Bombay High Court
Richard Alexander Geary Son Of Nicholas ... vs State Of Maharashtra And Ors on 6 December, 2023
Author: Gauri Godse
Bench: Revati Mohite Dere, Gauri Godse
2023:BHC-AS:36261-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
rrpillai
CRIMINAL WRIT PETITION NO. 512 OF 2023
Richard Alexander Geary
Son of Nicholas Geary, Aged about 41 years
Presently residing at :
170 Broadway Residence Inn Room 1512,
New York, NY 10038 USA
Having permanent address at:
93 Grange Road, #04-08,
Grange Residences, Singapore- 249614 ..... Petitioner
Versus
1. State of Maharashtra
Represented by the Commissioner of
Police, Thane, Near Kalawa Bridge,
Kharkar Alley, Thane West-400601
Maharashtra.
2. Mrs. Aishvarya Krishnan Geary
Aged about 32 years, Indian Citizen and
presently residing at : Apartment 2203,
Hiranandani Meadows No. 2, Off. Pokhran
Road, Thane West - 400 610
Maharashtra.
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Having permanent address at:
93 Grange Road, #04-08
Grange Residences, Singapore 249614
3. Mr. Krishnan Srinivasan
Indian Citizen and Residing at :
9/203, Siddachal Phase 2
Pokhran Road, Thane 400606
4. Mrs. Lakshmi Krishnan
Indian Citizen and Residing at :
9/203, Siddachal Phase 2
Pokhran Road, Thane 400606
5. The Foreigners Regional Registration
Office, Bureau of Immigration, Ministry of
Home Affairs, Government of India
Having Office at SP Office, Near Court
Naka, Kalwa Bridge, Thane West-400601 ..... Respondents
Ms. Geeta Luthra, Senior Counsel (through Video Conferencing) a/w.
Mr. Kunal Vaishnav, Mr. Adarsh Kothari and Ms. Surbhi Soni i/b.
Manish G. Varma & Associates, for the Petitioner.
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Ms. Lata Desai, Senior Counsel a/w. Dr. Pallavi Divekar, Ms. Manasi
Hirve, Ms. Aishwarya Deshmukh and Ms. Pratiksha Mane i/b. M/s.
Divekar & Co., for Respondent No. 2.
Ms. P. P. Shinde, APP for the Respondent no. 1 -State.
CORAM : REVATI MOHITE DERE &
GAURI GODSE, JJ.
RESERVED ON : 27 th OCTOBER 2023
PRONOUNCED ON : 6 th DECEMBER 2023
JUDGMENT (PER: GAURI GODSE, J.) :
1. Rule. Rule made returnable forthwith.
2. Ms. Desai learned senior counsel waives notice for respondent
no. 2, and Ms. Shinde learned APP waives notice on behalf of
respondent no. 1 - State. By consent, taken up for final disposal.
Considering the prayers in the writ petition and the dispute being
only between the petitioner and respondent no. 2, it is not necessary
to hear respondent nos. 3, 4 and 5.
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3. This petition is filed by the father of the minor girl child aged
3 years, seeking a writ of habeas corpus for directing respondent
no.2 to produce the child before this court. Respondent no. 2 is the
mother of the child and wife of the petitioner. Respondent nos. 3
and 4 are parents of respondent no. 2. The petitioner has also prayed
for custody of the child together with the child's original passport,
birth certificate and other immigration and health documents from
respondent no. 2 and for permission to take the child to Singapore.
FACTUAL ASPECTS:
4. The petitioner and respondent no.2 ("the parties") got married
on 26th December 2018 in New York in the United States of America
("USA"). The petitioner is a citizen of the United Kingdom ("UK"),
and respondent no. 2 ("respondent") is an Indian citizen. On
27th March 2020, their daughter - Anika ("child"), was born in New
Jersey, USA. In April 2022, the parties, along with the child, moved
to Singapore. The parties started residing in Singapore, and the child
was enrolled in a school in Singapore sometime in July 2022. In
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September 2022, the parties surrendered their "Green Card" in the
USA. Thereafter, the respondent, along with the child, came to India
sometime in the first week of December 2022, and she did not
return to Singapore. Hence, the present petition was filed on
3rd February 2023.
5. The parties made an attempt to explore the possibility of an
amicable settlement. We interacted with the parties in chambers; the
petitioner joined through video conferencing. Unfortunately, the
parties were unable to arrive at any amicable settlement. We have
heard the learned senior counsels for both parties at length.
SUBMISSIONS ON BEHALF OF THE PETITIONER:
6. The learned senior counsel for the petitioner submitted that
after their daughter was born, the respondent suffered from
postpartum depression and anxiety, which contributed to the marital
problems between the parties. Hence, the parties decided to stay
separate for a period of six months. On 20 th December 2021, the
parties signed a Marriage Reconciliation Agreement and started
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residing together in New Jersey along with the child. Sometime in
January 2022, the parties attended marital counselling. Thereafter,
they jointly agreed to relocate to Singapore. On 19 th April 2022, the
parties and the child, shifted to Singapore, and they both secured a
job in Singapore. Thus, they jointly decided that Singapore was a
better place for raising their daughter and decided to settle down in
Singapore permanently.
7. On 7th May 2022, the parties entered into a two-year lease
from June 2022 to June 2024 and secured a residence in Singapore.
On 25th July 2022, the child was enrolled in an International
preschool in Singapore, and she started attending her nursery for the
first term. It was submitted that since the parties decided to reside in
Singapore permanently, they surrendered their "Green Cards" in the
USA.
8. It is the case of the petitioner that on 12th November 2022, he
left for UK to meet his parents and his children from his previous
marriage who are residing in UK. The petitioner was in UK from
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12th November 2022 to 5th December 2022, and during the entire
period, the respondent did not reply to any of his phone calls and
messages. When the petitioner returned to Singapore on
6th December 2022, he could not trace the respondent and the child.
Their domestic help informed him that the respondent had
terminated her employment. The petitioner filed a police report and
reported that he checked the Apple Air Tag of the respondent's
baggage and found that the respondent was at Terminal 3 at Changi
Airport on 14th November 2022 at 11.04 pm. Thus, the petitioner
made a police report in Singapore about the disappearance of the
respondent and the child.
