- (1.) After courtship of seven years, appellant no.3 Anupma Malhotra and respondent no.1. Pankaj Malhotra tied their knots in December, 1995, in India. At the time of their marriage they were both Indian Citizens. On 19.11.1996 while in India they were blessed with a girl child Hena. In search of better career, the couple along with their daughter Hena, shifted to New Zealand on April 10, 1997. While working in New Zealand in November, 1999 they surrendered their Indian Passport and accepted the citizenship of New Zealand. While in New Zealand, they were blessed with another daughter Pooja on 3.10.2000 and a son Krish on 13.06.2006. Both Pooja and Krish were born in New Zealand, as such they were natural citizens of New Zealand by birth. Entire family of five are thus citizens of New Zealand. They have not surrendered their citizenship of New Zealand and even till date are continuing to be its citizens. The family is also registered as overseas citizens of India after the insertion of Section 7A by Act No.32 of 2005 in the Citizenship Act, 1955. The Indian Embassy at New Zealand has also issued 'OCI' Card 'as it is called' to the entire family to continue to live and work in New Zealand.
(2.) In March, 2008, in order to explore chances of settlement in India, the family came to India. On 14.02.2011 the appellant no.3 Anupma Malhotra along with her three children went back to New Zealand apparently on account of certain discord having arisen with her husband respondent no.1. Today both the parents are not even willing to see each other and are not even willing to pay for the other's coffee when they were requested by the Court to spend some time together. The children are divided. The eldest daughter Hena is with her mother whereas the two younger ones are with their father. They are all confused and lost. We were pained to see how a settled family breaks up. Both the parents are financially independent. They are well educated coming from decent families. Children are torn mentally and emotionally between the parents. They are confused.
(3.) While in New Zealand the mother filed an application for the custody of the children in June, 2011, before the Family Court at Wellington. On the said application notices were issued to the respondent no.1, the husband who filed his objections. Thereafter the Family Court at Wellington on 12.08.2011, passed a Parenting Order by consent under Section 40 (3), 48 and 55 of the Care of Children Act, 2004. The said order along with the terms and conditions contained therein are reproduced below- "Applicant Anupma Malhotra of Wellington NEW ZEA LAND Respondent Pankaj Malhotra of Noida INDIA On an application made to it, the Court by consent orders that 1. Anupma Malhotra ("Mrs Malhotra") have the role of providing day-to-day care for Hena Malhotra ("Hena") born 19 November 1996 Krish Malhotra ("Krish") born 13 June 2006 Pooja Malhotra ("Pooja") born 03 October 2000 ("the children") Until the children reach the age of 16 years While exercising the role of providing day-to-day care for children, you have exclusive responsibility for the children's day-to-day living arrangements, subject to any conditions stated below and to any Court order. If you are a guardian, unless your role or another guardian's role is modified by a Court order, you must at jointly (e.g. consulting whenever practicable with an aim of reaching agreement) when making guardianship decisions for a child. 2. The children's nationality is to remain as New Zealanders. Neither parent will seek to change their nationality. 3. The Family Court of New, Zealand will retain jurisdiction for the children whilst their primary care remains in New Zealand. 4. Pankaj Malhotra ("Mr Malhotra") agrees that the will return the children to the care of Mrs. Malhotra in New Zealand at the end of each agreed contact period in terms of this order. 5. The children are to spend each school holiday period in India with Mr. Malhotra. For the 2011/12 Christmas holidays the children will leave New Zealand on the day the holidays start and return 7 days before school starts. 6. Mr. Malhotra will exercise contact with all three children in India during the New Zealand October school holidays. 7. For shorter school holiday periods the children will leave New Zealand two or three days prior to each term ending and return two to three days after the new term has commenced. The parents agree to some flexibility around this for Hena, taking into account her academic requirements. 8. Mr. Malhotra will be responsible for arranging and paying for the transport of the children for contact visits. Mr. Malhotra will accompany Pooja and Krish to and from New Zealand on their travel for the October 2011 and December 2011 holidays. 9. The parents agree to re-negotiate in good faith the care arrangements for Pooja and Krish. The dates for re-visiting the care arrangements for Pooja will be February 2012 and for Krish will be February 2015. 10. Any other time Mr. Malhotra is in New Zealand he is to have as much contact with the children as fits in with the children's schedules. 11. If the children express a high Degree of distress during the long Christmas holiday contact, the parents will discuss the situation and endeavour to resolve matters for the children. If the children's distress remains high, Mr. Malhotra will use his best endeavours to return the children to New Zealand early. 12. For the time being neither parent will introduce the children to any new partner without the consent of the other parent. VARIATION OR DISCHARGE OF THIS ORDER Any person affected by this order or a person acting for a child who is the subject of this order may apply to the Court to vary or discharge this order. CONSEQUENCES OF NON-COMPLIANCE If you do not comply with this order there are a number of things that may happen, such as requiring you to attend counselling, or enter a bond (see also the information sheet accompanying this order). The Court taken non-compliance very seriously. Han Kristono Deputy Registrar 12 August 2011" Note This order may include terms of an agreement between parents or guardians of a child, relating to- (a) the role of providing day-to-day care for the child; or (b) contact with the child' or (c)the upbringing of the child' or (d) any combination of (a) to (c) See section 40 of the Care of Children Act 2004 for the circumstances in which agreement terms may be included GENERAL INFORMATION TO ACCOMPANY PARENTING ORDERS (as required by section 55(1)(b) of the Care of Children Act 2004) Obligations created by a parenting order This parenting order requires you to conform with its conditions. If you do not do so, another party may apply to the Court to enforce the order. The family Court may choose from a variety of tools to remedy the non-compliance. For example, you may be required to enter into a bond to ensure you do not contravene the parenting order again, or to meet reasonable costs incurred by another party because of your contravention. The Court might admonish you, or vary the order, for example, by reducing the amount of time you have with the child. You or another party to the order or a person acting for a child who is the subject of this order may apply to the Court, asking for the order to be varied or discharged. If you and another party or parties to the order are unable to agree about how to exercise guardianship or you are in a dispute arising from one of you contravening, or appearing to contravene, the order, you may request the Court to arrange counselling to assist you in resolving the dispute. It is also an offence to, without reasonable excuse and with the intention of preventing compliance with a parenting order, contravene a parenting order. The penalty for this offence is imprisonment for a term not exceeding 3 months or a fine not exceeding $2,500.";