M.Nirmal Kumar, J. -
(1.) Petitioner seeks a direction to the respondents to produce the minor child Meenakshi Kandavelou daughter of the petitioner and the 3rd respondent aged about 3 years and set her at liberty and entrust her into the custody of the petitioner and further permit the repatriation of the minor child to her native jurisdiction of USA in accordance with the order passed by the Supreme Court of the State of New York County of Westchester on 23.06.2005.
(2.) The facts of the case are as follows:-
2.1. The petitioner and the 3rd respondent got married on 28.06.2006 at Vedapureeshwarar Temple, Pondichery according to Hindu Rites and Custom and it was an arranged marriage. The petitioner had completed MBBS in Government Stanley Hospital, Chennai in the year 2001 and now presently working as (Hematology/Oncology Fellowship in Albert Einstein College of Medicine/Montefiore Medical Centre) at Bronx, NY USA. The 3rd respondent was working as Programmer Analyst in Direct Energy Montebello, NY USA and after the marriage both the petitioner and the 3rd respondent moved to Baltimore, USA and started living there. Initially they stayed at Connecticut State till 2009 and thereafter they moved to New York in the year 2011, where they purchased a house at New York in their name jointly.
2.2. The petitioner and the 3rd respondent are the Green Card Holders in USA. Due to medical complication, the conception of the child was delayed and eventually through IVF (Test Tube) a girl child was born to them on 26.05.2012 at New York, who was named Meenkashi and presently she is 3 years old and the girl child is a citizen of USA by birth. The parents of the petitioner were taking care of the child and household chores which helped both to carry on their professional carrier without any interference. In June 2013, when the parents of the petitioner left to India, the girl child was put in a day care since both the petitioner and 3rd respondent were employed. After the child suffered multiple health problems culminating in Pneumonia, one Nanny was hired to take care of the child at home. However, such an arrangement did not serve the welfare of the child, the said Nanny was terminated. By the time the mother of the petitioner had returned to USA and joined them in January 2015 and took care of the child. The petitioner was also involved in day to day chores of the child both physically and emotionally.
2.3. During 2014, the 3rd respondent informed the petitioner that she was planning to go to India for her brother's wedding, which was supposed to be held in the end of 2014, for which she booked tickets during October 2014 with the plan of leaving to India on 05.02.2015 and returning to USA on 09.03.2015. Since, the petitioner did not receive any invitation, he enquired about the marriage. The 3rd respondent informed to the petitioner that the marriage stood cancelled. The petitioner asked the 3rd respondent to reschedule the trip to India as and when the marriage is fixed, but the 3rd respondent was unduly adamant to visit India along with the girl child, as per the earlier schedule and assured she would return on 09.03.2015.
2.4. On 05.02.2015, the 3rd respondent came to India along with the girl child. During the last week of February 2015, the petitioner was shocked to learn from British Airways that the 3rd respondent had cancelled her return ticket to USA without any prior information to the petitioner. The petitioner enquired about the cancellation of the ticket. The 3rd respondent replied that she would reschedule her return program and inform the same to him. Thereafter, the petitioner made phone calls, e-mails and messages for knowing about the return of the 3rd respondent to USA with the minor child, she did not respond. The petitioner was kept in the dark about the return of the 3rd respondent and the minor child.
2.5. Under these circumstances, the petitioner having no alternative except to resort to legal action informed the 3rd respondent about the same. The 3rd respondent sent a mail on 12.03.2015 to him informing that she was planning to return with the minor child by the middle of April 2015. Despite the same she did not return to USA. Hence the petitioner was continuously deprived of consortium with the child for over 10 weeks. When the petitioner asked her to reason out, the 3rd respondent refused to return back to USA along with minor child. Thereafter, the petitioner's calls were blocked and the Skype conversation was also abruptly discontinued. Being emotional distress caused by the 3rd respondent, the petitioner was constrained to initiate matrimonial action before the Supreme Court of New York County of Westchester (hereinafter referred to as Foreign Court) by Service of Summons and Verified Complaint for divorce against the 3rd respondent seeking various ancillary reliefs including custody and return of the minor child on 21.05.2015. This was necessitated since the 3rd respondent was on the intention of discerning to secret herself and the child. Further, the petitioner also moved for Ex-parte reliefs including an order seeking a direction for the immediate return of the child and to award the temporary custody of the child.
2.6. The Foreign Court was pleased to issue an order to show cause against grant of the reliefs and directed the appearance of the 3rd respondent and also for the production of the child on 02.06.2015. The 3rd respondent was served by personal service and other methods as directed by the Foreign Court for the hearing set on 02.06.2015. On due service she had chosen to appear through her attorneys M/s.Riebling, Proto & Sachs, LLP (by Keith M.Brown, Esq.). The said counsel appearing for the 3rd respondent admitted and acknowledged Service of Summons and Verified complaint, Order to Show Cause and supporting documentation. Thereafter, the Foreign Court heard both the counsels appearing for the petitioner and the 3rd respondent and the 3rd respondent neither appeared before the Court nor produced the child, as per the Court's direction. On 02.06.2015 the Foreign Court on the admission and acknowledgment of service on behalf of the 3rd respondent issued further directions to appear on 08.06.2015 along with the minor child.