9. By 11th December 2022, the petitioner discovered that the
respondent and the child were no longer in Singapore. He was
informed that the child's school had received a completed
withdrawal form sent by the respondent. The Petitioner also learnt
that movers and packers had been to the parties' residence to move
items to Mandarin Self Storage on 14 th November 2022. On 10th
December 2022, the petitioner learnt that their house utilities were
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scheduled to be disconnected on 10 th December 2022. Thus, in view
of the aforesaid events, the petitioner realised that the respondent
had taken steps to move out of Singapore along with the child. It is
the petitioner's allegation that the respondent had abducted their
daughter and had also taken away all her belongings.
10. In view of the respondent's conduct, the petitioner had to
make efforts to find out her whereabouts, and he learnt that the
respondent had unlawfully moved the child to India. Hence, the
petitioner filed a police report on 9 th December 2022 that his marital
and property items were missing and he suspected that his wife had
removed them. Petitioner, on 14th December 2022, filed an
application under Sections 3 and 5 of the Guardianship of Infants
Act before the Family Justice Courts of the Republic of Singapore.
On 16th December 2022, the petitioner filed an ex-parte Summons
Application in order to obtain interim orders on an urgent basis
seeking custody of the child. On 11 th January 2023, the Family
Justice Court of the Republic of Singapore granted an order in
favour of the petitioner, directing the respondent to return their
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daughter to the petitioner in Singapore on or before 3 rd February
2023, along with all the original documents of the daughter. In such
circumstances, the petitioner also filed the present Writ Petition on
3rd February 2023.
11. During the pendency of this petition, the respondent, through
her Advocate, appeared in the Court in Singapore and contested the
proceedings filed by the petitioner. In view of the application filed
by the respondent, the earlier order dated 11 th January 2023 was
recalled, and on 6th June 2023, an interim order was passed by the
Singapore Court granting interim joint custody of the daughter to
the parties, and the respondent was directed to bring the child to
Singapore. By the said order, certain directions were issued to the
parties by way of an interim relief during the pendency of the final
determination of the main matter. It was thus submitted that in view
of the order dated 6th June 2023 passed by the Court in Singapore,
the petitioner is entitled to joint custody of their daughter. Hence,
by way of amendment, the petitioner placed on record the order
dated 6th June 2023 passed by the Family Justice Court of the
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Republic of Singapore US Court and also raised additional grounds
in support of his prayers.
12. The learned senior counsel for the petitioner submitted that
India is not a signatory to the Hague Convention, and hence, the
present petition is filed in the nature of habeas corpus. However, the
petitioner has not submitted to the jurisdiction of the courts in India
and has filed the petition for a limited relief only to seek repatriation
of his daughter in terms of the order passed by the Family Court in
Singapore by which he is entitled to joint custody of their daughter.
13. Learned senior counsel for the petitioner submitted that the
parties took a conscious decision to reside permanently in Singapore
and accordingly took all required steps to settle down there. Thus,
the parties and the child were habitually and ordinarily residing in
Singapore. The learned senior counsel, by relying upon section 9 of
the Guardianship and Wards Act 1890, submitted that the court
where the child ordinarily resides will get jurisdiction to decide the
custody issue of the child. Since the child was never ordinarily
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residing in India, the courts in India will not get jurisdiction to
decide the custody issue. She thus submitted that the child's
citizenship would not be a relevant factor for consideration in the
present case. She submitted that even the parties' citizenship is
irrelevant in the present case, as the parties' intention to reside in
Singapore permanently is the most important consideration. The
parties not only positively acted to implement their decision to make
their permanent residence in Singapore but also surrendered their
Green Cards, which allowed them to take up employment in the
USA. She further submitted that the parties and the child neither
resided in India anytime nor intended to reside in India anytime.
She, therefore, submitted that the respondent alone could not change
the decision jointly taken by the parties to settle down permanently
in Singapore as they found that it was a better country for their
child's upbringing.
14. The learned senior counsel submitted that though the child was
a US citizen by birth, it cannot be said that she is a habitual resident
of the USA, as the parties intentionally took a conscious decision to
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live in Singapore permanently and accordingly also started residing
there. The learned senior counsel also raised serious objection to the
conduct of the respondent of not disclosing the child's whereabouts
and depriving the child of having the company of her father. She
submitted that the respondent also deliberately did not disclose her
residential address in India and the place of her employment until
she was called upon to do so. She submitted that the respondent has
submitted to the jurisdiction of Singapore Court; however, the
interim order granting joint custody is not challenged; hence, the
respondent cannot disobey the court orders and keep moving around
in India or other countries with the child. The learned senior counsel
submitted that though initially there were complaints filed by the
respondent against the petitioner, later there was reconciliation
between the parties in the USA, and they started residing together.
Thereafter, the parties shifted together to Singapore. Thus, the
previous complaints cannot be a justifiable ground for the
respondent to unilaterally make a decision to come to India and not
bring the child back to Singapore, which is her ordinary residence.
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She thus submitted that the respondent has illegally detained the
child in India; hence, it is in the interest of the child that she is
repatriated to Singapore.
15. In support of her submissions, the learned senior counsel for
the petitioner relied upon the following decisions:
(a) Aviral Mittal Vs. The State and Another . 1
(b) Shilpa Aggarwal (Ms) Vs. Aviral Mittal and Another 2
(c) V. Ravi Chandran (Dr.) Vs. Union of India and Others.3
(d) Nithya Anand Raghavan Vs. State (NCT of Delhi) and
Another.4
(e) Lahari Sakhamuri Vs. Sobhan Kodali.5
(f) Yashita Sahu Vs. State of Rajasthan and Others. 6
(g) Tejaswini Gaud and Others Vs. Shekhar Jagdish
Prasad Tewari and Others.7
(h) Nilanjan Bhattacharya Vs. State of Karnataka and
Others.8
1 2009 (112) DRJ 635
2 (2010) 1 SCC 591
3 (2010) 1 SCC 174
4 (2017) 8 SCC 454
5 (2019) 7 SCC 311
6 (2020) 3 SCC 67
7 (2019) 7 SCC 42
8 2020 SCC Online SC 928
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(i) Vasudha Sethi and Others Vs. Kiran V. Bhaskar and
Another.9
(j) Rohith Thammana Gowda Vs. State of Karnataka and
Others.10
(k) Mr. Abhinav Gyan S/o. Gangeshwar Prasad Vs. State
of Maharashtra and Another.11
(l) Elizabeth Dinshaw Vs. Arvand M. Dinshaw. 12
(m) Rajeswari Chandrasekar Ganesh Vs. State of Tamil Nadu
and Others.13
(n) Abhay S/o. Sanjeev Mogal Vs. Neha Joshi and Another.14
16. Learned senior counsel for the petitioner submitted that the
child is a habitual resident of Singapore, and she had started
pursuing her education in Singapore and thus is habituated to the
environment in Singapore, where she has spent a significant amount
of time. The child is accustomed to the home of the parties in
Singapore, and she is also very fond of the petitioner. She further
9 2022 SCC Online SC 43
10 2022 SCC Online SC 937
11 2022 SCC Online Bom 2958
12 (1987) 1 SCC 42
13 2022 SCC OnLine SC 885
14 Criminal Writ Petition No. 97 of 2021
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submitted that in view of the aforesaid facts, the best interest of the
child, i.e. the minor daughter of the petitioner, lies in Singapore. She
submitted that the paramount interest of the child could not remain
only the love and care of the biological mother, and the basis for any
decision regarding the child is to ensure the fulfillment of the basic
rights, needs, social well-being and intellectual development of the
child. She further submitted that while deciding the welfare of the
child, only the view of one spouse cannot be taken into
consideration, and the issue of custody should depend only on the
best interest of the child. She submitted that it is thus in the best
interest of the child that she is moved back to Singapore immediately
so that her routine life there would be back on track. She submitted
that in the event the respondent is not willing to go back to
Singapore, it is in the interest of the child that the child should
return to Singapore.
