Bombay High Court
Abhay S/O. Sanjeev Mogal vs Neha Joshi And Anr on 14 September, 2023
Bench: R.P. Mohite-Dere, Gauri Godse
2023:BHC-AS:27116-DB
902-WP-97-2021.docx
rrpillai IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 97 OF 2021
Mr. Abhay S/o. Sanjeev Mogal
Age : 41 years, Hindu, adult, Indian Inhabitant,
Occ : Service permanently residing at
C-1/2 Dnyaneshwar Nagar CHS
R.A.Kidwai Road, Sewree, Wadala
Mumbai 400 031 ..... Petitioner
Versus
1. Mrs. Neha Joshi
Age : 41 years, Hindu, Adult
Indian Inhabitant, Occ:Service Presently
residing at Shreeji Seva Sang Apartment
4B, Sector 42, Opposite to Seawoods
Railway Station, Nerul.
Having Office at 24255, Pacific Coast
Highway, Malibu, California 90263,
United States.
2. The State of Maharashtra
Through the Public Prosecutor
High Court, Bombay ..... Respondents
1/74
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Mr. Prabhjit Jauhar a/w. Mr. Niranjan Mundargi, Ms. Keral Mehta and
Mr. Vikrant Shinde i/b. Ms. Jai Abhyudaya Vaidya for the Petitioner.
Ms. Lata Desai, Senior Advocate a/w. Dr. Pallavi Divekar, Ms. Manasi
Hirve i/b. Ms. Darshana Pawar for Respondent No. 1.
Ms. P. P. Shinde, APP for the State.
CORAM : REVATI MOHITE DERE &
GAURI GODSE, JJ.
RESERVED ON : 31 st JULY 2023
PRONOUNCED ON : 14th SEPTEMBER 2023
JUDGMENT (PER: GAURI GODSE, J.) :
1. This petition is filed by the father of a minor child ("Aaryan"),
seeking a writ of habeas corpus for directing respondent no.1-mother
("respondent") to produce Aaryan before this court. At the time of
filing of the petition on 30th December 2020, Aaryan was one year
old. By way of amendment, the petitioner seeks a direction against
the respondent to handover physical custody of Aaryan to the
petitioner for taking Aaryan along with him to the United States of
America ("the US") in compliance with the order dated 26 th January
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2021 of the 470th Judicial District Court of Collins County, Texas.
By way of amendment, the petitioner has also prayed for directing
respondent to hand over all the official documents of Aaryan,
including his original passport, visa, etc., to the petitioner. Presently,
Aaryan is around 3 ½ years old.
FACTUAL ASPECTS:
2. Respondent is the petitioner's wife and mother of Aaryan. The
petitioner and respondent are citizens of India; however, they are
permanent residents of the US. Aaryan is a citizen of the US by birth.
The petition was filed on 30th December 2020 as the respondent had
refused to allow the petitioner to meet Aaryan and refused to return
to the US along with Aaryan.
3. Before dealing with the rival contentions of both parties, it is
necessary to note the status regarding access/physical custody granted
to the petitioner during the pendency of the petition.
4. After the petition was filed, by way of interim relief, the
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petitioner was permitted access to Aaryan through WhatsApp Video
Calls. This court, by order dated 12 th January 2021, had recorded
the statement made on behalf of the respondent that access would be
given to the petitioner through WhatsApp Video Call. We are
informed that in view of the interim arrangement, the petitioner
continued to get access to Aaryan through WhatsApp Video calls
every day for a minimum of 20 minutes. By orders dated 13
October 2021 and 17th November 2021, physical access was also
given to meet Aaryan when the petitioner travelled to India. This
court, by order dated 28th October 2021, recorded that the
petitioner met Aaryan, and interaction with Aaryan was cordial.
Since the parties were agreeable to explore the possibility of an
amicable settlement, the parties were permitted to meet at the
Mediation centre of this court. With respect to the access through
video calls, the earlier arrangement was continued.
5. By order dated 6th December 2022, the petition was admitted,
and by consent of the parties, they were granted time to submit
modalities of visitation rights of the petitioner to meet Aaryan. By
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order dated 16th December 2022, it was recorded that under the
orders of this court, the petitioner had availed visitation rights of
Aaryan, and the petitioner was well aware of the whereabouts of
Aaryan; hence, the petition was disposed of.
6. Feeling aggrieved by the said order dated 16 th December 2022,
the petitioner approached the Hon'ble Supreme Court. The Hon'ble
Supreme Court, by order dated 13th March 2023, allowed the appeal
preferred by the petitioner and set aside the order dated 16 th
December 2022. By the said order, the present petition was directed
to be restored to file for a fresh decision. By the said order, the
Hon'ble Supreme Court observed that all the rights and contentions
of the parties, including such objections as the respondent may have
on the maintainability of the habeas corpus petition, were kept open.
The Hon'ble Supreme Court further observed that endeavour may
be made for expeditious disposal of this petition. Hence, this
petition was heard by us for final disposal.
7. For considering the various submissions made on behalf of
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both parties, it is necessary to note the relevant undisputed dates and
sequence of events as follows:
2002-2005: The petitioner was studying in Texas, US and has
been living there since 2002-2005.
31st March 2010: The petitioner and respondent got married
in Mumbai under the Special Marriage Act, and the same was duly
registered.
29th May 2010: The petitioner and respondent performed a
traditional ceremony of their marriage in Mumbai.
16th June 2010: The petitioner and respondent went to the US
with the intention of permanently settling down in the US and thus
started residing in the matrimonial Home in Texas, US.
17th June 2010: The petitioner and respondent remarried in
the US in the Texas Family Court, US.
August 2011: Respondent completed her MBA from the
University of Texas, and the entire expenditure for the same was
borne by the petitioner to the tune of USD 20,000.
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2010 - April 2019: Petitioner and respondent continuously
resided in Dallas in various apartments.
January 2014: Respondent got an internship with Ericsson and
then got a job with Sodexo. Thus, the respondent became financially
independent and continued to work in the US.
February 2016: Respondent suffered a miscarriage and
thereafter was unable to conceive naturally; hence, parties decided to
have a child through an IVF procedure.
20th January 2017: Petitioner purchased a house in Texas in the
joint name of the petitioner and respondent.
April 2019: The petitioner and respondent decided and agreed
to have their child born in the US, and hence, the respondent started
the IVF procedure in the US, and she conceived through the IVF
procedure. Thus, they had the necessary intention to reside in the US
permanently and to make their child a US citizen.
May 2019: Since the respondent was pregnant, her parents
came to the US and stayed with the parties for a period of 3-4
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months till August 2019.
20th August 2019 to 1st November 2019: The parents of the
petitioner came and stayed with the parties in the US and also
organised a baby shower to welcome the child.
November 2019: The parents of respondent again came to stay
with the parties in the US in view of the due date of delivery of the
child.
25th December 2019: Aaryan was born in Texas, US.
23rd October 2020: The petitioner, as well as the respondent,
were granted green cards, which enabled them to stay in the US
permanently.
4th November 2020: Both parties received their green card.
14th November 2020: The US Passport of Aaryan was delivered
to the parties.
19th December 2020: Visa of Aaryan for travel to India was
delivered to the parties.
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20th December 2020: Respondent booked tickets for travel to
India for herself, her parents and Aaryan and also booked the return
tickets for herself and Aaryan to return to the US on 13 th January
2021.
21st December 2020: Petitioner and respondent, along with
parents of respondent and Aaryan, landed at Mumbai Airport.
Respondent left the airport with Aaryan to stay with her parents for
two days, and she was supposed to go to the petitioner's parents'
house on 23rd December 2020 to celebrate the first birthday of
Aaryan, which was on 25th December 2020.
24th December 2020: Respondent sent a WhatsApp message to
the petitioner that he should not try to contact her and that she
would not be visiting the petitioner's parent's home. On the same
day, the petitioner made an application to R.A. Kidwai Police
Station, informing them that the petitioner was unable to contact the
respondent.
25th December 2020: Respondent did not visit the petitioner's
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parent's house at Wadala, Mumbai; hence, the petitioner visited her
parent's house to enquire and wish Aaryan on his birthday. However,
the respondent's parent's house at Nerul, Navi Mumbai, was found
locked. The petitioner was informed that that they had already left
one day prior, i.e. 24th December 2020.
25th December 2020: Petitioner was neither able to contact the
respondent nor was able to find his son Aaryan. In spite of making
repeated calls to the respondent, all the calls of the petitioner were
unanswered, and the respondent, as well as Aaryan, were
untraceable. Hence, the petitioner reported the same to the
Seawood Police Station.
25th December 2020: Petitioner filed a complaint through
email to the US Embassy complaining that Aaryan, who is a US
citizen, was abducted.
30th December 2020: In such circumstances, the petitioner
filed the present petition seeking a writ of habeas corpus for
producing Aaryan before this court.
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8th January 2021: In view of the inter-parental abduction of
Aaryan, who is a US citizen, the petitioner filed a petition for legal
separation and custody of Aaryan in the Collin County Court, Texas,
US.
11th January 2021: Petitioner filed an Emergency Motion
before the US court, and on the same date, respondent was directed
to return Aaryan to the US by 25th January 2021.
13th January 2021: Respondent filed a domestic violence
proceeding in Belapur Court, and the proceedings of the same were
served on the petitioner on 20th January 2021.
20th January 2021: Petitioner left for the US as he had to
resume his work.
21st January 2021: Respondent filed a Divorce proceeding in
the Thane Court.
26th January 2021: The US Court passed an order directing the
respondent to return the child to the US by 29 th January 2021 by
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holding that the Texas Court had the jurisdiction, and the petitioner
was appointed as temporary Sole Managing Conservator of Aaryan
and was given a sole right to possess the Passport of Aaryan and to
renew the same.
2nd February 2021: The petitioner amended the present
petition seeking custody of the minor pursuant to the order passed
by the US Court.
12th February 2021: Respondent continued her job in the US
by working from home; however, she tendered her resignation in
February 2021.
28th April 2021: The Collin County Court, Texas, US, finally
decided the matrimonial dispute on merits after a full trial and
granted divorce and irrevocable custody of Aaryan to the petitioner.
8. We have heard the learned counsels for both parties at length.
SUBMISSIONS ON BEHALF OF THE PETITIONER:
9. The entire marital life of the petitioner and respondent of
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more than 10 years was in the US. Though the petitioner and
respondent had got married under the Special Marriage Act in
Mumbai, after travelling to the US, the parties remarried in the
Family Court in Texas, US and thus submitted to the jurisdiction of
the Texas Court. The Texas Court is the most competent court to
adjudicate the matrimonial disputes and custody disputes between
the parties.
10. The petitioner and respondent were gainfully employed in the
US and had also purchased a house in the joint name in the US. The
parties, with the intention of permanently settling down in the US,
had decided to have their child born in the US. Since the respondent
had suffered a miscarriage, the parties had decided to have their
child through an IVF procedure. The entire IVF procedure was
completed in the US Hospital, and the parties had made a conscious
decision to have their child born in the US and to make their child a
US citizen. Thus, there was a clear intention of the parties to reside
in the US permanently.
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11. After Aaryan was born in the US, the parties decided to visit
India. Hence, the parties had also booked a return ticket. However,
the respondent unilaterally changed the decision and refused to
return to the US along with Aaryan. Respondent had never made a
single complaint against the petitioner, alleging physical or mental
torture. It was only after this court granted access to talk to Aaryan
through WhatsApp Video Calls that the respondent, by way of
counterblast, filed a domestic violence proceeding by making false
and baseless allegations. As a counterblast to the proceeding
initiated by the petitioner in the Texas Court, the respondent filed
divorce proceedings in the Thane Court.
12. During their stay of 10 years in the US, the respondent's
parents, as well as the petitioner's parents, also visited them and
stayed with them in the US. Respondent's parents stayed in the US
at the time of the delivery of Aaryan and also thereafter. Considering
the fact that Aaryan is a US citizen and the parties had always
decided to make their child a US citizen with an intention to reside
in the US permanently, it is in the welfare of Aaryan that he be
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repatriated to the US. It is the fundamental right of Aaryan to have
the company and love of both parents. Aaryan, being a US citizen,
shall have better prospects of education and social security in the US.
13. The petitioner had filed substantive proceedings for custody of
Aaryan in the Texas Court, and the Texas Court has passed orders in
favour of the petitioner, directing the respondent to hand over
custody of Aaryan to the petitioner. The Respondent has not
challenged the order passed by the Texas Court. Hence, considering
the settled principles of law, it is clear that the respondent cannot
choose to disregard orders passed by the Texas court. Respondent, at
the highest, can approach the Texas court for modification of the
orders if she feels aggrieved by the said orders. Till date, there are no
orders passed in favour of the respondent in either of the
proceedings initiated by her in India. The dates and events would
clearly show that the respondent has initiated proceedings in India
only as a counterblast to the proceeding initiated by the petitioner in
the Texas court.
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14. Respondent has not disputed the sequence of dates and events
as pleaded by the petitioner. Respondent, in her response, has only
narrated the incidents after the parties arrived in India on 21 st
December 2020. Considering the facts of the case, it is beneficial for
Aaryan to stay in the US, in the area where the petitioner and
respondent were residing. Aaryan, being a US National, is also
entitled to all the health care facilities in the US, which includes
comprehensive insurance packages covering the minor child. The
petitioner has been a Senior System Analyst at Sirius XM since
2018, and his work profile allows him to work from home most of
the time (office 1-2 days a week), and the mother of the petitioner is
undertaking to move to the US in case of repatriation of Aaryan is
allowed as she has a 10-year visa to US and therefore, there will be
enough caretakers to look after Aaryan.
15. The petitioner is also a certified Cricket Australian Coach and
is already coaching the kids. He is an excellent cook and can cook
any cuisine. Thus, the petitioner can also provide Aaryan with the
best of both worlds, American and Indian. Respondent is also a
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Green Card Holder and permanent resident of the US thoroughly
embedded and entrenched in the system in the US and is highly
qualified, having an MBA Degree in Finance and Accounting from
the US, which she did after coming to the US and therefore
respondent would not face any difficulty, in case she decided to go
back to the US.
16. The learned counsel for the petitioner thus submitted that the
entire sequence of events would show that the parties always
intended to permanently settle down in the US and also bring up
their child in the US. Learned counsel submitted that there was no
material on record to even remotely suggest that there would be any
stake/or physical harm caused to Aaryan if he was repatriated to the
US. Learned counsel submitted that, till date there are no orders
passed in favour of the respondent with respect to the custody of
Aaryan. He, therefore, submitted that it is clear that the respondent
has illegally detained Aaryan in India, which is against the welfare
and interest of Aaryan.
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17. In support of the submissions made on behalf of the petitioner,
learned counsel 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
Others8
(i) Vasudha Sethi and Others Vs. Kiran V. Bhaskar and
Another 9
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
9 2022 SCC Online SC 43
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(j) Rohith Thammana Gowda Vs. State of Karnataka and
Others10
(k) Mr. Abhinav Gyan S/o. Gangeshwar Prasad Vs. State of
Maharashtra and Another 11
18. Learned counsel for the petitioner, by relying upon the
aforesaid decisions, submitted that the undisputed facts and
circumstances would show that it is in the interest and welfare of
Aaryan to be repatriated to the US. He further submitted that though
the parties had initially got married in Mumbai in India, both the
parties remarried in the US and submitted to the jurisdiction of the
Texas Court. Hence, the proceedings initiated by the respondent in
India are without jurisdiction. He submitted that the respondent is
under obligation to comply with the orders passed by the Texas
Court and hand over custody of Aaryan to the petitioner. By relying
upon the decisions of the Hon'ble Supreme Court in the case of
Yashita Sahu and Nilanjan Bhattacharya and the decision of this
Court in the case of Abhinav Gyan, learned counsel submitted that
10 2022 SCC Online SC 937
11 2022 SCC Online Bom 2958
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without prejudice to the rights and contentions of the petitioner, he
is ready and willing to provide all the facilities to the respondent as
well as Aaryan for their stay in the US, to enable her to take
appropriate steps within the jurisdiction of Texas Court and apply
for modification of the orders passed in the event the said orders
aggrieve her.
19. To show his bonafide, the learned counsel has placed on record
an affidavit duly affirmed by the petitioner in the US, thereby
undertaking that he shall not take recourse to any coercive
proceeding for non-compliance with the orders passed by the Texas
Court. The petitioner has undertaken that he shall provide 2
Bedroom, Hall, and Kitchen apartment on rent for the stay of the
respondent and Aaryan near the house of the parties in the US for a
period of three months and shall also provide medical insurance for
the respondent and Aaryan and bear expenses towards electricity and
gas for a period of three months. The petitioner, in the said
affidavit, has also undertaken to bear all expenses of the education of
Aaryan as well as the medical emergency of Aaryan. Thus, the
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petitioner has filed the said undertaking subject to the respondent
bringing Aaryan to the US and submitting to the jurisdiction of the
US Court.
SUBMISSIONS ON BEHALF OF RESPONDENT:
20. The learned senior counsel for the respondent submitted that
the dates and events, as narrated by the learned counsel for the
petitioner, would show that the petitioner has acted in a hasty
manner. She submitted that without waiting for a single day, the
petitioner approached the police station, making allegations of
abduction against the respondent. Aaryan is around 3 ½ years old
today and is in the lawful custody of his biological mother. There are
no compelling circumstances to uproot Aaryan, who is in the custody
of the respondent. In the US, Aaryan will be left to the mercy of
outside help. In India, the grandparents of Aaryan are available to
take care of Aaryan. Thus, it is beneficial for Aaryan to stay in India
as he will be brought up in his native place.
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21. Learned senior counsel for the respondent further submitted
that the dates and events as relied upon by the petitioner would
show that there is, in fact, no case made out as alleged by the
petitioner. She submitted that after the parties arrived in Mumbai,
there was some argument between the parties at the airport and later,
some messages were exchanged. Thereafter, one day's absence of
respondent and Aaryan is construed by the petitioner as abduction.
There was no substance in the allegation of abduction made by the
petitioner. Learned senior counsel submitted that instead of initiating
appropriate proceeding under the Hindu Minority and Guardianship
Act, 1956, the petitioner instructed his lawyer in the US to file
proceedings for separation and custody while the petitioner himself
was in India. There was no pre-existing order in the present case,
and hence, the petition for habeas corpus would not be maintainable.
In all the decisions relied upon by the petitioner, there were pre-
existing orders for filing the petitions for habeas corpus. However,
in the present case, there are no such pre-existing orders.
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22. Learned senior counsel for the respondent further submitted that
Aaryan has roots in India, and hence, it would not be in the interest of
Aaryan to uproot him from India and take him to the US, which is a
foreign land. She relied upon the decision of the Hon'ble Supreme
Court in the case of Nithya Anand Raghavan to support her submission
that the orders passed by the Texas Court are without jurisdiction, and
the petitioner is not entitled to invoke the same in India. She further
relied upon the decision of the Hon'ble Supreme Court in the case of
Kanika Goel vs. State of Delhi12 to support her objection that the
courts in the US would not have any jurisdiction to deal with the
dispute between the parties and that only the courts in Mumbai would
have jurisdiction to decide the dispute between the parties. She,
therefore, submitted that the petition for habeas corpus is not
maintainable, and in the proceeding of habeas corpus, custody of
Aaryan cannot be handed over to the petitioner. She submitted that
under the Hindu Minority and Guardianship Act, 1956, the
respondent, being the biological mother, is the natural guardian of
Aaryan, and thus, she is entitled to have physical custody of Aaryan.
12 2018 (9) SCC 578
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23. The learned senior counsel also relied upon the decisions of
the Hon'ble Supreme Court in the case of Dhanwanti Joshi and in
the case of Prateek Gupta Vs Shilpi Gupta 13 and Y. Narasimha Rao
and Others Vs Y. Venkata Lakshmi and Another 14. She submitted
that in either contingency of the court deciding to hold a summary
enquiry or an elaborate enquiry; the court would be guided by the
pre-dominant consideration of the welfare of the child on the basis
of all the facts and circumstances. She, therefore, submitted that
there is no reason to disturb the custody of Aaryan, who has been
settled in India for the last 2 ½ years. She, therefore, submitted that
there was no merit in the petition and, hence, the petition deserves
to be dismissed.
ANALYSIS:
24. We have considered the submissions made on behalf of both
parties. Before dealing with the rival submissions on merits, it is
necessary to consider the well-settled principles of law applicable to
13 (2018) 2 SCC 309
14 (1991) 3 SCC 451
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the facts of the present case. The learned counsel for the petitioner
has placed on record a compilation of all the decisions in the
petitions filed seeking a writ of habeas corpus dealing with the issue
of repatriation of minor children.
LEGAL POSITION AS RELEVANT TO THE FACTS OF THE
PRESENT CASE :
25. 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 Sandhu 15, Mrs. Elizabeth Dinshaw Vs
Arvand M.Dinshaw & Another16, Dhanwanti Joshi v. Madhav
Unde17, Shilpa Aggarwal, V. Ravi Chandran, Arathi Bandi Vs. Bandi
Jagadrakshaka Rao & Others18, Surya Vadanan vs. State of Tamil
Nadu & Others19 . In all these cases, the minor children held citizen-
ship 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
15 (1984) 3 SCC 698
16 (1987) 1 SCC 42
17 (1998) 1 SCC 112
18 (2013) 15 SCC 790
19 (2015) 5 SCC 450
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these cases, the child was repatriated to the country's jurisdiction
from where the child was removed, except in the case of Dhanwanti
Joshi.
26. 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, and 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 re-
turn 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 referred to the
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case of McKee Vs McKee20, 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 regard-
ing 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 in a position to give complete care to his daughter. Con-
sidering the allegations against the father, the Supreme Court held
that it would cause harm to her if she returned to the UK. Thus, in
the facts of the case the order passed by the High Court was set
20 1951 AC 352 (PC)
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aside. The Supreme Court approved the view taken in Dhanwanti
Joshi and observed as under;
"69. ..................... 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".
27. In the case of Kanika Goel, though the parties were married in
India, they later settled in Chicago and married again. Their
daughter was born in the US. The wife, along with the daughter,
came to India; however, they did not return. The wife filed a Petition
for divorce and a restraint order against the husband from taking the
minor child from the jurisdiction of the Indian Court. The husband
filed an Emergency Petition in the US. The Family Court at New
Delhi passed an ex-parte order on the application filed by the wife
restraining the husband from removing the minor child from the
jurisdiction of that Court until further orders. The US Court passed
an ex-parte order, and the husband was granted interim sole custody
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of the minor child. Thereafter, a Writ Petition was filed in the Delhi
High Court, which was allowed and the child was directed to be
repatriated to the US. However, the Supreme Court set aside the
order of the High Court. 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, 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
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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.
28. In the case of Lahari Sakhamuri, the parties were married in
India, but both were residing in the US. Two children were born
from this wedlock in the US. The couple purchased a house in their
joint name and moved to the new house. The husband purchased a
return ticket for the wife and the minor children, who came to India
and were scheduled to return. However, the wife filed a Petition
seeking custody of the children before the Family Court, Hyderabad
and got an interim order. The husband filed an Application under
Order VII Rule 11 CPC seeking a rejection of the case. In the
meantime, the husband also filed an Application before the US Court
seeking an emergency order of return of the minor children, and the
wife appeared through Counsel. The US Court directed the mother
to return the children to the US. The husband filed an Appeal before
the High Court assailing the order of rejection of his application
under Order VII Rule 11 CPC and also simultaneously filed a Writ of
Habeas Corpus seeking repatriation of the minor children pursuant
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to the order passed by the US Court. The High Court held that the
Family Court, Hyderabad, had no jurisdiction and the children were
not ordinarily residing within the jurisdiction of the Family Court,
Hyderabad, as provided under Section 9 of the Guardians & Wards
Act and rejected the Application filed by the wife for custody. At the
same time, the Habeas Corpus Petition was also allowed, and
children were directed to be repatriated to the US. The wife assailed
both the orders before the Hon'ble Supreme Court. The Hon'ble
Supreme Court confirmed the decision of the High Court and held
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. However, certain
directions were passed for the children to come back, and the
husband was directed to make arrangements for the stay of the wife
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in the US, including her travel expenses. The Supreme Court
considered its earlier decisions in the cases of Nithya Raghavan and
Kanika Goel and held as under:
"41. The essence of the judgment in Nithya Anand
Raghavan case [Nithya Anand Raghavan v. State (NCT of
Delhi), (2017) 8 SCC 454 : (2017) 4 SCC (Civ) 104] is
that the doctrines of comity of courts, intimate connect,
orders passed by foreign courts having jurisdiction in the
matter regarding custody of the minor child, citizenship of
the parents and the child, etc. cannot override the
consideration of the best interest and the welfare of the
child and that the direction to return the child to the
foreign jurisdiction must not result in any physical, mental,
psychological, or other harm to the child.
43. The expression "best interest of child" which is
always kept to be of paramount consideration is indeed
wide in its connotation and it cannot remain the love and
care of the primary care giver i.e. the mother in case of the
infant or the child who is only a few years old. The
definition of "best interest of the child" is envisaged in
Section 2(9) of the Juvenile Justice (Care & Protection) Act,
2015, as to mean "the basis for any decision taken
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regarding the child, to ensure fulfilment of his basic rights
and needs, identity, social well-being and physical,
emotional and intellectual development".
(Emphasis applied)
29. In the case of Yashita Sahu, the parties were Indian citizens
and were married in India. The husband was already working in the
US, and the wife accompanied the husband to the US. A daughter
was born to the couple in the US and acquired US citizenship. The
relationship between the husband and wife got strained, and the wife
initiated proceedings in the US Court. Joint, legal custody and
shared physical custody of the child was given to the parents. The
wife, along with the child, left the US and came to India; hence the
husband filed a motion for an emergency brief before the US Court
and an ex-parte order was passed granting sole legal and physical
custody of the child to the husband and the wife was directed to
return to the US along with child. A warrant was also issued against
the wife for violating the order of the US Court. The husband filed a
Petition to issue a Writ of Habeas Corpus before the Rajasthan High
Court for producing the minor child and repatriation to the US. The
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High Court directed the wife to return to the US along with the
minor daughter to enable the Jurisdictional Court in the US to pass
further orders. Aggrieved by the said Judgment, the wife filed an
Appeal to the Hon'ble Supreme Court. The Hon'ble Supreme Court
discussed in detail the law laid down by its various decisions and
held that a Writ of Habeas Corpus is maintainable if the child is in
the custody of another parent and that now it is a settled position
that the court can invoke its extraordinary writ jurisdiction for the
best interest of the child as has been done in Elizabeth Dinshaw,
Nithya Anand Raghavan, and Lahari Sakhamuri among others.
Therefore, the Hon'ble Supreme Court held as under:-
"20. It is well settled law by a catena of judgments that
while deciding matters of custody of a child, primary and
paramount consideration is welfare of the child. If
welfare of the child so demands then technical objections
cannot come in the way. However, while deciding the
welfare of the child, it is not the view of one spouse
alone which has to be taken into consideration. The
courts should decide the issue of custody only on the
basis of what is in the best interest of the child.
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21. The child is the victim in custody battles. In this
fight of egos and increasing acrimonious battles and
litigations between two spouses, our experience shows
that more often than not, the parents who otherwise love
their child, present a picture as if the other spouse is a
villain and he or she alone is entitled to the custody of
the child. The court must therefore be very wary of what
is said by each of the spouses.
22. A child, especially a child of tender years requires the
love, affection, company, protection of both parents. This
is not only the requirement of the child but is his/her
basic human right. Just because the parents are at war
with each other, does not mean that the child should be
denied the care, affection, love or protection of any one
of the two parents. A child is not an inanimate object
which can be tossed from one parent to the other. Every
separation, every reunion may have a traumatic and
psychosomatic impact on the child. Therefore, it is to be
ensured that the court weighs each and every
circumstance very carefully before deciding how and in
what manner the custody of the child should be shared
between both the parents.....
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28. The child is a citizen of the USA by birth. Her father
was already working in the USA when he got married. We
are told that the mother had visited the US once before
marriage and when she got married it was done with the
knowledge that she may have to settle down there. The
child was born in a hospital in the US and the mother did
not come back to India for delivery which indicates that at
that time the parents wanted the child to be a citizen of
USA. Since the child is a citizen of USA by birth and holds
a passport of that country, while deciding the issue of
custody we have to take this factor into consideration.
35. In view of the above discussion, we are clearly of the
view that it is in the best interest of the child to have
parental care of both the parents, if not joint then at least
separate. We are clearly of the view that if the wife is
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. A writ court in India
cannot, in proceedings like this direct that an adult spouse
should go to America. We are, therefore, issuing directions
in two parts. The first part will apply if the appellant wife
is willing to go to the USA on terms and conditions
offered by the husband in his affidavit. The second part
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would apply if she is not willing to go to the USA, how
should the husband be granted custody of the child."
Emphasis applied
30. In the case of Nilanjan Bhattacharya, the parties got married
in Kerala. The couple moved to the US, and both started working.
Their son was born in the US, and he became a US citizen. The wife
travelled to India for a short period with the child and, after
reaching India, informed the husband of her plans not to return to
the US and continued to reside in India with the child. The US
Court, on a petition filed by the husband, granted legal and
temporary custody of the minor child to the husband. The husband
initially filed a Habeas Corpus Petition before the Supreme Court,
but the same was withdrawn with the liberty to move the
appropriate forum. The husband filed a Habeas Corpus Petition
before the High Court of Karnataka, and the Division Bench allowed
the Habeas Corpus and allowed the father to take the child to the
US. However, two conditions were imposed that prior to
repatriation of the child, a certificate shall be issued from the District
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Health Officer, Bangalore, that the country is safe from COVID.
Similarly, the father should also obtain a certificate from the
concerned Medical Authority in the US certifying that the conditions
in the US where he was residing are congenial for shifting the
residence of the minor child. The wife did not challenge the order of
the High Court. On the contrary, the father challenged the
correctness of the two conditions of obtaining the Medical
Certificates. The Hon'ble Supreme Court allowed the appeal and set
aside the said two conditions. The child was born in the US and was
a citizen of the US by birth. The husband had taken the responsibility
for shared parenting while the child was in the US. The Court,
having been apprised of the fact that the husband was ready and
willing to provide financial assistance to enable the wife to travel to
New Jersey, the husband was directed to make arrangements for her
residential accommodation and stay close to the place of the
residence of the child. Alternatively, if the wife was not desirous of
living in the US, the husband was directed to make arrangements for
giving access to the wife to meet the child by providing access
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through video conferencing and bear the expenses of the wife for
travel to the US for a period of ten days once in a year for the
purpose of meeting the child; and the husband was directed to bring
the child to India for a period of ten days on an annual basis when
access would be provided to the wife.
31. In the case of Vasudha Sethi and Ors the parties were married
in the US, and the child was born in the US. Thus, the child was a
citizen of the US by birth and was holding a US passport. The father
had a status of permanent resident in the US and secured a B-2 Non-
Immigrant visa for the mother. Unfortunately, the child was
diagnosed with hydronephrosis, which required surgery, and they
were not in a position to secure an appointment with a doctor in the
US for surgery. Therefore, it was agreed between the husband and
wife that the child would undergo surgery in India. As the child was
a citizen of the US, consent for international travel with one legal
guardian was executed by and between the husband and wife. It was
the case of the father that at the time of surgery, he flew down to
India, and after the surgery, he returned to the US for his work. The
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mother violated the international travel consent by not allowing the
minor child to return to the US and detained the minor in her illegal
custody in India. On a petition filed by the father before the court in
the US, an interim order granting primary care, custody, and control
of the minor child to the father and direction to the mother to return
the child to the father was passed. The father then filed a petition
seeking a writ of habeas corpus in the High Court of Punjab and
Haryana, which was allowed and the wife was directed to return to
the US. The wife assailed the said Judgment in the Hon'ble Supreme
Court, and the Supreme Court vide a detailed Judgment upheld the
Judgment of the High Court and held that even if the child was less
than 5 years old, the child could be repatriated to the US. The
Hon'ble 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 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) and Nithya (supra),
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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. 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
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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
32. In the case of Rohith Gowda, the father had been residing in
the US for two decades. The parties were married in India. Soon
after the marriage, they shifted to the US and made it their
matrimonial home. They both were given Green Cards (Permanent
Resident or PR Card). The child of the parties was born in the US,
and he was an American Citizen with an American Passport. The
child was studying at a school in Washington. The mother came to
India with the child without the consent of the father when the
father was already in India to attend to his ailing mother. Upon
reaching the US, he realised that the child was missing from the
matrimonial home. The father filed a Habeas Corpus writ petition
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before the High Court of Karnataka and also filed a Custody Petition
in the Superior Court of Washington and got an ex-parte order
directing the mother to return the child to the US. The wife
participated in the proceedings before the US Court and moved a
motion for vacating the ex-parte order. Consequently, the ex-parte
order to return the child was vacated. Later, the mother filed a
petition challenging the jurisdiction of the US Court, and the US
Court upheld its jurisdiction over the minor child. The US Court
passed an order directing her to return the child to the US. The
mother also filed a custody petition before the Family Court
Bengaluru, which was dismissed as being not maintainable for want
of jurisdiction. In the circumstances, only the US Courts had
jurisdiction to decide the question of custody of the minor child. The
High Court of Karnataka dismissed the Habeas Corpus filed on
behalf of the husband. However, on an Appeal, the Hon'ble Supreme
Court allowed the Habeas Corpus Petition. The Hon'ble 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 US, being a naturalised American citizen. The Hon'ble
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.
33. In the case of Rajeswari Chandrasekar Ganesh Vs State of
Tamil Nadu & Others21 , the parties were married in India and
migrated to the US. Their daughter was born in India, whereas their
son was born in the US. The US court passed a consent order for
divorce wherein Shared Parenting was ordered. The father illegally
took the children to India from the US, removing them from the
mother's custody in contravention of the joint custody plan and
order of the US Court. The wife, aggrieved of the abduction of the
minor children, straightaway filed a Petition under Article 32 of the
Constitution of India seeking a writ of Habeas Corpus, and CBI was
also made a party. The Hon'ble Supreme Court allowed the Writ
Petition, noted the entire law of Habeas Corpus and held that the
21 (2022) SCC OnLine SC 885
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Court exercises an inherent jurisdiction in Habeas Corpus Petition
distinct from a statutory jurisdiction. The Hon'ble Supreme Court
held as under:
"110. Thus, what has been explained by this Court as
aforesaid is 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. It has two psychological destructive effects:
(1) It puts the child in the middle of a loyalty contest,
which cannot possibly won by any parent;
(2) It makes the child to assess the reality, thereby
requiring to blame either parent who is supposedly
deprived of positive traits.
111. The intent of the court should be to circumvent
such ill effects."
34. In the case of Abhinav Gyan, the husband had been living in
the US. The parties got married in India and the wife joined the
husband in the US. The wife secured a permanent job in the US. The
parties resided together in their matrimonial house in the US and
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they bought a joint house together in the same place. Their son was
born in the US and thus was a citizen of the US, holding a passport
of that country. There was matrimonial discord between the parties
and the wife left the matrimonial house along with the minor child
and came to India and started residing with her parents. The
husband initiated a proceeding for legal separation and for 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 US. This
Court ordered the wife to return the minor child to the jurisdiction
of the US court. This 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. This Court rejected the argument of
non-maintainability of the writ petition, and as indicated in the
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decisions of the Hon'ble Supreme Court in the case of Nithya
Raghavan read with the decision in the case of Rajeswari Ganesh
High Court held that the husband has moved with alacrity and the
petition was to be decided on merits and despite the fact that the
minor child had remained in India for about 1½ years the High
Court considered the aspect of the welfare of the child and held that
the order of the US Court would be a relevant factor. Thus, this
Court allowed the petition.
CONCLUSIONS :
35. In our country, matrimonial disputes constitute the most
bitterly fought adversarial litigation, and when the issue of custody
of children is involved, children suffer the most. In such cases, the
role of the Court becomes crucial. The Court is required to exercise
parent patriae jurisdiction and compel the parties to do something
that is in the best interest of the child. Hence, in such a peculiar
situation, it is the responsibility of the Court to enter into the role of
a guardian for the child.
