landmark judgments of supreme court of india on CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING
of comity of courts as applicable to India in respect of child custody matters has been
succinctly delineated in several decisions of this Court. …
66. The invocation of first strike principle as a decisive factor, in our opinion, would
undermine and whittle down the wholesome principle of the duty of the Court having
jurisdiction to consider the best interests and welfare of the child, which is of paramount
importance. If the Court is convinced in that regard, the fact that there is already an
order passed by a foreign Court in existence may not be so significant as it must yield
to the welfare of the child. That is only one of the factors to be taken into consideration.
The interests and welfare of the child are of paramount consideration. The principle of
comity of courts as observed in Dhanwanti Joshi case [1998(1) SCC 112], in relation to
non-convention countries is that the Court in the country to which the child is removed
will consider the question on merits bearing 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. While considering that aspect, the Court may reckon the fact that
the child was abducted from his or her country of habitual residence but the Court’s
overriding consideration must be the child’s welfare.”
(4) In view of above, principle of comity of courts or principle of forum convenience alone cannot
determine the threshold bar of jurisdiction. Paramount consideration is the best interest of
child. The same cannot be subject-matter of final determination in proceedings under Order
VII Rule 11 of the C.P.C.
(5) Accordingly, we set aside the impugned order. The application under Order VII Rule 11 is
dismissed.
(6) Since it is pointed out that the proceedings on the same subject-matter are also pending before
the High Court, the trial court may wait for the decision of the High Court before proceeding
further.
(7) We make it clear that we have not expressed any opinion on the merits of the case and the Family
Court may now decide the matter expeditiously and as far as possible within six months from
today.
(8) The parties are directed to appear before the Family Court for further proceedings on Saturday,
the 24th February, 2018. (9) In view of above, the appeal is disposed of.
qqq
page no. | 92 |
Surya Vadanan Versus State of Tamil Nadu & Ors.
Surya Vadanan Versus State of Tamil Nadu & Ors.
SUPREME COURT OF INDIA
Bench: Hon’ble Mr. Justice Madan B. Lokur & Hon’ble Mr. Justice Uday Umesh Lalit
Surya Vadanan …Appellant
Versus
State of Tamil Nadu & Ors. …Respondents
Criminal Appeal No. 395 of 2015
(Arising out of S.L.P. (Crl.) No.3634 of 2014)
Surya filed a writ petition in the Madras High Court in February 2013 (being HCP No.522 of
2013) for a writ of habeas corpus on the ground, inter alia, that Mayura had illegal custody
of the two daughters of the couple that is Sneha Lakshmi Vadanan and Kamini Lakshmi
Vadanan and that they may be produced in court and appropriate orders may be passed
thereafter.
There are five comparatively recent and significant judgments delivered by this court on
the issue of child custody where a foreign country or foreign court is concerned on the one
hand and India or an Indian court (or domestic court) is concerned on the other. These
decisions are:
(1) Sarita Sharma v. Sushil Sharma, (2) Shilpa Aggarwal v. Aviral Mittal & Anr., (3) V. Ravi
Chandran v. Union of India, (4) Ruchi Majoo v. Sanjeev Majoo, and (5) Arathi Bandi
v. Bandi Jagadrakshaka Rao. These decisions were extensively read out to us and we
propose to deal with them in seriatim. (1) Sarita Sharma v. Sushil Sharma.
The following principles were accepted and adopted by this court:
(1) The welfare of the child is the paramount consideration. Simply because a foreign
court has taken a particular view on any aspect concerning the welfare of a child is
not enough for the courts in this country to shut out an independent consideration
of the matter. The principle of comity of courts simply demands consideration of an
order passed by a foreign court and not necessarily its enforcement.
(2) One of the factors to be considered whether a domestic court should hold a summary
inquiry or an elaborate inquiry for repatriating the child to the jurisdiction of the
foreign court is the time gap in moving the domestic court for repatriation. The longer
the time gap, the lesser the inclination of the domestic courts to go in for a summary
inquiry.
(3) An order of a foreign court is one of the factors to be considered for the repatriation
of a child to the jurisdiction of the foreign court. But that will not override the
consideration of welfare of the child. Therefore, even where the removal of a child
page no. | 93 |
landmark judgments of supreme court of india on CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING
from the jurisdiction of the foreign court goes against the orders of that foreign court,
giving custody of the child to the parent who approached the foreign court would not
be warranted if it were not in the welfare of the child.
(4) Whereachildhasbeenremovedfromthejurisdictionofaforeigncourtincontravention
of an order passed by that foreign court where the parties had set up their matrimonial
home, the domestic court must consider whether to conduct an elaborate or summary
inquiry on the question of custody of the child. If an elaborate inquiry is to be held, the
domestic court may give due weight to the order of the foreign court depending upon
the facts and circumstances in which such an order has been passed.
(5) A constitutional court exercising summary jurisdiction for the issuance of a writ
of habeas corpus may conduct an elaborate inquiry into the welfare of the child
whose custody is claimed and a Guardian Court (if it has jurisdiction) may conduct a
summary inquiry into the welfare of the child, depending upon the facts of the case.
(6) Since the interest and welfare of the child is paramount, a domestic court “is entitled
and indeed duty-bound to examine the matter independently, taking the foreign
judgment, if any, only as an input for its final adjudication.”
This court took into consideration various principles laid down from time to time in
different decisions rendered by this court with regard to the custody of a minor child. It
was held that:
(1) It is the duty of courts in all countries to see that a parent doing wrong by removing a
child out of the country does not gain any advantage of his or her wrong doing.
(2) In a given case relating to the custody of a child, it may be necessary to have an
elaborate inquiry with regard to the welfare of the child or a summary inquiry 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.
(3) Merely because a child has been brought to India from a foreign country does not
necessarily mean that the domestic court should decide the custody issue. It would be
in accord with the principle of comity of courts to return the child to the jurisdiction
of the foreign court from which he or she has been removed.
JUDGMENT
Hon’ble Mr. Justice Madan B. Lokur :—
1. Leave granted.
2. The question before us relates to the refusal by the Madras High Court to issue a writ of habeas
corpus for the production of the children of Surya Vadanan and Mayura Vadanan. The appellant
sought their production to enable him to take the children with him to the U.K. since they were
wards of the court in the U.K. to enable the foreign court to decide the issue of their custody.
3. In our opinion, the High Court was in error in declining to issue the writ of habeas corpus.
page no. | 94 |
Surya Vadanan Versus State of Tamil Nadu & Ors.
The facts
4. The appellant (hereafter referred to as Surya) and respondent No.3 (hereafter referred to as
Mayura) were married in Chennai on 27th January, 2000. While both are of Indian origin, Surya
is a resident and citizen of U.K. and at the time of marriage Mayura was a resident and citizen of
India.
5. Soon after their marriage Mayura joined her husband Surya in U.K. sometime in March 2000.
Later she acquired British citizenship and a British passport sometime in February 2004. As
such, both Surya and Mayura are British citizens and were ordinarily resident in U.K. Both were
also working for gain in the U.K.
6. On 23rd September, 2004, a girl child Sneha Lakshmi Vadanan was born to the couple in U.K.
Sneha Lakshmi is a British citizen by birth. On 21st September, 2008 another girl child Kamini
Lakshmi Vadanan was born to the couple in U.K. and she too is a British citizen by birth. The
elder girl child is now a little over 10 years of age while the younger girl child is now a little over
6 years of age.
7. It appears that the couple was having some matrimonial problems and on 13th August, 2012
Mayura left U.K. and came to India along with her two daughters. Before leaving, she had
purchased return tickets for herself and her two daughters for 2nd September, 2012. She says
that the round-trip tickets were cheaper than one-way tickets and that is why she had purchased
them.
According to Surya, the reason for the purchase of roundtrip tickets was that the children’s
schools were reopening on 5th September, 2012 and she had intended to return to U.K. before
the school reopening date.
8. Be that as it may, on her arrival in India, Mayura and her daughters went to her parents house in
Coimbatore (Tamil Nadu) and have been staying there ever since.
9. On 21st August, 2012 Mayura prepared and signed a petition under Section 13(1)(i-a) of the
Hindu Marriage Act, 19551 seeking a divorce from Surya. The petition was filed in the Family
Court in Coimbatore on 23rd August, 2012. We are told that an application for the custody of
the two daughters was also filed by Mayura but no orders seem to have been passed on that
application one way or the other.
10. On or about 23rd August, 2012 Surya came to know that Mayura was intending to stay on
in India along with their two daughters. Therefore, he came to Coimbatore on or about 27th
August, 2012 with a view to amicably resolve all differences with Mayura. Interestingly while
in Coimbatore, Surya lived in the same house as Mayura and their two daughters, that is, with
Surya’s in-laws. According to Surya, he was unaware that Mayura had already filed a petition to
divorce him.
1 13. Divorce.—(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition
presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party—
(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her
spouse; or
(i-a) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (i-b) has deserted the petitioner
for a continuous period of not less than two years immediately preceding the presentation of the petition; or [rest of the
provision is not relevant]
page no. | 95 |
landmark judgments of supreme court of india on CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING
11. Since it appeared that the two daughters of the couple were not likely to return to U.K. in the
immediate future and perhaps with a view that their education should not be disrupted, the
children were admitted to a school in Coimbatore with Surya’s consent.
12. Since Surya and Mayura were unable to amicably (or otherwise) resolve their differences, Surya
returned to U.K. on or about 6th September, 2012. About a month later, on 16th October, 2012
he received a summons dated 6th October, 2012 from the Family Court in Coimbatore in the
divorce petition filed by Mayura requiring him to enter appearance and present his case on 29th
October, 2012. We are told that the divorce proceedings are still pending in the Family Court in
Coimbatore and no substantial or effective orders have been passed therein.
Proceedings in the U.K.
13. Faced with this situation, Surya also seems to have decided to initiate legal action and on 8th
November, 2012 he petitioned the High Court of Justice in U.K. (hereinafter referred to as
‘the foreign court’) for making the children as wards of the court. It seems that along with this
petition, he also annexed documents to indicate (i) that he had paid the fees of the children for
a private school in U.K. with the intention that the children would continue their studies in U.K.
(ii) that the children had left the school without information that perhaps they would not be
returning to continue their studies.
14. On 13th November, 2012 the High Court of Justice passed an order making the children wards
of the court “during their minority or until such time as this provision of this order is varied or
alternatively discharged by the further order of the court” and requiring Mayura to return the
children to the jurisdiction of the foreign court. The relevant extract of the order passed by the
foreign court on 13th November, 2012 reads as under:-
“IT IS ORDERED THAT:
1. The children SNEHA LAKSHMI VADANAN AND KAMINI LAKSHMI VADANAN
shall be and remain wards of this Honourable Court during their minority or until such
time as this provision of this order is varied or alternatively discharged by the further
order of the court.
2. The Respondent mother shall :
a. By no later than 4 p.m. on 20th November 2012 inform the father, through his
solicitors (Messrs Dawson Cornwell, 15 Red Lion Square, London, WC1R 4QT.
Tel: 0207 242 2556 Ref: SJ/AMH), of the current care arrangements for the
children;
b. By no later than 4 p.m. on 20th November 2012 inform the father, through his
said solicitors, of the arrangements that will be made for the children’s return
pursuant to paragraph 2(c) herein;
c. Return the children to the jurisdiction of England and Wales by no later than
11.59 p.m. on 27th November 2012;
d. Attend at the hearing listed pursuant to paragraph 3 herein, together with solicitors
and/or counsel if so instructed. A penal notice is attached to this paragraph.
page no. | 96 |
Surya Vadanan Versus State of Tamil Nadu & Ors.
3. The matter shall be adjourned and relisted for further directions or alternatively
determination before a High Court Judge of the Family Division sitting in chambers
at the Royal Court of Justice, Strand, London on 29th November 2012 at 2 p.m. with a
time estimate of 30 minutes.
4. The mother shall have leave, if so advised, to file and serve a statement in response to the
statement of the Applicant father. Such statement to be filed and served by no later than
12 noon on 29th November 2012.
5. Immediately upon her and the children’s return to the jurisdiction of England and Wales
the mother shall lodge her and the children’s passports and any other travel documents
with the Tipstaff (Tipstaff ’s Office, Royal Courts of Justice, Strand, London) to be held
by him to the order of the court.
6. The solicitors for the Applicant shall have permission to serve these proceedings, together
with this order, upon the Respondent mother outside of the jurisdiction of England and
Wales, by facsimile or alternatively scanned and e-mailed copy if necessary.
7. The Applicant father shall have leave to disclose this order to:
a. The Foreign and Commonwealth Office;
b. The British High Commission, New Delhi;
c. The Indian High Commission, London
d. Into any proceedings as the mother may have issued of India, including any divorce
proceedings.
8. Costs reserved.
AND THIS HON’BLE COURT RESPECTFULLY REQUESTS THAT the administrative
authorities of the British Government operating in the jurisdiction of India and the judicial
and administrative authorities of India, including the Indian High Commission in England,
assist in any way within their power and control in ascertaining the current whereabouts of
the children herein, who have been made wards of court, and in assisting in repatriating them
to England and Wales, the country of their habitual residence.”
15. In response to the petition filed by Surya, a written statement was filed by Mayura on 20th
November, 2012. A rejoinder was filed by Surya on 13th December, 2012.
16. Apparently, after taking into consideration the written statement, the foreign court passed
another order on 29th November, 2012 virtually repeating its earlier order and renewing its
request to the administrative authorities of the British Government in India and the judicial
and administrative authorities in India for assistance for repatriation of the wards of the court
to England and Wales, the country of their habitual residence. The relevant extract of the order
dated 29th November, 2012 reads as under:-
“IT IS ORDERED THAT :
1. The children SNEHA LAKSHMI VADANAN AND KAMINI VADANAN shall be and
remain wards of this Hon’ble Court during their minority and until such time as this
provision of this Order is varied or alternatively discharged by the further Order of the
Court.
page no. | 97 |
landmark judgments of supreme court of india on CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING
2. The 1st Respondent mother, 2nd Respondent maternal Grandfather and 3rd Respondent
maternal Grandmother shall:
a. Forthwith upon serve of this Order upon them inform the father, through his said
solicitors, of the arrangements that will be made for the children’s return pursuant
to paragraph 2(c) herein;2
b. Return the children to the jurisdiction of England and Wales forthwith upon
service of this Order upon them;
A penal notice is attached to this paragraph.
3. The matter shall be adjourned and relisted for further directions or alternatively
determination before a High Court Judge of the Family Division sitting in chambers at
the Royal Court of Justice, Strand, London within 72 hours of the return of the children
or alternatively upon application to the Court for a further hearing.
4. The father shall have leave, if so advised, to file and serve a statement of the mother.
Such statement to be filed and served by no later than 12 noon on 13th December 2012.
5. Immediately upon her and the children’s return to the jurisdiction of England and Wales
the mother shall lodge her and the children’s passports and any other travel documents
with the Tipstaff (Tipstaff ’s Office, Royal Courts of Justice, Strand, London) to be held
by him to the Order of the Court.
6. The solicitors for the Applicant shall have permission to serve these proceedings, together
with this Order, upon the Respondent mother outside of the jurisdiction of England and
Wales, by facsimile or alternatively scanned and e-mailed copy if necessary.
7. The Applicant father shall have leave to disclose this order to:
a. The Foreign and Commonwealth Office;
b. The British High Commission, New Delhi;
c. The Indian High Commission, London;
d. Into any proceedings as the mother may have issued in the jurisdiction of India,
including any divorce proceedings.
8. The maternal grandparents Dr. Srinivasan Muralidharan and Mrs. Rajkumari
Murlidharan shall be joined as Respondents to this application as the 2nd and 3rd
Respondents respectively.
9. The mother shall make the children available for skype or alternatively telephone contact
each Sunday and each Wednesday at 5.30 p.m. Indian time.
10. Liberty to the 1st Respondent mother, 2nd Respondent maternal Grandfather and 3rd
Respondent maternal grandmother to apply to vary and/or discharge this order (or any
part of it) upon reasonable notice to the Court and to the solicitors for the father.
11. Costs reserved.
2 There is no paragraph 2(c) in the text of the order supplied to this court.
page no. | 98 |
Surya Vadanan Versus State of Tamil Nadu & Ors.
AND THIS HON’BLE COURT RESPECTFULLY REQUESTS THAT the administrative
authorities of the British Government operating in the jurisdiction of India and the judicial
and administrative authorities of India, including the Indian High Commission in England,
assist in any way within their power and control in ascertaining the current whereabouts of
the children herein, who have been made wards of court, and in assisting in repatriating them
to England and Wales, the country of their habitual residence.”
17. We are told that no further effective or substantial orders have been passed by the foreign court
thereafter.
Proceedings in the High Court
18. Since Mayura was not complying with the orders passed by the foreign court, Surya filed a writ
petition in the Madras High Court in February 2013 (being HCP No.522 of 2013) for a writ of
habeas corpus on the ground, inter alia, that Mayura had illegal custody of the two daughters of
the couple that is Sneha Lakshmi Vadanan and Kamini Lakshmi Vadanan and that they may be
produced in court and appropriate orders may be passed thereafter.
19. After completion of pleadings, the petition filed by Surya was heard by the Madras High
Court and by a judgment and order dated 4th November, 2013 the writ petition was effectively
dismissed.
20. The Madras High Court, in its decision, took the view that the welfare of the children (and not
the legal right of either of the parties) was of paramount importance. On facts, the High Court
was of opinion that since the children were in the custody of Mayura and she was their legal
guardian, it could not be said that the custody was illegal in any manner. It was also noted that
Surya was permitted to take custody of the children every Friday, Saturday and Sunday during
the pendency of the proceedings in the Madras High Court; that the order passed by the foreign
court had been duly complied with and that Surya had also returned to the U.K. On these facts
and in view of the law, the Madras High Court “closed” the petition filed by Surya seeking a writ
of habeas corpus.
21. Feeling aggrieved, Surya has preferred the present appeal on or about 9th April, 2014.
Important decisions of this court
22. There are five comparatively recent and significant judgments delivered by this court on the
issue of child custody where a foreign country or foreign court is concerned on the one hand
and India or an Indian court (or domestic court) is concerned on the other. These decisions are:
(1) Sarita Sharma v. Sushil Sharma3, (2) Shilpa Aggarwal v. Aviral Mittal & Anr.4, (3) V. Ravi
Chandran v. Union of India5, (4) Ruchi Majoo v. Sanjeev Majoo6, and (5) Arathi Bandi v. Bandi
Jagadrakshaka Rao.7 These decisions were extensively read out to us and we propose to deal with
them in seriatim. (1) Sarita Sharma v. Sushil Sharma
23. As a result of matrimonial differences between Sarita Sharma and her husband Sushil Sharma
an order was passed by a District Court in Texas, USA regarding the care and custody of their
3 (2000) 3 SCC 14
4 (2010) 1 SCC 591
5 (2010) 1 SCC 174
6 (2011) 6 SCC 479
7 (2013) 15 SCC 790
page no. | 99 |
landmark judgments of supreme court of india on CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING
children (both American citizens) and their respective visiting rights. A subsequent order placed
the children in the care of Sushil Sharma and only visiting rights were given to Sarita Sharma.
Without informing the foreign court, Sarita Sharma brought the children to India on or about
7th May, 1997.
24. Subsequently on 12th June, 1997 Sushil Sharma obtained a divorce decree from the foreign
court and also an order that the sole custody of the children shall be with him. Armed with this,
he moved the Delhi High Court on 9th September, 1997 for a writ of habeas corpus seeking
custody of the children. The High Court allowed the writ petition and ordered that the passports
of the children be handed over to Sushil Sharma and it was declared that he could take the
children to USA without any hindrance. Feeling aggrieved, Sarita Sharma preferred an appeal in
this court.
25. This court noted that Sushil Sharma was an alcoholic and had used violence against Sarita
Sharma. It also noted that Sarita Sharma’s conduct was not “very satisfactory” but that before
she came to India, she was in lawful custody of the children but “she had committed a breach of
the order of the American Court directing her not to remove the children from the jurisdiction
of that Court without its permission.”
26. This court noted the following principles regarding custody of the minor children of the couple:
(1) The modern theory of the conflict of laws recognizes or at least prefers the jurisdiction of
the State which has the most intimate contact with the issues arising in the case.8
(2) Even though Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes
the father as the natural guardian of a minor son, that provision cannot supersede the
paramount consideration as to what is conducive to the welfare of the minor.9
(3) The domestic court will consider the welfare of the child as of paramount importance and
the order of a foreign court is only a factor to be taken into consideration.10
On the merits of the case, this Court observed:
“Considering all the aspects relating to the welfare of the children, we are of the opinion that
in spite of the order passed by the Court in U.S.A. it was not proper for the High Court to
have allowed the habeas corpus writ petition and directed the appellant to hand over custody
of the children to the respondent and permit him to take them away to U.S.A. What would
be in the interest of the children requires a full and thorough inquiry and, therefore, the High
Court should have directed the respondent to initiate appropriate proceedings in which such
an inquiry can be held.”
27. Notwithstanding this, neither was the matter remanded to the High Court for issuing such
a direction to Sushil Sharma to approach the appropriate court for conducting a “full and
thorough” inquiry nor was such a direction issued by this court. The order of the Delhi High
Court was simply set aside and the writ petition filed by Sushil Sharma was dismissed.
8 Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3 SCC 698
9 Surinder Kaur Sandhu v. Harbax Singh Sandhu
10 Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112 which in turn referred to McKee v. McKee, 1951 AC 352: (1951) 1 All ER
942 (PC)
page no. | 100 |
Surya Vadanan Versus State of Tamil Nadu & Ors.
28. We may note that significantly, this court did not make any reference at all to the principle of
comity of courts nor give any importance (apart from its mention) to the passage quoted from
Surinder Kaur Sandhu to the effect that:
“The modern theory of Conflict of Laws recognizes and, in any event, prefers the jurisdiction of
the State which has the most intimate contact with the issues arising in the case. Jurisdiction is
not attracted by the operation or creation of fortuitous circumstances such as the circumstance
as to where the child, whose custody is in issue, is brought or for the time being lodged. To
allow the assumption of jurisdiction by another State in such circumstances will only result in
encouraging forum shopping. Ordinarily, jurisdiction must follow upon functional lines. That
is to say, for example, that in matters relating to matrimony and custody, the law of that place
must govern which has the closest concern with the well-being of the spouses and the welfare
of the offsprings of marriage.”
(2) Shilpa Aggarwal v. Aviral Mittal & Anr.
29. Shilpa Aggarwal and her husband Aviral Mittal were both British citizens of Indian origin.
They had a minor child (also a foreign national) from their marriage. They had matrimonial
differences and as a result, Shilpa Aggarwal came to India from the U.K. with their minor child.
She was expected to return to the U.K. but cancelled their return tickets and chose to stay on in
India. Aviral Mittal thereupon initiated proceedings before the High Court of Justice, Family
Division, U.K. and on 26th November, 2008 the foreign court directed Shilpa Aggarwal, inter
alia, to return the minor child to the jurisdiction of that foreign court. Incidentally, the order
passed by the foreign court is strikingly similar to the order passed by the foreign court subject
matter of the present appeal.
30. Soon thereafter, Shilpa Aggarwal’s father filed a writ petition in the Delhi High Court seeking
protection of the child and for a direction that the custody of the child be handed over to him.
The High Court effectively dismissed the writ petition and granted time to Shilpa Aggarwal to
take the child on her own to the U.K. and participate in the proceedings in the foreign court
failing which the child be handed over to Aviral Mittal to be taken to the U.K. as a measure of
interim custody, leaving it for the foreign court to determine which parent would be best suited
to have the custody of the child.
31. Feeling aggrieved, Shilpa Aggarwal preferred an appeal before this court which noted and
observed that the following principles were applicable for deciding a case of this nature:
(1) There are two contrasting principles of law, namely, comity of courts and welfare of the
child.
(2) In matters of custody of minor children, the sole and predominant criterion is the interest
and welfare of the minor child.11 Domestic courts cannot be guided entirely by the fact
that one of the parents violated an order passed by a foreign court.12
32. On these facts and applying the principles mentioned above, this court agreed with the view
of the High Court that the order dated 26th November, 2008 passed by the foreign court did
not intend to separate the child from Shilpa Aggarwal until a final decision was taken with
11 Elizabeth Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42. Even though this court used the word “sole”, it is clear that it did
not reject or intend to reject the principle of comity of courts.
12 Sarita Sharma v. Sushil Sharma
page no. | 101 |
landmark judgments of supreme court of india on CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING
regard to the custody of the child. The child was a foreign national; both parents had worked for
gain in the U.K. and both had acquired permanent resident status in the U.K. Since the foreign
court had the most intimate contact13 with the child and the parents, the principle of “comity
of courts” required that the foreign court would be the most appropriate court to decide which
parent would be best suited to have custody of the child.
(3) V. Ravi Chandran v. Union of India
33. The mother (Vijayasree Voora) had removed her minor child (a foreign national) from the
U.S.A. in violation of a custody order dated 18th June, 2007 passed by the Family Court of the
State of New York. The custody order was passed with her consent and with the consent of the
child’s father (Ravi Chandran, also a foreign national).
34. On 8th August, 2007, Ravi Chandran applied for modification of the custody order and was
granted, the same day, temporary sole legal and physical custody of the minor child and
Vijayasree Voora was directed to immediately turn over the minor child and his passport to Ravi
Chandran and further, her custodial time with the child was suspended. The foreign court also
ordered that the issue of custody of the child shall be heard by the jurisdictional Family Court in
the USA.
35. On these broad facts, Ravi Chandran moved a petition for a writ of habeas corpus in this court
for the production of the child and for his custody. The child was produced in this court and
the question for consideration was: “What should be the order in the facts and circumstances
keeping in mind the interest of the child and the orders of the courts of the country of which the
child is a national.”
36. This court referred to a large number of decisions and accepted the following observations,
conclusions and principles:
(1) The comity of nations does not require a court to blindly follow an order made by a foreign
court.14
(2) Due weight should be given to the views formed by the courts of a foreign country of
which the child is a national. The comity of courts demands not the enforcement of an
order of a foreign court but its grave consideration.15 The weight and persuasive effect of a
foreign judgment must depend on the facts and circumstances of each case.16
(3) The welfare of the child is the first and paramount consideration,17 whatever orders may
have been passed by the foreign court.18
(4) The domestic court is bound to consider what is in the best interests of the child. Although
the order of a foreign court will be attended to as one of the circumstances to be taken into
account, it is not conclusive, one way or the other.19
13 Surinder Kaur Sandhu v. Harbax Singh Sandhu
14 B’s Settlement, In re. B. v. B.,1940 Ch 54: (1951) 1 All ER 949 and McKee v. McKee
15 McKee v. McKee
16 McKee v. McKee
17 McKee v. McKee
18 B’s Settlement, In re
19 Kernot v. Kernot, 1965 Ch 217: (1964) 3 WLR 1210: (1964) 3 All ER 339
page no. | 102 |
Surya Vadanan Versus State of Tamil Nadu & Ors.
(5) One of the considerations that a domestic court must keep in mind is that there is no danger
to the moral or physical health of the child in repatriating him or her to the jurisdiction of
the foreign country.20
(6) While considering whether a child should be removed to the jurisdiction of the foreign
court or not, the domestic court may either conduct a summary inquiry or an elaborate
inquiry in this regard. In the event the domestic court conducts a summary inquiry, it
would return the custody of the child to the country from which the child was removed
unless such return could be shown to be harmful to the child. In the event the domestic
court conducts an elaborate inquiry, the court could go into the merits as to where the
permanent welfare of the child lay and ignore the order of the foreign court or treat the
fact of removal of the child from another country as only one of the circumstances.21 An
order that the child should be returned forthwith to the country from which he or she
has been removed in the expectation that any dispute about his or her custody will be
satisfactorily resolved in the courts of that country may well be regarded as being in the
best interests of the child.22
(7) The modern theory of conflict of laws recognizes and, in any event, prefers the jurisdiction
of the State which has the most intimate contact with the issues arising in the case.
Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such
as the circumstance as to where the child, whose custody is in issue, is brought or for the
time being lodged.23
37. On the facts of the case, it was held that an elaborate inquiry was not required to be conducted.
It was also observed that there was nothing on record which could remotely suggest that it
would be harmful for the child to return to his native country. Consequently, this court directed
the repatriation of the child to the jurisdiction of the foreign court subject to certain directions
given in the judgment.
38. This court also quoted a passage from Sarita Sharma to the effect that a decree passed by a
foreign court cannot override the consideration of welfare of a child.
(4) Ruchi Majoo v. Sanjeev Majoo
39. Ruchi Majoo (wife) had come to India with her child consequent to matrimonial differences
between her and her husband (Sanjeev Majoo). All three that is Ruchi Majoo, Sanjeev Majoo
and their child were foreign nationals.
40. Soon after Ruchi Majoo came to India, Sanjeev Majoo approached the Superior Court of
California, County of Ventura in the USA seeking a divorce from Ruchi Majoo and obtained a
protective custody warrant order on 9th September, 2008 which required Ruchi Majoo to appear
before the foreign court. She did not obey the order of the foreign court perhaps because she had
initiated proceedings before the Guardian Court at Delhi on 28th August, 2008. In any event,
the Guardian Court passed an ex-parte ad interim order on 16th September, 2008 (after the
20 H. (Infants) , In re, (1966) 1 WLR 381 (Ch & CA) : (1966) 1 All ER 886 (CA)
21 L. (Minors), In re, (1974) 1 WLR 250 : (1974) 1 All ER 913 (CA)
22 L. (Minors), In re,
23 Surinder Kaur Sandhu v. Harbax Singh Sandhu
page no. | 103 |
landmark judgments of supreme court of india on CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING
protective custody warrant order passed by the foreign court) to the effect that Sanjeev Majoo
shall not interfere with the custody of her minor child till the next date of hearing.
41. Aggrieved by this order, Rajiv Majoo challenged it through a petition under Article 227 of the
Constitution filed in the Delhi High Court. The order of 16th September, 2008 was set aside
by the High Court on the ground that the Guardian Court had no jurisdiction to entertain the
proceedings since the child was not ordinarily resident in Delhi. It was also held that the issue
of the child’s custody ought to be decided by the foreign court for the reason that it had already
passed the protective custody warrant order and also because the child and his parents were
American citizens.
42. On these broad facts, this court framed three questions for determination. These questions are
as follows:-
(i) Whether the High Court was justified in dismissing the petition for custody of the child
on the ground that the court at Delhi had no jurisdiction to entertain it;
(ii) Whether the High Court was right in declining exercise of jurisdiction on the principle of
comity of courts; and
(iii) Whether the order granting interim custody of the child to Ruchi Majoo calls for any
modification in terms of grant of visitation rights to the father pending disposal of the
petition by the trial court.
43. We are not concerned with the first and the third question. As far as the second question is
concerned, this court was of the view that there were four reasons for answering the question in
the negative. Be that as it may, the following principles were accepted and adopted by this court:
(1) The welfare of the child is the paramount consideration. Simply because a foreign court
has taken a particular view on any aspect concerning the welfare of a child is not enough
for the courts in this country to shut out an independent consideration of the matter.
The principle of comity of courts simply demands consideration of an order passed by a
foreign court and not necessarily its enforcement.24
(2) One of the factors to be considered whether a domestic court should hold a summary
inquiry or an elaborate inquiry for repatriating the child to the jurisdiction of the foreign
court is the time gap in moving the domestic court for repatriation. The longer the time
gap, the lesser the inclination of the domestic courts to go in for a summary inquiry.25
(3) An order of a foreign court is one of the factors to be considered for the repatriation of a
child to the jurisdiction of the foreign court. But that will not override the consideration of
welfare of the child. Therefore, even where the removal of a child from the jurisdiction of
the foreign court goes against the orders of that foreign court, giving custody of the child
to the parent who approached the foreign court would not be warranted if it were not in
the welfare of the child.26
(4) Where a child has been removed from the jurisdiction of a foreign court in contravention
of an order passed by that foreign court where the parties had set up their matrimonial
24 Dhanwanti Joshi v. Madhav Unde
25 Dhanwanti Joshi v. Madhav Unde
26 Sarita Sharma v. Sushil Sharma
page no. | 104 |
Surya Vadanan Versus State of Tamil Nadu & Ors.
home, the domestic court must consider whether to conduct an elaborate or summary
inquiry on the question of custody of the child. If an elaborate inquiry is to be held, the
domestic court may give due weight to the order of the foreign court depending upon the
facts and circumstances in which such an order has been passed.27
(5) A constitutional court exercising summary jurisdiction for the issuance of a writ of habeas
corpus may conduct an elaborate inquiry into the welfare of the child whose custody is
claimed and a Guardian Court (if it has jurisdiction) may conduct a summary inquiry into
the welfare of the child, depending upon the facts of the case.28
(6) Since the interest and welfare of the child is paramount, a domestic court “is entitled and
indeed duty-bound to examine the matter independently, taking the foreign judgment, if
any, only as an input for its final adjudication.”
44. On the facts of the case, this court held that “repatriation of the minor to the United States, on
the principle of “comity of courts” does not appear to us to be an acceptable option worthy of
being exercised at that stage.” Accordingly, it was held that the “Interest of the minor shall be
better served if he continued to be in the custody of his mother [Ruchi Majoo].”
(5) Arathi Bandi v. Bandi Jagadrakshaka Rao
45. The facts in this case are a little complicated and it is not necessary to advert to them in any
detail. The sum and substance was that Arathi Bandi and her husband Bandi Rao were ordinarily
residents of USA and they had a minor child. There were some matrimonial differences between
the couple and proceedings in that regard were pending in a court in Seattle, USA.
46. In violation of an order passed by the foreign court, Arathi Bandi brought the child to India on
17th July, 2008. Since she did not return with the child to the jurisdiction of the foreign court
bailable warrants were issued for her arrest by the foreign court.
47. On or about 20th November, 2009 Bandi Rao initiated proceedings in the Andhra Pradesh High
Court for a writ of habeas corpus seeking production and custody of the child to enable him to
take the child to USA. The Andhra Pradesh High Court passed quite a few material orders in the
case but Arathi Bandi did not abide by some of them resulting in the High Court issuing non-
bailable warrants on 25th January, 2011 for her arrest. This order and two earlier orders passed
by the High Court were then challenged by her in this court.
48. This court observed that Arathi Bandi had come to India in defiance of the orders passed by the
foreign court and that she also ignored the orders passed by the High Court. Consequently, this
court was of the view that given her conduct, no relief could be granted to Arathi Bandi.
49. This court took into consideration various principles laid down from time to time in different
decisions rendered by this court with regard to the custody of a minor child. It was held that:
(1) It is the duty of courts in all countries to see that a parent doing wrong by removing a child
out of the country does not gain any advantage of his or her wrong doing.29
(2) In a given case relating to the custody of a child, it may be necessary to have an elaborate
inquiry with regard to the welfare of the child or a summary inquiry without investigating
27 V. Ravi Chandran and Aviral Mittal
28 Dhanwanti Joshi referring to Elizabeth Dinshaw v. Arvand M. Dinshaw
29 Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw
page no. | 105 |
landmark judgments of supreme court of india on CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING
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.30
(3) Merely because a child has been brought to India from a foreign country does not
necessarily mean that the domestic court should decide the custody issue. It would be in
accord with the principle of comity of courts to return the child to the jurisdiction of the
foreign court from which he or she has been removed.31
Discussion of the law
50. The principle of the comity of courts is essentially a principle of self-restraint, applicable when
a foreign court is seized of the issue of the custody of a child prior to the domestic court. There
may be a situation where the foreign court though seized of the issue does not pass any effective
or substantial order or direction. In that event, if the domestic court were to pass an effective or
substantial order or direction prior in point of time then the foreign court ought to exercise self-
restraint and respect the direction or order of the domestic court (or vice versa), unless there are
very good reasons not to do so.
51. From a review of the above decisions, it is quite clear that there is complete unanimity that
the best interests and welfare of the child are of paramount importance. However, it should be
clearly understood that this is the final goal or the final objective to be achieved – it is not the
beginning of the exercise but the end.
52. Therefore, we are concerned with two principles in a case such as the present. They are (i) The
principle of comity of courts and (ii) The principle of the best interests and the welfare of the
child. These principles have been referred to “contrasting principles of law”32 but they are not
‘contrasting’ in the sense of one being the opposite of the other but they are contrasting in the
sense of being different principles that need to be applied in the facts of a given case.
53. What then are some of the key circumstances and factors to take into consideration for reaching
this final goal or final objective? First, it must be appreciated that the “most intimate contact”
doctrine and the “closest concern” doctrine of Surinder Kaur Sandhu are very much alive and
cannot be ignored only because their application might be uncomfortable in certain situations.
It is not appropriate that a domestic court having much less intimate contact with a child and
having much less close concern with a child and his or her parents (as against a foreign court in a
given case) should take upon itself the onerous task of determining the best interests and welfare
of the child. A foreign court having the most intimate contact and the closest concern with the
child would be better equipped and perhaps best suited to appreciate the social and cultural
milieu in which the child has been brought up rather than a domestic court. This is a factor that
must be kept in mind.
54. Second, there is no reason why the principle of “comity of courts” should be jettisoned, except
for special and compelling reasons. This is more so in a case where only an interim or an
interlocutory order has been passed by a foreign court (as in the present case). In McKee which
has been referred to in several decisions of this court, the Judicial Committee of the Privy Council
was not dealing with an interim or an interlocutory order but a final adjudication. The applicable
30 V. Ravi Chandran v. Union of India
31 V. Ravi Chandran v. Union of India
32 Shilpa Aggarwal v. Aviral Mittal
page no. | 106 |
Surya Vadanan Versus State of Tamil Nadu & Ors.
principles are entirely different in such cases. In this appeal, we are not concerned with a final
adjudication by a foreign court – the principles for dealing with a foreign judgment are laid down
in Section 13 of the Code of Civil Procedure.33 In passing an interim or an interlocutory order,
a foreign court is as capable of making a prima facie fair adjudication as any domestic court and
there is no reason to undermine its competence or capability. If the principle of comity of courts
is accepted, and it has been so accepted by this court, we must give due respect even to such
orders passed by a foreign court. The High Court misdirected itself by looking at the issue as a
matter of legal rights of the parties. Actually, the issue is of the legal obligations of the parties, in
the context of the order passed by the foreign court.
55. If an interim or an interlocutory order passed by a foreign court has to be disregarded, there
must be some special reason for doing so. No doubt we expect foreign courts to respect the
orders passed by courts in India and so there is no justifiable reason why domestic courts should
not reciprocate and respect orders passed by foreign courts. This issue may be looked at from
another perspective. If the reluctance to grant respect to an interim or an interlocutory order is
extrapolated into the domestic sphere, there may well be situations where a Family Court in one
State declines to respect an interim or an interlocutory order of a Family Court in another State
on the ground of best interests and welfare of the child.
This may well happen in a case where a person ordinarily resident in one State gets married to
another person ordinarily resident in another State and they reside with their child in a third
State. In such a situation, the Family Court having the most intimate contact and the closest
concern with the child (the court in the third State) may find its orders not being given due
respect by a Family Court in the first or the second State. This would clearly be destructive of
the equivalent of the principle of comity of courts even within the country and, what is worse,
destructive of the rule of law.
56. What are the situations in which an interim or an interlocutory order of a foreign court may be
ignored? There are very few such situations. It is of primary importance to determine, prima facie,
that the foreign court has jurisdiction over the child whose custody is in dispute, based on the
fact of the child being ordinarily resident in the territory over which the foreign court exercises
jurisdiction. If the foreign court does have jurisdiction, the interim or interlocutory order of the
foreign court should be given due weight and respect. If the jurisdiction of the foreign court is
not in doubt, the “first strike” principle would be applicable. That is to say that due respect and
weight must be given to a substantive order prior in point of time to a substantive order passed
by another court (foreign or domestic).
57. There may be a case, as has happened in the present appeal, where one parent invokes the
jurisdiction of a court but does not obtain any substantive order in his or her favour and the
other parent invokes the jurisdiction of another court and obtains a substantive order in his
33 13. When foreign judgment not conclusive.—A foreign judgment shall be conclusive as to any matter thereby directly
adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the
same title except—
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to
recognise the law of India in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in India.
page no. | 107 |
landmark judgments of supreme court of india on CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING
or her favour before the first court. In such an event, due respect and weight ought to be given
to the substantive order passed by the second court since that interim or interlocutory order
was passed prior in point of time. As mentioned above, this situation has arisen in the present
appeal – Mayura had initiated divorce proceedings in India before the custody proceedings
were initiated by Surya in the U.K. but the foreign court passed a substantive order on the
custody issue before the domestic court. This situation also arose in Ruchi Majoo where Ruchi
Majoo had invoked the jurisdiction of the domestic court before Rajiv Majoo but in fact Rajiv
Majoo obtained a substantive order from the foreign court before the domestic court. While the
substantive order of the foreign court in Ruchi Majoo was accorded due respect and weight but
for reasons not related to the principle of comity of courts and on merits, custody of the child
was handed over to Ruchi Majoo, notwithstanding the first strike principle.
58. As has been held in Arathi Bandi a violation of an interim or an interlocutory order passed by a
court of competent jurisdiction ought to be viewed strictly if the rule of law is to be maintained.
No litigant can be permitted to defy or decline adherence to an interim or an interlocutory
order of a court merely because he or she is of the opinion that that order is incorrect – that
has to be judged by a superior court or by another court having jurisdiction to do so. It is in
this context that the observations of this court in Sarita Sharma and Ruchi Majoo have to be
appreciated. If as a general principle, the violation of an interim or an interlocutory order is
not viewed seriously, it will have widespread deleterious effects on the authority of courts to
implement their interim or interlocutory orders or compel their adherence. Extrapolating this
to the courts in our country, it is common knowledge that in cases of matrimonial differences in
our country, quite often more than one Family Court has jurisdiction over the subject matter in
issue. In such a situation, can a litigant say that he or she will obey the interim or interlocutory
order of a particular Family Court and not that of another? Similarly, can one Family Court
hold that an interim or an interlocutory order of another Family Court on the same subject
matter may be ignored in the best interests and welfare of the child? We think not. An interim
or an interlocutory is precisely what it is - interim or interlocutory – and is always subject to
modification or vacation by the court that passes that interim or interlocutory order. There is no
finality attached to an interim or an interlocutory order. We may add a word of caution here –
merely because a parent has violated an order of a foreign court does not mean that that parent
should be penalized for it. The conduct of the parent may certainly be taken into account for
passing a final order, but that ought not to have a penalizing result.
59. Finally, this court has accepted the view34 that in a given case, it might be appropriate to have
an elaborate inquiry to decide whether a child should be repatriated to the foreign country and
to the jurisdiction of the foreign court or in a given case to have a summary inquiry without
going into the merits of the dispute relating to the best interests and welfare of the child and
repatriating the child to the foreign country and to the jurisdiction of the foreign court.
60. However, if there is a pre-existing 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:
34 L. (Minors), In re,
page no. | 108 |
Surya Vadanan Versus State of Tamil Nadu & Ors.
(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.35 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 concerned foreign court or the concerned
domestic court 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.
Discussion on facts
61. The facts in this appeal reveal that Surya and Mayura are citizens of the U.K. and their children
are also citizens of the U.K.; they (the parents) have been residents of the U.K. for several years
and worked for gain over there; they also own immovable property (jointly) in the U.K.; their
children were born and brought up in the U.K. in a social and cultural milieu different from that
of India and they have grown up in that different milieu; their elder daughter was studying in
a school in the U.K. until she was brought to India and the younger daughter had also joined a
school in the U.K. meaning thereby that their exposure to the education system was different
from the education system in India.36 The mere fact that the children were admitted to a school
in India, with the consent of Surya is not conclusive of his consent to the permanent or long
term residence of the children in India. It is possible, as explained by his learned counsel, that
he did not want any disruption in the education of his children and that is why he consented to
the admission of the children in a school in India. This is a possible explanation and cannot be
rejected outright.
62. Mayura has not taken any steps to give up her foreign citizenship and to acquire Indian
citizenship. She has taken no such steps even with respect to her children. Clearly, she is desirous
of retaining her foreign citizenship at the cost of her Indian citizenship and would also like her
children to continue with their foreign citizenship, rather than take Indian citizenship. That
being the position, there is no reason why the courts in India should not encourage her and the
children to submit to the jurisdiction of the foreign court which has the most intimate contact
with them and closest concern apart from being located in the country of their citizenship. The
fact that Mayura is of Indian origin cannot be an overwhelming factor.
63. Though Mayura filed proceedings for divorce in India way back in August 2012, she made no
serious effort to obtain any interim order in her favour regarding the custody of the children,
nor did she persuade the trial court for more than two years to pass an interim order for the
custody of the children. On the other hand, the foreign court acted promptly on the asking of
Surya and passed an interim order regarding the custody of the children, thereby making the
first strike principle applicable.
35 Arathi Bandi
36 In our order dated 9th July, 2014 we have noted that according to Mayura the children are attending some extra classes.
This is perhaps to enable them to adjust to the education system and curriculum in India.
page no. | 109 |
landmark judgments of supreme court of india on CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING
64. It would have been another matter altogether if the Family Court had passed an effective or
substantial order or direction prior to 13th November, 2012 then, in our view, the foreign
court would have had to consider exercising self-restraint and abstaining from disregarding the
direction or order of the Family Court by applying the principle of comity of courts. However,
since the first effective order or direction was passed by the foreign court, in our opinion,
principle of comity of courts would tilt the balance in favour of that court rather than the Family
Court. We are assuming that the Family Court was a court of competent jurisdiction although
we must mention that according to Surya, the Family Court has no jurisdiction over the matter
of the custody of the two children of the couple since they are both British citizens and are
ordinarily residents of the U.K. However, it is not necessary for us to go into this issue to decide
this because even on first principles, we are of the view that the orders or directions passed by the
foreign court must have primacy on the facts of the case, over the Family Court in Coimbatore.
No specific or meaningful reason has been given to us to ignore or bypass the direction or order
of the foreign court.
65. We have gone through the orders and directions passed by the foreign court and find that there
is no final determination on the issue of custody and what the foreign court has required is for
Mayura to present herself before it along with the two children who are wards of the foreign
court and to make her submissions. The foreign court has not taken any final decision on the
custody of the children. It is quite possible that the foreign court may come to a conclusion,
after hearing both parties that the custody of the children should be with Mayura and that they
should be with her in India. The foreign court may also come to the conclusion that the best
interests and welfare of the children requires that they may remain in the U.K. either under the
custody of Surya or Mayura or their joint custody or as wards of the court during their minority.
In other words, there are several options before the foreign court and we cannot jump the gun
and conclude that the foreign court will not come to a just and equitable decision which would
be in the best interests and welfare of the two children of the couple.
66. The orders passed by the foreign court are only interim and interlocutory and no finality is
attached to them. Nothing prevents Mayura from contesting the correctness of the interim and
interlocutory orders and to have them vacated or modified or even set aside. She has taken no
such steps in this regard for over two years. Even the later order passed by the foreign court is
not final and there is no reason to believe that the foreign court will not take all relevant factors
and circumstances into consideration before taking a final view in the matter of the custody of
the children. The foreign court may well be inclined, if the facts so warrant, to pass an order that
the custody of the children should be with Mayura in India.
67. There is also nothing on the record to indicate that any prejudice will be caused to the children
of Mayura and Surya if they are taken to the U.K. and subjected to the jurisdiction of the foreign
court. There is nothing to suggest that they will be prejudiced in any manner either morally or
physically or socially or culturally or psychologically if they continue as wards of the court until
a final order is passed by the foreign court. There is nothing to suggest that the foreign court is
either incompetent or incapable of taking a reasonable, just and fair decision in the best interests
of the children and entirely for their welfare.
68. There is no doubt that the foreign court has the most intimate contact with Mayura and her
children and also the closest concern with the well being of Mayura, Surya and their children.
That being the position even though Mayura did not violate any order of the foreign court when
page no. | 110 |
Surya Vadanan Versus State of Tamil Nadu & Ors.
she brought her children to India, her continued refusal to abide by the interim and interlocutory
order of the foreign court is not justified and it would be certainly in the best interests and
welfare of the children if the foreign court, in view of the above, takes a final decision on the
custody of the children at the earliest. The foreign court undoubtedly has the capacity to do so.
69. We have considered the fact that the children have been in Coimbatore since August 2012 for
over two years. The question that arose in our minds was whether the children had adjusted
to life in India and had taken root in India and whether, under the circumstances, it would be
appropriate to direct their repatriation to the U.K. instead of conducting an elaborate inquiry
in India. It is always difficult to say whether any person has taken any root in a country other
than that of his or her nationality and in a country other than where he or she was born and
brought up. From the material on record, it cannot be said that life has changed so much for the
children that it would be better for them to remain in India than to be repatriated to the U.K.
The facts in this case do not suggest that because of their stay in India over the last two years the
children are not capable of continuing with their life in the U.K. should that become necessary.
However, this can more appropriately be decided by the foreign court after taking all factors into
consideration.
70. It must be noted at this stage that efforts were made by this court to have the matter of custody
settled in an amicable manner, including through mediation, as recorded in a couple of orders
that have been passed by this court. Surya had also agreed to and did temporarily shift his
residence to Coimbatore and apparently met the children. However, in spite of all efforts, it was
not possible to amicably settle the issue and the mediation centre attached to this court gave a
report that mediation between the parties had failed. This left us with no option but to hear the
appeal on merits.
71. Given these facts and the efforts made so far, in our opinion, there is no reason to hold any
elaborate inquiry as postulated in L. (Minors) - this elaborate inquiry is best left to be conducted
by the foreign court which has the most intimate contact and the closest concern with the
children. We have also noted that Surya did not waste any time in moving the foreign court for
the custody of the children. He moved the foreign court as soon as he became aware (prior to
the efforts made by this court) that no amicable solution was possible with regard to the custody
of the children.
72. We are conscious that it will not be financially easy for Mayura to contest the claim of her
husband Surya for the custody of the children. Therefore, we are of the opinion that some
directions need to be given in favour of Mayura to enable her to present an effective case before
the foreign court.
73. Accordingly, we direct as follows:-
(1) Since the children Sneha Lakshmi Vadanan and Kamini Lakshmi Vadanan are presently
studying in a school in Coimbatore and their summer vacations commence (we are told) in
May, 2015 Mayura Vadanan will take the children to the U.K. during the summer vacations
of the children and comply with the order dated 29th November, 2012 and participate (if
she so wishes) in the proceedings pending in the High Court of Justice. Surya Vadanan
will bear the cost of litigation expenses of Mayura Vadanan.
page no. | 111 |
landmark judgments of supreme court of india on CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING
(2) Surya Vadanan will pay the air fare or purchase the tickets for the travel of Mayura Vadanan
and the children to the U.K. and later, if necessary, for their return to India. He shall also
make all arrangements for their comfortable stay in their matrimonial home, subject to
further orders of the High Court of Justice.
(3) Surya Vadanan will pay maintenance to Mayura Vadanan and the children at a reasonable
figure to be decided by the High Court of Justice or any other court having jurisdiction to
take a decision in the matter. Until then, and to meet immediate out of pocket expenses,
Surya Vadanan will give to Mayura Vadanan prior to her departure from India an amount
equivalent to £1000 (Pounds one thousand only).
(4) Surya Vadanan shall ensure that all coercive processes that may result in penal consequences
against Mayura Vadanan are dropped or are not pursued by him.
(5) In the event Mayura Vadanan does not comply with the directions given by us, Surya
Vadanan will be entitled to take the children with him to the U.K. for further proceedings
in the High Court of Justice. To enable this, Mayura Vadanan will deliver to Surya Vadanan
the passports of the children Sneha Lakshmi Vadanan and Kamini Lakshmi Vadanan.
74. The appeal is disposed of on the above terms.
qqq
page no. | 112 |
Purvi Mukesh Gada Versus Mukesh Popatlal Gada & ANR.
Purvi Mukesh Gada Versus Mukesh Popatlal Gada & ANR.
Supreme Court of India
Bench : Hon’ble Mr. Justice A.K. Sikri & Hon’ble Mr. Justice Ashok Bhushan
Purvi Mukesh Gada
Versus
Mukesh Popatlal Gada & anr.
Criminal Appeal No.1553 of 2017
arising out of SLP (CRL.) No. 1867 of 2016
Decided on : 4 September, 2017
• Failure of marriage generally leads to disputes of varied nature, either in the form
of divorce or enforcement of conjugal rights or maintenance etc. and even criminal
cases in the form of proceedings under Section 498A of the Code of Criminal Procedure,
1973 and so on.
• However, in those cases where their togetherness as spouses had resulted in
procreation of children, the war is extended by laying respective claims on the custody
of those children as well. These minor children, for their proper upbringing, need the
company of both the parents - mother as well as the father.
• In the instant case, marriage between the parties as per Hindu rites and ceremonies
was solemnised way back in November 1997. They lived together for number of years.
Their first child, a boy named Taney, was born in the year 2000 and second child, a
daughter named Varenya, was born in the year 2004. The appellant herein left the
matrimonial home on February 18, 2013.
• Though the ‘welfare principle’ is correctly enunciated and explained in the impugned
judgment, no reasons are given as to how this principle weighed, on the facts and
circumstances of this case, in favour of the respondent.
• It also needs to be emphasised that the Court, in these proceedings, is not concerned
with the dispute between the husband and the wife inter se but about the custody
of children and their welfare. A holistic approach in this behalf is to be undertaken.
Scales tilt in favour of the appellant when the matter is examined from that point of
view.
• As a result, this appeal is allowed. At the same time, weekend access given to the
respondent by interim directions of this Court shall continue to prevail.
Moreover, during Dussehra, Diwali, Christmas or summer vacations etc., the
respondent shall be entitled to avail the custody for half of the durations of those
vacations. However, while effecting this arrangement, it shall be ensured that studies
page no. | 113 |
landmark judgments of supreme court of india on CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING
of the children are not affected. In case of any difficulty in working out the aforesaid
modalities, the parties shall be at liberty to approach the trial court. Since the custody
of the children is allowed to be retained by the appellant-mother, domicile certificates
of the children as well as their passports which are with the respondent, shall be
handed over to the appellant.
Hon’ble Mr. Justice A.K. Sikri :—
1. It is an unfortunate case where the parties, who are wife and husband, are having a bitter and
acrimonious fight over the custody of their children. Such custody battles are always regrettable,
not only for the spouses who resort to this kind of litigation, which is the offshoot of matrimonial
discord and results in their separation from each other, but also for their child/children who
become the subject matter of this kind of dispute. Failure of marriage generally leads to disputes
of varied nature, either in the form of divorce or enforcement of conjugal rights or maintenance
etc. and even criminal cases in the form of proceedings under Section 498A of the Code of
Criminal Procedure, 1973 and so on.
However, in those cases where their togetherness as spouses had resulted in procreation of
children, the war is extended by laying respective claims on the custody of those children as
well. These minor children, for their proper upbringing, need the company of both the parents
- mother as well as the father, for financial reasons, security reasons, psychological reasons,
etc. They need the love of both their parents. Not only separation of their parents from each
other deprives these children 24/7 company of both the parents, when it results in legal battle
of custody in the courts, the situation becomes more traumatic for these children because of
various obvious reasons. That is why such cases which seriously impact these children are the
most unfortunate.
2. In the instant case, marriage between the parties as per Hindu rites and ceremonies was
solemnised way back in November 1997. They lived together for number of years. Their first
child, a boy named Taney, was born in the year 2000 and second child, a daughter named
Varenya, was born in the year 2004. The appellant herein left the matrimonial home on February
18, 2013.
Thus, they were together for more than fifteen years when the desertion took place, though as per
the allegations of the appellant she had suffered mental and physical torture at the hands of the
respondent since the beginning of the marriage, but for the sake and well being of the children
and also because of her financial dependency on the respondent she continued to live with the
respondent. These allegations of maltreatment of the appellant are denied by the respondent. In
any case, that is not the crux of the matter.
3. It so happened that when the appellant left her matrimonial home in Pune and came to her
parents house in Mumbai, children remained in the custody of the respondent. Tanay was not
at home as he was studying in a boarding school at Coimbatore at that time. Insofar as Varenya
is concerned, the allegation of the appellant is that it is the respondent who did not allow the
appellant to take her along to Mumbai. Some attempts were made thereafter for settlement of
their disputes, which did not bear any results.
On September 18, 2014, the appellant filed a domestic violence case in the 38th Court of
Additional ACMM, Ballard Estate, Mumbai on the ground of gross mental and physical cruelty,
page no. | 114 |
Purvi Mukesh Gada Versus Mukesh Popatlal Gada & ANR.
including verbal and physical abuse and occult practices. Three months after filing the said case,
the appellant (arising out of SLP (Crl.) No. 1867 of 2016) moved an application therein praying
for access to her minor children during Christmas vacation, which was allowed to be availed of
in the respondent’s house in Pune.
4. In February 2015, Varenya was also admitted in a boarding school by the respondent. The
appellant, at that juncture, moved an application for interim custody of the minor children as
well as for maintenance. However, custody was not allowed on the ground that children were
studying and it would not be proper to give custody during the midst of their academic year. At
the same time, interim maintenance @ Rs.30,000/- per month was directed to be given to the
appellant. In May 2015, when the summer vacations were approaching, the appellant filed an
application praying for custody of children for half of the vacations.
Though this application was still pending and no orders passed thereon, the respondent himself
handed over the custody of the children to the appellant on June 17, 2015. There are divergent
stands of the parties behind such a move on the part of respondent in voluntarily giving custody
of the children to the appellant. As per the respondent, even when there was no order of the
Court, as a goodwill gesture, he gave custody of the children to the mother for a period of
three days with clear understanding that custody of the children would be handed back to the
appellant after three days.
On the other hand, the appellant claims that the respondent entrusted the children to her
even when without any order of the Court, compelled by the circumstance inasmuch as Tanay
had miserably failed in his Grade IX examinations while studying in the boarding school at
Coimbatore and the respondent wanted the appellant to give coaching to him so that he could
reappear and pass the examination in order to get promoted to Grade X without wasting an
academic year.
5. The children were not given back to the respondent after the expiry of three days. Here again
both the parties have their own version. According to the appellant, the children themselves
refused to go back to the respondent. On the other hand, the respondent maintains that it is
the appellant whose intentions became bad and, thereby, she refused to handover the custody
of the children to him. Be that as it may, the respondent filed an application before the Court of
Additional ACMM for restoration of custody of the children. The learned Additional ACMM
called both the children in his Chambers and interacted with them.
Thereafter, he passed the orders dated July 01, 2015 vide which custody of the children was given
to the appellant, rejecting the for restoration of their custody to the respondent. Appeal was filed
against this order in the Sessions Court, which was also dismissed vide judgment dated August
06, 2016. Orders of the learned ACMM dated July 01, 2015 and that of the Sessions Court dated
August 06, 2015, were challenged by the respondent in the form of writ petition filed in the High
Court of Bombay. Disposing of this writ petition vide judgment dated February 17, 2016, the
High Court has directed that custody of the children be restored with the respondent. It is this
order which is the subject matter of challenge in the instant appeal.
6. Before stating the reasons which prevailed with the High Court in directing the custody of the
children to the respondent, it is imperative to take note of certain proceedings before the High
Court during the pendency of the writ petition.
page no. | 115 |
landmark judgments of supreme court of india on CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING
7. Vide order dated January 29, 2015, the High Court directed day access on September 21 and 24,
2015. Again vide order dated November 11, 2015, overnight access for the coming weekend was
accorded to the respondent. Identical overnight access was given by the High Court vide order
dated November 23, 2015. However, the respondent could not avail the benefit of these orders.
According to the respondent, the appellant had violated these orders, whereas the appellant has
pleaded that on September 24, 2015 the respondent himself did not come to have the access of
the children and insofar as order granting overnight access during weekends is concerned, the
explanation of the appellant is that it is the children who refused to go to their father as they
were petrified and, therefore, themselves took such a decision.
8. On December 11, 2015, the respondent was given seven days access during Christmas vacation
with Counsellor’s help. For carrying out this order, the trial court called the children on December
23, 2015 where the respondent was also called. Again, as per the appellant’s version, the children,
after remaining with the respondent for forty five minutes alone, ultimately told him that they
did not wish to go with him. The respondent was to come to pick the children on December 25,
2015 and as per the appellant, he did not come to pick the children.
9. The respondent maintained that on all the aforesaid occasions it is the appellant who had refused
to handover the custody to him and had, thus, violated the orders of the High Court. Accordingly,
he filed an affidavit in the High Court for initiating contempt proceedings against the appellant.
The appellant filed reply affidavit thereto refuting the allegations. Matter was finally heard and
culminated in the judgment dated February 17, 2016.
10. With this, we come to the reasons which have weighed with the High Court in directing the
custody of the children to be given to their father, namely, the respondent. After perusing the
impugned judgment, these are summarised as below:
(i) Orders dated December 28, 2014 and March 04, 2015 were passed by the Additional
ACMM, confirming the custody of the children with the respondent-father inasmuch as
by these orders prayer for giving interim custody of children to the appellant-wife was
rejected. Instead, the appellant was only given limited access during vacation to meet the
children in the school at Pune whenever she desired.
(ii) Even though the appellant had moved application dated May 27, 2015 seeking access
to the children during vacation, which was from June 13, 2015 to August 09, 2015, and
no orders were passed in the said application, as per the respondent, as a humanitarian
gesture and without there being any legal obligation or court directions, he went to the
appellant’s residence at Mumbai on June 17, 2015 and left the children with the appellant
with a clear understanding that he would pick them up by June 19, 2015.
The High Court has noted the stand of the appellant as well, but has mentioned that as per
the respondent’s case when he went to take the custody of the children on June 19, 2015,
the appellant refused to restore the custody. The High Court has given weightage to the
fact that on June 17, 2015, the respondent had placed the children in the custody of the
appellant even when there was no court order or legal obligation.
(iii) The High Court wanted to interact with the children in order to ascertain their wishes
as well as to determine as to which course of action is appropriate in the welfare of the
children. However, before doing so, the High Court deemed it appropriate to grant
page no. | 116 |
Purvi Mukesh Gada Versus Mukesh Popatlal Gada & ANR.
weekend access to the respondent. For this, directions were given (which have already
been taken note of). As per the High Court, prima facie it appeared that the appellant was
responsible for non-compliance of those orders and even if it is to be believed that the
children did not show their unwillingness to go to their father, it indicates the extent of
influence exerted by the mother upon her minor children.
(iv) As per the High Court, in the face of two detailed orders dated December 28, 2014 and
March 04, 2015 passed by the Additional ACMM declining custody of minor children to
the appellant and allowing the respondent to retain their custody, there was no reason not
to restore the custody to the respondent on June 19, 2015. It has observed that subsequent
orders of Additional ACMM declining to give the custody, which is upheld by the Sessions
Court, are without application of mind.
(v) The High Court has discussed the law on custody of children and explained the ‘welfare
principle’, which is the paramount consideration while deciding custody matters is to see
where the welfare of children lies. Applying this principle, the direction is given to restore
the custody of the children to the respondent after the end of academic term in April or
May 2016.
11. We may say at the outset that though the ‘welfare principle’ is correctly enunciated and explained
in the impugned judgment, no reasons are given as to how this principle weighed, on the facts
and circumstances of this case, in favour of the respondent. Instead two main reasons which
have influenced the High Court are:
(i) earlier detailed orders are passed by the Additional ACMM allowing the respondent to
retain the custody; and
(ii) the appellant here had not given access of children to the respondent even during weekend,
in spite of orders passed by the High Court.