2.7. Further the 3rd respondent having chosen to defend the matrimonial action by engaging an attorney, she failed to appear and the foreign Court fixed the hearing on the issue of the custody of the child on 12.06.2015. For non-compliance of its directions the foreign Court proceeded with the fact finding enquiry on the issue of the custody, the 3rd respondent counsel participated on her behalf in the proceedings including recording of oral testimony and cross examination.
2.8. A reasoned order was passed on 12.06.2015, the Foreign Court dwelt upon its jurisdiction to entertain the matrimonial action in the context of both the petitioner and the 3rd respondent being Indian citizens and green card holders and on employment in USA and the minor child was a natural citizen of USA from the date of birth i.e., on 26.05.2012. The minor child was taken away by the 3rd respondent during February 2015. The child has not been out of the state for a period of in excess of six months, the foreign Court observed that New York would be considered the home state of the child. Further, the foreign Court had taken into consideration of the petitioner's parental rights and access to the child and also granted sole custody of the child Meenakshi and further directed the 3rd respondent to return the child to the state of New York into the custody of the petitioner forthwith.
2.9. It is an admitted fact that the marriage between the petitioner and the 3rd respondent was taken place on 28.06.2006. After the marriage both were living as husband and wife in USA and they were residing at Connecticut State till 2009 and thereafter they moved to New York in the year 2011, where they purchased a house at New York in both their names. Due to medical complication, the conception of the child was delayed and by way of IVF (Test Tube) a girl child was born to them on 26.05.2012 at New York. The petitioner, the 3rd respondent along with their minor child were living together till the 3rd respondent left USA on 05.02.2015.
2.10. Since, the 3rd respondent had cancelled the return ticket and sent a mail to the petitioner that she would return to USA along with the minor child by the middle of April 2015 and finally she blocked the phone calls of the petitioner and the Skype conversation was also abruptly discontinued by her. Being emotional on the distress caused by the 3rd respondent, the petitioner was constrained to initiate matrimonial action before the Foreign Court and the notice being served along with the Memorandum of Acquisitions was received by the 3rd respondent. The 3rd respondent had engaged a counsel M/s.Riebling, Proto & Sachs, LLP (by Keith M.Brown, Esq.) and he appeared in this case and initially he sought for some time. Thereafter, the Foreign Court had also interacted with the 3rd respondent. The 3rd respondent questioned the jurisdiction of the foreign Court and had taken stand that the foreign Court has no jurisdiction to decide the matrimonial dispute and the child custody petition of the petitioner and she had also withdrew the authority given to her counsel.
2.11. After dwelling deep on the rival contentions of the parties, on 23.05.2016 the foreign Court had rendered a final decision, awarding the petitioner sole custody of his minor daughter apart from other findings. The relevant portion of the Judgment is extracted for the purpose of the case:-
"Based on the foregoing, including defendant's egregious conduct, plaintiff is awarded.
Defendant's conduct in refusing to return the parties' daughter as directed by this Court can only be interpreted as undertaken to maliciously injure plaintiff herein. Defendant's contention that this Court does not have jurisdiction is also frivolous. Defendant appeared in this action by counsel on the return date of the Order to Show Cause. Her counsel acknowledged personal service on defendant of the Summons with Notice, Verified Complaint and Order Show Cause seeking the return of the child to New York. Defendant counsel appeared multiple times before this Court, including at the custody hearing and the Preliminary Conference. Each time counsel acknowledged that he had provided his client with copies of this Court's order, including the order awarding plaintiff sole custody of the parties' daughter. Defendant submitted sworn Affidavits and a sworn statement of Net Worth to the Court through counsel and appeared via telephone in connection with Mr.Brown's application to be relieved as counsel. Defendant's claim that the Court is without jurisdiction of this matrimonial proceeding is patently frivolous. Defendant was a resident of the state of New York until she absconded to India in February 2015. The parties' daughter was born in New York, and resided with the parties in New York until defendant wrongfully abducted the child to India."
(3.) The learned senior counsel appearing for the petitioner would submit that the petitioner and the 3rd respondent got married on 28.06.2006 at Vedapureeshwarar Temple, Pondichery according to Hindu Rites and Custom and it was an arranged marriage. Initially they stayed at Connecticut State till 2009 and thereafter they moved to New York in the year 2011, where they purchased a house at New York in both their name. The petitioner and the 3rd respondent are Green Card Holders in USA. Due to medical complication, the conception of the child was delayed and eventually through IVF (Test Tube) a girl child was born to them on 26.05.2012 at New York, who was named Meenkashi and at present she is 3 years old and the girl child is a citizen of New York by birth.;