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36. Thus, we have considered the submissions made by both par-
ties by keeping in mind the well-established principles of law as laid
down in the aforesaid decisions. It is well established that the
summary jurisdiction be exercised if the Court to which the child has
been removed is moved promptly and quickly. The overriding
consideration must be the interest and welfare of the child. 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. The expression "best interest of the child",
which is always kept to be of paramount consideration, is indeed
wide in its connotation, and it cannot remain only the love and care
of the primary caregiver i.e. the mother in the case of the child who
is only a few years old and the basis for any decision taken regarding
the child, is to ensure fulfilment of his basic rights and needs,
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identity, social well-being and physical, emotional and intellectual
development. However, while deciding the welfare of the child, it is
not the view of one spouse alone which has to be taken into consid-
eration. The Courts should decide the issue of custody only on the
basis of what is in the best interest of the child.
37. Thus, keeping in mind the aforementioned principles, in the
present case, the questions to be decided are as under:
(i) whether the refusal on the part of the respondent-mother
to return to the US with the child, as scheduled, is
justified and whether such refusal will amount to illegally
detaining the child in India.
(ii) whether, in the facts of the case, the petition seeking a
writ of habeas corpus is maintainable and
(iii) whether the petitioner-father is justified in seeking
repatriation of the child to the US.
38. In the present case, from the undisputed facts, it is clear that (i)
the parties always had the intention to permanently settle down in
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the US for which the respondent, after their marriage, completed her
further education in the US and secured a job (ii) after undergoing
the IVF medical procedure in the US, respondent gave birth to their
son in the US (iii) all the facts and circumstances clearly show that
the parties took a conscious decision to make their child a US citizen
(iv) parents of the parties resided with them in the US intermittently
to help and support them during the days of pre-delivery and post-
delivery of the child (v) parties had booked their return tickets to the
US (vi) respondent had never made any complaint against the
petitioner until this Court passed an order granting video access to
the petitioner to meet the child and the US court passed the order on
the petition filed by the petitioner.
39. On perusal of the pleadings and documents on record, we find
that the proceedings initiated by the respondent in India appear to be
afterthought only with the intention of not allowing the petitioner to
take the child back to the US. There is no satisfactory explanation
forthcoming from the respondent for not allowing the petitioner to
meet their child on his first birthday. It appears that with an
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intention to celebrate the first birthday of the child in India, the
parties had scheduled their visit. The Petitioner made all possible
efforts to contact the respondent to meet the child. The undisputed
WhatsApp messages exchanged between the parties reveal that the
respondent and their child were not available at her parent's place on
the first birthday of the child; the respondent and her brother
informed the petitioner that he should not try to contact them and
they even concealed their whereabouts. In such circumstances, the
petitioner immediately filed a complaint alleging that the respondent
had abducted the child. We do not find any justification for such
conduct on the part of the respondent in not allowing the petitioner
to meet their child on his first birthday. There is absolutely no
explanation coming forth from the respondent for concealing the
whereabouts of the child from the petitioner. It appears from the
order dated 20th December 2021 passed in the present petition that
even on the second birthday of Aaryan in the year 2021, when a
request was made on behalf of the petitioner to meet Aaryan on his
birthday, i.e. on 25th December 2021, a statement was made on
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behalf of the respondent that she and Aaryan were travelling from
24th December 2021 to 2nd January 2022 and that the petitioner can
meet Aaryan on 22nd and 23rd December 2021.
40. So far as the objection to the maintainability of this petition is
concerned, the law in this regard is no more res-integra. It is a well-
settled principle of law that the Court can invoke its extraordinary
writ jurisdiction for the best interest of the child. The objection
raised on behalf of the respondent on the maintainability of this
petition is based on the submission that there is no pre-existing order
in favour of the petitioner for custody of Aaryan and that the
petition is filed in haste by construing one day's absence of
respondent and Aaryan as the abduction of Aaryan by the
respondent. We do not find any merit in this submission. It is well
established principle of law as laid down in catena of judgments
discussed above that a writ for habeas corpus cannot be used only for
mere enforcement of the directions given by a foreign court, and that
the same is one of the factors to be considered. Therefore, there
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being no pre-existing order of the US Court in the present case
cannot be a ground to contend that a writ for habeas corpus is not
maintainable. Even otherwise during the pendency of this petition,
the US Court has ordered respondent to bring back Aaryan to the
US.
41. The aforementioned undisputed facts would show that though
the parties visited India just before the first birthday of Aaryan with a
scheduled plan to return, the respondent not only restrained the
petitioner from meeting Aaryan on his first birthday but also
concealed his whereabouts. A perusal of the WhatsApp messages
exchanged between the parties shows that the respondent and her
brother informed the petitioner not to try to contact them. In the
admitted facts of the present case, we find that the petitioner has
acted with alacrity and has taken quick and prompt action to find the
whereabouts of his son. The petitioner immediately filed a complaint
through email to the US Embassy complaining about the inter-
parental abduction of the child and thereafter filed the present
petition. The quick and prompt actions taken by the petitioner for
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seeking the whereabouts of his son cannot be termed as any hasty
action of alleging abduction. Thus, it cannot be said that this petition
seeking a writ of habeas corpus is not maintainable as sought to be
contented on behalf of the respondent.
42. A perusal of the reply filed by the respondent is bereft of any
explanation for refusing to return to the US as scheduled. We do not
find any substance in the submission that the child has developed
roots in India. It is not disputed that the parties had visited India
with a scheduled plan to return to the US. Just because the
respondent refused to return, the child has stayed in India for around
two and a half years. Such a stay of the child in India cannot be said
that he has developed roots in India. The undisputed facts reveal that
not only had the parties permanently settled down in the US but had
taken a conscious decision to make their child a US citizen. Thus, the
respondent is not justified in taking a unilateral decision that the
child will not return to his native country.
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43. We also do not find any merit in the submissions made by the
respondent that it will be more beneficial for the child to stay in
India as his grandparents are available to care for him in as much as
it is not disputed that during the days of pre-delivery and post-
delivery of the child, the respective parents of both parties had
stayed in the US to support them. The petitioner submits it, stating
that if the child is sent to the US, the mother of the petitioner, who
holds a US visa for ten years, is willing to stay in the US to care for
the child.
44. We also find substance in the submission of the petitioner that
he can provide Aaryan with the best of both worlds, American and
Indian. Considering the petitioner's work profile, he is allowed to
work from home most of the time. It is not disputed that the
petitioner is also a certified Cricket Australian Coach and is already
coaching the kids; he is an excellent cook and can cook any cuisine.
Aaryan, being a US National, is also entitled to all the health care
facilities in the US, which includes comprehensive insurance
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packages covering the minor child. It is further the submission of the
petitioner that the respondent is also a Green Card Holder and
permanent resident of the US and is highly qualified, having an MBA
Degree in Finance and Accounting from the US, which she did after
coming to the US. The respondent does not dispute all these factual
submissions. Thus, all these factors support the petitioner's case that
it will be in the interest of Aaryan to return to the US.
45. The most important factor in the present case is that the
respondent-mother has not disputed the petitioner's case that the
parties had scheduled their visit to India with a plan to return. As
already recorded by us, there is no satisfactory explanation coming
forth from the respondent for not returning to the US as planned.
