Indian Kanoon - Search engine for Indian Law

3. The High Court inter alia directed the mother to produce her daughter Nethra and to comply with the order dated 08.01.2016 passed by the High Court of Justice, Family Division, Principal Registry, United Kingdom (UK), within 3 (three) weeks from the date of the impugned order or in the alternative to handover the custody of the daughter to the father within 3 (three) weeks from the date of the order.

4. The appellant has assailed the aforesaid order inter alia on the ground that in the present scenario, the paramount interests and welfare of the daughter, Nethra, who is presently over seven years of age, is to remain in custody of her mother, especially because she suffers from a cardiac disorder and that she would face immense physical and psychological harm if repatriated to the custody of the father in England in light of the alleged physical, verbal and mental abuse meted out by him. The appellant has also contended that the UK Court does not have intimate contact with Nethra merely because she has acquired the citizenship of the UK in December, 2012. The daughter has her deep roots in India as she was born here in Delhi and has retained her Indian citizenship. She has been schooling here for the past 12 (twelve) months and has spent equal time in both the countries out of her first six years. Further, Nethra has her grandparents, family and relatives here in India, unlike in the UK where she lived in a nuclear family of the three (father, mother and herself) with no extended family and friends. Thus, it is the Indian Courts which have the intimate contact with the minor and including the jurisdiction to decide the matter in issue. Furthermore, the respondent no.2 did not initiate any action for initial six months even after knowing that the appellant was unwilling to return along with her daughter and until he was slapped with a notice regarding complaint filed by the appellant before the Women Cell at Delhi in December 2015, relating to violence inflicted by him. As a counter blast to that notice the respondent no.2 rushed to the UK Court and then filed writ petition in the Delhi High Court to pressurize the appellant to withdraw the allegations regarding violence inflicted by him.

h. In January 2012, the daughter was admitted to a nursery school in the UK and attended the same till she was old enough to attend a primary school. i. In September 2012, an application was filed on behalf of the daughter for grant of UK citizenship, purportedly with the consent of both the appellant and respondent no.2. The appellant, however, denies that she gave consent for this application. j. In December 2012 the daughter was granted citizenship of the UK. Soon thereafter in January 2013, respondent no.2 was also granted citizenship of the UK. Subsequently, respondent no.2 purchased another house in the UK, purportedly with the consent of the appellant, and the parties shifted there. The appellant had acquired a driving license in the UK around the same time.

6. The High Court, while ordering that the mother–appellant return to the UK with the child and produce her before the UK Court, set out and examined the factual aspects of the case. The High Court held that the child, having lived in the UK since the time of her birth in 2009, had developed roots there. Further, the child was a permanent citizen of the UK and held a British passport. The High Court also examined the wardship order passed ex-parte by the High Court of Justice, Family Division, London on 8th January, 2016. In the said order, the UK Court inter alia recorded that the child had been wrongfully removed from England in July 2015 and wrongly retained in India since then. The UK Court also recorded the father’s willingness to bear the expenses for the transport and stay of the mother and the child to the UK. The UK Court held that it had the jurisdiction to hear the matter and directed that the child would become a ward of the court during her minority or until further orders and that the mother would have to return the child to England by 22 nd January, 2016. The High Court opined that in light of the order by the UK Court, the mother would not face any financial hardship and further, the order of the UK Court had attained finality due to lapse of time. The High Court then examined the law as propounded in several judgments, including Arathi Bandi Vs. Bandi Jagadrakshaka Rao & Ors.1, Surya Vadanan Vs. State of Tamil Nadu & Ors. 2, Surinder Kaur Sandhu Vs. Harbax Singh Sandhu & Anr.3, 1 (2013) 15 SCC 790 2 (2015) 5 SCC 450 3 (1984) 3 SCC 698 Mrs. Elizabeth Dinshaw Vs. Arvand M. Dinshaw & Anr. 4, Marggarate Maria Pulparampil Nee Feldman V. Chacko Pulparampil & Anr.5, Kuldeep Sidhu V. Chanan Singh & Ors.6, In Re: H.(Infants)7 and Ruchi Majoo V Sanjeev Majoo8. The High Court held that since the mother had not sought custody of the child by approaching any competent Indian Court prior to the passing of the order by the UK Court, therefore, the first, effective order/direction had been passed by the UK/foreign court and, applying the principle expounded in Surya Vadanan (supra) of comity of courts, the balance of favour would lie with the UK Court. Since the child had spent most of her life in the UK and studied there, it would be in the best interests of the child that she be returned to the UK. After analyzing the principles deduced from the aforesaid judgments, the High Court was of the opinion that:

15. In addition to the aforementioned cases, Ms. Rajkotia has also submitted a compendium of judgments titled ‘List of judgments filed on behalf of appellant’. The judgments referred to therein have been considered by us.

16. Per contra, Advocate S.S. Jauhar appearing for respondent no.2 first submits that the child was a British citizen and had been brought up in the UK. The child had been residing in the UK and the appellant was also a permanent resident of the UK. The respondent no.2 has also acquired citizenship of the UK. Both the appellant and respondent no.2 had every intention to permanently settle in the UK along with their child. The appellant had even signed the application/citizenship form of the child for British citizenship. Thus, the appellant’s submission before the High Court that she had not given permission to apply for their child’s British citizenship is patently false. In the emails exchanged with the child’s school, the appellant mentioned that they would be returning to the UK. It is only much later that respondent no.2 was made aware by the school that the appellant would not be returning to the UK. The High Court even recorded that the parties had every intention of making the UK their home and that the child had developed roots in the UK. Hence, the UK courts had the closest concern and intimate contact with the child as regards welfare and custody and would have jurisdiction in the matter.