17. The learned senior counsel submitted that the principles of law
with respect to repatriation of a minor child are now well settled and
considering the principles of law laid down in the catena of
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judgments of the Hon'ble Supreme Court, it is necessary in the
present case to conduct a summary inquiry as the petitioner has
acted with utmost alacrity. Learned senior counsel further submitted
that the Family Court in Singapore has, after hearing the respondent,
passed a reasoned order by taking into consideration the best interest
of the child to have unfettered access of both parents and passed
interim orders granting joint custody of the child to the parties.
18. Learned senior counsel thus submitted that in view of the law
laid down by the Hon'ble Supreme Court in the case of Yashita Sahu,
the petitioner has filed affidavit-cum-undertaking in this court and
has agreed to make all requisite arrangements for the return of the
child along with the respondent. She submitted that the petitioner is
willing to provide the respondent with adequate accommodation
along with amenities. She, therefore, submitted that considering the
aforesaid facts, the respondent cannot deprive the child of having the
company of the petitioner, who is the biological father of the minor
daughter.
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SUBMISSIONS ON BEHALF OF THE RESPONDENT:
19. Respondent has filed her affidavit-in-reply and additional
affidavits and disputed the contentions raised by the petitioner. The
learned senior counsel appearing for the respondent submitted that
neither the parties nor the child are citizens of Singapore. The
petitioner is a citizen of the United Kingdom, the respondent is an
Indian citizen, and the child is a US citizen. She submitted that the
respondent had to come to India for her and the child's safety. She
submitted that the respondent has specifically pleaded in her
affidavits about the petitioner's violent temper and the history of
actions taken against him as the respondent and the child had
suffered due to the abusive conduct of the petitioner. She submitted
that the respondent never suffered from any post-partum depression.
She submitted that the petitioner had assaulted the respondent in the
presence of the child, and in view of the violent, unpredictable and
abusive conduct of the petitioner, the respondent had suffered a
panic attack on 22nd July 2021 and was required to be hospitalised.
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Hence, the respondent lodged a complaint on 23 rd July 2021 with
the New Jersey Domestic Violence Cell and obtained a temporary
restraining order against the petitioner. In view of the complaint
filed by the respondent, the petitioner was arrested and put behind
bars. However, with an intention to sort out the differences between
the parties, the respondent had entered into a reconciliation
agreement with the petitioner. The petitioner was required to attend
anger management counselling sessions with the therapist. As per
clause 13 of the said reconciliation agreement, it was agreed that the
petitioner shall never have any unsupervised parenting time.
20. The learned senior counsel further submitted that the
respondent had shifted to Singapore with the hope that the parties
would be able to give a secure life to their daughter in Singapore.
However, the petitioner continued with his violent and abusive
conduct even in Singapore. Hence, the respondent approached the
Singapore police, and they advised her to return to India rather than
file any protection proceedings in Singapore.
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21. It is submitted the parties lived in Singapore only for a short
time, and thus, the child was never a habitual resident of Singapore.
Within a short span of time after shifting to Singapore, the
respondent returned to India along with the child for their safety. It
was submitted that the respondent filed a Custody Petition in the
Family Court at Thane in India on 17th June 2023, and an interim
order was passed restraining the petitioner from taking away the
child. Learned senior counsel submitted that though the respondent
appeared in the Family Court in Singapore, she never submitted to
the jurisdiction of the Singapore Court. She submitted that the
respondent appeared in the Court in Singapore for the purpose of
raising an objection of jurisdiction. She relied upon an affidavit filed
by the respondent in the Singapore Court, which clearly states that
she appeared before the court to raise grounds of jurisdiction.
22. The learned senior counsel submitted that the child is a citizen
of the USA and that she has no social and/or emotional ties
developed in Singapore. She submitted that in India, the child is
living in a safe environment along with the parents of the
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respondent. She submitted that considering the violent conduct of
the petitioner and the history of actions taken against him in the US,
the parties had entered into a reconciliation agreement pursuant to
which the petitioner had agreed to the stringent conditions imposed
against him. In view of the reconciliation agreement, the petitioner
is not entitled to any unsupervised access to the child. Thus, she
submitted that in view of the petitioner's conduct, the child will
never be safe in the petitioner's custody. Hence, the interest of the
minor child cannot be said to be in Singapore, where the respondent
and the child will be left at the petitioner's mercy.
23. The learned senior counsel submitted that the petitioner
arrived in India from Singapore on 15th November 2022, and since
then, the child has been residing along with her and her parents. She
further submitted that on 16th January 2023, the petitioner was
informed about the whereabouts of the respondent and the child by
WhatsApp messages. Thereafter, the respondent regularly updated
the whereabouts and well-being of the child. She further submitted
that on 16th January 2023, the child was enrolled in a preschool and
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daycare at Thane. Thereafter, the respondent secured a job in
Hyderabad; hence, presently, the respondent and the child are
residing in Hyderabad, and they are accompanied by the
respondent's mother. Now the child is enrolled in a pre-school in
Hyderabad.
24. The learned senior counsel submitted that the petitioner is
regularly given access to talk to the child through video calls. She,
therefore, submitted that the whereabouts and well-being of the
child are being regularly updated to the petitioner. She further
submitted that by taking undue advantage of the access given to him
through video calls, the petitioner is in the habit of poisoning the
child's mind by asking her questions against the respondent. Learned
senior counsel submitted that considering the present employment of
respondent, where she is allowed to work from home, she is in a
better position to take care of the child and that the respondent is
earning enough to care for herself and the child. Learned senior
counsel submitted that the respondent is able to give a secure and
healthy life style to the child in India. The respondent is supported
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by her parents, so the child is in safe custody with the respondent.
She submitted it is in the child's interest to live in India as she will be
surrounded by family members, and her upbringing would be in a
native environment.
25. Learned senior counsel submitted that the parties' residence in
Singapore was only a transit residence and that they never took any
steps to reside in Singapore permanently. She submitted that in view
of the aforesaid facts and circumstances, the welfare of the child is in
India, and it is not in the interest of the child to live in Singapore,
where she will be living in a foreign environment to which she was
never accustomed. She further submitted that the present petition is
filed for the limited purpose of enforcing orders passed by the
Singapore Court, which is not maintainable in view of the catena of
decisions of the Hon'ble Supreme Court. She submitted that the
petitioner has appeared in the Family Court at Thane and has also
filed an application under Order VII Rule 11 of CPC, which is still
pending. She submitted that the courts in Singapore will not have
jurisdiction to decide the custody issue of the child. In support of the
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submissions learned senior counsel relied upon the decisions of the
Hon'ble Supreme Court in the cases of Nithya Raghavan, Kanika
Goel Vs. State of Delhi 15, Prateek Gupta Vs Shilpi Gupta 16 and
Dhanwanti Joshi Vs. Madhav Unde.17.
26. By relying upon the aforesaid decisions, the learned senior
counsel submitted that the child was in Singapore only for a limited
period of seven months and that she cannot be said to be a native of
Singapore. By relying upon decisions of the Hon'ble Supreme Court
in the case of Nithya Anand Raghavan and Prateek Gupta, learned
senior counsel submitted that in view of the peculiar facts and
circumstances of the present case, the issue of custody of the child
cannot be decided by a summary inquiry and that it is necessary that
the same is decided in the pending custody proceedings.
27. In support of her submissions regarding the jurisdiction of the
Singapore Court, the learned senior counsel relied upon an affidavit
filed by the respondent in the Singapore Court and submitted that
15 2018 (9) SCC 578
16 (2018) 2 SCC 309
17 (1998) 1 SCC 112
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the respondent has never submitted to the jurisdiction of the
Singapore Court. In view of the aforesaid, learned senior counsel
submitted that the present petition filed for seeking a writ of habeas
corpus is, in fact, seeking to enforce the court's orders in Singapore,
and thus, the prayers in the present petition are not maintainable.
28. With respect to the affidavit filed on behalf of the petitioner in
support of seeking repatriation of the child and making
arrangements in Singapore for respondent and the child, the learned
senior counsel submitted that in the facts of the present case the
terms stated in the affidavit of the petitioner could not be termed as
any workable arrangement in Singapore. She submitted that the
petitioner is having anger issues. Hence, in the reconciliation
agreement the parties have agreed that the petitioner shall not be
given unsupervised access to the child. She further submitted that
respondent is agreeable for giving supervised child access to the
petitioner, in the event the petitioner visits India. Learned senior
counsel thus submitted that considering the petitioner's conduct and
the orders passed against him, including his arrest while residing in
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the USA, the child's custody cannot be handed over to the petitioner.
She, therefore, submitted that the petitioner has not made out any
case for repatriating the child to Singapore.
SUBMISSIONS IN REJOINDER ON BEHALF OF THE PETITIONER:
29. Learned senior counsel for the petitioner, in response to the
submissions made on behalf of the respondent, submitted that the
petitioner had always kept track with respect to the whereabouts and
well-being of the child. However, the respondent went to the extent
of removing the petitioner from the WhatsApp group and also
blocked him on Instagram. Hence, the petitioner was unaware of
the whereabouts of the child. The petitioner, therefore, moved the
Singapore court as well as this court and acted with alacrity.
30. With respect to the submissions made on the jurisdiction of
the Singapore Court, learned senior counsel submitted that the
respondent has appeared in the Singapore Court and contested the
application filed by the petitioner on merits. Hence, it cannot be
said that the respondent has not submitted to the jurisdiction of the
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Singapore Court. She further submitted that by considering the
child's welfare and the other relevant factors, the Family Court in
Singapore has already granted joint custody to the petitioner on the
ground that the child is a habitual resident of Singapore, and hence,
the forum convenience is also at Singapore. She further submitted
that the petitioner had not given any particulars with respect to her
permanent whereabouts in India. She submitted that in view of the
peculiar facts of this case, the native country of the child is not a
relevant factor to be taken into consideration. However, the fact that
the parties are habitual residents of Singapore and that the child was
also enrolled in school at Singapore and had attended school in
Singapore would be a relevant factor to be taken into consideration.
31. Learned senior counsel, therefore, submitted that the welfare
and best interest of the child would be in Singapore. She further
submitted that the parties never intended to reside in India. She
submitted that by detaining the child in India, the respondent is
depriving the child of the company of her father. She, therefore,
submitted that considering the law laid down by the Hon'ble
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Supreme Court in the case of Yashita Sahu, the affidavit filed by the
petitioner be taken into consideration, and the writ of habeas corpus
be issued for directing the respondent to produce the child before us
and custody of the child be handed over to the petitioner and he be
permitted to take the child to Singapore.
ANALYSIS OF THE CASE LAWS RELIED UPON BY THE PARTIES:
32. In the case of Nithya Raghavan, the Hon'ble Supreme Court
has considered all the decisions right from the cases of Surinder Kaur
Sandhu Vs Harbax Singh Sandhu18, Elizabeth Dinshaw, Dhanwanti
Joshi, Shilpa Aggarwal, V. Ravi Chandran, Arathi Bandi Vs. Bandi
Jagadrakshaka Rao & Others19 and Surya Vadanan vs. State of Tamil
Nadu & Others20. In all these cases, the minor children held
citizenship of a foreign country, and the parents were permanent
residents of that country. However, one of the spouses had removed
the child to India, disregarding the orders passed by the foreign
court. In all these cases, the child was repatriated to the country
18 (1984) 3 SCC 698
19 (2013) 15 SCC 790
20 (2015) 5 SCC 450
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where the child was originally residing, except in the case of
Dhanwanti Joshi.
33. In the case of Nithya Raghavan, the couple married in India
and shifted to the United Kingdom, and their girl child was born in
Delhi; thus, the child was a citizen of India. After the husband
arrived in India, the couple returned to the UK, but following certain
unsavoury events, the wife and the daughter returned to India. After
an exchange of legal correspondence, the wife and daughter went
back to London; however, the wife returned to India along with her
daughter, and the child became ill and was diagnosed with a cardiac
disorder and due to the alleged violent behaviour of her husband the
wife filed a complaint against him at the CAW Cell, New Delhi. The
husband filed a custody/wardship Petition in the UK to seek the
return of the child. He also filed a habeas corpus petition in the
Delhi High Court, which was allowed. The matter was brought
before the Hon'ble Supreme Court by the wife. The Supreme Court
relied upon its earlier judgment in Dhanwanti Joshi, which in turn
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referred to the case of McKee Vs McKee 21, where the Privy Council
held that the order of the foreign court would yield to the welfare of
the child and that the comity of courts demanded not its
enforcement, but its grave consideration. The Supreme Court held
that the minor was born in India and was a citizen of India by birth,
and the child has not given up her Indian Citizenship and for more
than one year, she, along with her mother, remained in India due to
the marital discord of the parties. It was also observed that since the
child has later acquired British Citizenship, the UK Court could
exercise jurisdiction regarding her custody issues. Further, it was
observed by the Supreme Court that the child was suffering from a
cardiac disorder and needed periodical medical reviews and proper
care and attention that could only be given by her mother. Since the
father is employed, he may not be able to give complete care for his
daughter. Considering the allegations against the father, the Supreme
Court held that it would cause harm to her if she returned to the UK.
Thus, the order passed by the High Court was set aside. The
Supreme Court approved the view taken in Dhanwanti Joshi and
21 (1951) AC 352 (PC)
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observed as under;
"69. We once again reiterate that the exposition
in Dhanwanti Joshi [Dhanwanti Joshi v. Madhav Unde,
(1998) 1 SCC 112] is a good law and has been quoted
with approval by a three-Judge Bench of this Court in V.
Ravi Chandran (2) [V. Ravi Chandran (2) v. Union of
India, (2010) 1 SCC 174 : (2010) 1 SCC (Civ) 44]. We
approve the view taken in Dhanwanti Joshi [Dhanwanti
Joshi v. Madhav Unde, (1998) 1 SCC 112] , inter alia, in
para 33 that so far as non-Convention countries are
concerned, the law is that the court in the country to
which the child is removed while considering the
question must bear in mind the welfare of the child as of
paramount importance and consider the order of the
foreign court as only a factor to be taken into
consideration. The summary jurisdiction to return the
child be exercised in cases where the child had been
removed from its native land and removed to another
country where, may be, his native language is not spoken,
or the child gets divorced from the social customs and
contacts to which he has been accustomed, or if its
education in his native land is interrupted and the child is
being subjected to a foreign system of education, for
these are all acts which could psychologically disturb the
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child. Again the summary jurisdiction be exercised only if
the court to which the child has been removed is moved
promptly and quickly. The overriding consideration must
be the interests and welfare of the child."
Emphasis Applied
34. In the case of Kanika Goel, since the jurisdiction of the Family
Court at New Delhi was invoked at a prior point in time, the
Supreme Court directed that it may be appropriate that the said
proceedings are decided with utmost promptitude in the first place
before the wife is called upon to appear before the US Court
including to produce the minor child before that Court. The
Supreme Court observed that it is appropriate that the proceedings
pending in the Family Court at New Delhi are decided in the first
place, including the jurisdiction of that Court and depending on the
outcome of the said proceedings, the parties will be free to pursue
such other remedies as may be permissible in law before the
competent jurisdiction. It was held that a fortiori, dependent on the
outcome of the proceedings before the Family Court at New Delhi,
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the wife must be legally obliged to participate in the proceedings in
the US Court and must take all measures to defend herself in the said
proceedings and the husband effectively shall bear the expenses for
the travel of the wife and the minor child to the US as may be
required. The Hon'ble Supreme Court held that the child's custody
would remain with the mother until she attained the age of majority
or the court of competent jurisdiction trying the issue of custody
orders to the contrary.
35. In the case of Lahari Sakhamuri, the Hon'ble Supreme Court
directed repatriation of the child to the USA, by holding that the
doctrines of comity of courts, intimate connect, orders passed by
foreign courts having jurisdiction in the matter regarding custody of
the minor child, citizenship of the parents and the child, etc., cannot
override the consideration of the best interest and the welfare of the
child and that the direction to return the child to the foreign
jurisdiction must not result in any physical, mental, psychological, or
other harm to the child.
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36. In the case of Yashita Sahu, the Hon'ble Supreme Court held
that while deciding matters of custody of a child, the primary and
paramount consideration is the welfare of the child. The Supreme
Court held that the courts should decide the issue of custody only
based on what is in the best interest of the child. In the said case, the
child was a citizen of the USA by birth. Her father was already
working in the USA. Since the child was a citizen of the USA by birth
and was holding a US passport, the same was considered to be an
important factor in deciding the custody issue. In view of the facts of
that case the Hon'ble Supreme Court was of the view that it would
be in the best interest of the child to have parental care of both the
parents, if not joint, then at least separate. Thus, the Supreme Court
held that if the wife was willing to go back to the USA then all orders
with regard to custody, maintenance, etc., must be looked into by the
jurisdictional court in the USA and a writ court in India cannot, in
such proceedings direct that an adult spouse should go to America.
The Supreme Court thus issued directions in two parts: if the wife
was willing to go to the USA, and if she was not willing to go to the
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USA, how should the husband be granted custody of the child. Thus,
even in the said case, the paramount consideration in deciding the
custody issue was only the child's welfare.
37. In the case of Prateek Gupta the Hon'ble Supreme Court while
dealing with the issue of pre-existing order of a foreign Court with
respect of the custody of a child held as under:
"49. 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
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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 attenuations. On the other
hand, 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.
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50. 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."
Emphasis Applied
38. In the case of Nilanjan Bhattacharya, the child was a citizen of
the US by birth. The Supreme Court directed the repatriation of the
child to the US by issuing certain directions if the mother desired to
relocate to the US and also issued directions regarding visitation
rights and interim overnight access in the event the mother was not
willing to relocate. The Supreme Court held that the Court is
required to conduct a summary inquiry to ascertain whether there is
any harm if the child returns to the US, where he was born and has
been brought up and the Court is required to engage in an elaborate
inquiry on the merits of the case only if a considerable time has
passed since the child has been removed and if the child has
developed roots in India. However, In either event, the primary
consideration of this Court is to ascertain the child's welfare.
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39. In the case of Vasudha Sethi the parties were married in the
USA, and the child was a citizen of the USA by birth. The Father had
a status of permanent resident in the USA and secured a B-2 Non-
Immigrant visa for the mother. The mother violated the international
travel consent by not allowing the minor child to return to the USA
and detained the minor in her illegal custody in India. The Supreme
Court vide a detailed Judgment, upheld the Judgment of the High
Court directing the wife to send the child to the US, and held that
even if the child was less than 5 years old, the child could be
repatriated back to the US. The Supreme Court considered the cases
of both Nithya Anand Raghavan and Kanika Goel and even then
allowed the repatriation of a child less than 5 years old on the
ground that it was in the best interest of the child. Thus repatriation
was allowed only by considering the welfare of the child as
paramount consideration. Thus, repatriation was allowed by
observing inter-alia as under;
"28. Each case has to be decided on its own facts
and circumstances. Though no hard and fast rule
can be laid down, in the cases of Kanika (supra)
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and Nithya (supra), this Court has laid down the
parameters for exercise of the power to issue a writ
of habeas corpus under Article 226 of the
Constitution of India dealing with cases of minors
brought to India from the country of their native.
This Court has reiterated that the paramount
consideration is the welfare of the minor child and
the rights of the parties litigating over the custody
issue are irrelevant. After laying down the
principles, in the case of Nithya (supra), this Court
has clarified that the decision of the Court in each
case must depend on the totality of facts and
circumstances of the case brought before it. The
factual aspects are required to be tested on the
touchstone of the principle of welfare of the minor
child. In the cases of Lahiri (supra)
and Yashita (supra), the Benches of this Court
consisting of two Judges have not made a departure
from the law laid down in the decisions of larger
Benches of this Court in the cases of Nithya (supra)
and Kanika (supra). The Benches have applied the
law laid down by the larger Bench to the facts of
the cases before them. It is not necessary for us to
discuss in detail the facts of the aforesaid cases.
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By its very nature, in a custody case, the facts
cannot be similar. What is in the welfare of the
child depends on several factors. A custody dispute
involves human issues which are always complex
and complicated. There can never be a straight
jacket formula to decide the issue of custody of a
minor child as what is in the paramount interest of
a minor is always a question of fact. But the
parameters for exercise of jurisdiction as laid down
in the cases of Nithya (supra) and Kanika (supra)
will have to be followed."
Emphasis applied
40. In the case of Rohith Gowda, the father had been residing in
the USA for the past two decades. The parties had made their
matrimonial home in the USA. They both were given Green Cards,
and the child was born in the USA and was an American Citizen. The
child was studying at a school in Washington. The Supreme Court
allowed the Habeas Corpus Petition of the father. The Supreme
Court held that the child is a naturalised American citizen with an
American passport and will have better avenues and prospects if he
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returns to the USA. The Supreme Court relied upon its earlier
decisions in the cases of Nithya Raghavan and V. Ravi Chandran and
allowed the Writ Petition and directed the husband to arrange
accommodation for the wife and her parents in the US.
41. In the case of Rajeswari Chandrasekar Ganesh, the father of
the minor child, in breach of a consent order of joint parenting by a
US Court, illegally took the children to India from the USA,
removing them from the mother's custody. The Supreme Court
directed repatriation of the child by holding that the doctrine of
Parental Alienation Syndrome, i.e. the efforts made by one parent to
get the child to give up his/her own positive perceptions of the other
parent and get him/her to agree with their own viewpoint has
psychological destructive effects of putting the child in the middle of
a loyalty contest, and making the child to assess the reality, thereby
requiring to blame either parent who is supposedly deprived of
positive traits. Hence, the intent of the court should be to circumvent
such ill effects. Thus, even this case the Supreme Court decided the
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issue of custody of the child by keeping in mind the welfare of the
child as the paramount consideration.
42. In the case of Abhinav Gyan, the wife joined the husband in
the USA, and the parties started living together. The wife secured a
permanent job in the US. The parties resided together in their
matrimonial house in the USA and they bought a joint house
together in the same place. Their son was born in the USA and thus
was a citizen of the USA, holding a passport of that country. There
was matrimonial discord between the parties, and the wife, along
with the minor child, came to India. The husband initiated a
proceeding for legal separation and custody of the minor child in the
US court. The wife filed for divorce in India. The wife also appeared
before the US Court. The US court designated the father as the
child's primary residential parent and ordered the mother to return
the child to the father. Since the mother did not return the child, the
father filed a Writ Petition in the Bombay High Court to repatriate
the minor child to the USA. The High Court ordered the wife to
return the minor child to the jurisdiction of the US court. The High
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Court held that the paramount factor of the best interests and
welfare of the child gives its colour to the jurisdiction of this Court
while considering a habeas corpus petition in such facts and
circumstances. The High Court thus considered the aspect of the
welfare of the child and held that the order of the USA Court would
be a relevant factor.
43. In the decision of this Court in the case of Abhay Mogal, by
relying upon all the decisions of the Supreme Court and this Court,
it was held that to ensure the fulfillment of the child's basic rights
and needs, identity, social well-being and physical, emotional and
intellectual development, it was necessary for the child who was a US
citizen to go back to the US. Thus, even in the said case, only the
welfare of the child was considered as a paramount consideration
and custody of a five year old child was directed to be given to the
father for taking him back to the US. Considering the best interest of
the child, necessary directions were also issued to enable the mother
to travel to the US. Thus, even in the said case, only the best interest
of the child was taken into consideration.
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CONSIDERATION OF SUBMISSIONS:
44. We have considered the submissions made on behalf of both
parties. It is a well-established principle of law that summary
jurisdiction can be exercised if the party seeking repatriation of a minor
child acts promptly and quickly; however, the overriding consideration
must always be the interests and welfare of the child. It is also a well-
settled principle of law that the doctrines of comity of courts, intimate
connect, orders passed by foreign courts in the matter regarding
custody of the minor child, forum convenience, citizenship of the
parents and the child, etc., cannot override the consideration of the best
interest and the welfare of the child. Thus, the direction to return the
child to a foreign jurisdiction must not result in any physical, mental,
psychological, or other harm to the child. It is a well-settled principle of
law that the courts should decide the issue of custody only based on
what is in the best interest of the child.
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45. The facts of the present case are complex in nature. The
petitioner-father of the child is a citizen of the UK, the respondent-
mother of the child is an Indian citizen, and the child-their minor
daughter is a citizen of the USA. Following are the few relevant dates
and events required to be examined for appreciating the arguments
made on behalf of the parties:
26th December 2018: the parties got married in New
York.
27th March 2020: the girl child was born in New Jersey.
July 2021 to December 2021: Parties decided to live
separately for six months.
20th December 2021: parties signed a reconciliation
agreement and started residing together.
April 2022: the parties, along with the child, moved to
Singapore. Parties secured employment in Singapore.
25th July 2022: the child was admitted to a preschool in
Singapore.
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September 2022: the parties surrendered their "Green
Cards".
12th November 2022: Petitioner left for the UK to meet
his family and children from his first marriage.
15th November 2022: The respondent, along with the
child, came to India, and she did not return to Singapore.
6th December 2022: Petitioner returned to Singapore and
learnt that the respondent had left Singapore along with
the child.
11th December 2022: Petitioner learnt that the respondent
and the child are in India.
14th December 2022: Petitioner filed custody petition in
Singapore Court.
11th January 2023: Singapore Court passed orders
directing respondent to bring the child to Singapore.
19th January 2023: The present petition was affirmed by
the Petitioner in New York in the USA.
3rd February 2023: Present petition was filed.
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6th February 2023: Respondent filed petition in Family
Court in Thane in India for permanent custody of the
child.
6th June 2023: Earlier order dated 11th January 2023 was
recalled by the Singapore Court and the parties were
granted joint custody and unfettered access to the child
in Singapore.
19th June 2023: Family Court in Thane passed an interim
order restraining the petitioner from taking custody of
the child.
46. This petition is filed seeking directions for custody of the child
and permission to take the child to Singapore mainly on the ground
that the habitual place of residence of the child is in Singapore. A
perusal of the aforesaid dates and events would show that after birth,
the child lived in the USA for two years. Thereafter, for the next
seven months, the child lived in Singapore till she was brought to
India in December 2022. Since then, the child has been residing in
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India with the respondent. The child is around three and a half years
of age today.
47. Considering the facts of the case, it cannot be said that the
habitual place of residence of the child is in Singapore. Before the
parties moved to Singapore, they resided separately in the USA for
six months when the child was around one year and three months
old. Thereafter, the parties entered into a reconciliation agreement
dated 20th December 2021 and started residing together in the USA.
However, within a span of hardly four months, they shifted to
Singapore in April 2022. Again, within a span of around seven
months, the child was brought to India. Thus, it appears that owing
to the differences and disputes between the parties, the child never
received any stability at any place. The child is neither a citizen of
Singapore nor has she lived there for a considerable long time to
make it a habitual place of residence.
48. We also find it difficult to accept the petitioner's contention
that because the parties decided to reside in Singapore permanently,
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the child should go to Singapore. It is not disputed that the parties
secured employment in Singapore and surrendered their "Green
Cards", which permitted them to secure employment in the USA.
Admittedly, the child was also enrolled in a preschool in Singapore.
But none of the factors are sufficient enough to conclude that the
parties had decided to live in Singapore permanently. However, the
respondent has raised various contentions to justify her decision to
come to India along with the child.
49. A perusal of all the affidavits dated 21 st February 2023,
17th June 2023, 11th October 2023, 19th October 2023 and
27th October 2023 filed by the respondent reveals that serious
allegations are made against the petitioner regarding his violent
behaviour and anger issues. Respondent has relied upon the police
complaints made by her on 1st December 2020 and 23 rd July 2021 in
the USA. She has contended that pursuant to the complaint dated
23rd July 2021, the petitioner was arrested. She has further
contented that there were also other police complaints made for the
abusive conduct of the petitioner during the incidents of 27 th June
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2021, 29th June 2021 and 3rd August 2021. She has further
contended that in view of the complaints made by her, she was
granted exclusive custody of the child, and there was a temporary
restraining order against the petitioner from entering the house. The
Petitioner has sought to explain in his affidavit that false complaints
were made against him, and, ultimately, the same were dismissed and
expunged. However, it is not disputed that such complaints were
filed against the Petitioner, he was arrested on one occasion and
there was also a temporary restraining order passed against him not
to enter the house. Admittedly, within a few months of the child's
birth, the parties lived separately for six months owing to their
disputes and ultimately started residing together after signing a
reconciliation agreement.
50. Perusal of the reconciliation agreement reveals that the
petitioner agreed to reimburse all the legal fees incurred by the
respondent in taking action against the petitioner regarding the
domestic violence. The petitioner also agreed to attend anger
management sessions. Both the parties had also agreed to attend
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family/marital counselling and further agreed that the petitioner will
not be entitled to unsupervised access to meet the child until the
respondent consents. Even after signing the reconciliation
agreement, there was a complaint made by the respondent on 17 th
March 2022 as the petitioner was wearing a body camera and
moving around in the house, terrifying the respondent. Thereafter,
the parties shifted to Singapore along with the child, i.e. within a
short span of time of four months of signing the reconciliation
agreement. Even during the short stay in Singapore, the respondent
filed a police complaint on 13th November 2022, and ultimately, she
came to India along with the child in November 2022. Even in India,
the respondent filed a police complaint as the petitioner used abusive
language during a telephonic conversation and threatened her.
Though the petitioner has pleaded ignorance about the police
complaints filed in Singapore and India, the filing of such complaints
cannot be ignored in view of the past conduct of the petitioner.
51. Thus, in our view the aforesaid circumstances and the
petitioner's conduct are justifiable reasons for the respondent to
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come to India along with the child to reside with her parents. We
find substance in the arguments made on behalf of the respondent
that she was required to come to India along with the child for their
safety. Considering the aforesaid circumstances, we do not find that
the respondent has illegally removed the child from Singapore or
that she has illegally detained the child in India. Thus, considering
the petitioner's conduct, the respondent is justified in bringing the
child to India to give her a secure life.
52. We have minutely examined all the contentions of both parties
to decide what is in the best interest of the child. It is well settled by
catena of judgments of the Hon'ble Supreme Court that the courts
should decide the issue of custody only based on what is in the best
interest of the child. Thus, keeping in mind the well-established
principles of law, the question to be decided in the present case is
whether it will be in the best interest of the child to send her to
Singapore by handing over her custody to the petitioner.