Thus, the child's presence in India is only the result of the
respondent's unilateral decision of not returning to the US and her
act of neither complying with the order passed by the US Court nor
challenging the same by taking appropriate steps. Thus, the
respondent cannot claim any advantage by stating that the child has
developed roots in India.
902-WP-97-2021.docx
46. Aaryan is in the physical custody of the respondent, who is his
biological mother, however, she is not entitled to claim his exclusive
custody. It is not disputed that till this Court passed an order on 12 th
January 2021 granting video access to the petitioner to meet Aaryan,
the respondent had not initiated any proceedings against the
petitioner. It has come on record that the respondent filed a
complaint against the petitioner for the first time in India on 13 th
January 2021, which was served upon the petitioner on 20 th January
2021. So far as her decision not to return to the US, she cannot be
compelled to change her decision. However, her action of not
permitting Aaryan to return to his native country without any valid
and justifiable reason amounts to illegally detaining Aaryan in India.
47. The steps taken by the petitioner with alacrity is an important
factor to be considered. Though served with the order passed by the
US Court, the respondent took no steps to comply with the same or
challenge it. Instead, as a counterblast, she initiated proceedings in
India; however, there is no order passed in favour of the respondent.
Though there was no order passed prior to the petitioner filing this
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petition, subsequently, there is an order passed by the US court
directing the respondent to return Aaryan to the US. The
respondent has chosen not to challenge the same. Thus, there is no
substance in the argument on behalf of the respondent that the
petitioner is not entitled to seek relief of repatriation of Aaryan on
the basis of the order passed by the US Court. It is well settled in the
catena of decisions as stated hereinabove that an order of a foreign
court may not be the sole criteria to seek repatriation of a minor
child, but it is an aspect that can be taken into consideration.
48. So far as the jurisdiction of the Texas Court or the Courts in
India for deciding the custody dispute of Aaryan is concerned, we do
not find it necessary to examine the same in this petition. As held by
the Hon'ble Court in the decision of Nithya Raghavan and Kanika
Goel, we find in the facts of the present case that it is not necessary
to hold any elaborate inquiry, but a summary inquiry is required to
be adopted considering the emergent situation of repatriation of a
minor child of three and half years who is a US citizen and has stayed
back in India for last more than two and a half years only due to a
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unilateral decision of the respondent-mother of not returning to the
US as per the scheduled plan. Considering the age of Aaryan it
cannot be said that he has developed any roots in India. Nothing
adverse was brought on record to show that it would be prejudicial
or harmful to send Aaryan to his native country. There is nothing
adverse brought on record to show that the petitioner is incapable of
taking care of Aaryan. We have already held that there is substance in
the submission of the petitioner that it will be more beneficial for
Aaryan to live in the US, in as much as he being a US citizen is
entitled to all the educational, social and medical benefits available
there. We find that the stay of Aaryan in India for last two and half
years is too short a period to facilitate his integration into the social,
physical, physiological, cultural and academic environment of India.
Hence, if repatriated to the US, he will not be subjected to an
entirely foreign education system. By applying the principles laid
down by the Hon'ble Supreme Court in the decision of Vasudha
Sethi, we find in the facts of the present case that Aaryan, being a
citizen of the US, will have better future prospects on return to the
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US. We find that considering the tender age of Aaryan, the natural
process of grooming in the environment of the native country is
indispensable for his comprehensive development. In these facts and
circumstances, we do not see any reasonable ground to believe that
Aaryan should not be repatriated to the US.
49. Except for the tender age of Aaryan, where he needs the care
and protection of a mother, we do not see any factor in favour of the
respondent. At the same time, we believe that at this tender age,
Aaryan is entitled to have the company of both his parents. Rather, it
is his basic human right to have the care and protection of both
parents. Thus, the respondent is not justified in unreasonably
depriving Aaryan of the company of his father. The respondent
cannot deprive Aaryan of his basic human rights only because she has
suddenly decided that she does not want to go back to the US, where
the parties were permanently settled.
50. The submissions on behalf of the respondent are more on her
rights than the welfare and rights of Aaryan. Just because the
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respondent has taken a unilateral decision to stay back in India, she
cannot deprive Aaryan of his rights. In these facts, accepting the
submissions on behalf of the respondent would amount to making a
departure from the well-known concept that the welfare of the
minor is the paramount consideration. The said submissions are
contrary to the law laid down by this Court in the case
of Kanika Goel and Nithya Raghavan. From the aforesaid well-
established principles of law governing the custody of minor
children, and more particularly as held by the Hon'ble Supreme
Court in the decision of Vasudha Sethi it is clear that the rights of the
parents are irrelevant when a Court decides the custody issue.
51. In the facts of the present case the principles of law laid down
by Hon'ble Supreme Court in the decisions of Lahari Sakhamuri,
Yashita Sahu, Nilanjan Bhattacharya, Vasundha Sethi, Rohith Gowda,
Rajeswari Ganesh by taking into consideration the earlier decisions
including the decisions relied upon by the learned senior counsel for
the respondent, are squarely applicable to the facts of the present
case.
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52. The Hon'ble Supreme Court in the decision of Rohith Gowda,
has held as under;
"9. To answer the stated question and also on the
question of jurisdiction we do not think it necessary to
conduct a deep survey on the authorities This Court
in Nithya Anand Raghawan v. State (NCT of
Delhi) [(2017) 8 SCC 454], reiterated the principle laid
in V. Ravi Chandran v. Union of India [(2010) 1 SCC
174] and further held thus:--
"In exercise of summary jurisdiction, the court must be
satisfied and of the opinion that the proceedings
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 return to his native state because
of the difference in language spoken or social customs
and contacts to which 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 of the
paramount welfare of the child but leave that inquiry to
the foreign court by directing return of the child. Be it
noted that in exceptional cases the court can still refuse
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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".
(Emphasis added)
10. In Ravi Chandran's case (supra), this Court took
note of the actual role of the High Courts in the matter
of examination of cases involving claim of custody of a
minor based on the principle of parens patriae
jurisdiction considering the fact that it is the minor who
is within the jurisdiction of the court. Based on such
consideration it was held that even while considering
Habeas Corpus writ petition qua a minor, in a given
case, the High Courts may direct for return of the child
or decline to change the custody of the child taking into
account the attending facts and circumstances as also the
settled legal position. In Nitya Anand's case this Court
had also referred to the decision in Dhanwanti
Joshi v. Madhav Unde [(1998) 1 SCC 112] which in turn
was rendered after referring to the decision of the Privy
Council in Mckee v. Mckee [[1951] A.C. 352]. In
Mckee's case the Privy Council held that the order of the
foreign court would yield to the welfare and that the
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comity of courts demanded not its enforcement, but its
grave consideration. Though, India is not a signatory to
Hague Convention of 1980, on the "Civil Aspects of
International Child Abduction", this Court, virtually,
imbibing the true spirit of the principle of parens
patriae jurisdiction, went on to hold in Nithya Anand
Raghavan's case thus:
"40. ... 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 to exercise summary jurisdiction in the
interests of the 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 return to his native state because
of the difference in language spoken or social customs
and contacts to which he/she has been accustomed or
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such other tangible reasons. In such a case the court need
not resort to an elaborate inquiry into the merits of the
paramount welfare of the child but leave that inquiry to
the foreign court by directing return of the 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 preexisting order of 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
of return 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 to physical
or psychological harm or otherwise place the child in an
intolerable position or if the child is quite mature an
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objects to its return. We are in respectful agreement with
the aforementioned exposition."
53. Thus, taking note of the position thus settled in the aforesaid
decisions, we considered the questions raised in the present case. In
addition to the aforesaid reasons, another important factor to be
taken into consideration is that the respondent does not challenge
the order for the return of Aaryan to the US. There is no order
passed in favour of the respondent in any of the proceedings initiated
by her in India. Be that as it may, we have to consider the grant of
relief in this petition only by giving predominant importance to the
welfare of Aaryan.
54. The petitioner has placed on record the orders passed by the
Collin County Court Texas, US. On an emergency motion the US
Court on 11th January 2021 directed the respondent to return
Aaryan to the US by 25th January 2021. On 26th January 2021, the
US court passed another order directing the repatriation of Aaryan to
the US. On 28th April 2021, the 470th Judicial District Court of
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Collin Couty US finally decided the matrimonial dispute between the
parties, granting divorce and irrevocable custody of Aaryan to the
petitioner. The Orders passed by the US Court shows that though
served with the notice and proceedings, respondent has not
contested the proceedings. It is not even the case of the respondent
that she has challenged these orders.
55. The essence of the principles of law laid down in the decision
of Nithya Raghavan, Kanika Goel, as explained in the decision of
Lahari Sukhumari and other aforesaid decisions is that the doctrines
of comity of courts, intimate connect, orders passed by foreign
courts having jurisdiction in the matter regarding custody of the
minor child, citizenship of the parents and the child, etc. cannot
override the consideration of the best interest and the welfare of the
child and that the direction to return the child to the foreign
jurisdiction must not result in any physical, mental, psychological, or
other harm to the child. We have already held that keeping the best
interest of Aaryan in mind, we find that it is beneficial for Aryan to
go back to the US. The best interest of Aaryan cannot remain only
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the love and care of the primary caregiver, i.e. the respondent as
Aaryan is below five years of age. The facts and circumstances do not
even remotely suggest that the petitioner is unable to give the love,
care and protection required for Aaryan's age. We find that to ensure
fulfilment of Aaryan's basic rights and needs, identity, social well-
being and physical, emotional and intellectual development, it is
necessary for Aaryan to go back to the US.
56. We do not find any merit in the objection raised on behalf of
the respondent that only the Mumbai Courts would have jurisdiction
to decide the disputes between the parties. The reliance on the
decision of the Hon'ble Supreme Court in the case of Kanika Goel to
support this submission is misplaced. The Hon'ble Supreme Court,
in the case of Kanika Goel, 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 those proceedings, the parties will be free to
pursue such other remedies as may be permissible in law before the
competent jurisdiction. This observation was in the light of the fact
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that the proceedings initiated by the wife in India were prior in time.
In the present case, the proceedings initiated by the petitioner in the
US court are prior in time. Thus, the observations of the Hon'ble
Supreme Court in the decision of Kanika Goel, are of no assistance
to the submissions made on behalf of the respondent that only the
Courts in Mumbai will have jurisdiction to decide the disputes
between the parties. In view of the different facts of this case, the
decision in the case of Y. Narasimha Rao is also of no assistance to
the respondent. Even otherwise, in the present case, we are not
examining the merits of the proceedings initiated by the respondent.
57. We make it clear that 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.
58. Thus, for the aforesaid reasons, writ petition is allowed by
passing the following order:
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(a) The respondent no.1 shall return the minor child Aaryan to
the petitioner within a period of fifteen days from today. In the
event respondent no. 1 is willing to travel to the US along with
Aaryan, she will intimate her willingness through her Advocate
to the Advocate for the Petitioner within a period of one week
from today.
(b) In the event respondent no. 1 intimates her willingness as
directed in clause (i) above, the petitioner shall, within a
period of two weeks thereafter, book the air tickets for the
respondent no. 1 and Aaryan and inform the respondent no.1
accordingly through her Advocate.
(c) On respondent no. 1 and Aaryan reaching the US, the
petitioner shall forthwith make arrangements for the residence
of respondent no. 1 and Aaryan for a period of three months
from the date of their arrival, as per the undertaking dated 27 th
July 2023 filed by the petitioner in this court, and shall abide
by his undertaking as follows:
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(i) The petitioner shall pay 1500 US dollars per month to
respondent no. 1 for three months towards monthly
expenses for herself and Aaryan, by online bank transfer
to the account of respondent no.1.
(ii) The petitioner shall provide a two bedroom apartment on
rent at the cost of petitioner for the stay of respondent
no. 1 and Aaryan near their house in the US, for a period
of three months from their date of arrival in the US. The
rent amount shall be directly paid by the petitioner to the
apartment owner.
(iii) The petitioner shall provide medical insurance for
respondent no.1 and Aaryan and bear all the expenses
towards electricity and gas for a period of three months
from the date of their arrival in the US.
(iv) The petitioner shall not adopt any coercive steps against
the respondent no. 1 for a period of three months from
the date of her arrival in the US for non-compliance of the
orders passed by the US court.
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(v) The Petitioner shall bear all the expenses towards
education of Aaryan and make arrangements for
admitting Aaryan to school.
(vi) The petitioner shall make himself available for any
medical emergency or otherwise any help in taking care of
Aaryan.
(d) It is made clear that the aforesaid arrangement is without
prejudice to the rights and contentions of both the parties and
subject to respondent no. 1 accompanying Aaryan to the US as
directed in the aforesaid clauses and subject to any further orders
being passed by the US court.
(e) In the event the respondent no.1 fails to intimate her willingness
as directed in clause (a) above, the petitioner shall be entitled to
take physical custody of Aaryan on expiry of fifteen days from
date of this order and the respondent no. 1 shall hand over
physical custody of Aaryan and his original passport to the
petitioner if he visits India for the same or to the mother of the
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petitioner if so authorized by him in writing. In the event the
physical custody of Aaryan is handed over to the petitioner's
mother, she shall within a period of two weeks thereafter
accompany Aaryan to the US and hand over custody of Aaryan
to the petitioner.
(f) In the event of handing over custody of Aaryan as per clause (e)
above, the respondent no. 1 shall be entitled to talk to Aaryan
on video call everyday for half an hour between 6pm to 8pm (US
time) or as mutually agreed between the parties.
(g) It is always open for the parties to mutually adopt a plan for
joint parenting by filing appropriate application before the
appropriate court.
(h) The observations, findings and directions in this judgment and
order are limited to the prayers in this petition and shall not be
construed as any final adjudication of the rights and contentions
of the parties to be agitated before the jurisdictional court.
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(i) Rule is made absolute in the aforesaid terms.
(j) It is made clear that till the aforesaid directions are complied
with the petitioner shall be entitled to talk to Aaryan through
video calls as per the arrangement existing during the pendency
of this petition.
(k) All pending interim applications stand disposed of in view of
disposal of the Writ Petition.
(l) All parties to act on authenticated copy of this judgment and
order.
GAURI GODSE, J. REVATI MOHITE DERE, J.
(m) After this order was pronounced in the aforesaid petition, the
learned counsel appearing for the respondent no. 1 seeks stay of
the said order. Accordingly, we stay the order for a period of
three weeks from today.
GAURI GODSE, J. REVATI MOHITE DERE, J.
Signed by: Rajeshwari R. Pillai
Designation: PS To Honourable Judge
Date: 14/09/2023 18:31:39
