is why no reference of the present petition while filing Civil Revision No. 6054 of 2010, which was dismissed as withdrawn on 20.9.2010.
In view of all discussed above, I am of the opinion that writ petition filed by concealing material facts deserves to be dismissed.
For the reasons record above, the instant writ petition without merits is dismissed.
May 20, 2011 ( JORA SINGH ) rishu JUDGE