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18. The recorded facts and the contentious assertions have received our due attention. A brief recapitulation of the state of law on the issue at the outset is the desideratum.

19. A three Judge Bench of this Court in Nithya Anand Raghavan vs. State (NCT of Delhi) and another 4 did have the occasion to exhaustively revisit the legal postulations qua the repatriation of a minor child removed by one of the parents from the custody of the other parent from a foreign country to India and its retention in the face of an order of a competent foreign court directing its return to the place of abode from which it had been displaced. The appeal before (2017) 8 SCC 454 this Court arose from a decision of the High Court in a Writ Petition filed by the father alleging that the minor daughter of the parties had been illegally removed from his custody in United Kingdom (for short, hereafter referred to as “UK”), thus seeking a writ of habeas corpus for her production. By the verdict impugned, the High Court directed the appellant-mother therein to produce the minor child and to comply with an earlier order passed by the High Court of Justice, Family Division, Principal Registry, United Kingdom within three weeks or in the alternative to handover the custody of the daughter to the respondent-father therein within that time. The proceeding in which the Court in the UK had passed the order dated 08.01.2016 had been initiated by the respondent/father after the appellant/mother had returned to India with the minor.

Assailing this determination, it was urged on behalf of the appellant inter alia that the High Court had wrongly assigned emphasis on the principle of comity of courts in complete disregard of the paramount interest and welfare of the child, more particularly in view of the vicious environment at her matrimonial home in U.K. in which she (appellant) had been subjected to physical and verbal abuse and had even placed the child at risk with his behaviour. The fact that India not being a signatory to the Hague Convention intended to prevent parents from abducting children across the borders, the principle of comity of courts did not merit precedence over the welfare of the child, an aspect overlooked by the High Court, was underlined. It was asserted that the impugned order did also disregard the parens patriae jurisdiction of the Indian court within whose jurisdiction the child was located as well as the welfare of the child in question in mechanically applying the principle of comity of courts. That though the welfare of the child in situations of the like as well, is of paramount consideration, this Court in Shilpa Aggarwal vs. Aviral Mittal and another5 and in Surya Vadanan1 had deviated from this governing precept and had directed the child and mother to return to the jurisdiction of the foreign court by mis-interpreting the concept of ‘intimate contact’ of the child with the place of repatriation, was highlighted for reconsideration of the views expressed therein. It was urged that the decision in Surya Vadanan1 had a chilling effect of assigning dominance to the principle of comity of courts over the welfare of a child, which mentionably undermined the perspective of the child, thus encouraging multiplicity of proceedings It was insistingly canvassed that the view adopted in Surya Vadanan1 was in direct conflict with an earlier binding decision in V. Ravi Chandran (Dr.) vs. Union of India and others6 in which a three-Judge Bench had categorically held that under no circumstance (2010)1 SCC 591 (2010) 1 SCC 174 can the principle of welfare of the child be eroded and that a child can seek refuge under the parens patriae jurisdiction of the Court. While dismissing the initiative of the respondent before the UK Court to be one in retaliation of the appellant’s allegation of abuse and violence and noticeably after she had filed a complaint with the Crime Against Women Cell (CAWC), New Delhi, it was also urged that the U.K. Court had passed ex parte order without affording any opportunity to her to present her case. It was canvassed further that the writ petition filed by the respondent seeking a writ of habeas corpus which is envisaged for urgent and immediate relief was also a designed stratagem of his bordering on the abuse of the process of the court and thus ought to have been discouraged by the High Court. It was underlined as well that the High Court in passing the impugned direction had also overlooked that the respondent had defaulted in the discharge of his parental duty towards the child, who was suffering from serious health problems, thus compromising in all respects the supervening consideration of overall well-being of the child.

23. This Court in Nithya Anand Raghavan4 next turned to the contextual facts to record that the parents of the child were of Indian origin and that the minor was an Indian citizen by birth as she was born in Delhi and that she had not given up her Indian citizenship though she was granted UK citizenship subsequent thereto. That the child was admitted to a primary school in UK in September 2013 and that she had studied there in July 2015 was noted. It was mentioned as well that till she accompanied her mother on 02.07.2015 to India, no proceeding of any kind had been filed in the UK Court, either in relation to any matrimonial dispute between the parents or for her custody. In India, the child had been living with her grand-parents and other family members and relations unlike in U.K., where she lived in a nuclear family of three with no other relatives. That she had been studying in India for last over one year and had spent equal time in both the countries up to the first six years of her life was taken note of as well. This Court also expressed that the child would be more comfortable and secured to live with her mother here in India, who can provide her with motherly love, care, guidance and the required upbringing for her desired grooming of personality, character and faculties. That being a girl child, the custody, company and guardianship of the mother was of utmost significance was felt. It was also recorded that being a girl child of the age of about seven years, she ought to be ideally in the company of her mother in absence of circumstances that such association would be harmful to her. That there was no restraint order passed by any court or authority in U.K. before the child had travelled with her mother to India was accounted for as well. This Court noticed most importantly, that the child was suffering from cardiac disorder, which warranted periodical medical reviews and appropriate care and attention, which it felt could be provided only by the mother as the respondent/father being employed would not be in a position to extend complete and full attention to his daughter. That the appellant/mother had neither any intention to return to UK nor according to her if the child returns to UK, she would be able to secure the desired access to her to the child to provide care and attention was noted in express terms. On an evaluation of the overall facts and circumstances, this Court thus was of the unhesitant opinion that it would be in the interest of the child to remain in the custody of her mother and that her return to UK would prove harmful to her. While concluding thus, it was stated that this arrangement notwithstanding the appellant/mother ought to participate in the proceedings before the UK Court so long as it had the jurisdiction to adjudicate the matter before it. It was observed as well that, as the scrutiny involved with regard to the custody had arisen from a writ petition filed by the respondent/father for issuance of writ of a habeas corpus and not to decide the issue of grant or otherwise of the custody of the minor, all relevant aspects would have to be considered on their own merit in case a substantive proceeding for custody is made before any court of competent jurisdiction, including in India, independent of any observation made in the judgment.

26. In Surya Vadanan1, the two minor girls aged 10 years 6 years respectively were British citizens by birth. Following intense matrimonial discords, the mother had left UK and had come to India with her two daughters. She also instituted a proceeding in the Family Court at Coimbatore seeking dissolution of marriage. The husband, finding the wife to be unrelenting and disinclined to return to U.K. (2013) 15 SCC 790 with her daughters, petitioned the High Court of Justice in U.K. for making the children as the wards of the Court, which passed an order granting the prayer and required the mother to return the children to its jurisdiction. This order was passed even before any formal order could be passed on the petition filed by the wife seeking divorce. This order was followed by another order of the U.K. Court giving peremptory direction to the wife to produce the two daughters before the U.K. Court and was supplemented by a penal notice to her. It was thereafter that the husband moved the Madras High Court for a writ of habeas corpus on the ground that the wife had illegal custody of the two daughters. On the following considerations as extracted hereinbelow, relief as prayed for by the husband was granted: