Dr.Navtej Singh vs State Of Nct & Anr. on 6 March, 2018

[Cites 49, Cited by 2]

Delhi High Court

Dr.Navtej Singh vs State Of Nct & Anr. on 6 March, 2018

1. The petitioner herein has preferred the present writ petition seeking issuance of a writ of Habeas Corpus for production of his minor children, Ishnoor Kaur and Paramvir Singh, who are presently of ages five years and W.P.(CRL) 725/2017 Page 1 of 54 one year respectively. Ishnoor who was born in U.S.A on 27.08.2012 is a permanent resident and natural born citizen of U.S.A, while the minor Paramvir Singh was born in New Delhi on 12.09.2016. He is also seeking a direction for return of Ishnoor and Paramvir to the jurisdiction of the competent Courts in the United States of America (U.S.A.) in compliance with the orders dated 17.11.2016 and 25.01.2017 passed by the Superior Court, Judicial District Stamford/Norwalk at Stamford, Connecticut (CT), U.S.A. The children are presently under the custody of their mother, respondent No. 2.

Background

2. Petitioner is an Indian born citizen of U.S.A. Respondent No. 2 is the wife of the petitioner and mother of Ishnoor and Paramvir respectively. She is also an Indian born citizen of U.S.A. Both hold American Passports.

3. The petitioner and respondent No. 2 got acquainted while studying in U.S.A in the year 2000. The petitioner was then pursuing a degree in Mathematics, Computer Science and simultaneously completing his studies in pre-medical. Respondent no. 2 was also pursuing a degree in Computer Science from Hunter College, U.S.A. Both the petitioner and the respondent No. 2 got enrolled in a dental school in the years 2003 and 2005 respectively. The petitioner and respondent no. 2 got married on 22.08.2006 in New York as per U.S. Civil laws and thereafter obtained a certificate of registration of their marriage dated 22.08.2006 from the Marriage License Bureau, The City of New York, U.S.A. The petitioner and respondent No. 2 subsequently, in a religious ceremony remarried on 23.12.2007 at New W.P.(CRL) 725/2017 Page 2 of 54 Delhi (Delhi), India. The respondent no. 2 thereafter obtained the citizenship of U.S.A. post her marriage with the petitioner. The petitioner and the respondent no. 2 continued to reside in their permanent residence and matrimonial home situated in Connecticut, U.S.A. from 22.08.2006 onwards.

4. The petitioner along with respondent no. 2, post obtaining degrees in Doctor of Dental Surgery (DDS) Dental Science, set up a joint dental practice under the name „South End Dental Centre, PC‟ ("organisation") at Stamford, CT, U.S.A. in 2011, under a professional business partnership. The petitioner is working in the capacity of President and Secretary of the said organisation, while the Respondent No. 2 is the Vice-President and Treasurer of the same.

5. Ishnoor - the first child of the parties, was born on 27.08.2012 at Stamford Hospital, Connecticut, U.S.A. The petitioner submits that Ishnoor is a natural born US citizen and has been domiciled in the State of Connecticut, USA since her birth.

6. The petitioner submits that since respondent no. 2 did not wish to reside with his parents - who are also residing in U.S.A., a separate accommodation was leased by her exclusively in her name at Stamford, CT and later at Norwalk, CT, valid upto 21.12.2016. The petitioner submits that the lease of the same property has currently been renewed by him and up to 31.12.2017.

7. The petitioner along with respondent no. 2 and their daughter Ishnoor arrived in Delhi on 26.01.2016 to attend the wedding of the brother of W.P.(CRL) 725/2017 Page 3 of 54 Respondent No. 2 which was fixed for 21.02.2016. The petitioner submits that they were all scheduled to return to U.S.A. on 04.03.2016 on a pre- booked return flight. However, on the date of return, Respondent No. 2 refused to go back to U.S.A and thereafter he was left with no option but to return alone to U.S.A. on 05.03.2016. He submits that despite his best efforts to get in touch with the respondent via emails, phone calls, and family requests, the Respondent No. 2 - without giving any reason or justification, refused to return to U.S.A. The petitioner further submits that their minor son - Paramvir was thereafter born in India on 12.09.2016. He submits that the petitioner along with his father came to Delhi in August, 2016 and September, 2016 respectively to convince the Respondent No. 2 to return to her matrimonial home in U.S.A, but all efforts were in vain.

8. Subsequently, the petitioner moved an application for emergency ex parte order before the District Superior Court, Judicial District Stamford/ Norwalk, Connecticut, U.S.A. in June 2016 seeking custody of his daughter Ishnoor Kaur. He submits that notice was issued on 04.10.2016 to Respondent no. 2 to appear before the U.S. Court on 17.11.2016. He further submits that vide email dated 11.10.2016, counsel for the Petitioner also informed the Respondent No. 2 of the court hearing scheduled on 17.11.2016. However, Respondent No. 2 did not appear before the said Court either in person, or through an Attorney and the proceedings were undertaken exparte.

9. The Superior Court, Judicial District Stamford/Norwalk, passed interim custody orders in favour of the petitioner on 17.11.2016. The same is reproduced here:

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―........... That the father has sustained his burden of establishing to this Court's satisfaction that an ex parte order is in order. The Court finds that it has jurisdiction because there are provisions in the UCCJEA, which really don't apply internationally but it is a frame of reference that the child's home state is this state. So for whatever that's worth, for the benefit of further actions -

x x x x x x x x x x ..... -- on this matter and in other jurisdictions, that's what this Court finds. Okay. To summarize, the Court finds that the applicant father has sustained his burden of proof justifying the entering of the follow emergency ex parte order of custody: that temporary physical and legal custody is awarded to the father, supervised visitation with the defendant mother in the State of Connecticut is ordered, the defendant shall immediately surrender the child's passport to the plaintiff father, and the defendant shall, upon notice of this order, immediately return to the State of Connecticut bringing both children with her.

x x x x x x x x x x ... So this order extends to the mother to return with both children, not just the one that's on the application.‖ (emphasis supplied)

10. The aforementioned interim order passed by the Superior Court, Judicial District, Stamford/Norwalk was also communicated to the Respondent No. 2 by the counsel for the Petitioner vide email dated 01.12.2016 wherein the next date of hearing, scheduled for 11.01.2017, was also communicated.

11. Meanwhile, the respondent No. 2 filed a guardianship petition - GP No. 64/2016 on 09.11.2016 before the Family court, Tis Hazari, New Delhi under Sections 7, 9, 11 & 25 of the Guardians and Wards Act, 1980 W.P.(CRL) 725/2017 Page 5 of 54 („GWA‟) r/w Section 6(a) of the Hindu Minority and Guardianship Act, 1956 („HMGA‟) seeking permanent and sole custody of the minor children Ishnoor and Paramveer. The Petitioner moved a Miscellaneous Application for rejection of the Respondent No. 2‟s Guardianship Petition, as being barred by law. The Family Court, Tis Hazari allowed the application of the Petitioner and vide order dated 26.12.2016, dismissed the guardianship petition on the ground of jurisdiction. The Respondent No. 2, thereafter, moved M.A.T. APP. (F.C.) 3/2017 before this Court to challenge the orders of the Family Court dated 26.12.2016. During pendency of the present petition, the said appeal was dismissed by the Division Bench on 19.09.2017. However, the Supreme Court has, vide order dated 20.02.2018, set aside the judgment of the Division Bench in the aforesaid MAT APP (F.C.) 3/2017. After quoting some of the observations made in Nithya Anand Raghavan v. State of NCT, (2017) 8 SCC 454, the Supreme Court has observed:

"(4) In view of above, principle of comity of courts or principle of forum convenience alone cannot determine the threshold bar of jurisdiction. Paramount consideration is the best interest of child. The same cannot be subject-matter of final determination in proceedings under Order VII Rule 11 of the C.P.C.

(5) Accordingly, we set aside the impugned order. The application under Order VII Rule 11 is dismissed".

12. Meanwhile, based on the orders of this Court dated 10.01.2017, the U.S. Court vide its order dated 11.01.2017 adjourned the matter till 25.01.2017. The same was communicated to the Respondent No. 2 vide email dated 11.01.2017.

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13. On 25.01.2017, the Superior Court of Judicial District of Stamford/Norwalk, on account of non-compliance of the earlier orders by Respondent No. 2 in Docket No. FST-FA-16-4029923 - S passed the following directions:

―3. The Court finds that there is overwhelming evidence that the Defendant-Mother has actual notice of the case, and of this hearing, and has chosen to ignore it.

4. The Court finds that the Plaintiff-Father has complied with the requirements of service of process in reference to this custody proceeding.

5. The Court finds that the Plaintiff-Father has made every effort to serve the Defendant-Mother notice of the January 25, 2017 hearing, and that the Defendant-Mother had actual notice of these proceedings.

6. The Court finds that it has subject matter jurisdiction and that the children's home state is Connecticut.

7. The Court orders the following:

a. The Defendant - Mother shall immediately return to the State of Connecticut, bringing both children with her.

b. Sole, legal and physical custody of both minor children is awarded immediately to the Plaintiff-Father, with supervised visitation to the Defendant-Mother. c. Counsel for the Plaintiff-Father shall email the Defendant-Mother and her counsel in India in order to give notice to the Defendant-Mother of the information contained in "Plaintiff's Proposed Findings of Fact and Orders for January 25, 2017 Hearing" (Plaintiff's Exhibit

6) from paragraph number two through paragraph number six of the Plaintiff-Father's Proposed Orders. Those paragraphs two through six are not ordered by the Court W.P.(CRL) 725/2017 Page 7 of 54 at this time. The Court wants to give the Defendant-

Mother an opportunity when she returns to the State of Connecticut with the children to present her position and discuss what the custodial arrangement should be and any objections she has to its being requested by the Plaintiff-Father.

d. For the future, orders shall be served upon the Defendant-Mother and her attorney by email.‖ (emphasis supplied)

14. The U.S. Court, as highlighted above, also recorded that it would give the Respondent No. 2 a chance to be heard and on making an appearance in Court, she would get due process and justice. The Court further recorded that it would deal fairly with both parties when it has the evidence before it from both the parties. Counsel for the Petitioner communicated this order of the Court to the Respondent No. 2 vide email dated 30.01.2017.

15. Since the Respondent no. 2 has not returned to USA, the petitioner has preferred this petition for production of the minor children Ishnoor and Paramvir, and their return to U.S.A. This petition was filed by the petitioner on 07.03.2017.

16. The petitioner has been able to communicate with the children through Skype and phone in the past few months. He has visited Ishnoor in August 2016, and after birth of Paramvir has visited both the children in the months of September 2016 and March 2017 respectively. The passport of Ishnoor is presently in the possession of the Respondent No. 2.

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Petitioners' Submission

17. Learned counsel for the petitioner submits that both the petitioner and the Respondent No. 2 are naturalized citizens of U.S.A. He further submits that Ishnoor is a citizen of U.S.A. by birth, while Paramvir, the second child is also entitled to U.S. citizenship since both the parents are U.S. nationals and have their matrimonial home, assets, bank accounts, and tax records registered in U.S.A. He further submits that both the Respondent No. 2 and the petitioner have been running a joint dental practice in U.S.A. The petitioner has placed on record a host of documents to show that the Respondent No. 2 was in active dental practice along with the Petitioner and was deriving professional income and meeting her expenses. Some of the material documents placed on record are, the US driving license of Respondent No. 2 issued on 16.07.2014; Motor vehicle property tax bill dated 04.11.2015 issued by the State of Connecticut, U.S.A. to Respondent No. 2 at her U.S. residence; Demand notice dated 25.05.2016 for payment for medical services rendered by Respondent No. 2; etc.

18. Learned counsel for the petitioner further submits that even though the order dated 25.01.2017 passed by the Superior Court of Judicial District of Stamford/Norwalk grants custody of both the minor children to the petitioner, the Respondent No. 2 has also been granted an opportunity of being heard and have a fair representation. He submits that it is in the welfare of both the children that the Respondent No. 2 returns to U.S.A. with both the minor children, which is their motherland, and of which they are citizens. As citizens of USA, they enjoy all the rights of citizens of that country; derive social security benefits, and; would - most importantly, be W.P.(CRL) 725/2017 Page 9 of 54 able to get the love, affection and care of both the parents - even if the petitioner and respondent No.2 decide not to live together and part ways. Learned counsel submits that by remaining in India, respondent No.2 is depriving the children of their right to, inter alia, receive the love, affection, company, care and supervision of their father, i.e. the petitioner, which is in their best welfare, as it will affect their growth and psychological development.

19. The petitioner further submits that the Respondent No. 2 seeks custody of both the children, only in order to extort money out of the petitioner. The petitioner submits that the Respondent No. 2, along with her brother - Ishmeet Singh, have siphoned off huge amounts of money from the petitioner‟s account, without his consent or knowledge, in order to enable him to run his business.

20. Learned counsel for the petitioner relies upon a report furnished by one Ms. Marcia Geller - marriage and family counselor of both the parties in Stamford, CT. The Petitioner submits that Ms. Geller counselled the parties between 2012 and 2014. Relying on this report, the petitioner submits that the Respondent No. 2 was suffering from Borderline Personality Disorder and was advised medication for the same. The petitioner submits that the Respondent No. 2 has an abnormal and psychotic behavior.

21. Ms. Geller concludes her report as follows:

―In my opinion Dr. Singh is more psychologically stable and non-reactive and loving as a father than Dr, Kaur is as a mother. Her personality disorder and poor impulse control and distorted reality testing are likely to have a negative impact on W.P.(CRL) 725/2017 Page 10 of 54 the children. I see myself as a child advocate, particularly in this situation.‖

22. Learned counsel submits that looking at the psychological state of respondent No.2, it is not even in the best interest of the children that they should remain in the sole custody and care of respondent No.2, as their safety, well being, and upbringing would be adversely impacted due to the behaviourial and temporal abnormality from which respondent No.2 suffers. The petitioner also places reliance on the statements of the employees working at the Dental Clinic of the parties, to submit that respondent No.2 has abnormal behaviour.

23. In respect of Paramvir - the second child of both the parties, learned counsel for the Petitioner submits that merely because the Respondent No. 2 has given birth to Paramvir in India, that does not change the nationality of the said child. Even though the second child was born in India, he cannot acquire Indian citizenship automatically, as neither of his parents are Indian citizens, as defined under Section 3 of the Citizenship Act, 1955. He submits that since both the parents are U.S. nationals, and permanently residing in U.S.A. the nationality of Paramvir is also American.

24. Learned counsel for the petitioner submits that the custody of the children with respondent No.2 is illegal and unauthorized, especially in view of the manner in which they were removed from U.S.A. by the Respondent No. 2. Learned counsel relies on the doctrine of „intimate contact‟ and „closest concern‟. The submission is that the most intimate contact, and the closest concern that the parties - including the minor children have, is with the Courts in U.S.A., since the parties have spent their married life in USA;

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the elder daughter Isnoor was born and brought up in USA, and; the younger son Paramvir Singh is also an American citizen. Learned counsel submits that the orders passed by the courts in U.S.A., directing the return of the children to the custody of the petitioner should be complied with by the Respondent No. 2. He emphasizes that the Respondent No. 2 has been assured of the opportunity of a fair hearing, and should move back to U.S.A. with both the minor children to resolve the matrimonial and custody disputes in the competent courts of jurisdiction in the U.S.A.

25. Learned counsel for the petitioner seeks to place reliance upon several provisions of the Juvenile Justice (Care & Protection) Act, 2015 (JJ Act), to explain the content and meaning of the expression "the best interest of child". The said expression - employed by Courts in determining the issue whether the child should be directed to be returned to his country of origin, or not, is legally defined in the JJ Act. The said statutory definition, it is argued, can be useful in understanding the meaning of that expression even for the present purpose. He specifically relies on Section 2 (9) and Sections 3 (iv), (v), and (xiii) of the JJ Act. Section 3(iv) of the JJ Act mandates that all agencies should base their decisions in respect of a child on the primary consideration that they are in the best interest of the child, and to help the child to develop full potential. The best interest of the child is of paramount consideration and should involve fulfillment of his/ her basic rights and needs - socially, physically, and emotionally for overall development of the child. He submits that one of the statutorily recognized fundamental principle, as embodied in Section 3 (v) of the JJ Act is that "The primary responsibility of care, nurture and protection of the child shall be that of the W.P.(CRL) 725/2017 Page 12 of 54 biological family or adoptive or foster parents, as the case may be". Further, while referring to Section 3 clause (xiii) of the JJ Act, he submits that under the principle of ―repatriation and restoration‖, every child has a right to be re-united with his or her family at the earliest. The first and the foremost step is to restore the child to the same social environment, in which he was placed before, at the earliest.

26. Learned counsel for the petitioner also seeks to place reliance upon the Convention on the Rights of the Child ratified on 11.12.1992 by the Government of India as well as the National Charter for Children, 2003, to emphasize on the aspects of „best interest‟ and „welfare of the child‟ as spoken of in the said conventions. Learned counsel places reliance upon Anuj Garg v. Hotel Association of India, AIR 2008 SC 663 to submit that the domestic courts are under an obligation to give due regard to International Conventions and norms while construing domestic laws in Indian Courts.

27. Learned counsel for the Petitioner submits that Respondent No. 2 has forsaken the welfare and best interest of the children by separating them, and keeping them away from the petitioner, who is their father and natural guardian, by remaining in India and not returning to USA, where the parties had lived and made their home. The children have been deprived of the love, care, attention, company and supervision of their father. They are bound to suffer psychologically as they grow up, if they are kept away from their father and paternal grandparents for long intervals. The need of the children to be with their father, to fulfill their emotional, psychological, behavioural and other requirements is not being met. Respondent no.2 -

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being the mother, cannot play the role of the father, just as the petitioner cannot play the role of respondent no.2 the mother. The needs of children can be met only if both the minor children - Ishnoor and Paramvir, return to U.S.A. with respondent no.2, and live in the social environment of U.S.A., of which they are actual ordinary citizens under the care and protection of both their parents.

Respondent No.2's Submission

28. Learned counsel for the Respondent No. 2 - Ms. Malvika Rajkotia, contests this petition on the grounds that a writ of habeas corpus is not maintainable in the facts of the present case. She submits that in the present case, the petitioner has full knowledge of the whereabouts of both the children.

29. Learned counsel for the Respondent No. 2 submits that the custody of the minor children with respondent No.2 - who is the biological mother, can by no means be construed as illegal or unlawful, and thus this writ proceeding is not maintainable. She submits that the petitioner has been in regular touch with both the children - not only over telephone and through Skype, but has also flown down from U.S.A. to meet both the children in person. She submits that the Respondent No. 2 has never objected to, and has never obstructed the meeting of the children with their father - the Petitioner.

30. She submits that, even if a child is brought to India in breach of orders of a foreign Court, the Courts in India would not direct return of the child to foreign jurisdiction, if it is not in the best interest and welfare of the child.

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The welfare of the child prevails over the principle of comity of courts and the doctrine of „closest connect‟. In this regard, reliance is placed upon Sarita Sharma v. Sushil Sharma, (2000) 3 SCC 14; V. Ravi Chandran v. Union of India & Ors., (2010) 1 SCC 174; and Ruchi Majoo v. Sanjeev Majoo, (2011) 6 SCC 479; and Nithya Anand Raghavan (supra).

31. The counsel for the Respondent No. 2 also relies upon Section 6 of the Hindu Minority and Guardianship Act. Strong reliance is placed upon Nil Ratan Kundu & Anr. V. Abhijit Kundu, (2008) 9 SCC 413.

32. Learned counsel further submits that the orders passed by the Courts in USA are not relevant, and the welfare of the minor children is of paramount importance. She submits that the "Comity of Courts" principle has been rejected by the Supreme Court in Nithya Anand Raghavan (supra). She submits that while exercising its jurisdiction in a case like the present, the Court exercises the parens patriae jurisdiction and, therefore, it is the duty of the Court to examine the case on the touchstone of the paramount welfare of the minor children - for whose return the petition is preferred.

33. Learned counsel for the respondent submits that the order dated 25.01.2017 passed by the Superior Court, Judicial District, Norwalk, Connecticut, U.S.A., whereby custody of both the children was awarded to the petitioner, is illegal as it is ex-parte and does not take into account any of the relevant considerations, such as, the tender age of the minor children; the fact that Paramvir is an infant; the adverse impact that the children‟s psychology would suffer, and the emotional trauma that they would suffer if W.P.(CRL) 725/2017 Page 15 of 54 they are separated from their mother, and; the welfare and interest of the children. She submits that the Respondent No. 2 has been the primary caretaker of Ishnoor since her birth, and she is now taking good care of both the minor children.

34. Learned counsel submits that Ishnoor - after her coming to India, has been admitted in a school and is now accustomed to the environment in India. Moving her back to U.S.A. now would mean that she would again have to adjust to new surroundings, which would impact Ishnoor in a harsh way. She submits that, in the facts of the present case, the „intimate contact‟ of the two children is with their mother, i.e. respondent No.2 and with their present surroundings in India, and not with the Court in USA.

35. The respondent has placed on record school documents and pictures of Ishnoor to show that Ishnoor has started her schooling in India, and has developed contact with the Indian culture. Thus, she is now well settled and entrenched in the Indian environment, set up, and culture. She submits that even though the Respondent No. 2 has obtained citizenship of USA, her roots are based in India where she feels more comfortable and well settled in the presence of parents and family.

36. She submits that when the child - Ishnoor was brought to India, she was barely 3½ years, by which time she had not become accustomed and adapted to the lifestyle in her surroundings in U.S.A. In support of her submission that the welfare of the child is the paramount consideration for Courts while dealing with a writ of habeas corpus, she relies upon Surjeet Singh v. State & Anr., 189 (2012) DLT 460; Syed Saleenmuddin v. Dr. W.P.(CRL) 725/2017 Page 16 of 54 Rukhsana & Ors., (2001) 5 SCC 247; Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42; Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1 SCC 840; Thrity Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, (1982) 2 SCC 544; and Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698; Nithya Anand Raghavan (supra).

37. Ms. Rajkotia submits that the Petitioner and the Respondent No. 2 have a failed marriage, as a result of which Respondent No. 2 retuned to India with her daughter and filed a petition for a decree of divorce. It is further submitted that respondent No. 2 was subjected to domestic violence and tortured on a regular basis, which aggravated after the birth of the first child Ishnoor. She submits that the respondent No. 2 was continuously harassed and humiliated.

38. The respondent submits that she has suffered grave mental and emotional abuse by the petitioner and his family at the residence of the parent‟s of the petitioner. Respondent No. 2 lived in constant fear from the cruelty and violence being perpetrated upon her by the petitioner and his family. She further submits that the petitioner was engaged in availing escort services in U.S.A. She submits that the Petitioner also has extramarital affairs. She submits that it is this conduct of the petitioner that drove the Respondent No. 2 to her parent‟s home in India.

39. Ms. Rajkotia submits that the petitioner has procured a one-sided and biased certificate from Ms. Geller. She has issued the said communication on aspects she had no knowledge of, and had no concern with, only on the dictation of the petitioner. The said communication, thus, is not credible W.P.(CRL) 725/2017 Page 17 of 54 and cannot be relied upon. Similarly, reliance placed on statements of the employees at the Dental Clinic cannot be relied upon, since the said employees are working under the control and supervision of the petitioner, and have issued one-sided and self-serving statements at the petitioner‟s behest.

Discussion and Decision

40. We have considered the rival submission of the parties and the materials placed on record.

41. The submission of Ms. Rajkotia that this Court has no jurisdiction to entertain the present writ petition, has no merit. No doubt, the custody of the minor children with respondent No.2 - who is their biological mother, cannot be construed as illegal or unlawful. However, the fact remains that the petitioner and respondent No.2 are both citizens of USA; got married in USA; made their matrimonial home in USA; had their first child Ishnoor in USA, and; the second child Paramvir is also an American citizen.

42. It is well-settled that while dealing with a writ of habeas corpus in such like situations, the Court exercises jurisdiction as parens patriaes as held in Nithya Anand Raghavan (supra). The Court may undertake a summary inquiry to determine the issue whether it would be in the best interest of the minor child(ren) to direct their return within the jurisdiction of the Court with which they have the closest connection and most intimate contact, or the Court may undertake an elaborate inquiry into the issue as to in whose custody the child(ren) should remain. In Nithya Anand Raghavan (supra), the Supreme Court, inter alia, observed as follows:

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―28. The present appeal emanates from a petition seeking a writ of habeas corpus for the production and custody of a minor child. This Court in Kanu Sanyal v. District Magistrate, Darjeeling [Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2 SCC 674 : 1973 SCC (Cri) 980] , has held that habeas corpus was essentially a procedural writ dealing with machinery of justice. The object underlying the writ was to secure the release of a person who is illegally deprived of his liberty. The writ of habeas corpus is a command addressed to the person who is alleged to have another in unlawful custody, requiring him to produce the body of such person before the court. On production of the person before the court, the circumstances in which the custody of the person concerned has been detained can be inquired into by the court and upon due inquiry into the alleged unlawful restraint pass appropriate direction as may be deemed just and proper. The High Court in such proceedings conducts an inquiry for immediate determination of the right of the person's freedom and his release when the detention is found to be unlawful. In a petition for issuance of a writ of habeas corpus in relation to the custody of a minor child, this Court in Sayed Saleemuddin v. Rukhsana [Sayed Saleemuddin v. Rukhsana, (2001) 5 SCC 247 : 2001 SCC (Cri) 841] , has held that the principal duty of the court is to ascertain whether the custody of child is unlawful or illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person. While doing so, the paramount consideration must be about the welfare of the child. In Elizabeth [Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42 : 1987 SCC (Cri) 13] , it is held that in such cases the matter must be decided not by reference to the legal rights of the parties but on the sole and predominant criterion of what would best serve the interests and welfare of the minor. The role of the High Court in examining the cases of custody of a minor is on the touchstone of principle of parens patriae jurisdiction, as the minor is within the jurisdiction of the Court [see Paul Mohinder Gahun v. State (NCT of Delhi) [Paul Mohinder W.P.(CRL) 725/2017 Page 19 of 54 Gahun v. State (NCT of Delhi), 2004 SCC OnLine Del 699 :

(2004) 113 DLT 823] relied upon by the appellant]. It is not necessary to multiply the authorities on this proposition.

29. 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 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 any other proceedings as may be permissible in law before the Indian Court for the custody of the child, if so advised.‖ (emphasis supplied)

43. Thus, the submission of Ms. Rajkotia that the present petition is not maintainable since the custody of the minor child(ren) with respondent No.2 cannot be said to be illegal, has no merit. In such circumstances, in our view, the petitioner is entitled to maintain the present petition to seek a writ of habeas corpus for return of the minor children to their country of origin.

44. In Nithya Anand Raghavan (supra), the Supreme Court, inter alia, held that the fact that a Court in foreign jurisdiction has passed orders granting custody of the child(ren) to one of the parents, and has directed the return of the minor child(ren) within its jurisdiction, would not inhibit the W.P.(CRL) 725/2017 Page 20 of 54 Court in India to form its opinion, one way or another, on the aspect of return of the child(ren) within the jurisdiction of the Court which has the closest concern and most intimate contact, and which may have passed such orders. This Court, while exercising its jurisdiction under Article 226 of the Constitution of India and dealing with a writ of habeas corpus, does not function as an Executing Court, to enforce such like orders of a foreign court. This Court would independently examine, as parens patriaes the focal issue as to what is in the best interest of the minor child(ren), and only on that basis, pass directions one way or another. This position is clearly borne out from Nithya Anand Raghavan (supra). The concept of comity of Courts, i.e. where the Court in one jurisdiction acts in deference to the orders passed by a Court in another foreign jurisdiction, and influenced by the order passed by the Court in foreign jurisdiction, passes orders in the lis before it to direct return of the minor child within the jurisdiction of the foreign court, was rejected by the Supreme Court in Nithya Anand Raghavan (supra) by placing reliance on Dhanwanti Joshi (supra). We are extracting a portion of para 24 of the judgment in Nithya Anand Raghavan (supra) herein below:

―24. We must remind ourselves of the settled legal position that the concept of forum convenience has no place in wardship jurisdiction. Further, the efficacy of the principle of comity of courts as applicable to India in respect of child custody matters has been succinctly delineated in several decisions of this Court. We may usefully refer to the decision in Dhanwanti Joshi v. Madhav Unde [Dhanwanti Joshiv. Madhav Unde, (1998) 1 SCC 112] . In paras 28 to 30, 32 and 33 of the reported decision, the Court observed thus: (SCC pp. 124-27) W.P.(CRL) 725/2017 Page 21 of 54 ―28. The leading case in this behalf is the one rendered by the Privy Council in 1951, in McKee v. McKee [McKee v. McKee, 1951 AC 352 (PC)] . In that case, the parties, who were American citizens, were married in USA in 1933 and lived there till December 1946. But they had separated in December 1940. On 17-12-1941, a decree of divorce was passed in USA and custody of the child was given to the father and later varied in favour of the mother. At that stage, the father took away the child to Canada. In habeas corpus proceedings by the mother, though initially the decisions of lower courts went against her, the Supreme Court of Canada gave her custody but the said Court held that the father could not have the question of custody retried in Canada once the question was adjudicated in favour of the mother in the USA earlier. On appeal to the Privy Council, Lord Simonds held that in proceedings relating to 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 his 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 facts which must be taken into consideration. It was further held that it was the duty of the Canadian Court to form an independent judgment on the merits of the matter in regard to the welfare of the child. The order of the foreign court in US would yield to the welfare of the child. "Comity of courts demanded not its enforcement, but its grave consideration.‖ This case arising from Canada which lays down the law for Canada and UK has been consistently followed in latter cases. This view was reiterated by the House of Lords in J. v. C. [J. v. C., 1970 AC 668 : (1969) 2 WLR 540 (HL)] This is the law also in USA (see 24 American Jurisprudence, para 1001) and Australia. (See Khamis v. Khamis [Khamis v. Khamis, (1978) 4 Fam LR 410 (Full Court, Australia)] .) ... ... ....‖ (emphasis supplied) W.P.(CRL) 725/2017 Page 22 of 54

45. Thus, the fact that the petitioner has obtained orders for custody of the minor children in his favour from the Superior Court, Judicial District, Stamford, Norwalk, which have been extracted hereinabove, cannot be a decisive factor, but can only act as one of the factors to be considered, in deciding this petition.

46. Recently a Division Bench of this Court in K.G. Vs. State of Delhi, W.P. (Crl.) No.374/2017 decided on 16.11.2017 had occasion to consider several decisions of the Supreme Court relevant on the subject, including the decision in Nithya Anand Raghavan (supra) in a similar background. In that case as well, the father of the minor child had preferred the writ petition to seek a writ of habeas corpus for return of his minor daughter, who had remained with the mother in India, since the mother chose not to return to USA with her child at the end of the vacation in India taken by the couple and the minor child. In its judgment (authored by one of us Vipin Sanghi, J.), the Division Bench, after analysis of the earlier decisions of the Supreme Court, held as follows:

―93. What emerges from an analysis of all the above discussed decisions, including the latest decision in Nithya Anand Raghavan (supra), is that the paramount consideration in such like cases is the welfare of the minor child - in respect of whom the habeas corpus writ petition is preferred by one, or the other, parent. The other considerations - like comity of courts; orders passed by a foreign Court having jurisdiction in the matter regarding custody of the minor child; citizenship of the parents and the child; the ―intimate connect‖; the manner in which the child may have been brought to India i.e., even if it is in breach of an order of a competent court in the foreign jurisdiction, cannot override the consideration of the child's welfare, since it is the responsibility of the Court - which W.P.(CRL) 725/2017 Page 23 of 54 exercises the parens patriae jurisdiction, to ensure that the exercise of the extra ordinary writ jurisdiction is in the best interest of the child, and the direction to return the child to the foreign jurisdiction does not result in any physical, mental, psychological, or other harm to the child.

94. Thus, if it is not in the best interest and welfare of the minor child that he/ she should be returned to the foreign jurisdiction, and giving of such a direction would harm his interest and welfare, other considerations and principles, which persuade the Court to take a view in favour of directing the return of the minor child to the foreign Court's jurisdiction, shall stand relegated and the Court would not direct the return of the child to the place falling within the jurisdiction of the foreign Court. The aforesaid principles were culled out from the earlier precedents as would become apparent from the earlier decisions taken note of hereinabove.

95. Thus, in Surinder Kaur Sandhu (supra) even though the minor child would have been materially better placed if his custody had continued with the father in India- since the father lived in an affluent setting as opposed to the mother, who was a factory worker in England, the Supreme Court invoked the principle of welfare of the child to direct that the child be returned to the custody of the mother, since the father was a convict who had attempted to cause his wife's murder and was let off on probation due to the intervention of his wife. He had also procured a duplicate passport by making false representations. The Supreme Court held that the influence of such a father on the child would not be in his best interest.

The Supreme Court also invoked the principle of comity of courts in this case. However, perusal of the decision shows that the primary reason that swayed the Court was the welfare of the child, which the Supreme Court held would be better served if his custody is returned to the mother.

96. In Elizabeth Dinshaw (supra), once again, the Supreme Court emphasized that whenever a question arises before the Court pertaining to the custody of the minor child, the matter W.P.(CRL) 725/2017 Page 24 of 54 is to be decided-not on considerations of the legal rights of parties, but on the sole and predominant criterion as to what would best serve the interest and welfare of the child. The Supreme Court observed that in its considered opinion, it would be the best interest and welfare of the child Dustan, that he should go back to the U.S.A and continue his education in the custody and guardianship of the mother. The Supreme Court also observed that the child- who was an American citizen, had not taken roots in this country, since not much time had elapsed from the time that he had been brought by the father into India in breach of the order of the American Courts.

97. In Sarita Sharma (supra), even though the mother had brought the two children into India-in breach of the order passed by the competent Court in U.S.A. giving custody to the father and only visitation rights to the mother, the Supreme Court allowed the appeal preferred by the mother/ wife against the decision of this Court directing the mother to take back the children to the U.S.A., by holding that it would not be proper to be guided entirely by the fact that the mother had removed the children from U.S.A. despite the order of the competent Court in that country. The Supreme Court held that it was not in the best interest of the children to direct return of their custody to the father, who was found to be in the habit of taking excessive alcohol. The Supreme Court was conscious of the possibility, that in the U.S.A. the two children would get better education. However, considering the age of the children - one of whom was a minor female child aged about 5 years, the Supreme Court felt that the direction to return the child to the U.S.A. was not justified. It also held that, what would be in the best interest of the children would require a full and thorough inquiry, and that the High Court should have directed the writ petitioner/ father to initiate appropriate proceedings in which such an inquiry could be held.

98. In Aviral Mittal (supra), the decision of the High Court was primarily based on considerations, such as, intention of the parties to make U.K. as their matrimonial home; the law of U.K. having the closest connection with the parties, and should W.P.(CRL) 725/2017 Page 25 of 54 govern their relationship and considerations of welfare of the children.

99. The Supreme Court in Shilpa Aggarwal (Ms.) (supra) dismissed the appeal preferred by the mother from the decision in Aviral Mittal (supra), after noticing the order that had been passed by the High Court of Justice, Family Division, U.K. This was because, all that the said Court in U.K. had ordered, was to insist that the minor be returned to its jurisdiction. The English Court did not intend to separate the child from the appellant mother until a final decision was taken with regard to the custody of the child. The Supreme Court had observed that the ultimate decision in that regard has to be left to the English Courts having regard to the nationality of the child, and the fact that both the parents had worked for gain in the U.K and had also acquired permanent resident status in the U.K. From this decision in Shilpa Aggarwal (Ms.) (supra), it appears that the facts presented before the Supreme Court did not contra- indicate that it was not in the welfare of the minor child for her to return to the U.K. with the mother.

100. As observed by the Supreme Court in Nithya Anand Raghavan (supra), this decision was rendered after a summary inquiry into the facts of the case, and it did not whittle down what has been expounded in Dhanwanti Joshi (supra), i.e. the duty of the Court to consider the overarching welfare of the child. The Supreme Court drew a distinction with Shilpa Aggarwal (Ms.) (supra), while deciding Nithya Anand Raghavan (supra) by, inter alia, observing:

―40. ... ... In the present case, the minor is born in India and is an Indian citizen by birth. When she was removed from the UK, no doubt she had, by then, acquired UK citizenship, yet for the reasons indicated hitherto dissuade us to direct return of the child to the country from where she was removed‖.

W.P.(CRL) 725/2017 Page 26 of 54

101. As aforesaid, the Supreme Court in Nithya Anand Raghavan (supra) has re-emphasised the need to place the welfare of the child at the highest pedestal while considering the issue whether the minor child should be directed to be returned to the country of which he is a citizen, and/or where he may have mostly lived with his parents - or one of them. The determination of the said issue may be undertaken by the Indian Court either summarily or in an elaborate manner. On this aspect, in Nithya Anand Raghavan (supra), the Supreme Court places reliance on V. Ravi Chandran (supra) which, in turn, follows the earlier three Judge bench decision in Dhanwanti Joshi (supra). ‖ (emphasis supplied)

47. What then, is in the best interest and welfare of the two children, namely Ishnoor and Paramvir? It goes without saying that, unless there are some other limiting features or circumstances, it is in the best interest of a minor child that he/she should be in the company of both his/her parents. This position is well recognised in statutory provisions dealing with the welfare of children as well as in international treaties.

48. In K.G. (supra), this Court has held that the expression "best interest of child" used by the Supreme Court in its decisions is wide in its connotation. It cannot be read as being only the love and care of the primary care giver, i.e. the mother in the case of an infant, or a child who is only a few years old. In K.G. (supra), this Court also considered the provisions of the Juvenile Justice (Care & Protection) Act, 2015 and the treaties/ conventions above referred to relied upon by the petitioner. The relevant discussion in K.G. (supra) on the aforesaid aspect, reads as follows:

"120. At this stage, we may look at some of the provisions of the Juvenile Justice (Care & Protection) Act, 2015 (JJ Act), which throw some light on the issue as to what is the content of W.P.(CRL) 725/2017 Page 27 of 54 ―best interest of the child‖. We are conscious of the fact that the provisions of the JJ Act may not strictly apply to the present fact situation. However, the said provisions certainly would throw light on the concept of ―best interest of the child‖, as understood by the Parliament in India.

121. Firstly, the preamble to the JJ Act takes note of the fact that ―the Government of India has acceded on the 11th December, 1992 to the Convention on the Rights of the Child, adopted by the General Assembly of United Nations, which has prescribed a set of standards to be adhered to by all State parties in securing the best interest of the child;‖. Thus, it would be seen that the JJ Act has been enacted by the Parliament to implement its obligations under the Convention on the Rights of the Child, which has been acceded to by India. Consequently, it is the bounden obligation of all State actors - which would include the Courts in India, to implement in letter & spirit the said Convention on the Rights of the Child.

122. Section 2(9) of the JJ Act explains the meaning of ―best interest of child‖ to mean ―the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identity, social well-being and physical, emotional and intellectual development;‖. Thus, to determine the best interest of the child, his/ her basic rights and needs, identity, social well-being and physical, emotional and intellectual development have to be addressed.

123. Section 3 of the JJ Act lays down the fundamental principles which the Central Government, the State Government, the Board created under the said Act, and other agencies should be guided by while implementing the provisions of the said Act. Clauses (iv), (v) & (xiii) of Section 3 are relevant and they read as follows:

―3. x x x x x x x

(iv) Principle of best interest: All decisions regarding the child shall be based on the primary consideration that they are in the best interest of W.P.(CRL) 725/2017 Page 28 of 54 the child and to help the child to develop full potential.

(v) Principle of family responsibility: The primary responsibility of care, nurture and protection of the child shall be that of the biological family or adoptive or foster parents, as the case may be.

x x x x x x x x

(xiii) Principle of repatriation and restoration:

Every child in the juvenile justice system shall have the right to be re-united with his family at the earliest and to be restored to the same socio-

economic and cultural status that he was in, before coming under the purview of this Act, unless such restoration and repatriation is not in his best interest.‖

124. Thus, all decisions regarding the child should be based on primary consideration that they are in the best interest of the child and to help the child to develop to full potential. When involvement of one of the parents is not shown to be detrimental to the interest of the child, it goes without saying that to develop full potential of the child, it is essential that the child should receive the love, care and attention of both his/ her parents, and not just one of them, who may have decided on the basis of his/ her differences with the other parent, to re-locate in a different country. Development of full potential of the child requires participation of both the parents. The child, who does not receive the love, care and attention of both the parents, is bound to suffer from psychological and emotional trauma, particularly if the child is small and of tender age. The law also recognizes the fact that the primary responsibility of care, nutrition and protection of the child falls primarily on the biological family. The ―biological family‖ certainly cannot mean only one of the two parents, even if that parent happens to be the primary care giver.

W.P.(CRL) 725/2017 Page 29 of 54

125. The JJ Act encourages restoration of the child to be re-

united with his family at the earliest, and to be restored to the same socio-economic and cultural status that he was in, before being removed from that environment, unless such restoration or repatriation is not in his best interest. ... ... ...

x x x x x x x x x x

127. We may also take note of some of the provisions of the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20.11.1989, which was ratified by the Government of India on 11.12.1992. The Preamble to the said Convention sets out the basis on which the same has been framed. The relevant paragraphs from the said Preamble, which are relevant, read as follows:

―Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community, Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, x x x x x x x x Bearing in mind that, as indicated in the Declaration of the Rights of the Child, "the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, before as well as after birth", x x x x x x x x W.P.(CRL) 725/2017 Page 30 of 54 Taking due account of the importance of the traditions and cultural values of each people for the protection and harmonious development of the child, Recognizing the importance of international co- operation for improving the living conditions of children in every country, in particular in the developing countries,‖ (emphasis supplied)

128. Article 3 (1) & (2) of this Convention read as follows:

―Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.‖

129. Article 5 of this Convention reads as follows:

―Article 5 States Parties shall respect the responsibilities, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child W.P.(CRL) 725/2017 Page 31 of 54 of the rights recognized in the present Convention.‖ (emphasis supplied)

130. Article 6 (1) of this Convention reads:

―Article 6

1. States Parties recognize that every child has the inherent right to life.‖

131. The inherent right to life, in our view, is wide enough to be understood as the right to a family life, i.e. with the parents and immediate family of the child.

132. Articles 7 & 8 of the Convention reads as follows:

―Article 7

1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.

2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.

(emphasis supplied) Article 8

1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and W.P.(CRL) 725/2017 Page 32 of 54 protection, with a view to re-establishing speedily his or her identity.‖ (emphasis supplied)

133. Article 9 (1) & (3) of the Convention read as follows:

―Article 9

1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

x x x x x x x x

3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.‖ (emphasis supplied)

134. Article 10 of the Convention reads as follows:

―Article 10

1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a W.P.(CRL) 725/2017 Page 33 of 54 request shall entail no adverse consequences for the applicants and for the members of their family.

2. A child whose parents reside in different States shall have the right to maintain on a regular basis, save in exceptional circumstances personal relations and direct contacts with both parents.