12. After hearing the counsel for the parties at length, we are of the opinion that the matter is not
dealt with by the High Court in right perspective. Before supporting these comments with our
reasons, it would be apposite to take note of certain developments from June 17, 2015, the date
on which the respondent had himself handed over the children to the appellant, till the passing
of the orders by the High Court. It is also necessary to state the events which took place during
the pendency of these proceedings.
13. Whether the respondent had handed over the custody of the children to the appellant on a
humanitarian gesture or not, fact which is not in dispute is that Tanay had failed in his Grade
IX examinations and he was to reappear for the same. It is also a fact that it is the guidance
and tuition of the appellant that Tanay passed the examinations on reappearance and could be
promoted to Grade X.
Another fact which needs to be noted here is that when the appellant left the matrimonial home,
Tanay was not residing with the parties. He was admitted in a boarding school in Coimbatore,
a far-away place from Pune. No doubt, the respondent claims that intention in admitting Tanay
in a boarding school in Coimbatore was that he should get best education as the school in which
he was admitted is a prestigious educational institution.
At the same time, it is also a fact that Tanay was not in the physical company of his father on day-
to-day basis. It is also a harsh reality that he was not doing well in studies during the period his
page no. | 117 |
landmark judgments of supreme court of india on CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING
legal custody was entrusted to the respondent. His overall performance in most of the subjects
was dismal and he had even failed in Grade IX.
At that stage when, within few days, there was a re-examination, handing over Tanay, along
with Varenya, to the appellant, without even any court order, lends credence to the version of
the appellant that the purpose was to give appropriate tuition to Tanay by the appellant so that
his academic year is not wasted. Another fact which needs to be emphasised at this stage is
that though the custody of Varenya was also with the respondent and request of the appellant
to hand over interim custody of the children did not prevail with the Additional ACMM who
rejected this request vide orders dated December 28, 2014 and March 04, 2015, even Varenya
was admitted in a boarding school by the respondent thereafter.
This fact also gives some credence to the version of the appellant that because of his pre-
occupation in the business or otherwise, the respondent was not in a position to take personal
care of the children and, therefore, he put both of the children in the boarding schools.
14. After the children came to the appellant, they were admitted in a school in Mumbai. It is pertinent
to note that Tanay’s academic performance has improved significantly. He is getting very high
grades in the examinations. In fact, academic performance of Varenya has also gone up. This
factor, though noted by the High Court, has been lightly brushed aside with the observations
that if the children were not doing well earlier, blame cannot be put on the respondent as it could
be the result of disputes between the parents. In the process what is ignored is that in spite of the
said dispute still subsisting, the academic performance of the children, while in the custody of
their mother, has gone up tremendously.
15. When the special leave petition had come up for hearing, on the first day itself the respondent had
appeared through his counsel as a caveator. Children were also brought to the Court and this Court
interacted with them. While issuing the notice, based on the interaction with the children, who
desired to remain with their mother, directions contained in the impugned judgment were stayed. At
the same time, the respondent was given access to these children as well as visitation rights.
Notice was issued on March 04, 2016. During the period of pendency of these proceedings for
more than a year, the respondent has met the children regularly with the grant of visitation
rights. This Court, just before final hearing, again met the children. Tanay is seventeen years of
age and Varenya is thirteen years old. At this age, they are capable of understanding where their
welfare lies. This Court has found that both the children are very comfortable in the company of
their mother.
They have expressed their desire to stay with their mother. This Court also feels that welfare of
the children lies by allowing the appellant to retain the custody of the children. Circumstances
explained above provide adequate reasons for taking this course of action. Children at
discernible age of seventeen and thirteen years respectively, are better equipped, mentally as
well as psychologically, to take a decision in this behalf. It would be worthwhile to mention that
during our interaction with these children, they never spoke ill of their father. In fact, they want
to be with the respondent as well and expressed their desire to remain in touch with him and to
meet him regularly.
They never showed any reluctance in this behalf. At the same time, when it came to choosing a
particular parent for the purposes of custody, they preferred their mother. In fact, these were the
page no. | 118 |
Purvi Mukesh Gada Versus Mukesh Popatlal Gada & ANR.
reasons because of which the Additional ACMM had passed orders dated July 01, 2015 (after
interviewing the children and ascertaining their wishes as well as welfare) rejecting the request
of the respondent to restore custody to him.
Same course of action was adopted by the learned Sessions Court while dismissing the appeal of
the respondent on August 06, 2015 and affirming the order of Additional ACMM dated July 01,
2015. The High Court has discarded these orders without giving any cogent reasons and on the
spacious and tenuous ground that such orders could not have been passed in view of the earlier
detailed orders of the Additional ACMM dated December 28, 2015 and March 04, 2015, thereby
refusing the custody of the children to the appellant.
In this process, what is ignored by the High Court was that even those were interim orders and
the custody was refused at that juncture because of the reason that children were in the mid-
term of the academic session. Be that as it may, it was incumbent upon the High Court to find
out the welfare of the children as on that time when it was passing the order. As pointed out
above, apart from discussing the ‘welfare principle’, the High Court has not done any exercise in
weighing the pros and cons for determining as to which of the two alternatives, namely, giving
custody to the appellant or to the respondent, is better and more feasible.
16. Learned counsel for the respondent had made a fervent plea to the effect that if custody is
retained by the appellant, it would amount to giving her advantage of her own wrong as she
took undue advantage of the gracious act of the respondent in voluntarily handing over the
custody of the children, but only for three days. He also highlighted the conduct of the appellant,
as discussed by the High Court, which has castigated the appellant in this behalf in not obeying
the interim directions of giving access to the respondent.
17. In view of our aforesaid discussion, we do not find these arguments to be meritorious. It also
needs to be emphasised that the Court, in these proceedings, is not concerned with the dispute
between the husband and the wife inter se but about the custody of children and their welfare.
A holistic approach in this behalf is to be undertaken. Scales tilt in favour of the appellant when
the matter is examined from that point of view. Criminal Appeal No. of 2017 Page 16 of 19
(arising out of SLP (Crl.) No. 1867 of 2016)
18. As a result, this appeal is allowed, resulting in setting aside of the impugned order dated February
17, 2016 passed by the High Court in the writ petition and restoring the order dated August 06,
2015 passed by the Court of Sessions, Greater Mumbai, which affirmed the order dated July 01,
2015 passed by the Court of 38th Court of Additional ACMM, Ballard Estate, Mumbai. At the
same time, weekend access given to the respondent by interim directions of this Court shall
continue to prevail.
Moreover, during Dussehra, Diwali, Christmas or summer vacations etc., the respondent shall be
entitled to avail the custody for half of the durations of those vacations. However, while effecting
this arrangement, it shall be ensured that studies of the children are not affected. In case of any
difficulty in working out the aforesaid modalities, the parties shall be at liberty to approach the
trial court. Since the custody of the children is allowed to be retained by the appellant-mother,
domicile certificates of the children as well as their passports which are with the respondent,
shall be handed over to the appellant. No costs.
qqq
page no. | 119 |
landmark judgments of supreme court of india on CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING
Prateek Gupta Versus Shilpi Gupta & Ors.
THE SUPREME COURT OF INDIA
Bench: Hon’ble Mr. Justice Dipak Misra, C.J & Hon’ble Mr. Justice Amitava Roy
Prateek Gupta .…. Appellant
Versus
Shilpi Gupta & Ors. .…. Respondents
Criminal Appeal No. 968 of 2017
Decided on : December 6, 2017
• The appellant-father has been directed to hand over thecustody of the child, Master
Aadvik, aged about 5 years to respondent No. 1-mother. The appellant-father is in
assailment of this determination and seeks the remedial intervention of this Court.
• The pleaded facts reveal that the child resided with the parents from his birth till
07.11.2014 and thereafter from 07.11.2014 till 06.03.2015 with the respondent-
mother in the United States.
• We see no reason to take a different view or course. In view of order dated 03.05.2016
of this Court, the child has remained in the custody of the appellant-father. To reiterate,
no material has been brought on record, persuasive and convincing enough, to take a
view that immediate restoration of the custody of the child to the respondent-mother in
the native country is obligatorily called for in its interest and welfare. The High Court,
as the impugned judgment and order would demonstrate, did not at all apply itself
to examine the facts and circumstances and the other materials on record bearing on
the issue of welfare of the child which are unmistakably of paramount significance
and instead seems to have been impelled by the principle of comity of courts and the
doctrines of “intimate contact” and “closest concern” de hors thereto. The appellant
being the biological father of Aadvik, his custody of the child can by no means in
law be construed as illegal or unlawful drawing the invocation of a superior Court’s
jurisdiction to issue a writ in the nature of habeas corpus. We are, in the textual facts
and on an in-depth analysis of the attendant circumstances, thus of the view that the
dislodgment of the child as directed by the impugned decision would be harmful to it.
Having regard to the nature of the proceedings before the US Court, the intervening
developments thereafter and most importantly the prevailing state of affairs, we are
of the opinion that the child, till he attains majority, ought to continue in the custody,
charge and care of the appellant, subject to any order to the contrary, if passed by a
court of competent jurisdiction in an appropriate proceeding deciding the issue of its
custody in accordance with law. The High Court thus, in our estimate, erred in law and
on facts in passing the impugned verdict
page no. | 120 |
Prateek Gupta Versus Shilpi Gupta & Ors.
Hon’ble Mr. Justice Amitava Roy :—
By the impugned judgment and order dated 29.04.2016 rendered by the High Court ofDelhi, in a writ
petition filed by the respondent No. 1 seeking a writ in the nature of habeas corpus, the appellant-
father has been directed to hand over thecustody of the child, Master Aadvik, aged about 5 years to
respondent No. 1-mother. The appellant-father is in assailment of this determination and seeks the
remedial intervention of this Court. By order dated 03.05.2016, the operation of the impugned verdict
was stayed and as the said arrangement was continued thereafter from time to time, the custodyof the
child as on date has remained with the appellant. The orders passed by this Court though attest its
earnest endeavour to secure a reconciliation through interactions with the parents and the child, the
efforts having failed, the appeal is being disposedof on merits.
2. We have heard Ms. Binu Tamta, learned counsel for the appellant and Mr. N.S Dalal, learned
counsel for the respondent No. 1 (hereafter to be referred to as “respondent”).
3. A skeletal outline of the factual backdrop is essential. The appellant and the respondent who
married on 20.01.2010 in accordance with the Hindu rites at New Delhi had shifted to the
United States ofAmerica (for short, hereafter referred to as ‘U.S’), as the appellant was already
residing and gainfully employed there prior to the nuptial alliance. In due course, the couple was
blessed with two sons, the elder being Aadvik born on 28.09.2012 and the younger, Samath born
on 10.09.2014 As adverted tohereinabove, the present lis is with regard to thecustody of Master
Aadvik, stemming from an application under Article 226 of the Constitution ofIndia filed by
the respondent alleging illegal and unlawful keeping of him by the appellant and that too in
violation of the orders passed by the Juvenile and Domestic Relations Court of Fairfax County,
passed on 28.05.2015 and 20.10.2015 directing him to return thechild to the Commonwealth of
Virginia and to thecustody and control of the respondent.
4. The pleaded facts reveal that the child resided with the parents from his birth till 07.11.2014 and
thereafter from 07.11.2014 till 06.03.2015 with the respondent-mother in the United States. This
is so, as in view of irreconcilable marital issues, as alleged by the respondent, particularly due to
the volatile temperament and regular angry outbursts of the appellant often in front of the child,
the parties separated on or about 15.11.2014 Prior thereto, the appellant had on 08.11.2014 left
for India leaving behind the respondent and her children in U.S He returned on 18.01.2015 to the
U.S, but the parties continued to live separately, the respondent with her children. The appellant
however, made short time visits in between and on one such occasion i.e on 24.01.2015, he took
along with him Aadvik, representing that he would take him for a short while to the Dulles
Mall. According to the respondent, she did not suspect any foul play and permitted the child to
accompany hisfather, but to her dismay though assured, the appellant did not return with the
child in spite offervent insistences and implorations of the mother. As alleged by the respondent,
the appellant thus separated the child from her from 24.01.2015 to 07.03.2015 in a pretentious
and cruel move, seemingly acting on a nefarious strategy which surfaced when on 07.03.2015,
the appellant left U.S with the child to India without any prior information or permission or
consent ofhers.
5. Situated thus, the respondent approached Juvenile and Domestic Relations Court Fairfax County,
for its intervention and for that, on 15.05.2015, she filed “Emergency Motion For Return of
Minor Child and Established Temporary Custody”.
page no. | 121 |
landmark judgments of supreme court of india on CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING
6. On the next date fixed i.e 19.05.2015, after the service of the process on the appellant, his counsel
made a “special appearance” to contest the service. On the date thereafter i.e 28.05.2015, he
however informed the court that he was not contesting the service upon the appellant, whereupon
hearing the counsel for the parties at length and also noticing the plea on behalf ofthe appellant
that he intended to return with the childin U.S and that the delay was because of his mother’s
illness, the U.S Court passed the following order:
“IN THE JUVENILE & DOMESTIC RELATIONS DISTRICT COURT FOR FAIRFAX
COUNTRY SHILPI GUPTA Petitioner
IN re: Aadvik Gupta
D.O.B September 28, 2012
Case No. JJ 431468-01-00 Vs. Prateek Gupta Respondent
ORDER
This cause came before this Court on the 19thMay, 2015, upon the petitioner Shilpi Gupta’s
verified motion for return of minor child and toestablish temporary custody;
It appearing to the Court that this Court has proper jurisdiction over the parties to this action
pursuant to the Uniform Child CustodyJurisdiction and Enforcement Act, more specifically
20-146.24 and 20-146.32 of the Code of Virginia, 1950, as amended.
It further appearing to the Court that it is in the best interest of the child, Aadvik Gupta,
(hereinafter “Aadvik”) born on September 28, 2012, that he be immediately returned to the
custodyof the petitioner and to the Commonwealth ofVirginia pending any further order of
this Court and that good cause exists with which to require that the petitioner take immediate
possession of thechild by all means necessary. It is therefore adjourned and ordered as follows:
1. Custody: The petitioner Shilpi Gupta, is hereby granted sole legal and physicalcustody of
the minor child, Aadvik Gupta, pending further order of this Court.
2. Return of the Child: That the respondent, Prateek Gupta, is hereby ordered toimmediately
return Aadvik to the Commonwealth of Virginia, and to thecustody and control of the
petitioner or her agents. Thereafter, the respondent shall not remove the child from the
Commonwealthof Virginia under any circumstances without further order of the Court.
3. Enforcement: That the all law enforcement agencies and related agencies (including but
not limited to Police Department(s), Sheriff ’s Department(s), U.S State Department,
Federal Bureau of Investigations) are hereby directed to assist and/or facilitate the
transfer of Aadvik to the petitioner, if necessary, including taking the child intocustody
from anyone who has possessionof him and placing him in the physicalcustody of the
petitioner.
4. Passport: That once the child has been returned to Virginia, any and all of Aadvik’s
passports must be immediately surrenderedto the petitioner where it will be held until
further order of this Court.
5. Removal from the Commonwealth of Virginia: That all relevant and/or local law
enforcement agencies shall do whatever possible toprevent the removal of Aadvik Gupta,
page no. | 122 |
Prateek Gupta Versus Shilpi Gupta & Ors.
from the Commonwealth of Virginia except at the direction of the petitioner, Shilpi
Gupta.
And this cause is continued.
Entered this 28 day of May, 2015.
Sd/- Judge”
7. Thereby, the Court in U.S being satisfied that it had the proper jurisdiction over the parties to
the action before it and also being of the opinion that it was in the best interest of the child,
that he be returned to the custody of the respondent and tothe Commonwealth of Virginia
pending further orders, and that being convinced that good cause existed torequire that the
respondent-mother take immediate possession of the child by all means necessary, granted sole
legal and physical custody of the childto the respondent pending further orders of the Court.
The appellant was directed to immediately return the child to the Commonwealth of Virginia
and to the custody and control of the respondent or her agents with a further restraint on him
not toremove the child from the Commonwealth of Virginia under any circumstance without
the further order ofthe Court. Thereby, all law enforcement and related agencies as mentioned
in the order were directed toassist and/or facilitate the transfer of the child to the respondent, if
necessary by taking the child intocustody from anyone who had his possession and by placing
him in the physical custody of the respondent.
8. As the records laid before this Court would divulge, the appellant meanwhile on 26.05.2015
filed a petition for restitution of conjugal rights under Section 9 of the Hindu Marriage Act,
1956 (as amended) and also a petition under Section 7(b) of the Guardian and Wards Act, 1890
in the court of the Principal Judge, Family Court, Rohini, Delhi seeking a decree for restitution
of conjugal rights between the parties and for a declaration that he was the sole and permanent
guardian of the child, respectively. Subsequent thereto on 26.08.2015 he also instituted a suit in
the High Court of Delhi at New Delhi praying for a decreeinter alia to adjudge the proceedings
initiated by the respondent in the court in U.S to be false, malicious, vexatious, oppressive and
nullis juris, being without jurisdiction and also to declare the order dated 28.05.2015 with regard
to the return of the child tothe custody of the respondent-mother to be also null and void and
not binding on him. A decree for permanent injunction against the respondent, her agents etc.
from pursuing her proceedings before the court in U.S was also sought for. The orders, if any,
passed in these proceedings instituted by the appellant having a bearing on those pursued by
the respondent before the court in U.S are however not on record and we therefore refrain
from making any comment thereon. Suffice is to state that the lodging of the proceedings by
the appellant in courts in India demonstrates in unambiguous terms, his knowledge about the
lis in the Court in U.S and the order dated 28.08.2015, interim though, directing him to return
thecustody of the child immediately to the respondent-mother and to the Commonwealth
ofVirginia, pending further orders.
9. Be that as it may, the court in U.S on 20.10.2015 noticing inter alia that the appellant had refused
toreturn the child to the U.S and to the custody ofthe respondent in direct violation of its earlier
order dated 28.05.2015, ordered that the respondent be granted sole, legal and physical custody
of the childand also declared that no visitation be granted to the appellant. It was further directed
that if either party intended to relocate his or her residence, he/she would have to give 30 days’
advance written notice ofany such intended relocation and of any intended change in address
page no. | 123 |
landmark judgments of supreme court of india on CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING
to the other party and the court. The proceedings concluded with the observation “This cause is
final”. For immediate reference the proceedingsof 20.10.2015 is also extracted hereinbelow:
“IN THE JUVENILE & DOMESTIC RELATIONS DISTRICT COURT FOR FAIRFAX
COUNTY
Shilpi Gupta Petitioner
In re: Aadvik Gupta
D.O.B September 28, 2012
Case No. JJ431468-01-00/02-00
Vs.
Prateek Gupta Respondent
CUSTODY AND VISITATION ORDER
This cause came before this Court on the 20thday of October, 2015, upon the petitioner Shilpi
Gupta’s petitions for custody and visitation ofAadvik Gupta.
It appearing to the Court that it has jurisdiction over the parties and the subject matter of the
above-styled matter;
It further appearing to the Court that the respondent, Prateek Gupta, unilaterally removed
Aadvik Gupta to India without notice to or consentof the petitioner, and has further refused to
return said child to the United States and into thecustody of the petitioner in direct violation
of this Court’s order entered on May 28, 2015.
Having considered all of the factors of 20-124.3of the Code of Virginia, 1950, as amended, it
is hereby:
Adjudged and ordered that petitioner is granted sole legal and physical custody ofAadvik
Gupta; it is further.
Adjudged and ordered that no visitation is granted to the respondent at this time; and it is
further;
Adjudged and ordered that pursuant to 20-124.5 of the Code of Virginia, 1950 as amended,
either party who intends to relocate his or her residence shall give thirty-days advance written
notice of any such intended relocation and of any intended change of address, said notice being
givento both the other party and to this Court.
This cause is final
Entered this 20th day of October, 2015.”
10. Mentionably, before the order dated 20.10.2015 was passed, the respondent in the face of
deliberate non-compliance of the order dated 28.05.2015 of the court in U.S had filed a contempt
petition before it and the copy thereof was served on the appellant asking him to show cause. It
is also a matter of record that the order dated 28.05.2015 of the court in U.S had been published
in the daily “The Washington Times” on 03.09.2015, whereafter the order dated 20.10.2015
was passed in the presence of the counsel for the appellant after affording the respondent due
hearing, whereupon the counsel of the appellant signed the order with the following endorsement
“objected to for returning thechild to mother sole legal and physical custody”. The proceedings
of the order dated 20.10.2015 would also testify that he failed to appear even after personal
page no. | 124 |
Prateek Gupta Versus Shilpi Gupta & Ors.
service. That the notice of the proceedings in U.S Court at both the stages had been served on
the appellant is a minuted fact. It was in this eventful backdrop, that the respondent invoked the
writ jurisdiction of the High Court of Delhi seeking a writ of habeas corpus against the appellant
for the custody of the child alleging its illegal and unlawful charge by him.
11. In reinforcement of her imputations, the respondent elaborated that the child was an American
citizen by birth, Virginia being his home State and that in spite of the order(s) of a court of
competent jurisdiction, the appellant had illegally detained him. Various correspondences made
by her with different authorities seeking their intervention and assistance as the last resort before
approaching the Writ Court were highlighted.
12. In refutation, it was pleaded on behalf of the appellant that the petition for a writ in the nature
ofhabeas corpus was misconceived in absence of any imminent danger of the life or physical
or moral well-being of the child. Referring to, amongst others the proceedings initiated by him
under the Guardian and Wards Act, 1890 which was pending adjudication, it was asserted on
his behalf that as the same assured effective and efficacious remedy in law, the prayer in the
writ petition ought to be declined. It was insisted as well that as the issue of the custody of
the childwas involved, a summary adjudication thereof was unmerited and that a proper trial
was the imperative. Apart from referring to the reasons for the acrimonious orientation of the
parties, the initiatives and efforts made by him and his family members tofruitlessly effect a
resolution of the differences, were underlined. It was maintained on his behalf that the parties
however, as an interim arrangement made on 24.01.2015 had agreed to live separately with each
parent keeping one child in his/her custody and that in terms thereof Aadvik, the minor whose
custody is in dispute, was given in charge of the appellant. Institution and pendency of the other
proceedings before the Indian Courts were also cited to oppose the relief of the writ of habeas
corpus. It was contended as well that the respondent being a single working woman, she would
not, in any view of the matter, be capable of appropriately looking after both the children.
13. In rejoinder, it was asserted on behalf of the respondent that the proceedings instituted by the
appellant were all subsequent to the one commenced by her in the court in U.S on 15.05.2015
and in the faceof the final order(s) passed, directing return ofcustody of the child to her and
the Commonwealthof Virginia, the continuance of the child with the appellant was apparently
illegal and unauthorized, warranting the grant of writ of habeas corpus.
14. The High Court, as the impugned judgment would evince, after traversing the recorded facts,
amongst others took note of the disinclination of the respondent-wife to join the company of
her husband in India because of his alleged past conduct and the trauma and torture suffered
by her, a plea duly endorsed by her father present in court, granted the writ as prayed for. While
rejecting the contention ofthe appellant that no orders ought to be passed in the writ petition in
view of the pendency of the three proceedings initiated by him in India, the High Court seemed
to place a decisive reliance on the decision ofthis Court in Surya Vadanan v. State of Tamil
Nadu1,and after subscribing to the principle of “comity ofcourts” and the doctrines of “most
intimate contact” and “closest concern” returned the finding, in the prevailing factual setting,
that the domestic court had much less concern with the child as against the foreign court which
had passed the order prior in time. It observed further that no special or compelling reason had
been urged to ignore the principle of comity ofcourts which predicated due deference to the
1 (2015) 5 SCC 450
page no. | 125 |
landmark judgments of supreme court of india on CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING
orders passed by the U.S Court, more particularly when the appellant was represented before it
through his counsel and had submitted to its jurisdiction. It was held that as the child remained
in the U.S since birth upto March, 2015, it could be safely construed that he was accustomed
to and had adapted himself to the social and cultural milieu different from that of India. It was
observed that no plea had been raised on behalf of the appellant that the foreign court was either
incompetent or incapable of exercising its jurisdiction or had not rendered a reasonable or fair
decision in the best interest of child and his best welfare. In the textual facts, the conclusion of
the High Court was that the most intimate contact with the parties and their children was of the
court in U.S which did have the closest concern for their well-being.
15. Having determined thus, the High Court directed the appellant to produce the child in court on
the date fixed for consequential handing over of hiscustody to the respondent.
16. In the process of impeachment of the impugned ruling of the High Court, the learned counsel
for the appellant at the threshold has assiduously questioned the maintainability of the writ
proceeding for habeas corpus. According to the learned counsel, in the attendant facts and
circumstances, the custody of the child of the appellant who is the biological father can by no
means be construed as illegal or unlawful and thus the writ proceeding is misconceived. Further
the appellant being in-charge of the child on the basis of an agreement between the parties,
which also stands corroborated by various SMS and e-mails exchanged between them during
the period from January, 2015 to 07.03.2015, the departure of the appellant with the child from
the U.S to India and its custody with him is authorized and approved in law. The learned counsel
argued as well that during the interregnum, after the appellant had returned to India with the
child, the couple had been in touch with each other with interactions about the well-being of the
child and thus in law and on facts, there is no cause of action whatsoever for the writ of habeas
corpus as prayed for. That in passing the impugned order, the High Court had visibly omittedto
analyze the perspectives pertinent for evaluating the interest or welfare of the child has been
underlinedto urge that on that ground alone, the assailed ruling is liable to be interfered with.
The learned counsel dismissed any binding effect of the order of the U.S Court on the ground
that the same had been obtained by the respondent by resorting to fraud in withholding the
relevant facts from it and deliberately projecting wrongly that the safety of the child was in
danger in the custody of the appellant. The order of the court in U.S having thus been obtained
by resorting to fraud, it is non est in law, she urged. Even otherwise, India being not a signatory
to the Hague Convention of “The Civil Aspects of International Child Abduction”, the order
of the U.S Court was not per se enforceable qua the appellant and as in any view of the matter,
the principle of comity of courts was subject to the paramount interest and welfare of the child,
the High Court had fallen in error in relying on the rendition ofthis Court in Surya Vardanan1
which in any event, wasof no avail to the respondent in the singular facts ofthe case. According
to the learned counsel, the parties are Indian nationals and citizens having Indian passports and
they are only residents of U.S on temporary work visa. It has been argued that the respondent
is all alone in U.S with the younger child on a temporary work visa which would expire in 2017
and her parents and other family members are all in India. It has been pleaded as well that when
the child was brought to India by the appellant, he was aged 2½ years, by which age he could not
be considered tohave been accustomed and adapted to the lifestyle in U.S for the application of
the doctrines of “intimate contact” and “closest concern” by a court of that country. According
to the learned counsel, the childafter his return to India, has been admitted to a reputed school
page no. | 126 |
Prateek Gupta Versus Shilpi Gupta & Ors.
and has accustomed himself to a desired congenial family environment, informed with love and
affection, amongst others of his grand-parents for which it would be extremely harsh toextricate
him herefrom and lodge him in an alien setting, thus adversely impacting upon the process
ofhis overall grooming. That the removal of the child by the appellant to India had not been in
defiance of any order of the court in U.S and that the issue, more particularly with regard to his
custody as per the Indian law is presently pending in a validly instituted proceeding here has
also been highlighted in endorsement of the challenge to the impugned judgment and order.
The decisions of this Court inDhanwanti Joshi v. Madhav Unde2, Sarita Sharma v.Sushil Sharma3
and Surya Vadanan1 have been advertedto in consolidation of the above arguments.
17. In his contrasting response, the learned counsel for the respondent, while edifying the sanctified
statusof a mother and her revered role qua her child in its all round development, urged with
reference to the factual background in which the child had been removed from his native country,
that his continuingcustody with the appellant is patently illegal and unauthorized besides being
ruthless and inconsiderate vis-à-vis the respondent-mother and his younger sibling. Heavily
relying on the determination of this Court in Surya Vadanan1, the learned counsel has insisted
that the High Court had rightly invoked the principle of comity of courts and the doctrines
of “intimate contact” and “closest concern” and therefore, no interference is called for in the
ultimate interest and well-being of the child. It was urged that the orders passed by the court in
U.S directing the return of thechild to the custody of the respondent and the Commonwealth
of Virginia is perfectly legal and valid, the same having been rendered after affording due
opportunity to the appellant and also on an adequate appreciation of the aspects bearing on
the welfare ofthe child. The orders thus being binding on the appellant, the defiance thereof is
inexcusable in law and only displays a conduct unbecoming of a father tojustify retention of
the custody of the child in disobedience of the process of law. The High Court as well on a due
consideration of the facts and the law involved had issued its writ for return of the custodyof
the child to the respondent after affording a full-fledged hearing to both the parties for which
no interference is warranted, he urged. The learned counsel however denied that there was ever
any agreement or understanding between the couple, under which they agreed that each parent
would have thecustody of one child as represented by the appellant. In the case in hand as a final
order has been passed by the court in U.S with regard to the custodyof the child in favour of the
respondent after discussing all relevant aspects, the impugned order ofthe High Court being
in conformance with the letter and spirit thereof, no interference is merited, he urged. While
placing heavy reliance on the decision of this Court in Surya Vadanan1, it was also insisted that
the return of the elder child to the custody of the mother was indispensably essential also for the
proper growth and grooming of the younger child in his company and association, sharing the
common bondof love, affection and concern.
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 v. State (NCT of Delhi)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
2 (1998) 1 SCC 112
3 (2000) 3 SCC 14
4 (2017) 8 SCC 454
page no. | 127 |
landmark judgments of supreme court of india on CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING
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 this Court arose from a
decision of the High Court in a Writ Petition filed by the father alleging that theminor 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
childand 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 alternativeto 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.
20. A brief outline of the factual details, would assist better the comprehension of the issues addressed
therein. The parties to start with, were Indian citizens and were married as per the Hindu rites
and customs on 30.11.2006 which was registered before the SDM Court, Chennai, whereafter
on the completionof the traditional formalities, they shifted to U.K in early 2007 and set up their
matrimonial home in Watford (U.K). Differences surfaced between them so much so that as
alleged by the wife, she was subjectedto physical and mental abuse. She having conceived in and
around December, 2008, left U.K for Delhi in June, 2009 to be with her parents and eventually
was blessed with a girl child, Nethra in Delhi. The husband soon joined the mother and the child
in Delhi whereafter, they together left for U.K in March, 2010. Skipping over the intervening
developments, suffice itto state that the mother with the child who had meanwhile been back
on a visit to India, returned toLondon in December, 2011, whereafter the minor was admitted
in a Nursery School in U.K in January, 2012. In December, 2012, the daughter was granted
citizenshipof U.K and subsequent thereto, the husband also acquired the same. Meanwhile
from late 2014 till early 2015, the daughter was taken ill and was diagnosed tobe suffering from
cardiac disorder for which she was required to undergo periodical medical reviews. As imputed
by the wife, the father however, dis-played total indifference to the daughter’s health condition.
Finally on 02.07.2015, the appellant-mother returnedto India along with the daughter because
of alleged violent behavior of the respondent and also informed the school that the ward would
not be returning to U.K for her well-being and safety. The appellant thereafter filed a complaint
on 16.12.2015 against the respondent with the Crime Against Women Cell, New Delhi, which
issued notice to the respondent and his parents toappear before it. According to the appellant,
neither the respondent nor his parents did respond to the said notice and instead as a counter-
blast, he filed acustody/wardship petition on 08.01.2006 before the High Court of Justice, Family
Division, U.K praying for the restoration of his daughter to the jurisdiction ofthat Court. The
Court in U.K on 08.01.2016 passed an ex-parte order inter alia directing the appellant toreturn
the daughter to U.K and to attend the hearingof the proceedings. Within a fortnight therefrom,
the respondent also filed a writ petition before the High Court of Delhi against the appellant-wife
seeking a writof habeas corpus for production of the minor before the Court. By the impugned
Judgment and Order, the High Court directed the appellant to produce the daughter and comply
with the orders passed by the U.K Court or hand over the minor to the respondent-father within
three weeks therefrom.
21. Assailing this determination, it was urged on behalf of the appellant inter alia that the High
Court had wrongly assigned emphasis on the principle ofcomity of courts in complete disregard
page no. | 128 |
Prateek Gupta Versus Shilpi Gupta & Ors.
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 ofcomity 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 patriaejurisdiction of the Indian
court within whose jurisdiction the child was located as well as the welfareof the child in
question in mechanically applying the principle of comity of courts. That though the welfareof
the child in situations of the like as well, is ofparamount consideration, this Court in Shilpa
Aggarwalv. Aviral Mittal5 and in Surya Vadanan1 had deviated from this governing precept and
had directed the childand mother to return to the jurisdiction of the foreign court by mis-
interpreting the concept of ‘intimate contact’ of the child with the place ofrepatriation, 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.
22. 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.) v.Union of India6 in which a three-Judge
Bench had categorically held that under no circumstance can the principle of welfare of the child
be eroded and that achild can seek refuge under the parens patriaejurisdiction of the Court.
While dismissing the initiativeof 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 topresent her case. It was
canvassed further that the writ petition filed by the respondent seeking a writ ofhabeas 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 ofhis 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. In refutation, it was maintained on behalf of the respondent that the child was a British citizen
and brought up in U.K and as he had acquired its citizenship and the appellant was also a
permanent resident ofU.K, they had the abiding intention to permanently settle there along with
the child and thus the U.K Court had the closest concern and intimate contact with thechild
as regards her welfare and custody and thus indubitably had the jurisdiction in the matter. It
was urged on behalf of the respondent by referring amongst others to the rendering in Surya
Vadanan1that the child had clearly adapted to the social and cultural milieu of U.K and thus
it was in its best interestto be rehabilitated there. That there was no materialto suggest that the
return of the child to U.K would result in psychological, physical or cultural harm to her or that
the U.K Court was incompetent to take a decision in the interest and welfare of the child, was
5 (2010) 1 SCC 591
6 (2010) 1 SCC 174
page no. | 129 |
landmark judgments of supreme court of india on CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING
underlined. It was insisted as well that there was no compelling reason for the High Court to
ignore the principle of comity of courts and that as acknowledged by the High Court, better
medical facilities were available in U.K to treat the child. The steps taken by the respondent
towards the child’s boarding and travelling expenses together with the expenditure incurrable
for the school and other incidental aspects and his undertaking not to pursue any criminal
proceeding against the appellant for kidnapping the child with the avowed desire ofreinstating
his home was highlighted to demonstrate his bona fides. That there was no delay on the part
ofthe respondent in filing the writ petition, which he did immediately after coming to learn that
the appellant was disinclined to return the child to U.K, was stressed upon as well.
24. In this disputatious orientation, this Court premised its adjudication on the necessity to comply
with the direction issued by the foreign court against the appellant to produce the minor child
before the U.K Court where the issue regarding wardship was pending for consideration and
also to ascertain as towhich Court could adjudicate the same.
25. While recalling that the concept of forum convenience has no place is wardship jurisdiction,
this Court at the outset dwelt upon the efficacy of the principle of comity of courts as applicable
to India in respect of child custody matters and for that purpose, exhaustively traversed the
relevant decisions on the issue. It referred to the verdict in Dhanwanti Joshi2, which recorded
the enunciation of the Privy Council in Mark T. Mckee v. Evelyn Mckee7, which in essence
underlined the paramountcy of the consideration of welfare and happiness of the infantto be of
decisive bearing in the matter of deciding itscustody with the observation that comity of courts
demanded not its enforcement but its grave consideration. In that case, a decree of divorce was
passed in USA and custody of the child was given tothe father and later varied in favour of the
mother. At that stage, the father took away the child to Canada, whereafter in the habeas corpus
proceedings by the mother, though initially the decisions of the lower courts went against her,
the Supreme Court of Canada gave her custody and the said Court held that thefather could not
have the question of custody retried in Canada once the question was adjudicated in favourof the
mother in the U.S.A earlier. The above observation was made by the Privy Council on appealto it
which held that in the proceedings relating to thecustody before the Canadian Court, the welfare
and happiness of the infant was of paramount consideration and the order of a foreign court in
USA as to the custody can be given due weight in the circumstances of the case but such an
order of a foreign court was only one of the factors which must be taken into consideration. The
duty of the Canadian Court to form any independent judgment on the merits of the matter with
regard to the welfare ofthe child was emphasized. It recorded as well that this view was sustained
in L (minors) (Wardship: Jurisdiction), In. re8, which reiterated that the limited question which
arose in the latter decisions was whether the court in the country in which the child was removed
could conduct (a) summary enquiry or (b) an elaborate enquiry in the question of custody. It
was explicated that in case of (a) a summary enquiry, the court would return custody to the
country from which the child was removed unless such return could be shown to be harmful to
the child and in case of (b) an elaborate enquiry, the court could go into the meritsto determine
as to where the permanent welfare lay and ignore the order of the Foreign Court or treat the fact
of removal of the child from another country as only one of the circumstances and the crucial
question as to whether the court (in the country to which thechild is removed) would exercise
7 (1951) AC 352 (PC)
8 (1974) 1 WLR 250 (CA)
page no. | 130 |
Prateek Gupta Versus Shilpi Gupta & Ors.
the summary or elaborate procedure is to be determined according tothe child’s welfare. It was
indicated that the summary jurisdiction to return the child is invoked, for example, if the child
had been removed from its native land 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 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. It was mentioned as well that the summary jurisdiction is exercised only if the court to
which the child has been removed is moved promptly and quickly, for in that event, the Judge
may be well persuaded that it will be better for the child that those facets be investigated in the
court in his native country on the expectation that an early decision in the native country could
be in the interest of the child before it would develop roots in the country to which he had been
removed. It was expounded in the alternative, that the Court might as well think of conducting
an elaborate enquiry on merits and have regard to the other facts of the case and the time that
has elapsed after the removal of thechild and consider, if it would be in the interest of thechild
not to have it returned from the country towhich it had been removed, so much so that in such
an eventuality, the unauthorized removal of the childfrom the native country would not come in
the way ofthe court in the country to which the child has been removed, to ignore the removal
and independently consider whether the sending back of the child to its native country would
be in the paramount interest ofthe child.
26. This Court recalled its mandate in Elizabeth Dinshaw v. Arvand M. Dinshaw9, directing the
fatherof the child therein, who had removed it from USA contrary to the custody orders of U.S
Court, torepatriate it to USA to the mother not only becauseof the principle of comity but also
because on facts, which on independent consideration merited such restoration of the child to
its native State, in its interest. The following observations in Dhanwanti Joshi2qua the state of
law vis-a-vis the countries who are not the signatories of the Hague Convention are offormidable
significance and as noticed in Nithya Anand Raghavan4, are extracted hereinbelow:
“33. So far as non-Convention countries are concerned, or where the removal related to a
period before adopting the Convention, the law is that the court in the country to which
the child is removed will consider the question on merits bearing 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 as stated in McKee v. McKee unless the Court thinks it
fit to exercise summary jurisdiction in the interests of the child and its prompt return
is for its welfare, as explained in Re [L. (Minors) (Wardship : Jurisdiction). As recently
as 1996-1997, it has been held in P. (A minor) (Child Abduction: Non-Convention
Country), Re: by Ward, L.J [1996 Current Law Year Book, pp. 165-166] that in deciding
whether to order the return of a child who has been abducted from his or her country of
habitual residence—which was not a party to the Hague Convention, 1980—the courts’
overriding consideration must be the child’s welfare. There is no need for the Judge to
attempt to apply the provisions of Article 13 of the Convention by ordering the child’s
return unless a grave risk ofharm was established. See also A. (A Minor) (Abduction:
Non-Convention Country) [Re, The Times, 3-7-1997 by Ward, L.J (CA) (quoted in
Current Law, August 1997, p. 13]. This answers the contention relating to removal of
the child from USA.”
9 (1987) 1 SCC 42
page no. | 131 |
landmark judgments of supreme court of india on CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING
27. Here again the court in the country to which thechild is removed was required to consider the
question on merits bearing on its welfare as ofparamount significance and take note of the order
ofthe foreign court as only a factor to be taken into consideration as propounded in Mckee7,
unless the court thought it fit to exercise the summary jurisdiction of the child and its prompt
return to its native country for its welfare. In elaboration of the above exposition, this Court in
Nithya Anand Raghavan4propounded thus:
“40. The Court has noted that India is not yet a signatory to the Hague Convention of 1980
on “Civil Aspects of International Child Abduction”. As regards the non-Convention
countries, the law is that the court in the country to which the child has been removed
must consider the question on merits bearing the welfare of the child as of paramount
importance and reckon the order of the foreign court as only a factor to be taken into
consideration, unless the court thinks it fit toexercise summary jurisdiction in the
interests ofthe child and its prompt return is for its welfare. In exercise of summary
jurisdiction, the court must be satisfied and of the opinion that the proceeding instituted
before it was in close proximity and filed promptly after the child was removed from his/
her native state and brought within its territorial jurisdiction, the child has not gained
roots here and further that it will be in the child’s welfare to returnto his native state
because of the difference in language spoken or social customs and contacts towhich he/
she has been accustomed or such other tangible reasons. In such a case the court need
not resort to an elaborate inquiry into the merits ofthe paramount welfare of the child
but leave that inquiry to the foreign court by directing return ofthe child. Be it noted
that in exceptional cases the court can still refuse to issue direction to return the child
to the native state and more particularly in spite of a pre-existing order of the foreign
court in that behalf, if it is satisfied that the child’s return may expose him to a grave
risk of harm. This means that the courts in India, within whose jurisdiction the minor
has been brought must “ordinarily” consider the question on merits, bearing in mind
the welfare of the child as of paramount importance whilst reckoning the pre-existing
orderof the foreign court if any as only one of the factors and not get fixated therewith.
In either situation—be it a summary inquiry or an elaborate inquiry—the welfare of
the child is of paramount consideration. Thus, while examining the issue the courts in
India are free to decline the relief ofreturn of the child brought within its jurisdiction, if
it is satisfied that the child is now settled in its new environment or if it would expose
the child tophysical or psychological harm or otherwise place the child in an intolerable
position or if the child is quite mature and objects to its return. We are in respectful
agreement with the aforementioned exposition.”
28. The above excerpt would in no uncertain terms underscore the predication that the courts in
India, within whose jurisdiction the minor has been brought “ordinarily” while examining the
question on merits, would bear in mind the welfare of the child as ofparamount and predominant
importance while noting the preexisting order of the foreign court, if any, as only one of the
factors and not get fixated therewith and that in either situation, be it a summary enquiry or
elaborate enquiry, the welfare of the child is ofpreeminent and preponderant consideration,
so much so that in undertaking this exercise, the courts in India are free to decline the relief
of repatriation of thechild brought within its jurisdiction, if it is satisfied that it had settled in
its new environment or that it would be exposed thereby to physical harm or otherwise, if it is
page no. | 132 |
Prateek Gupta Versus Shilpi Gupta & Ors.
placed in an intolerable or unbearable situation or environment or if the child in a given case, if
matured, objects to its return.
29. Sustenance of this view was sought to be drawn from the verdict of another three-Judge Benchof
this Court in V. Ravichandran6, as expressed in paragraphs 27 to 30 in the following terms:
“27. … However, in view of the fact that the child had lived with his mother in India for
nearly twelve years, this Court held that it would not exercise a summary jurisdiction
to return the childto the United States of America on the ground that its removal from
USA in 1984 was contrary to the orders of US courts. It was also held that whenever a
question arises before a court pertaining to thecustody of a minor child, the matter is
to be decided not on considerations of the legal rightsof the parties but on the sole and
predominant criterion of what would best serve the interest ofthe minor.”
(emphasis supplied)
Again in paras 29 and 30, the three-Judge Bench observed thus: (SCC pp. 195-96)
“29. While dealing with a case of custodyof 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 countryto which the child has been removed must
first consider the question whether the court could conduct an elaborate enquiry on the
question ofcustody or by dealing with the matter summarily order a parent to return
custodyof the child to the country from which thechild was removed and all aspects
relating tothe 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 ofwelfare 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 hiscustody
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 summarilyto
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 tobe investigated by the court in his own native country as that could be in the best
interests ofthe child. The indication given in McKee v.McKee 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 ofthe child on the ground that such an order is in the best interests of the child
has been explained in L. (Minors), In re [L. (Minors) (Wardship : Jurisdiction), (1974) 1
WLR 250 (CA)] and the said view has been approved by this Court in Dhanwanti Joshi
[Dhanwanti Joshi. Similar view taken by the Court of Appeal in H. (Infants) (1966) 1
WLR 381 has been approved by this Court in Elizabeth Dinshaw.”(emphasis supplied)
30. The quintessence of the legal exposition on the issue was succinctly synopsised in the following
terms:
page no. | 133 |
landmark judgments of supreme court of india on CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING
“42. 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.”
31. Thus the state of law as approved in Nithya Anand Raghavan4 is that if a child is brought from a
foreign country, being its native country to India, the court in India may conduct (a) summary
enquiry, or (b) an elaborate enquiry on the question of custody, if called for. In the case of a
summary enquiry, the court may deem it fit to order the return of the child to the country
from where he/she has been removed unless such return is shown to be harmful to the child.
Axiomatically thus, even in case of a summary enquiry, it is open to the court to decline the
relief of return of the child to the country from where he/she has been removed irrespective of a
pre-existing order of return of a child by a foreign court, in case it transpires that its repatriation
would be harmful to it. On the other hand, in an elaborate enquiry, the court is obligated to
examine the merits as to where the paramount interest and welfare of the child lay and take
note of the pre-existing order of the foreign court for the return of the child as only one of
the circumstances. As a corollary, in both the eventualities whether the enquiry is summary or
elaborate, the court would be guided by the pre-dominant consideration of welfare of the child
assuredly on an overall consideration on all attendant facts and circumstances. In other words,
the principle of comity of courts is not to be accorded a yielding primacy or dominance over the
welfare and well-being of the child which unmistakeably is of paramount and decisive bearing.
32. This Court in Nithya Anand Raghavan4 also had to examine as to whether a writ of habeas
corpus was available to the father qua the child which was in the custody of the mother, more
particularly in the face of ex-parte order of the court in U.K against her and directing her for its
return to its native country by declaring it to remain as a ward of that court during its minority
or until further orders. This Court noted that this order had remained not only unchallenged by
the appellant mother but also no application had been made by her before the foreign court for
its modification. This Court however was firstly of the view that this order per se did not declare
the custody of the minor with the appellant mother to be unlawful or that till it returned to
England, its custody with the mother had become or would be treated as unlawful inter aliafor
the purposes of considering a petition for issuance of writ of Hebeas Corpus. In this regard, the
page no. | 134 |
Prateek Gupta Versus Shilpi Gupta & Ors.
decision of this Court, amongst others in Syed Saleemuddin v. Dr. Rukhsana10, was adverted to,
wherein it had been proclaimed that the principal duty of the court moved for the issuance of
writ of habeas corpus in relation to the custody of a minor child is to ascertain whether such
custody is unlawful or illegal and whether the welfare of the child requires, that his present
custody should be changed and the child ought to be handed over to the care and custody of any
person. It was once again emphasized that while doing so, the paramount consideration must
be, the welfare of the child.
33. The observation in Elizabeth Dinshaw9 that in such matters, the custody must be decided not
by reference to the legal rights of the parties but on the sole and predominant criterion as to
what would best serve the interest and welfare of the minor and that to that extent, the High
Court would exercise its parens patriae jurisdiction, as the minor is within its jurisdiction was
reminisced. In the facts of the case also, noting the supervening fact that the appellant was the
biological mother and natural guardian of the minor child, the remedy of writ of habeas corpus
invoked for enforcement of the directions of the foreign court was declined, however leaving
the respondent/father to take recourse to such other remedy as would be available in law for the
enforcement of the order passed by the foreign court for securing the custody of the child. It was
held that the appellant being the biological mother and natural guardian of the child, it could be
presumed that its custody with her was lawful.
34. 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.
10 (2001) 5 SCC 247
page no. | 135 |
landmark judgments of supreme court of india on CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING
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.
35. To complete the narrative, the analysis of the other relevant pronouncements rendered on
the issue would be adverted to in seriatim. In V. Ravi Chandran6, a writ of habeas corpus for
production of minor son from the custody of his mother was sought for by his father. The child
was born in US and was an American citizen and was about eight years of age when he was
removed by the mother from U.S, in spite of her consent order on the issue of custody and
guardianship of the minor passed by the competent U.S Court. The minor was given in the
joint custody to the parents and a restraint order was operating against the mother when it was
removed from USA to India. Prior to his removal, the minor had spent few years in U.S All these
factors weighed against the mother as is discernible from the decision, whereupon this Court
elected to exercise the summary jurisdiction in the interest of the child, whereupon the mother
was directed to return the child to USA within a stipulated time.
36. In Shilpa Aggarwal5, the minor girl child involved was born in England having British citizenship
and was only 3½ years of age at the relevant time. The parents had also acquired the status of
permanent residents of U.K In the facts and circumstances of the case, this Court expressed
its satisfaction that in the interest of the minor child, it would be proper to return her to U.K
by applying the principle of comity of courts. The Court was also of the opinion that the issue
regarding custody of the child should be decided by the foreign court from whose jurisdiction
the child was removed and brought to India. A summary enquiry was resorted to in the facts of
the case.
37. In Arathi Bandi v. Bandi Jagadrakshaka Rao11 the minor involved was a male child who was born
in USA and had acquired the citizenship of that country by birth. The child was removed from
USA by the mother in spite of a restraint order and a red corner notice operating against her
had been issued by a court of competent jurisdiction in USA. This Court therefore held that the
facts involved were identical to those in V. Ravi Chandran6 and further noticed that the mother
of the child also had expressed her intention to return to USA and live with her husband though
the latter was not prepared to cohabit with her.
38. 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 with her daughters, petitioned the High Court of Justice in U.K for making the
11 (2013) 15 SCC 790
page no. | 136 |
Prateek Gupta Versus Shilpi Gupta & Ors.
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:
“56. However, if there is a pre-existing 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. 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.”
39. vis-à-vis the renditions in V. Ravi Chandran6,Shilpa Aggarwal5 and Arathi Bandi11, this Court
inNithya Anand Raghavan4 distinguished the facts involved therein from the one under its
scrutiny. While underlining that the considerations which impelled the court to adopt its
summary approach/jurisdiction in directing the return of the child to its native country, did not
in any way discount or undermine the predominant criterion of welfare and interest of the child
even to outweigh neuter or offset the principle of comity of courts, it disapproved the primacy
sought to be accorded to the order of the foreign court on the issue of custody of minor in Surya
Vadanan1 though negated earlier in Dhanwanti Joshi2 and reiterated that whether it was a case
of summary enquiry or an elaborate enquiry, the paramount consideration was the interest and
welfare of the child so much so that the preexisting order of a foreign court could be taken note
of only as one of the factors. The alacrity or the expedition with which the applicant/parent
moves the foreign court or the domestic court concerned, for custody as a relevant factor was
also not accepted to be of any definitive bearing. This notion of “first strike principle” was not
subscribed to and further the extrapolation of that principle to the courts in India as predicated
in Surya Vadanan1 was also held to be in-apposite by advertinginter alia to Section 14 of the
Guardians and Wards Act, 1890 and Section 10 of the Civil Procedure Code.
page no. | 137 |
landmark judgments of supreme court of india on CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING
40. The following passage from Nithya Anand Raghavan4 discarding the invocation of “first strike”
principle as a definitive factor in furtherance of the applicability of the principle of comity of
courts is quoted as hereunder:
“66. The invocation of first strike principle as a decisive factor, in our opinion, would
undermine and whittle down the wholesome principle of the duty of the court having
jurisdiction to consider the best interests and welfare of the child, which is of paramount
importance. If the Court is convinced in that regard, the fact that there is already an
order passed by a foreign court in existence may not be so significant as it must yield
to the welfare of the child. That is only one of the factors to be taken into consideration.
The interests and welfare of the child are of paramount consideration. The principle of
comity of courts as observed in Dhanwanti Joshi case in relation to non-Convention
countries is that the court in the country to which the child is removed will consider the
question on merits bearing 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.
While considering that aspect, the court may reckon the fact that the child was abducted
from his or her country of habitual residence but the court’s overriding consideration
must be the child’s welfare.”
41. In conclusion, qua the decisions relied upon by the respondent-father, the facts contained
therein were held to be distinguishable and it was observed that though the factual backdrop
as obtained therein necessitated the court to issue direction to return the child to the native
State, it did not follow that in deserving cases, the Courts in India were denuded of their powers
to decline the relief to relocate the child to the native State merely because of a pre-existing
order of foreign court of competent jurisdiction. The law laid down in Dhanwanti Joshi2 and
approved by a three Judge Bench of this Court in V. Ravi Chandran6 was enounced to be the
good law, thus reiterating that so far as non-convention countries are concerned, the court in
the country in which the child is removed while examining the issue of its repatriation to its
native country, would essentially bear in mind that the welfare of the child was of paramount
importance and that the existing order of foreign court was only a factor to be taken note of.
It was reiterated that the summary jurisdiction to return the child could be exercised in cases
where the child had been removed from his native land to another country where his native
language is not spoken or the child gets divorced from social customs and contacts to which he
is accustomed or if his education in his native land is interrupted and the child is subjected to
foreign system of education, thus adversely impacting upon his psychological state and overall
process of growth. Though a prompt and expeditious move on the part of the applicant parent
for the repatriation of the child in a court in the country to which it had been removed may be
a relevant factor, the overwhelming and determinative consideration unfailingly has to be in the
interest and welfare of the child. It was observed that in the facts of the case, the minor child
after attaining majority would be free to exercise her choice to go to U.K and stay with her father
but till that eventuality, she should stay in the custody of mother unless the court of competent
jurisdiction trying the issue of custody of the child did order to the contrary. Visitation right
to the respondent-father however was granted and directions were issued so as to facilitate the
participation of the appellant-mother in the pending proceedings before the U.K Court, inter
aliaby requiring the respondent-husband to bear the necessary costs to meet the expenditure
page no. | 138 |
Prateek Gupta Versus Shilpi Gupta & Ors.
towards all relevant aspects related thereto. The impugned judgment of the High Court issuing
the writ of habeas corpus in favour of the respondent-husband was thus set aside.
42. The dialectics and determinations in Nithya Anand Raghavan4 have been alluded to in pervasive
details as the adjudication therein by a Bench of larger coram has forensically analyzed all the
comprehensible facets of the issue, to which we deferentially subscribe.
43. The decisions cited at the Bar and heretofore, traversed present fact situations with fringe
variations, the common and core issue being the justifiability or otherwise factually and/or
legally, of the relocation of a child removed from its native country to India on the basis of the
principle of comity of courts and doctrines of “intimate contact” and “closest concern”.
44. The following observations in Ruchi Majoo v.Sanjeev Majoo12 bearing on the parens patriae
jurisdiction of Indian courts in cases involving custody of minor children are apt as well:
“Recognition of decrees and orders passed by foreign courts remains an eternal dilemma
inasmuch as whenever called upon to do so, courts in this country are bound to determine the
validity of such decrees and orders keeping in view the provisions of Section 13 of the Code of
Civil Procedure, 1908, as amended by the Amendment Acts of 1999 and 2002. The duty of a
court exercising its parens patriae jurisdiction as in cases involving custody of minor children
is all the more onerous. Welfare of the minor in such cases being the paramount consideration;
the court has to approach the issue regarding the validity and enforcement of a foreign decree
or order carefully. Simply because a foreign court has taken a particular view on any aspect
concerning the welfare of the minor is not enough for the courts in this country to shut out an
independent consideration of the matter. Objectivity and not abject surrender is the mantra in
such cases. That does not, however, mean that the order passed by a foreign court is not even a
factory to be kept in view. But it is one thing to consider the foreign judgment to be conclusive
and another to treat it as a factor or consideration that would go into the making of a final
decision.”
45. The gravamen of the judicial enunciation on the issue of repatriation of a child removed from
its native country is clearly founded on the predominant imperative of its overall well-being,
the principle of comity of courts, and the doctrines of “intimate contact and closest concern”
notwithstanding. Though the principle of comity of courts and the aforementioned doctrines
qua a foreign court from the territory of which a child is removed are factors which deserve
notice in deciding the issue of custody and repatriation of the child, it is no longer res integra
that the ever overriding determinant would be the welfare and interest of the child. In other
words, the invocation of these principles/doctrines has to be judged on the touchstone of myriad
attendant facts and circumstances of each case, the ultimate live concern being the welfare of
the child, other factors being acknowledgeably subservient thereto. Though in the process of
adjudication of the issue of repatriation, a court can elect to adopt a summary enquiry and order
immediate restoration of the child to its native country, if the applicant/parent is prompt and
alert in his/her initiative and the existing circumstances ex facie justify such course again in the
overwhelming exigency of the welfare of the child, such a course could be approvable in law,
if an effortless discernment of the relevant factors testify irreversible, adverse and prejudicial
impact on its physical, mental, psychological, social, cultural existence, thus exposing it to
visible, continuing and irreparable detrimental and nihilistic attentuations. On the other hand,
12 (2011) 6 SCC 479
page no. | 139 |
landmark judgments of supreme court of india on CUSTODY OF CHILD, VISITATION RIGHTS & SHARED PARENTING
if the applicant/parent is slack and there is a considerable time lag between the removal of the
child from the native country and the steps taken for its repatriation thereto, the court would
prefer an elaborate enquiry into all relevant aspects bearing on the child, as meanwhile with the
passage of time, it expectedly had grown roots in the country and its characteristic milieu, thus
casting its influence on the process of its grooming in its fold.
46. The doctrines of “intimate contact” and “closest concern” are of persuasive relevance, only when
the child is uprooted from its native country and taken to a place to encounter alien environment,
language, custom etc., with the portent of mutilative bearing on the process of its overall growth
and grooming.
47. It has been consistently held that there is no forum convenience in wardship jurisdiction and
the peremptory mandate that underlines the adjudicative mission is the obligation to secure the
unreserved welfare of the child as the paramount consideration.
48. Reverting to the present facts, the materials as available, do substantiate lingering dissensions
between the parties. They are living separately since 2014 with one child each in their company
and charge. The children are US citizens by birth. Noticeably, the child Aadvik, who is the
subject matter of the lis and custody was barely 2½ years old when he came over to India and
had stayed here since then. Today, he is a little over 5 years old. In other words, he has spent half
of his life at this age, in India. Considering his infant years of stay in US, we construe it to be
too little for the required integration of his with the social, physical, psychological, cultural and
academic environment of US to get totally upturned by his transition to this country, so much
so that unless he is immediately repatriated, his inherent potentials and faculties would suffer
an immeasurable set back. The respondent-mother also is not favourably disposed to return to
India, she being a working lady in US and is also disinclined to restore her matrimonial home.
The younger son is with her. There is no convincing material on record that the continuation of
the child in the company and custody of the appellant in India would be irreparably prejudicial
to him. The e-mails exchanged by the parties as have been placed on records do suggest that
they had been in touch since the child was brought to India and even after the first order dated
28.05.2015 was passed by the court in US. In the said e-mails, they have fondly and keenly
referred to both the sons staying in each other’s company, expressing concern about their illness
and general well-being as well. As has been claimed by the appellant, the child is growing in a
congenial environment in the loving company of his grand-parents and other relatives. He has
been admitted to a reputed school and contrary to the nuclear family environment in US, he
is exposed to a natural process of grooming in the association of his elders, friends, peers and
playmates, which is irrefutably indispensable for comprehensive and conducive development
of his mental and physical faculties. The issue with regard to the repatriation of a child, as the
precedential explications would authenticate has to be addressed not on a consideration of legal
rights of the parties but on the sole and preponderant criterion of the welfare of the minor.
As aforementioned, immediate restoration of the child is called for only on an unmistakable
discernment of the possibility of immediate and irremediable harm to it and not otherwise. As
it is, a child of tender years, with malleable and impressionable mind and delicate and vulnerable
physique would suffer serious set-back if subjected to frequent and unnecessary translocation in
its formative years. It is thus imperative that unless, the continuance of the child in the country
to which it has been removed, is unquestionably harmful, when judged on the touchstone of
page no. | 140 |
Prateek Gupta Versus Shilpi Gupta & Ors.
overall perspectives, perceptions and practicabilities, it ought not to be dislodged and extricated
from the environment and setting to which it had got adjusted for its well-being.
49. Noticeably, a proceeding by the appellant seeking custody of the child under the Guardian and
Wards Act, 1890 has been instituted, which is pending in the court of the Principal Judge, Family
Court, Rohini, Delhi. This we mention, as the present adjudication pertains to a challenge to the
determination made in a writ petition for habeas corpus and not one to decide on the entitlement
in law for the custody of the child.
50. In Nithya Anand Raghavan4 as well, this Court while maintaining the custody of the child in
favour of the mother in preference to the applicant-father had required the mother to participate
in the proceeding before the foreign court initiated by the respondent-father therein. It was
observed that the custody of the child would remain with the respondent-mother till it attained
majority, leaving it at liberty then to choose its parent to reside with. The arrangement approved
by this Court was also made subject to the decision with regard to its custody, if made by a
competent Court.
51. In the overwhelming facts and circumstances, we see no reason to take a different view or
course. In view of order dated 03.05.2016 of this Court, the child has remained in the custody
of the appellant-father. To reiterate, no material has been brought on record, persuasive and
convincing enough, to take a view that immediate restoration of the custody of the child to the
respondent-mother in the native country is obligatorily called for in its interest and welfare. The
High Court, as the impugned judgment and order would demonstrate, did not at all apply itself
to examine the facts and circumstances and the other materials on record bearing on the issue
of welfare of the child which are unmistakably of paramount significance and instead seems to
have been impelled by the principle of comity of courts and the doctrines of “intimate contact”
and “closest concern” de hors thereto. The appellant being the biological father of Aadvik, his
custody of the child can by no means in law be construed as illegal or unlawful drawing the
invocation of a superior Court’s jurisdiction to issue a writ in the nature of habeas corpus. We
are, in the textual facts and on an in-depth analysis of the attendant circumstances, thus of the
view that the dislodgment of the child as directed by the impugned decision would be harmful
to it. Having regard to the nature of the proceedings before the US Court, the intervening
developments thereafter and most importantly the prevailing state of affairs, we are of the opinion
that the child, till he attains majority, ought to continue in the custody, charge and care of the
appellant, subject to any order to the contrary, if passed by a court of competent jurisdiction in
an appropriate proceeding deciding the issue of its custody in accordance with law. The High
Court thus, in our estimate, erred in law and on facts in passing the impugned verdict.
52. The impugned judgment and order is thus set aside. We however direct that the parties would
participate in the pending proceedings relating to the custody of the child, if the same is pursued
and the court below, before which the same is pending, would decide the same in accordance
with law expeditiously without being influenced in any way, by the observations and findings
recorded in this determination.
53. The appeal is thus allowed.
qqq
page no. | 141 |
The words you are searching are inside this book. To get more targeted content, please make full-text search by clicking here.
Family Matters - Landmark Judgements by the SC
Discover the best professional documents and content resources in AnyFlip Document Base.
Search
Family Matters - Landmark Judgements by the SC
- 1 - 50
- 51 - 100
- 101 - 150
- 151 - 200
- 201 - 250
- 251 - 300
- 301 - 350
- 351 - 400
- 401 - 450
- 451 - 500
- 501 - 510
Pages: