- (1.) Petitioner has filed Habeas Corpus Petition under Article 226 of the Constitution of India for production of his minor child Kiyara Verma. Case of the petitioner, in brief, is that he got married to respondent no.3 on 11.07.2016 at Kota. Thereafter, petitioner and his wife left for America on 17.07.2016 and they started residing there. Out of their wedlock, a daughter, namely Kiyara Verma was born on 03.05.2017. Some differences arose between the petitioner and respondent no.3. On 29.08.2018 respondent no.3 instituted a petition in 'Norfolk Juvenile and Domestis Relations District Court' seeking sole custody of the minor child. A petition was also filed by respondent no.3 seeking monetary support on her behalf and on behalf of her minor child. On 26.09.2018, interim order was passed by the Court Annexure P-9 in terms of the agreement between the parties. On 01.10.2018, petitioner came to know that the respondent no.3 had reached India along with the minor child. Hence, this petition by the petitioner. Notice of the petition was issued to the respondent no.3. Efforts were made by this Court to effect amicable settlement between the parties for restoration of matrimonial relations but the same proved futile.
(2.) Learned counsel for the petitioner has submitted that order Annexure P-9 was passed by the Court in America as per agreement between the parties. Petitioner and respondent no.3 were granted joint legal custody of the minor child and shared physical custody of the child. Petitioner as well as respondent no.3 were to surrender their passports as well as passport of minor child to guardian adlitem. However, despite passing of the order Annexure P-9, respondent no.3 left for India and did not honour the order Annexure P-9. Learned counsel has submitted that respondent no.3 was liable to be return to America along with minor child so that further orders could be passed by the Court in America. In support of his arguments, learned counsel has placed reliance on the decision of the Hon'ble Supreme Court in Civil Appeal No(s). 3135-3136/2019 titiled as Lahari Sakhamuri Vs. Sobhan Kodali decided on 15.03.2019, wherein, it was held as under:- "In V. Ravi Chandran(Dr.)'s case(supra), this Court was concerned with the custody of the child removed by a parent from one country to another in contravention of the orders of the Court where the parties had set up their matrimonial home. This Court took note of the English decisions, namely L(Minors) in re7 and McKee Vs. McKee8 and also noticed the decision of this Court in Elizabeth Dinshaw's case(supra) and Dhanwanti Joshi Vs. Madhav Unde9 keeping into consideration the fact that the child was left with his mother in India for nearly twelve years, this Court held that it would not exercise its jurisdiction summarily to return the child to the US on the ground that his removal from US in 1984 was contrary to the orders of US Courts. The relevant portion is as under: "29. While dealing with a case of custody of a child removed by a parent from one country to another in contravention of the orders of the court where the parties had set up their matrimonial home, the court in the country to which the child has been removed must first consider the question whether the court could conduct an elaborate enquiry on the question of custody or by dealing with the matter summarily order (1974) 1 All ER 913(CA) (1951) AC 352 1998(1) SCC 112 a parent to return custody of the child to the country from which the child was removed and all aspects relating to the child's welfare be investigated in a court in his own country. Should the court take a view that an elaborate enquiry is necessary, obviously the court is bound to consider the welfare and happiness of the child as the paramount consideration and go into all relevant aspects of welfare of the child including stability and security, loving and understanding care and guidance and full development of the child's character, personality and talents. While doing so, the order of a foreign court as to his custody may be given due weight; the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case. 30. However, in a case where the court decides to exercise its jurisdiction summarily to return the child to his own country, keeping in view the jurisdiction of the court in the native country which has the closest concern and the most intimate contact with the issues arising in the case, the court may leave the aspects relating to the welfare of the child to be investigated by the court in his own native country as that could be in the best interests of the child. The indication given in McKee v. McKee [1951 AC 352 : (1951) 1 All ER 942 (PC)] that there may be cases in which it is proper for a court in one jurisdiction to make an order directing that a child be returned to a foreign jurisdiction without investigating the merits of the dispute relating to the care of the child on the ground that such an order is in the best interests of the child has been explained in Rs.(Minors), In re [(1974) 1 WLR 250 : (1974) 1 All ER 913 (CA)] and the said view has been approved by this Court in Dhanwanti Joshi [(1998) 1 SCC 112] . Similar view taken by the Court of Appeal in H. (Infants), In re [(1966) 1 WLR 381 (Ch and CA) : (1966) 1 All ER 886 (CA)] has been approved by this Court in Elizabeth Dinshaw [(1987) 1 SCC 42 : 1987 SCC (Cri) 13]." This Court once again reiterated the principles of the closest concern, most intimate contact with the issues arising in the case, natural habitat of the minor child, best interest of the child and comity of Courts. This Court eventually directed the child to be taken to US from where he was removed to enable the parties to establish their right in the native state of the child, i.e. US. In Surya Vadanan's case(supra), it was a case where the spouses were of Indian origin and later the husband became the citizen of UK. They got married in India and had two daughters in UK. The wife also became a British citizen and had a British passport. After matrimonial dispute arose between them, the wife returned to India with her daughters and filed a petition under Section 13(1) (ia) of the Hindu Marriage Act , 1955 seeking divorce in the Family Court. At the same time, husband filed a petition in the High Court of Justice. The said Court had passed an order making the children wards of the Court during their minority or until further orders of the court and the wife was directed to return the children to the jurisdiction of the foreign court. This Court applied the principles of (i) "the first strike", i.e the UK Court had passed effective and substantial order declaring the children of the parties as wards of that court, (ii) the comity of courts and (iii) the best interest and welfare of the child. It also held that the "most intimate contact" doctrine and the "closest concern" laid down in Surinder Kaur Sandhu's case(supra) are very much alive and cannot be ignored only because their application might be uncomfortable in certain situations. The Court also reiterated that the best interest and welfare of the child are of paramount importance which shall always be kept in mind by the courts while adjudicating the disputes. This was followed by a three Judge Bench of this Court in Nithya Anand Raghavan's case(supra) in which one of us(Justice Khanwilkar) was a party. In that case, the couple married on 30 th November, 2006 at Chennai and shifted to UK in early 2007. Disputes arose between the spouse. The wife had conceived in December, 2008 came to New Delhi in June 2009 and stayed there with her parents and she gave birth to a girl child in August, 2009 at Delhi. After the husband arrived in India, the couple went back to UK in March, 2010 and following certain unsavoury events, the wife and the daughter returned to India in August 2010. After exchange of legal correspondence, the wife and her daughter went back to London in December 2011. In July, 2014, the wife returned to India along with her daughter and early 2015 the child became ill and was diagnosed with cardiac disorder and due to the alleged violent behavior of her husband filed complaint against him at the GAW Cell, New Delhi. In 2016, husband filed custody/wardship petition in UK to seek return of the child. He also filed habeas corpus petition in 2017 in Delhi High Court which was allowed. The matter was brought before this Court by the wife. This Court heavily relied upon its earlier judgment in Dhanwanti Joshi's case(supra) which in turn referred to Mckee's case(supra) where the Privy Council held that the order of foreign court would yield to the welfare of the child and that the comity of courts demanded not its enforcement, but its grave consideration. This Court also relied upon the judgment in V. Ravi Chandran's case(supra) and held that the role of the High Court in examining the cases of custody of a minor is on the touchstone of principle of parents patriae jurisdiction, as the minor is within the jurisdiction of the Court. This Court further held that the High Court while dealing with the petition for issuance 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 into consideration. It was held further by this Court that each case must depend on the totality of the facts and circumstances brought before it while considering the welfare of the child which is of paramount consideration and the order of the foreign Court must yield to the welfare of the child and 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. It was further observed that 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 resort to any proceedings as may be permissible in law before the Indian Court for the custody of the child, if so advised. This Court has disapproved paragraph 56 (a) to (d) in Surya Vadanan's case(supra) which reads as follows: "56. However, if there is a preexisting order of a foreign court of competent jurisdiction and the domestic court decides to conduct an elaborate inquiry (as against a summary inquiry), it must have special reasons to do so. An elaborate inquiry should not be ordered as a matter of course. While deciding whether a summary or an elaborate inquiry should be conducted, the domestic court must take into consideration: (a) The nature and effect of the interim or interlocutory order passed by the foreign court. (b) The existence of special reasons for repatriating or not repatriating the child to the jurisdiction of the foreign court. (c) The repatriation of the child does not cause any moral or physical or social or cultural or psychological harm to the child, nor should it cause any legal harm to the parent with whom the child is in India. There are instances where the order of the foreign court may result in the arrest of the parent on his or her return to the foreign country. [ Arathi Bandi v. Bandi Jagadrakshaka Rao , (2013) 15 SCC 790 : (2014) 5 SCC (Civ) 475] In such cases, the domestic court is also obliged to ensure the physical safety of the parent. (d) The alacrity with which the parent moves the foreign court concerned or the domestic court concerned, is also relevant. If the time gap is unusually large and is not reasonably explainable and the child has developed firm roots in India, the domestic court may be well advised to conduct an elaborate inquiry." As regards clauses (a) to (c) of paragraph 56 above, this Court termed the same as tending to drift away from the exposition in Dhanwanti Joshi's case(supra) and V. Ravi Chandran's case(supra) and with regard to clause (d), this Court disagreed with the same, and it was finally concluded as under: "69. We once again reiterate that the exposition in Dhanwanti Joshi [Dhanwanti Joshi v. Madhav Unde , (1998) 1 SCC 112] is a good law and has been quoted with approval by a threeJudge Bench of this Court in V. Ravi Chandran (2) [V. Ravi Chandran (2) v. Union of India, (2010) 1 SCC 174 : (2010) 1 SCC (Civ) 44] . We approve the view taken in Dhanwanti Joshi, inter alia, in para 33 that so far as non Convention countries are concerned, the law is that the court in the country to which the child is removed while considering the question must bear in mind the welfare of the child as of paramount importance and consider the order of the foreign court as only a factor to be taken into consideration. The summary jurisdiction to return the child be exercised in cases where the child had been removed from its native land and removed to another country where, may be, his native language is not spoken, or the child gets divorced from the social customs and contacts to which he has been accustomed, or if its education in his native land is interrupted and the child is being subjected to a foreign system of education, for these are all acts which could psychologically disturb the child. Again the summary jurisdiction be exercised only if the court to which the child has been removed is moved promptly and quickly. The overriding consideration must be the interests and welfare of the child." The essence of the judgment in Nithya Anand Raghavan's case(supra) is that the doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding custody of the minor child, citizenship of the parents and the child etc. cannot override the consideration of the best interest and the welfare of the child and that the direction to return the child to the foreign jurisdiction must not result in any physical, mental, psychological, or other harm to the child. In Kanika Goel Vs. State of Delhi through Station House Officer and another10 in which one of us(Justice Khanwilkar) is a member, the marriage of the couple was solemnized in New Delhi and accordingly girl child was born in US in 2014. The mother along with the child came to India in December, 2016 with their return ticket to Chicago in January 2017. She filed a divorce petition after coming to India in Delhi and husband filed emergency custody petition in US Court. Wife obtained an exparte order from Family Court, Delhi restraining husband from removing the child 2018(9) SCC 578 from India on 11th January, 2017. Husband obtained exparte order for interim sole custody on 13 th January, 2017 from foreign Court. At the same time, husband filed Habeas Corpus Petition in Delhi High Court which ordered the mother to comply with the order of UK Court. This Court, after taking into consideration totality of facts and circumstances, observed that the custody of the minor girl child to remain with the appellant mother until she attains the age of majority or the court of competent jurisdiction, trying the issue of custody of the minor. X-------X-------X-------X-------X-------X-------X----X It is not in dispute that both the minor children, from the very inception of their birth, till removal from the US on 23 rd March, 2017 were living with their parents in US. This fact was admitted by the appellant (Lahari Sakhamuri) also in the guardianship petition filed before the Family Court, Hyderabad and also in the divorce and custody petition filed by her in US and only after hearing learned counsel for the parties, order was passed by the US Court on 22nd May, 2017 on the emergency custody petition granting temporary physical custody of the children with further direction to the appellant (Lahari Sakhamuri) to return along with the children to the jurisdiction of US Court on 2 nd June, 2017. In case she was aggrieved by the order dated 22 nd May, 2017 passed by the US Court after affording an opportunity of hearing which she contested through her Attorney, all the courses were available to her to assail the order of the Court. Since the appellant (Lahari Sakhamuri) failed in returning the children to the jurisdiction of the US Court despite order dated 22nd May, 2017, there was no option left with the respondent (Sobhan Kodali) but to file a Habeas Corpus Petition and pray that the children be repatriated back to US in compliance of the order of the US Court."
(3.) Learned counsel for respondent no.3 has opposed the petition and has submitted that the petition was liable to be dismissed as respondent no.3 was the natural guardian of the child. It was in the best interest of the child who is aged about two years to live in the custody of her mother. By way of the present petition, petitioner was practically seeking execution of the order Annexure P-9, hence, this petition is liable to be dismissed. In support of his arguments, learned counsel has placed reliance on the decision of the Hon'ble Supreme Court in Nithya Anand Raghavan Vs. State (NCT of DELHI) and Another in (2017) 8 Supreme Court Cases 454, decided on July 3, 2017, wherein, it was held as under:- "The consistent view of this court is that if the child has been brought within India, the Courts in India may conduct (a) summary inquiry or (b) an elaborate inquiry on the question of custody. In the case of a summary inquiry, the Court may deem it fit to order return of the child to the country from where he/she was removed unless such return is shown to be harmful to the child. In other words, even in the matter of a summary inquiry, it is open to the Court to decline the relief of return of the child to the country from where he/she was removed irrespective of a pre-existing order of return of the child by a foreign Court. In an elaborate inquiry, the Court is obliged to examine the merits as to where the paramount interests and welfare of the child lay and reckon the fact of a pre-existing order of the foreign Court for return of the child as only one of the circumstances. In either case, the crucial question to be considered by the Court (in the country to which the child is removed) is to answer the issue according to the child's welfare. That has to be done bearing in mind the totality of facts and circumstances of each case independently. Even on close scrutiny of the several decisions pressed before us, we do not find any contra view in this behalf. To put it differently, the principle of comity of courts cannot be given primacy or more weightage for deciding the matter of custody or for return of the child to the native state. X------X------X------X-----X-----X-----X-----X-----X 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. Rukhsana24 , 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 the case of Mrs. Elizabeth (supra), 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 Vs. State of NCT of Delhi 15 (2001) 5 SCC 247 and Ors.16 relied upon by the appellant). It is not necessary to multiply the authorities on this proposition. 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 16 113 (2004) Delhi Law Time 823 resort to any other proceedings as may be permissible in law before the Indian Court for the custody of the child, if so advised. In a habeas corpus petition as aforesaid, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person (private respondent named in the writ petition). For considering that issue, in a case such as the present one, it is enough to note that the private respondent was none other than the natural guardian of the minor being her biological mother. Once that fact is ascertained, it can be presumed that the custody of the minor with his/her mother is lawful. In such a case, only in exceptionable situation, the custody of the minor (girl child) may be ordered to be taken away from her mother for being given to any other person including the husband (father of the child), in exercise of writ jurisdiction. Instead, the other parent can be asked to resort to a substantive prescribed remedy for getting custody of the child. The next question to be considered by the High Court would be whether an order passed by the foreign court, directing the mother to produce the child before it, would render the custody of the minor unlawful? Indubitably, merely because such an order is passed by the foreign court, the custody of the minor would not become unlawful per se. X------X------X------X-----X-----X-----X-----X-----X In the present case, we are of the considered opinion that taking the totality of the facts and circumstances of the case into account, it would be in the best interests of the minor (Nethra) to remain in custody of her mother (appellant) else she would be exposed to harm if separated from the mother. We have, therefore, no hesitation in overturning the conclusion reached by the High Court. Further, we find that the High Court was unjustly impressed by the principle of comity of courts and the obligation of the Indian Courts to comply with a pre-existing order of the foreign Court for return of the child and including the "first strike" principle referred to in Surya Vadanan's case (supra). We once again reiterate that the exposition in the case of Dhanwanti Joshi (supra) is a good law and has been quoted with approval by a three- judge bench of this Court in V. Ravi Chandran (supra). We approve the view taken in Dhanwanti Joshi (supra), inter alia in paragraph 33 that so far as non-convention countries are concerned, the law is that the Court in the country to which the child is removed while considering the question must bear in mind the welfare of the child as of paramount importance and consider the order of the foreign Court as only a factor to be taken into consideration. The summary jurisdiction to return the child be exercised in cases where the child had been removed from its native land and removed to another country where, may be, his native language is not spoken, or the child gets divorced from the social customs and contacts to which he has been accustomed, or if its education in his native land is interrupted and the child is being subjected to a foreign system of education, - for these are all acts which could psychologically disturb the child. Again the summary jurisdiction be exercised only if the court to which the child has been removed is moved promptly and quickly. The overriding consideration must be the interests and welfare of the child." ;