Towards that end and in accordance with the obligation of States Parties under article 9, paragraph 1, States Parties shall respect the right of the child and his or her parents to leave any country, including their own, and to enter their own country. The right to leave any country shall be subject only to such restrictions as are prescribed by law and which are necessary to protect the national security, public order (ordre public), public health or morals or the rights and freedoms of others and are consistent with the other rights recognized in the present Convention.‖ (emphasis supplied)

135. Article 18 of the Convention reads as follows:

―Article 18

1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities and shall W.P.(CRL) 725/2017 Page 34 of 54 ensure the development of institutions, facilities and services for the care of children.

3. States Parties shall take all appropriate measures to ensure that children of working parents have the right to benefit from child-care services and facilities for which they are eligible.‖ (emphasis supplied)

136. Article 20 of the Convention reads as follows:

―Article 20

1. A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.

2. States Parties shall in accordance with their national laws ensure alternative care for such a child.

3. Such care could include, inter alia, foster placement, kafalah of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background.‖ (emphasis supplied)

137. We may also refer to a Resolution passed by the Government of India and issued by the Ministry of Human Resource Development vide Resolution No.6-15/98-C.W., dated 09.02.2004 framing the ―National Charter for Children, 2003‖. The said Charter has been framed by the Government of India ―to reiterate its commitment to the cause of the children in order to see that no child remains hungry, illiterate or sick‖. The Preamble to the said Charter, inter alia, reads:

W.P.(CRL) 725/2017 Page 35 of 54

―Whereas we affirm that the best interest of children must be protected through combined action of the State, civil society, communities and families in their obligations in fulfilling children's basic needs.

Whereas we also affirm that while State, Society, Community and Family have obligations towards children, these must be viewed in the context of intrinsic and attendant duties of children, and inculcating in children a sound sense of values directed towards preserving and strengthening the Family, Society and the Nation.

x x x x x x x x Underlying this Charter is our intent to secure for every child its inherent right to be a child and enjoy a healthy and happy childhood, to address the root causes that negate the healthy growth and development of children, and to awaken the conscience of the community in the wider societal context to protect children from all forms of abuse, while strengthening the family, society and the Nation.‖ (emphasis supplied)

138. Thus, best welfare of the child, normally, would lie in living with both his/ her parents in a happy, loving and caring environment, where the parents contribute to the upbringing of the child in all spheres of life, and the child receives emotional, social, physical and material support - to name a few. In a vitiated marriage, unfortunately, there is bound to be impairment of some of the inputs which are, ideally, essential for the best interest of the child. Then the challenge posed before the Court would be to determine and arrive at an arrangement, which offers the best possible solution in the facts and circumstances of a given case, to achieve the best interest of the child."

W.P.(CRL) 725/2017 Page 36 of 54

49. We now turn to the facts of the present case to decide as to what would be in the best interest of the children Ishnoor and Paramvir.

50. Both the parties are highly educated professionals and well placed in life. They elected to leave India and travelled to USA as adolescents, much before they got married. They acquired American citizenship. They made a life in USA; acquired professional degrees there; met each other and formalized their matrimonial alliance in USA. They elected to set up joint dental practice and their matrimonial abode in USA, and rear their offspring in that environment. The conduct of the parties amply demonstrated that they had abandoned their domicile of origin.

51. It is also evident from the record that both the petitioner and respondent No. 2 were financially independent, having professional income from their dental clinic when they were residing in USA. Both of them have their social, professional and service providers networks in place in USA, and have established their roots in that country. They are acquainted with, accustomed to, and well aware of the systems and environment which prevails in that country, and are in a position to go about their tasks in that environment without any handicap, which a new comer or stranger would encounter. They have taken to the system and environment prevalent in USA, like fish takes to water. Both parties and their child Ishnoor were ordinarily residing in USA, when they came to India to attend a wedding on 27.01.2016. Pertinently, they came to India on round trip air tickets, which demonstrate the intent and understanding of the parties that they were to return to USA at the end of their visit. It appears, that only after arriving in W.P.(CRL) 725/2017 Page 37 of 54 India, respondent no.2 had a change of mind and she decided to stay on with Ishnoor.

52. Ishnoor is undoubtedly an American citizen by birth. Even Paramvir is an American citizen, though born in India. Section 3(1) of the Citizenship Act, 1955, inter alia, provides that every person born in India on or after the commencement of the Citizenship (Amendment) Act, 2003 shall be a citizen of India, where both of his parents are citizens of India.

53. Since both the Petitioner and the Respondent No. 2 are naturalized citizens of U.S.A., neither of them can be deemed to be Indian citizens under the Citizenship Act. Both the petitioner and respondent no.2 renounced their citizenship of India upon acquiring American citizenship. In this regard, we may refer to Article 9 of the Constitution of India, which reads:

―9. Persons voluntarily acquiring citizenship of a foreign State not to be citizens.-- No person shall be a citizen of India by virtue of article 5, or be deemed to be a citizen of India by virtue of article 6 or article 8, if he has voluntarily acquired the citizenship of any foreign State.‖

54. The minor child of a person who ceases to be a citizen of India, also ceases to be a citizen of India by virtue of Section 8(2) of the Citizenship Act. The said sub-section, inter alia, reads:

―8. Renunciation of citizenship.― x x x x x x x x (2) Where [a person] ceases to be a citizen of India under sub-

section (1), every minor child of that person shall thereupon cease to be a citizen of India: .............‖ W.P.(CRL) 725/2017 Page 38 of 54 Thus, the two children are entitled to all the rights, privileges, social and financial securities and protections that American citizens are entitled to.

55. When the couple came to India in January, 2016 along with their child Ishnoor, she was 3½ years of age. She is five years of age as of date. Thus, she has spent more time of her formative years in USA than in India. When she came to India, she was completely alive to, and conscious about her surroundings and relationships. A child of that age knows his or her parents, and by that time has developed strong emotional and psychological bonds with both the parents, particularly if they are living together. A child who is about 3 ½ years of age reposes complete faith and trust in his/her parents, and looks to both of them for his or her needs, protection, care and comfort. The child knows that all his needs and wants would be met by his parents. At that age, the child hardly ever takes any independent action or decision, and is normally obedient - knowing fully well that his/her parents are there to protect him/her. By the age of 3½ years, the child is talking, communicative and develops his/her inter-personal skills. He/she develops fondness for the close relatives in the family like, uncles & aunts, grandparents, caregivers like nannys, servants and maids, friends - who are other children of the same age in the family, neighbourhood, playschool, children of other friends and acquaintances of the parents, etc. The child also develops a bond with the instructors/teachers if the child has been exposed to formal/informal schooling. The child begins to understand and absorb from the surroundings, such as his/her home, market places, homes of others that the child may visit and media - such as television, cinema W.P.(CRL) 725/2017 Page 39 of 54 shows/ performances etc. The child, from the beginning, starts to learn the do‟s and don‟ts of the system and the environment in which he/she lives. The child also begins to develop likes and dislikes for people, foods, extracurricular activities, games, and sports to which the child may be exposed in his/her environment.

56. Thus, to say that the child Ishnoor - having been removed from the environment and system prevalent in USA, since January, 2016, is not accustomed to that system and environment, or that she would find it difficult to re-adjust herself in that environment, would not be correct. Children of this age are the first and quickest to adapt to a new system, even if they were to be suddenly plucked out from their existing system and environment into a new one. However, in the present case, Ishnoor already has sufficient exposure to the systems and environment prevalent in USA and, therefore, we cannot accept the submission of Ms. Rajkotia that it would be very difficult for her to get back to the same system and environment as is prevalent in USA, or that it would not be in the interest of Ishnoor to get back to that system and environment. We cannot accept the submission that it would cause trauma to Ishnoor, if she were to be now sent back to USA - which is her country of origin and motherland.

57. So far as Paramvir is concerned, he was born in India on 12.09.2016. Thus, he is about 16 months of age. A child that young would not have developed his full vocabulary, and is not verbally inter-active, though, he would communicate by his gestures, facial expressions and a few words that he may have learnt. He is still an infant and would necessarily need his mother i.e. respondent No.2. Therefore, Paramvir would have to remain W.P.(CRL) 725/2017 Page 40 of 54 with his mother-respondent No.2, unless it is found that it would not be in his interest that he remains with respondent No.2. Paramvir‟s world primarily revolves around his immediate caregiver who, in the present circumstances, is respondent No.2. Therefore, it really makes no difference to him, even if he were to move to USA with his mother. In fact, in USA, he would be able to spend time and bond with his father on a regular basis. This is something that would normally be good for any child.

58. We have examined the host of the documents filed by the petitioner in support of his submissions. They show that respondent no.2 is professionally competent; financially independent, and; well entrenched in the American eco-system and way of life. Thus, she is capable - in every which way, to return to USA with the children and resume her life independently, even if she does not wish to return to her matrimonial home because of her disputes with the petitioner, or work in the same Dental Clinic as the petitioner. These documents - to mention a few, include the U.S. marriage certificate of the parties, the lease documents of the residential property, the US driving license of respondent no.2, the US income tax returns of the income derived by respondent no.2, the US dental license of respondent no.2- which shows that she is licensed to practice dentistry in USA, the US birth certificate and medical records of Ishnoor. Further, in the „Organization and First Report‟ issued by the Secretary of State of Connecticut, the name of the Respondent No. 2 has been mentioned under the title of "Vice-President" and "Treasurer". Thus, it is established that the parties were running a joint dental practice in U.S.A. and deriving a professional income from the same. The circumstances taken note of herein W.P.(CRL) 725/2017 Page 41 of 54 above show that there is no impediment or down side - as it were, in respondent no.2 returning to USA with the two minor children. By directing respondent no.2 to do so, would not expose either respondent no.2 or the two minor children to any adversity, risks or dangers that they would not face in India. On the other hand, the children would get a better upbringing, care and love of both the parents - to which they are entitled as a matter of right in the country of which they were citizens. The love, care and attention of both the parents is essential for the overall development of the two children.

59. Even though the mother remains the primary care-giver for children of such tender age as Ishnoor and Paramvir, the environment required for a wholesome upbringing can only be brought about in a ‗family'. The term ‗family' as defined in the Black‟s Law Dictionary, 8th Ed., includes ―......... a group consisting of parents and their children............‖. The term ‗parent' has been understood as ‗1. The lawful father or mother of someone • In ordinary usage, the term denotes more than responsibility for conception and birth. The term commonly includes (1) either the natural father or the natural mother of a child, ...................‖.

60. Pertinently, it is not the case of respondent No. 2 that petitioner is a bad influence on the two children. She may have running disputes with the petitioner in respect of her matrimonial relationship but that, by itself, does not make the petitioner an irresponsible or undesirable father. It is not even her case, that the petitioner resorted to violence or any other objectionable conduct qua either of the two children at any point of time. In fact, she herself states in her counter affidavit/reply that the petitioner has been W.P.(CRL) 725/2017 Page 42 of 54 allowed free access to the children, whenever he is in India. The reply filed by respondent No.2 shows that the reason for her return to India with Ishnoor was her matrimonial dispute with the petitioner. The reason for her return to India was not to save Ishnoor from any threat or danger that the petitioner posed. Thus, while deciding to remain in India and not to return to USA in January, 2016, the respondent No.2 did not base her decision on the consideration, as to what is in the best interest of Ishnoor. The decision of the Respondent No. 2 not to return to U.S.A. is her own decision, not taken in consideration of the welfare of both the children. By separating the children from the Petitioner - the father, the Respondent No. 2 has acted only in her self interest, keeping in mind only her welfare and not that of both the minor children. She remained in India and did not return to USA as scheduled, only on account of the fact that she had a matrimonial dispute with the petitioner and she found her comfort zone in her parental home and with her brother.

61. Both the children have a right to be brought up by both the natural parents together as a family in the country of their origin. Since, the best welfare of the children lies in living with both the parents, we are of the opinion that the Respondent No. 2 should return to U.S.A. along with both the minor children. Respondent No. 2 is accustomed to living in Connecticut, U.S.A. and was working at the jointly run dental clinic. Thus, we do not believe there to be any difficulty for the Respondent No. 2 to return to U.S.A., where she has spent many years - as a student; a professional; as a spouse, and; as a parent.

W.P.(CRL) 725/2017 Page 43 of 54

62. So far as the allegations of respondent no.2 with regard to the behaviour and conduct of the petitioner are concerned, apart from the bare averments made by respondent no.2, there is no material placed on record by her to lead this court to infer that the petitioner habitually indulges in any such inappropriate conduct, or displays inappropriate behaviour, which could be said to be a bad or harmful influence on the minor children. The matrimonial discord between the petitioner and respondent no.2 arose in USA. They both worked their relationship as husband and wife in the American environment. All the witnesses and evidences in respect of their individual and collective behaviour and conduct would be available in USA. This court has no material evidence before it to judge the conduct of the parties and fix the blame on one or the other party. That is not the issue before this court. This court is not required to judge the reasons for the two parties falling apart, and to find out as to who is responsible for the same - assuming that only one party is so responsible. We are not suggesting that respondent no.2 should return to her matrimonial home in USA, or that she should resume co-habitation with the petitioner. If she does not wish to do so, she may live and work separately from the petitioner in the same town in USA.

63. We are not impressed by the certificates produced by the petitioner, which he claims to have obtained from the marriage and family counsellor of the parties Ms. Geller, and the employees at his Dental Clinic. A perusal of the certificate issued by Ms. Geller in its entirety shows that Ms. Geller has issued the same on the asking of the petitioner, and she appears to have commented even on those aspects about which professionally she had no W.P.(CRL) 725/2017 Page 44 of 54 personal knowledge or information. In our view, the credibility of the certificate issued by Ms. Geller is doubtful and we, therefore, reject the same. Similarly, the certificate of the employees at the Dental Clinic cannot be given any credence.

64. After we had reserved judgment in the present case, the same was mentioned by learned counsel for the respondent no.2 and a recent decision rendered by the Supreme Court in Prateek Gupta v. Shilpi Gupta & Ors., Crl A No.968/2017, decided on 06.12.2017, was tendered for our consideration while deciding the present petition. In this case, the appellant father had been directed to hand over the custody of the child Master Aadvik, aged about 5 years to his mother Shilpi Gupta by this court vide its judgment dated 29.04.2016. The parties had got married at New Delhi on 20.01.2010 and thereafter shifted to USA. The appellant father was already residing and gainfully employed in USA prior to the marriage. The parties had two sons- Aadvik being the elder one. The mother preferred a writ petition before the High Court alleging the taking over of illegal and unlawful custody of Aadvik by the father in violation of the order passed by the Juvenile and Domestic Relations Court of Fairfax County dated 28.05.2015 and 20.10.2015, whereby directions were issued to the appellant to return the child to the Commonwealth of Virginia and to the custody and control of the mother Shilpi Gupta. The parties separated around 15.11.2014. Thereafter, the appellant returned to India, only to go back to USA. He kept making visits to India and on one such occasion, on 24.01.2015, he took with him Aadvik on the pretext of taking him to a mall. However, the child was brought to India without the prior information, or W.P.(CRL) 725/2017 Page 45 of 54 permission, or consent of the mother. In the proceedings initiated by the respondent mother, the Court in USA passed the aforesaid orders. The father also initiated proceedings under Section 9 of the Hindu Marriage Act for restitution of conjugal rights in the Court of the Principal Judge, Family Courts, Rohini. He also sought a declaration that he was the sole and permanent guardian of the child. He also instituted a civil suit in the High Court of Delhi to assail the proceedings initiated by the respondent mother in the courts in USA. The High Court while allowing the writ petition of the respondent mother, placed reliance on the decision of the Supreme Court in Surya Vadanan (supra) and after subscribing to the principle of "Comity of Courts" and the doctrine of "most intimate contact" and "closest concern"

held that in the facts of the case, the Domestic Court (i.e. the Indian Court) had much less concern with the child as against the Foreign Court which had passed the order prior in point of time.

65. On behalf of the appellant father, it was contended before the Supreme Court that the parties are Indian nationals and citizens having Indian passports, and they were only residents of USA having temporary work visa. The respondent mother was alone in USA with the younger child on temporary work visa, which was to expire in 2017. Her parents and other family members are all in India. The age at which the child was brought to India (2 ½ years) could not be considered to have made him accustomed and adapted to the lifestyle in USA for application of the doctrine of "most intimate contact" and "closest concern" with the court of that country. After his return to India, the child had been admitted to a reputed school and had got accustomed to a congenial family environment, informed with love and W.P.(CRL) 725/2017 Page 46 of 54 affection, amongst others, of his grandparents and it would be extremely harsh to extricate him from the Indian city and to lodge him in an alien city. The same would adversely impact the process of his overall grooming.

66. The Supreme Court referred to Nithya Anand Raghavan (supra), which had disapproved the decision in Surya Vardhan (supra), inter alia, on the aspect of importance attached to the doctrine of "Comity of Courts" in the said decision. The Supreme Court noted that the parties were Indian citizens, married in India as per Hindu rites and customs. Thereafter, they shifted to USA. The Supreme Court in para 21 and 32 of the decision observed as follows:

"21. Thus the state of law as approved in Nithya Anand Raghavan4 is that if a child is brought from a foreign country, being its native country to India, the court in India may conduct

(a) summary enquiry, or (b) an elaborate enquiry on the question of custody, if called for. In the case of a summary enquiry, the court may deem it fit to order the return of the child to the country from where he/she has been removed unless such return is shown to be harmful to the child. Axiomatically thus, even in case of a summary enquiry, it is open to the court to decline the relief of return of the child to the country from where he/she has been removed irrespective of a pre-existing order of return of a child by a foreign court, in case it transpires that its repatriation would be harmful to it. On the other hand, in an elaborate enquiry, the court is obligated to examine the merits as to where the paramount interest and welfare of the child lay and take note of the pre-existing order of the foreign court for the return of the child as only one of the circumstances. As a corollary, in both the eventualities whether the enquiry is summary or elaborate, the court would be guided by the pre-dominant consideration of welfare of the child assuredly on an overall consideration on all attendant facts and circumstances. In other words, the principle of comity of courts W.P.(CRL) 725/2017 Page 47 of 54 is not to be accorded a yielding primacy or dominance over the welfare and well-being of the child which unmistakeably is of paramount and decisive bearing‖.

―32. 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 onits physical, mental, psychological, social, cultural existence, thus exposing it to visible, continuing and irreparable detrimental and 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".

W.P.(CRL) 725/2017 Page 48 of 54

67. The Supreme Court found that the child Aadvik had spent half of his life in USA, and half in India. The Supreme Court also held that there was no convincing material on record to show that the continuation of the child in India in the custody of the appellant would be irreparably prejudicial to him. The court also took into account the environment in which the child was growing up in India.

68. In respect of the decision in Prateek Gupta (supra), we may, firstly, observe that the same extensively relies upon Nithya Anand Raghavan (supra), which is a larger bench (three judges) decision. We are conscious of the said decision and rely upon the same for our view. The material factual dissimilarity between the present case and Prateek Gupta (supra) are:

i) In Prateek Gupta (supra), the parties had got married in India and thereafter they moved to USA, whereas in the present case the parties had acquired American citizenship and married in USA. They even had their first child in USA and the second child, though born in India is also an American citizen, and not an Indian citizen. Thus, the nationality of both the children in the present case in American.

ii) In Prateek Gupta (supra), the High Court while deciding the writ petition preferred by the mother Shilpi Gupta heavily placed reliance on Surya Vardhan (supra), which has not been approved of in Nithya Anand Raghavan (supra). The High Court had relied upon the doctrine of "Comity of Courts" while granting relief to the mother Shilpi Gupta, and the decision was not founded upon the sole W.P.(CRL) 725/2017 Page 49 of 54 consideration of the welfare of the minor child Aadvik. However, we have the benefit of Nithya Anand Raghavan (supra) and we are not guided, in our decision, by the doctrine of "comity of courts". We are, primarily, guided by the principle that this court is acting as parens patriaes of the two minor children Ishnoor and Paramvir, and we are basing our decision on the consideration, as to what is in the best interest of the two children.

iii) In Prateek Gupta (supra), the parties were only having temporary work permits to work in USA, and were not citizens of USA. They were Indian citizens having Indian passports. As opposed to that, in the present case both the petitioner and respondent no.2 as well as the two minor children are American citizens, and are entitled to live and work in USA as American citizens. They enjoy all the rights, privileges, protections and securities - social and financial, in USA like all American citizens. The petitioner and respondent No.2 have been working, and can continue to work in USA as a matter of right. They are professionally qualified and experienced in their field, in the American environment.

Thus, Prateek Gupta (supra) does not advance the case of respondent no.2 in any measure whatsoever.

69. Accordingly, we direct the respondent No. 2 to return to U.S.A. with both Ishnoor and Paramvir. At the same time, we are concerned that respondent No.2, when she lands on the shores of USA, is not faced with any adversity or hostility at the hands of the petitioner or the American legal W.P.(CRL) 725/2017 Page 50 of 54 or law enforcement machinery. We are also concerned that when she lands in USA with the two minor children, she is adequately provided for, since she will take some time to pick up the threads and get back on her own two feet. Thus, the direction to respondent No.2 to return to USA with the two children is conditional on the following conditions being complied with by the petitioner.

70. The petitioner shall move the Superior Court, Judicial District, Stamford/ Norwalk for recall of the orders dated 17.11.2016 and 25.01.2017 insofar as they direct respondent no.2 to grant temporary physical and legal custody, and the sole legal and physical custody, of the two minor children to the petitioner. So far as the direction to respondent no.2 to return to the State of Connecticut with the two children is concerned, since we are passing the same directions, the said direction issued by the Superior Court, Judicial District, Stamford, Norwalk may be maintained. Thus, when respondent No.2 lands in USA with the two minor children, they shall not be removed from her custody. It shall be open to the petitioner to inform the said competent court of our decision, and that the recall of the orders of temporary/ sole legal and physical custody of the minor children is being sought in terms of the present decision. Once the orders to the aforesaid effect are obtained, certified/ authenticated copies of the same shall be placed on our record.

71. The two minor children shall continue to remain in the custody of respondent no.2 even after she returns to USA, till so long as the competent court in USA passes fresh orders on the aspect of temporary/ permanent custody of the aforesaid two minor children after granting adequate W.P.(CRL) 725/2017 Page 51 of 54 opportunity of hearing to both the parties. The petitioner shall not make any attempt to take the minor children out of the custody of respondent no.2 by force. The petitioner shall, however, be entitled to meet the children and spend time with them as may be mutually agreed between him and respondent No.2. In case there is no understanding/ agreement arrived at between them on this aspect mutually, he may seek interim orders for visitation rights in respect of the two minor children from the competent court in USA till the issue of custody is determine by the said court and a final determination on the aspect of custody/ visitation is made by the said court.

72. The petitioner shall undertake, to not initiate any criminal/ contempt proceedings against the respondent No. 2 in U.S.A. on account of respondent No.2 not returning to USA with the two minor children in terms of the aforesaid orders dated 17.11.2016 and 25.01.2017 passed by the Superior Court, Judicial District, Stamford, Norwalk. The petitioner shall also undertake, to not initiate any criminal proceedings against respondent No.2 in USA in relation to the alleged transfer of funds made by respondent No.2 into the account of her brother. Any pending criminal complaint or proceeding pending against the respondent No. 2 shall immediately be withdrawn. The petitioner shall file an affidavit disclosing the criminal proceedings, if any, already initiated against respondent No.2; the orders evidencing withdrawal of such proceedings, if any, and containing an undertaking that he shall not initiate criminal proceedings against respondent No.2 in relation to the aforesaid disputes.

W.P.(CRL) 725/2017 Page 52 of 54

73. There can be no doubt that the return of respondent No.2 with the minor children should be at the expense of the petitioner; their initial stay in USA, should also be entirely funded and taken care of by the petitioner by providing a separate furnished accommodation (with all basic amenities & facilities such as water, electricity, internet connection, etc.) for them in the vicinity of the matrimonial home of the parties, wherein they have lived till they undertook their trip to India in January, 2016. Thus, it shall be the obligation of the petitioner to provide reasonable accommodation sufficient to cater to the needs of respondent No.2 and the minor children. Since respondent No.2 came to India in January, 2016 and, therefore, would take time to restart her practice, the petitioner should also meet all the expenses of respondent No.2 and the minor children, including the expenses towards their food, clothing and shelter, at least for the initial period of six months, or till such time as respondent No.2 finds a suitable job for herself, or restarts her professional career. Even after respondent No.2 were to find a job, it should be the responsibility of the petitioner to share the expenses of the minor children, including the expenses towards their schooling, other extra-curricular activities, transportation, Attendant/ Nanny and the like. The petitioner should also arrange a vehicle, so that respondent No.2 is able to move around to attend to her chores and responsibilities.

74. Considering that the petitioner had initiated proceedings in USA and the respondent No.2 has been asked to appear before the Court to defend those proceedings, the petitioner should also meet the legal expenses that respondent No.2 may incur, till the time she is not able to find a suitable job for herself. However, if respondent no.2 is entitled to legal aid/ assurance W.P.(CRL) 725/2017 Page 53 of 54 from the State, to the extent the legal aid is provided to her, the legal expenses may not be borne by the petitioner.

75. Once the aforesaid arrangements are in place, in our view, respondent No.2 can possibly have no objection to return to USA with the minor children. The comfort that we have sought to provide to respondent No.2, as aforesaid, is to enable her to have a soft landing when she reaches the shores of USA, so that the initial period of, at least, six months is taken care of for her, during which period she could find her feet and live on her own, or under an arrangement as may be determined by the competent Courts in USA during this period. It would be for the Courts in USA to eventually rule on the aspect concerning the financial obligations and responsibilities of the parties towards each other and towards the minor children - for their upbringing, uninfluenced by the directions issued by this Court in this regard.

76. The petitioner is directed to file his affidavit of undertaking in terms of paras 70 to 74 above within ten days with advance copy to the respondents. The matter be listed on 19.03.2018 for our perusal of the affidavit of undertaking, and for passing of further orders.

(VIPIN SANGHI) JUDGE (P.S. TEJI) JUDGE MARCH 06, 2018 W.P.(CRL) 725/2017 Page 54 of 54

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