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53. We have already held that the respondent is justified in coming
to India along with the child and it cannot be said that she has
illegally detained the child in India. The sum and substance of the
contentions raised by the respondent is the child's safety. The
aforementioned facts and circumstances of the case will make it clear
that in spite of making police complaints against the alleged violent
and abusive conduct of the petitioner, the respondent did make an
attempt to reconcile and started residing together after signing the
reconciliation agreement. It is not disputed that the petitioner agreed
to not getting unsupervised access to the child until the respondent
consented to the same. Even after the reconciliation agreement, there
was a police complaint made by the respondent in the USA and
thereafter in Singapore, and finally, the respondent came to India
along with the child and refused to return to Singapore. We have
already discussed the police complaint made by the respondent in
India complaining about the abusive conduct of the petitioner during
their telephonic conversations. A perusal of the custody petition filed
by the respondent reveals that serious allegations are made against
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the petitioner, and all the allegations concern the violent and abusive
conduct of the petitioner, which concerns the safety of the child and
can adversely impact the healthy and safe upbringing of the child.
We have held that the facts and circumstances of the case do not
show that the parties and the child were habitual residents of
Singapore. Admittedly, neither the child nor the parties are citizens
of Singapore. It appears that the parties had secured employment in
Singapore as Employment Pass Holders. We do not find any better
facilities or any privileged benefits available for the child in
Singapore.
54. Neither party has any native connection in Singapore.
However, the respondent, being an Indian citizen, has roots in India,
which will help in giving a better and safer environment for the
upbringing of the child. The respondent has the support of her
parents in the upbringing of the child in India. Respondent is highly
qualified and has a secured job in India, and is in no way dependent
on anyone for the financial requirement for the upbringing of the
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child. Though the petitioner has disputed the contention of the
Respondent that in Singapore, she was alone taking care of the
financial requirements of the child, and she did not receive any
support from the petitioner, he has not placed on record any
material in support of his contentions. Thus, we are not satisfied
with the reasons pleaded by the petitioner to contend that it will be
in the child's interest to send her to Singapore.
55. The child is a US citizen, and Singapore and India are both
foreign countries to her. However, the respondent, who is the
biological mother of the child, is an Indian citizen having roots in
India. Thus, it cannot be said that the child is living in a country
which is completely foreign to her. Thus, Singapore being a foreign
country and not a habitual place of the child or of either of the
parties, it cannot be said that Singapore will be a better place to
ensure the fulfilment of the child's basic rights and needs, identity,
social well-being and physical, emotional and intellectual
development. Thus, for the reasons stated above, we are of the view
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that any direction to return the child to a foreign jurisdiction will
expose the child to some or the other physical, mental,
psychological, or other harm.
56. In view of the aforesaid facts and circumstances, it cannot be
said that the child has developed roots in either of three countries
i.e. the USA, Singapore or India. Though for the maximum period of
time the child has lived in the USA, considering the age of the child it
cannot be said she developed roots in the USA. So far as Singapore is
concerned, the child lived there for around seven months, which is
again a very short time for developing any roots there. Finally, so far
as India is concerned, the child is brought to India in view of the
differences and disputes between the parties and has been living here
for last more than eleven months. However, only the welfare of the
child is of paramount importance, and thus, in view of our
observations and findings recorded above, presently, it will be in the
best interest of the child to stay in India with her mother, i.e. the
respondent.
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57. In addition to the reasons recorded above, one more important
factor to be considered is that the child is a girl of a tender age of
three and half years and thus requires the care and affection of her
mother. Considering the past conduct of the petitioner having anger
issues, it will not be safe to hand over custody of the child to him.
We have held that the respondent is justified in her decision to come
to India and not return to Singapore. In the reconciliation
agreement, the petitioner has already agreed not to have any
unsupervised access to the child until the respondent consents. Thus,
we do not see any substance in the petitioner's arguments.
58. We have also considered the aspect of the child's right to have
the company of both parents. It is true that the conduct of either of
the parties should not deprive the child of having the company of
both parents. In the battle of the parents, the child should not suffer.
The Petitioner has alleged that the respondent deliberately did not
disclose the child's whereabouts. A perusal of the affidavit dated 11 th
October 2023 filed by the respondent shows that the parties had
regularly exchanged messages on WhatsApp, which reveal that the
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respondent had intimated the well-being of the child, including
uploading pictures of the child. The respondent has also forwarded
her address in India. The Petitioner, in his affidavit dated 20th
October 2023, has attached a chart showing the particulars of the
WhatsApp messages between the parties, which shows the parties
were indeed in contact with each other and the petitioner was also in
touch with the child through video calls. Thus, it cannot be said that
the child is kept away from the petitioner. However, the parties have
initiated proceedings regarding custody of the child, hence, it is
interest of both the parties and the child that the issue regarding
access/visitation rights etc. be considered by the court of competent
jurisdiction.
59. The essence of the principles of law laid down in all the
aforesaid decisions is that the doctrines of comity of courts, intimate
connect, orders passed by courts in the matter regarding custody of
the minor child, citizenship of the parents and the child, etc. cannot
override the consideration of the best interest and the welfare of the
child and that the direction to return the child to the foreign
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jurisdiction must not result in any physical, mental, psychological, or
other harm to the child. We have already held that keeping the
welfare of the child in mind, we find that it is in the best interest of
the child to live with her mother, i.e. the respondent in India.
Considering the aforesaid facts and circumstances of the case, none
of the decisions relied upon by the learned senior counsel for the
petitioner are of any assistance to the petitioner.
60. In the present case, the petitioner has initiated custody
proceedings in Singapore, and the respondent has initiated custody
proceedings in India. The parties have appeared in the respective
proceedings and raised objections, including objections on
jurisdiction. In both proceedings, certain interim orders are passed.
We are not examining the merits of the proceedings initiated by the
parties. Hence, those proceedings will be decided on its own merits.
Our observations in this judgment are for the limited purpose of
undertaking a summary inquiry for consideration of the reliefs
sought in this petition seeking a writ of habeas corpus and will not
be of any assistance to either party in the custody proceedings
901-WP-512-2023.docx
pending in the court in India or in Singapore, which will be decided
on its own merits uninfluenced by our observations.
61. We do not find any merit in the writ petition. Hence, for the
reasons recorded above, the writ petition is dismissed. Rule is
discharged.
All concerned to act on the authenticated copy of this order.
GAURI GODSE, J. REVATI MOHITE DERE, J.
