Bombay High Court
Shishir Shirolkar S/O Kamalnayan ... vs State Of Maharashtra And Ors on 23 September, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-AS:38306-DB
1/48 WP 110-24 J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 110 OF 2024
Shishir Shirolkar s/o Kamalnayan .. Petitioner
Shirolkar
Versus
The State of Maharashtra and ors .. Respondents
...
Mr.Shadan Farasat, Sr. Advocate with Bimal Rajasekhar for the
petitioner.
Mr. Abhay Khandeparkar, Sr. Advocate with Mr.Aditya
Khandeparkar, Ms.Shilpa Joshi, Ms.Apoorva Khandeparkar and
Gaurav Patole i/b Khandeparkar & Associates for respondent
nos.2 and 3.
Ms. S.S. Kaushik, APP for the State.
CORAM: BHARATI DANGRE &
MANJUSHA DESHPANDE,JJ.
RESERVED : 22nd JULY, 2024
PRONOUNCED : 23rd SEPTEMBER, 2024
JUDGMENT:
- (Per Bharati Dangre, J)
1 The Writ Petition seeking issuance of writ in the
nature of Habeas Corpus revolves around the child 'L' born out
of the wedlock between the petitioner and the respondent no.2,
who at present, is aged 7 years and is presently in the custody
of the mother.
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The petitioner, a permanent resident of United
States of America (USA), has filed the writ petition seeking
return of his minor daughter and for transfer of her physical
custody to him, so that she can return to the country of her
birth, citizenship and domicile, as she is the habitual resident of
USA.
Before we appreciate the counter claims in the Writ
Petition, it is necessary for us to delve into the background facts
which has resulted in a petition being filed by the petitioner
seeking the aforesaid relief.
'Background facts'
2 The petitioner and respondent no.2 met in the year
2006 while they were pursuing their masters at the Texas A &
M University. After being in relationship for approximately
three years, they married in a civil ceremony in Harris County,
Texas. The Marriage License under the signature of County
Clerk, Harris County, Texas dated 13/11/2009 is annexed along
with the petition.
Pursuant thereto, the families of the petitioner and
the respondent no.2 had organized reception/cultural
ceremony for their respective families and guests in India, but
admittedly, no marriage was solemnized in India.
Out of the wedlock "L" was born at a hospital in
Austin, Texas on 30/10/2017 who, by birth acquired US
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citizenship. Her birth certificate along with the passport issued
on 13/7/2018 is placed on record. The passport exhibit it's
date of expiry as 12/7/2023 and thus, as on date, her passport
issued by the Department of State USA has expired.
Both the petitioner and respondent no.2 after
marriage, are domiciled in the US as a married couple for 11
years and the respondent no.2 is also in possession of H-1B visa
which also form part of the petition.
3 It is the pleaded case of the petitioner, that on
20/9/2020, he noticed the respondent no.2 standing at the
door of their house with packed suitcases as she intended to
rush back to India to take care of her mother, who was
informed to be in critical condition.
Though the petitioner plead that he was in touch
with respondent no.2 through Whatsapp/messages, he did not
receive clear answers in respect of her return to the US. The
respondent no.2 on 30/9/2020, refused permission to the
petitioner to apply for a fresh US visa for her.
Expressing concern about the safety of "L" and on
realizing that her mother could not be persuaded to return to
USA unless she was legally bound to do so, the petitioner filed a
petition (Cause No.20-2427-FC3) before Williamson County
Court on 30/9/2020, seeking necessary orders for
conservatorship of, possession of, access to and support of "L".
The petitioner continued his persuasive efforts of
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establishing contact with his wife and expected her voluntary
return along with his daughter, but soon his hope turned into
despair.
Desperate to see his daughter whom he had not met
for more than two months, the petitioner booked tickets to
come to Mumbai on 3/12/2020, but when he landed in New
Jersey, which was his first layover, he received a message from
his wife that she was not comfortable with him meeting their
daughter which compelled him to cancel his trip.
4 The respondent no.2 filed a Divorce and
Maintenance petition under section 13(1)(a) read with Section
24, 25 and 27 of the Hindu Marriage Act before the Family
Court, Bandra vide Petition No. A-2296/2020 on 18/12/2020,
which made her intention apparent to the petitioner.
It is the claim of the petitioner that the petition was
based on a false pleading that the marriage between the parties
is solemnised in India, despite the fact that the marriage
certificate annexed to the petition was of Texas. The place of
last residence together was also falsely depicted as Mumbai and
the petition contained a very specific statement that the parties
are domiciled in State of Maharashtra, the petition though, did
not disclose that minor child is a US citizen and she possesses
US passport.
5 Despite filing of a petition before the Williamson
County Court, the petitioner did not issue subpoena to
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respondent no.2 as his intention was to salvage their
relationship for the sake of their daughter, but when she cut
him of all communications, he decided to serve the custody and
divorce petition upon her. Accordingly, after serving the copy of
the petition on respondent no.2 as well as her Advocate and by
physically delivering a copy of the citation and the petition, to
her mother's house in Mahim, where she was residing, he got
the proceedings heard before the concerned Court but
obviously, the respondent no.2 failed to participate.
On 21/9/2021, the Williamson County Court passed
orders in the petition and granted the petitioner the sole
conservatorship of his daughter after recording a finding that
the wife has wrongfully removed the daughter from US to India
in September 2020. The Court directed her immediate return
and cessions of the daughter's residence in India and upon her
return to US, granted visitation rights to respondent no.2. The
Court also granted a decree of divorce and distribution of
marital assets as per the prevailing law.
A copy of the decree of divorce is a part of the
petition.
6 On the home front, the petitioner filed an
application under Order 7 Rule 10 of the Code of Civil
Procedure before the Family Court, Bandra, raising an objection
about the jurisdiction to be exercised over the dispute between
the parties and this application is still pending for adjudication.
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On 8/12/2021, the respondent no.2 wife filed an
application seeking amendment in the petition and converting
the same from a petition filed under the Hindu Marriage Act,
1955 to the petition filed under the Special Marriage Act, 1954.
It is the claim of the petitioner that there exist no certificate of
marriage registered under the Special Marriage Act. During
this period, there was also an attempt to amicably settle the
dispute with the help of a mediator, but it did not render any
success.
The present Writ Petition was filed before this Court
on 12/5/2023 and by order dated 8/6/2023, the parties were
referred to mediation to an expertise mediator, a Former Judge
of this Court, but even this process did not yield any success.
However, due to the intervention of the Court, petitioner was
able to meet his daughter after more than 2 ½ years and this
access was availed by him in the children's home at the Family
Court in Bandra.
Contentions advanced on behalf of the petitioner.
7 Mr.Shadan Farasat, learned senior counsel for the
petitioner in the background facts have submitted before us
that as far as the minor daughter is concerned, since her
passport has expired on 12/7/2023, she is an illegal migrant
within the meaning of section 2(b)(ii) of the Citizenship Act,
1958. He would emphasize upon the fact that the child is an
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US citizen and her overseas citizenship card of India has also
expired, on expiry of her passport as OCI card remain valid only
during the validity of the passport.
According to him, having become an "illegal
migrant", his daughter is subjected to potential deportation
from India, as she can never become a citizen of India in the
wake of section 4 and 5 of the Citizenship Act, as citizenship
can be conferred only by descent and registration and shall not
be available to "illegal migrants".
Mr.Farasat has vehemently asserted before us the
fact that the petitioner is a green card/permanent resident card
holder, and he is on the verge of becoming a US citizen, which
places him in a better position to take care of his daughter. In
addition, it is also submitted before us that "L" had stayed in US
almost till the age of three years and now she has crossed 6
years of age and she has been literally abducted by respondent
no.2 and she herself filed an application under Order 39 Rule 1
and 2 of CPC before the Family Court Bandra, seeking a
direction against the petitioner for imposing a restraint from
removing the child from her custody. The petitioner in fact, has
also given an undertaking to the Family Court that he shall not
disturb the custody of the child till the pendency of the Habeas
Corpus petition and therefore, he has never resorted to any
mode of moving the child from her custody.
8 Learned counsel for the petitioner has specifically
focused his arguments upon the conduct of the respondent
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no.2, who, by deception had brought the child to India and her
action is alleged to be in utter violation of the order dated
14/10/2021 passed by the Williamson County Court, which had
appointed the petitioner as the sole managing conservator and
the respondent no.2 as the possessory conservator of the child
and it has conferred a right upon him to exclusively designate
the primary residence of the child, without regard to
geographic location and also conferred the exclusive right to
apply/renew/maintain the child's passport and the exclusive
right to decide on the child's education.
The learned counsel has described the act of
respondent no.2 as a case of International Child Abduction by
throwing the principle of Comity of Nations to air.
By laying his hands on the decision of the Apex
Court in case of Mrs Elizabeth Dinshaw vs. Arvand M. Dinshaw
and Anr1, the learned counsel would submit that when a
question arises before a Court pertaining to the custody of a
minor child, the matter is to be decided not on considerations
of legal rights of the parties, but on the sole and predominant
criteria of what would serve the interest and welfare of the
minor, and if the child's interest lies in she being continued in
US, as a US citizen, it should not be the mother's interest which
should be the decisive factor, and in any case, the petitioner has
an offer even for the mother, as he is ready to lend helping
hand to her to secure a job in US, as she was already working in
1 (1987) 1 SCC 42
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US for considerable length of time.
The counsel has also placed reliance upon the
following decisions of the Apex Court:-
(i) Tejaswini Gaud Vs. Shekhar Jagdish Prasad Tewari
(2019) 7 SCC 42
(ii) Lahari Sakhamuri vs. Sobhan Kodali
(2019) 7 SCC 311.
(iii) Yashita Sahu vs. State of Rajasthan
(2020) 3 SCC 67
(iv) Abhay Vs. Neha Joshi
2023 SCC Online Bom 1943
(v) M Vs. A,
2018, SCC Online Del 8005.
9 By placing reliance upon the aforesaid authoritative
pronouncements, it is urged before us that the petitioner is
ready and willing to provide all the facilities to the child as well
as respondent no.2 for their stay in US, to enable her to join
him in the US and if not, to stay with him atleast share joint
parenting of the child, who is a US citizen as she has no legal
status in India, as she can never acquire Indian Citizenship.
Submissions on behalf of the respondent no.2.
Mr.Khandeparkar, learned senior counsel
representing respondent no.2, while contesting the submissions
advanced on behalf of the petitioner would not deny that "L" is
a US citizen, but according to him, she is an OCI holder and
therefore, she is entitled to stay in India.
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By inviting our attention to the provisions of
Citizenship Act, 1955 and in particular to the definition of
"illegal migrant" as defined in Section 2(1)(b) as a foreigner
who has entered into India with a valid passport or other travel
documents and such other documents or authority, as may be
prescribed, under any law in that behalf, but remains beyond
the permitted period of time, and according to him, this clause
do not apply to those who hold OCI card. It is the submission of
Mr.Khandeparkar that visa is granted for a particular period of
time and on the basis of her OCI card, "L" she can continue to
reside in India with her mother till she attain the age of 18
years, and upon attaining majority, she will chose whether she
would give up US citizenship.
10 Mr.Khandeparkar would place reliance upon the
decision of the Apex Court in case of Pratik Gupta Vs Shilpi
Gupta and ors,2, and also on the decision in case of Kanika
Goel Vs. State of Delhi & Anr,3. He would also invoke the
principle laid down by the Apex Court in case of Nithya Anand
Raghavan Vs. State, (NCT of Delhi)4, to contend that merely
because the order granting custody of the minor to the father
has been passed by a Foreign Court, the custody with the
mother cannot become unlawful, per se, and even if the parent
having the custody of the minor have not filed any substantive
proceedings for custody of the child that cannot whittle down
2 (2018) 2 SCC 309
3 (2018) 9 SCC 578
4 (2017) 8 SCC 454
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the over reaching principle of the best interest and welfare of
the child.
11 Mr.Khandeparkar has urged that being a girl child,
aged 6 years, the guardianship of the mother is of utmost
significance and ideally, she should be with her mother unless
there are circumstances to indicate that would be harmful for
the girl child to remain in custody of her mother, and the fact
that the mother has violated the order of a Foreign Court,
directing her to return the child to the native country, is not
relevant.
Mr.Khandeparkar would submit that the summary
jurisdiction to be exercised by the Court, while issuing the writ
in the nature of Habeas Corpus shall be exercised only if the
Court, to which the child has been removed, is moved promptly
and quickly and in the present case, though the child is brought
in India, as early as in September 2020, the present Writ
Petition for issuance of writ of Habeas Corpus is filed in the
month of May 2023 and the girl who is now aged 6 ½ years,
has developed her roots in India and when the mother is in a
position to offer her a better and safer environment, who also
has support of her own parents, for upbringing her child and
she being highly qualified and have secured a job in India and
being financially independent, it cannot be said that she has
illegally detained the child. Removing the child from the
custody of the mother when she has been in India from the age
of 2 ½ years, and now she is almost 6 ½ years, according to
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Mr.Khandeparkar, would be uprooting her, as the child is now
used to the native language and she will be disassociated from
the social customs and contacts on being subjected to foreign
system of education.
12 Mr.Khandeparkar would also submit that the
petitioner had filed the petition for divorce before the
Williamson County Court, Texas, immediately after expiry of 10
days when his client came back to India, and in fact, she was in
touch with him and even the petitioner remained in touch with
the daughter, but only when she was accused of child abduction
by the petitioner over video call, she filed a petition for Divorce
before the Family Court, Bandra.
The respondent no.2 has specifically disputed the
service of notice of the proceedings and it is submitted that the
Decree of Divorce that was passed by the Williamson County
Court, was on the ground of insupportability.
13 The fact that the petitioner had filed an application
for overnight access in Family Court on 22/11/2021, in fact,
concealed about passing of the decree by the US Court on
8/9/2021 and the respondent no.2 came across a news article
and became aware of such decree in May 2022. The
petitioner's access application for overnight access was heard
and he was granted access in Family Court complex.
It is the specific submission advanced on behalf of
respondent no.2 that the access order was challenged before
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this Court and the petitioner filed Contempt Petition alleging
flouting of the orders, and thereupon she filed an affidavit
bringing the attention of the Court to the ex-parte divorce
decree passed by the US Court, which was concealed.
On 4/5/2023, the learned Single Judge of this
Court stayed the Contempt Petition, taking note of the malafide
intention of the petitioner, who had instituted the proceedings
and after crossing all these proceedings, finally the petitioner
had filed Habeas Corpus petition on 12/5/2023, and therefore,
it is urged before us that although the US decree was passed on
8/9/2020, no action was taken till 2023.
It is therefore, submitted before us that since the
petitioner is aware of the whereabouts of his daughter and she
is in custody of her biological mother, and since proceedings are
already adopted by the parties before the Family Court for
custody of the child and the same are subjudice, where no
interim relief is granted, the petitioner approached the Apex
Court, which directed expeditious hearing of the matter.
Analysis of the submissions in the light of factual background
and authoritative pronouncements cited before us
14 The present case is yet another case where the
Court is confronted with a tricky and delicate issue of handing
over of the custody of a minor child to the father, who has
approached this Court with a claim that the child has been
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illegally removed from his custody and without mincing any
words, it is urged before us that the child has been abducted by
her own mother.
Whenever the question arises before a Court
pertaining to the custody of a minor child, the matter has to be
decided not on consideration of the legal rights of the parties or
on the basis of the acrimony between them as husband and
wife, but on the sole and per-dominant criteria of what would
best serve the interest and welfare of the minor.
Certain facts are not in dispute and the foremost
fact being that the child who is now six and half year old and
continue to be in the care of mother in India, is American
citizen. Another undisputed fact is that from 20/09/2020 till
date the child continue to be with her mother i.e. Respondent
No.2. She was barely two and half years old when she was
allegedly abducted by her mother on some pretense of her
mother's illness and thereafter the child along with the mother
never returned to US.
15 The scenario like the one which we have referred to
above is not uncommon, and in case, where the child is moved
out from one country to another and without the consent of
either of the parent, the sudden act is often referred to as the
unauthorized removal and some times even as abduction. In
such a scenario when the Courts of jurisdiction are approached
by either of the parent, alleging that the child has been
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wrongfully removed from its jurisdiction and now moved to
another country, there can be no two opinions about the fact
that it is the duty of the Courts to see that the parent doing a
wrong by removing child out of the country, does not gain any
advantage by his/her wrong doing and one Court should pay
regard to the orders of the other foreign Court, unless it is
satisfied beyond reasonable doubt that to do so would inflict
serious harm on the child.
Catena of decisions are laid before us, which
provide guiding factor as to how this conundrum is to be
resolved and no doubt, the principles laid down in the
authoritative pronouncements continue to guide us in the
context of somehow similar situation; where the couple for
some reason are distanced because of the friction or
disharmony amongst themselves, and when one of them
decided to move out of the country where they were jointly
residing alongwith the child, and it is the other parent who has
to suffer the impact as he/she is denied the access to the child
on being removed from his/her custody.
It is also not infrequent that the respective spouses
knocked the doors of different Courts which according to them
exercised the jurisdiction over the dispute that they intended to
get resolved.
Here steps in the principle of 'comity of courts' and
the relevance of the orders passed by the Courts of foreign
jurisdiction and the moot question which then falls for
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consideration is how to give effect to the principle of 'comity of
courts'.
In all these fierce, battles claiming custody of the
children and particularly children of tender age, the paramount
importance is the welfare of the child and merely because the
parents are at loggerhead, does not mean that the child should
be deprived of care, love and affection of either of the two
parents. A child is definitely not a commodity or an object, who
is shared amongst the parents by dividing him/her time, life
and activities as doing so beyond the permissible limits would
put the child in trauma and turn his whole life far from
normalcy of a childhood.
Hence, the welfare of the child is a primary and
paramount consideration, but definitely this do not mean that it
is the welfare which either of the parent feel and, therefore, in
such a scenario, the guidelines laid down to tackle such
situation are relevant and we would be referring to a few of
them to find a solution to the issue before us.
16 In Mrs.Elizabeth Dinshaw Vs. Arvand M. Dinshaw
& Anr (supra), when the Court directed restoration of the
custody of the minor boy to the Petitioner i.e. the mother and it
declared that the child shall be a ward of concerned Court in
Michigan and permitted the father to move that Court for
review of the custody of the child if so advised, the background
facts disclose that when the differences arose between the
spouses who settled down in US more or less on permanent
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basis having secured employment and on account of breakdown
of the marital relationship, the father picked up the child from
his school and left USA without intimating the mother of his
intention to take the child out of the custody and jurisdiction of
the Court, the Apex Court directed restoration of the custody of
the child to the mother.
It is worth to note that the child was removed on
10/01/1986 from USA and on 11/06/1986 upon the writ
jurisdiction of the Court being invoked by the mother, the child
was restored to her and the Court observed thus :
"11. As already observed by us, quite independently of this
consideration we have come to the firm conclusion that it will be in
the best interests of the minor child that he should go back with his
mother to the United States of America and continue there as a ward
of the concerned court having jurisdiction in the State of Michigan.
The respondent has tendered before this Court in an affidavit filed by
him an unconditional apology for having illegally brought Dustan
over to India from the United States in violation of the order of the
competent court in that country. The proper step to be taken by him
is to tender such an apology to the court whose order he has
violated."
In case of Lahari Sakhamuri vs. Sobhan Kodali5,
their Lordships of the Apex Court tested the application of
principle that return of children to foreign jurisdiction cannot
be directed unless the same is in best interest and welfare of the
children and while dealing with the case of minor child residing
in US since 2004 - 2005, and being a US citizens, when the
mother came back to India, with the minor children in the year
2017 and within 20 days after her arrival in India proceedings
were filed for custody of minor children in the family Court
5 (2019) 7 SCC 311
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Hyderabad, concealing her application for custody filed in US
Court, which had passed an adverse order against her. It was
held that the minor children were not ordinary residents of
India and, therefore, the application filed for custody before the
Family Court at Hyderabad was rightly rejected.
It is, in this background facts the Apex Court observed
thus :
"36. In V. Ravi Chandran case, this Court was concerned with the
custody of the child removed by a parent from one country to
another in contravention of the orders of the court where the
parties had set up their matrimonial home. This Court took note
of the English decisions, namely, L.(Minors) (Wardship:
Jurisdiction), In re and McKee v. McKee and also noticed the
decision of this Court in Elizabeth Dinshaw case and Dhanwanti
Joshi v. Madhav Unde keeping into consideration the fact that
the child was left with his mother in India for nearly twelve years,
this Court held that it would not exercise its jurisdiction
summarily to return the child to the US on the ground that his
removal from US in 1984 was contrary to the orders of the US
courts. The relevant portion is as under: [V. Ravi Chandran (2)
case, SCC pp. 195-96, paras 29-30]
"29. While dealing with a case of custody of a child removed
by a parent from one country to another in contravention of the
orders of the court where the parties had set up their matrimonial
home, the court in the country to which the child has been
removed must first consider the question whether the court could
conduct an elaborate enquiry on the question of custody or by
dealing with the matter summarily order a parent to return
custody of the child to the country from which the child was
removed and all aspects relating to the child's welfare be
investigated in a court in his own country. Should the court take a
view that an elaborate enquiry is necessary, obviously the court is
bound to consider the welfare and happiness of the child as the
paramount consideration and go into all relevant aspects of
welfare of the child including stability and security, loving and
understanding care and guidance and full development of the
child's character, personality and talents. While doing so, the
order of a foreign court as to his custody may be given due
weight; the weight and persuasive effect of a foreign judgment
must depend on the circumstances of each case.
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30. However, in a case where the court decides to exercise its
jurisdiction summarily to return the child to his own country,
keeping in view the jurisdiction of the court in the native country
which has the closest concern and the most intimate contact with
the issues arising in the case, the court may leave the aspects
relating to the welfare of the child to be investigated by the court
in his own native country as that could be in the best interests of
the child. The indication given in McKee v. McKee that there may
be cases in which it is proper for a court in one jurisdiction to
make an order directing that a child be returned to a foreign
jurisdiction without investigating the merits of the dispute relating
to the care of the child on the ground that such an order is in the
best interests of the child has been explained in L. (Minors)
(Wardship: Jurisdiction), In re and the said view has been
approved by this Court in Dhanwanti Joshi, Similar view taken by
the Court of Appeal in H. (Infants), In re has been approved by
this Court in Elizabeth Dinshaw."
While assigning meaning to the best interest of a child,
what is held is as below :-
"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 regarding the child, to ensure fulfilment of his basic rights
and needs, identity, social well-being and physical, emotional and
intellectual development.
"48. It is true that this Court has to keep in mind the best
interest of the child as the paramount consideration. The
observations of the US court clearly show that principle of welfare
of the children has been taken into consideration by the US court
in passing of the order as it reiterates that both the parties are
necessary for proper upbringing of the children and the ultimate
decision of custody and guardianship of the two minor children
will be taken by the US which has the exclusive jurisdiction to take
the decision as the children happen to be US citizens and further
order has been passed on the respondent's emergency petition with
special release in custody on 9-3-2018 permitting the respondent
(Sobhan Kodali) to apply for US passports on behalf of the minor
children without the appellant (Lahari Sakhamuri) being mother's
consent. The appellant (Lahari Sakhamuri) cannot disregard the
proceedings instituted at her instance before the US court and she
must participate in those proceedings by engaging solicitors of her
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choice to espouse her cause."
A very pertinent observation in this regard in this
decision has to be taken note of
"51. 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. Taking
a holistic consideration of the entire case, we are satisfied that all
the criteria such as comity of courts, orders of foreign court having
jurisdiction over the matter regarding custody of the children,
citizenship of the spouse and the children, intimate connect, and
above all, welfare and best interest of the minor children weigh in
14 ptfavour of the respondent (Sobhan Kodali) and that has been
looked into by the High Court in the impugned judgment in detail.
That needs no interference under Article 136 of the Constitution of
India."
17 In Yashita Sahu vs. State of Rajasthan & Ors. 6 while
dealing with the issue of custody of the child while the couple
was living in USA after marriage, but on account of the disputes
the wife removed the minor daughter and shifted to India in
violation of US Courts order and when the husband filed the
writ of Habeas Corpus for his production, in the facts and
circumstances of the case, considering the age of the child, the
nationality, proceedings in US Court and visa issue of husband,
it was held that the father is entitled to custody in best interest
of the child, but definitely the adult mother cannot be directed
to go back to USA alongwith the minor against her will on
account of the strained relationship.
6 ( 2020) 3 SCC 67
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Emphasis was laid on the 'comity of courts' and it was
specifically observed thus :-
"14. In the fast shrinking world where adults marry and shift
from one jurisdiction to another, there are increasing issues of
jurisdiction as to which country's court will have jurisdiction. In
many cases, the jurisdiction may vest in two countries. The issue is
important and needs to be dealt with care and sensitivity. Though
the interest of the child is extremely important and is, in fact, of
paramount importance, the Court of one jurisdiction should respect
the order of a court of competent jurisdiction even if it is beyond its
territories. When a child is removed by one parent from one country
to another, especially in violation of the order passed by a court, the
country to which the child is removed must consider the question of
custody and decide whether the court should conduct an elaborate
enquiry on the question of child's custody or deal with the matter
summarily ordering the parent to return the custody of the child to
the jurisdiction from which the child was removed, and all aspects
relating to the child's welfare be investigated in a court in his/her
own country."
By placing reliance on Nithya Anand Raghavan vs.
State (NCT of Delhi) and the decision in case of Lahari
Sakhamuri (supra), which interpreted the Judgment in Nithya
Anand (supra), it was observed that the doctrine of 'Comity of
Courts' is a very healthy doctrine and if Courts in different
jurisdiction do not respect the order passed by each other, it
will lead to contradictory orders being passed in different
jurisdictions, but no hard and fast guidelines can be laid down
in this regard and each case has to be decided on its own facts.
Nonetheless the welfare of the child will always remain the
paramount consideration.
18 Once again in Rajeswari Chandrasekar Ganesh vs.
State of Tamil Nadu & Ors.7, 2022 SCC OnLine SC 885, the
7 2022 SCC Online SC 885
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issue of child custody was handled with the emphasis being
laid down on welfare of the child and the children were
directed to continue their stay with the mother in USA due to
being accustomed with social and cultural milieu of USA with
better educational opportunities being available to them as the
children were admitted in special school meant for children
with remarkably high IQ and the father was directed to take the
children back to USA.
In the backdrop of the stands adopted by the father,
who placed reliance upon the decision in case of Elizabeth
Dinshaw (supra), V Ravichandran (supra), Shilpa Agrawal
(supra), Lahari Sakhamuri (supra), the entitlement of the
Petitioner came to be determined in the backdrop of the relief
sought i.e. exercise of extra-ordinary jurisdiction for issuance
of writ of Habeas Corpus and whether the Applicant had
established a priam facie case that the detention is unlawful.
Observing that it is only when the jurisdictional fact that the
detention of the child is unlawful is established, the Applicant
was to become eligible for writ as of right.
After referring to the precedents in this regard, the
entitlement of the Petitioner was tested by tested whether it
would be in the paramount interest and welfare of the minor
children to go back to USA and abide by the shared parenting
plan as ordered by the Court of Common Pleas Division of
Domestic Relations, Cuyahoga country, Ohio, or to hand over
the custody of minor children to the Petitioner- mother.
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The crucial facts which justified the final conclusion
derived were set out as below :
1] Both the minor children are residents of USA.
2] The son is a natural citizen and daughter is
permanent resident of USA;
3] Both children have been brought up in social
and cultural living of USA and they are accustomed to
the lifestyle, language, customs, rules and regulations of
that country and
4] They will have better future prospects if they go
back to USA.
19 The facts involved reveal that marriage between
the Petitioner and Respondent No.2 was solemnized in Chennai
and thereafter they migrated to Delaware, USA. After about a
year, the couple returned to India when the second child was
born and in 2012 respondent No.2-Husband was able to secure
a job in USA and since then the Parties continued to reside in
USA.
The petitioner in 2016 secured admission in State
University, Ohio, but respondent No.2 lost his job. By
December, 2016, the children started going to school and
respondent No.2 moved to yet another job in Wisconsin and
the petitioner continued to stay alone with the minor children
and take care of them. She completed her Masters and started
working in a Company and respondent No.2-father managed to
find a full time job in Michigan university and on 01/06/2019,
he picked up the minor children and left for Michigan, USA
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without informing the petitioner-mother alongwith all the legal
documents of the petitioner and of the minor children.
Immediately thereafter, the petitioner filed
Emergency Motion for temporary custody of minor children
alongwith the complaint for divorce in the Court of Common
Pleas, Division of Domestic Relations, Cuyahoga, County Ohio
and she was granted temporary custody of the minor children.
Despite the said order, respondent No.2 did not pay
heed to it and continued to keep the children away.
It is in this background, the Hon'ble Apex Court
directed the respondent No.2-father to bring the children to
USA and permitted the petitioner-mother to take care of the
children, leaving an option open to the father to chalk out his
own plan which included the return to India.
20 Another decision on which reliance is placed by the
Petitioner is the case of Rohith Thammana Gowda vs. State of
Karnataka & Ors.8, where the petitioner, resident of USA for
two decades, solemnized the marriage with Respondent No.3
on 19.03.2008 as per Hindu rights and ceremonies at
Bengaluru and thereafter the couple started residing in USA
and made it their matrimonial home. Both of them secured a
Green Card which made them entitled to live and work
permanently in USA. Son Arya was born on 03/02/2011 in
Washington, USA and he was a naturalized American citizen
with an American Passport. He was studying in 3 rd standard
8 2022 SCC OnLine SC 937
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elementary school in Washington during the year 2019-20.
When conflicts and confrontation occurred in the
relationship, on 03/03/2020 wife came to Bengaluru in India
with the child without his consent. He was also in India at that
time to attend to his ailing mother and upon reaching USA he
realized that the child was missing from the matrimonial home
and he lodged the complaint alleging that the child was
kidnapped by his wife. On establishing contact, he came to
know that his wife alongwith the minor child was at home in
Bengaluru and he withdrew the complaint. Subsequently he
filed Habeas Corpus Petition before the High Court of
Karnataka in September 2020 and also filed a Custody Petition
in Superior Court of Washington, County of King, and obtained
ex-parte order.
The respondent-wife was directed to return the
child to United States and she participated in the proceedings
before the US Court and moved a motion for vacating ex-
parte order, which was vacated and the wife filed the Petition
challenging the jurisdiction of US Court, which upheld the
jurisdiction over the minor child.
The Respondent No.3-wife filed a Custody Petition
before the Family Court, Bengaluru and it was dismissed as
being not maintainable for want of jurisdiction under Section 9
of the Guardians and Wards, 1890.
According to the Appellant, only the US Courts had
the jurisdiction to decide the question of custody of minor child
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and it was contended by the respondent No.3-mother that
though the child was brought to India without the Appellant's
consent, but subsequently she was permitted to have the
custody of the child by the Appellant himself and also by the
US Court and she relied upon an email communication sent by
the Appellant stating that the child is now admitted in school
in Bengaluru and pursuing his studies, the Petition of Habeas
Corpus was opposed.
It is, in these circumstances, the Court observed thus :
"16. The child in question is a boy, now around 11 years and a
naturalised US citizen with an American passport and his
parents viz., the appellant and respondent No. 3 are holders of
Permanent US Resident Cards. These aspects were not given
due attention. So also, the fact that child in question was born
in USA on 03.02.2011 and till the year 2020 he was living and
studying there, was also not given due weight while
considering question of welfare of the child. Merely because he
was brought to India by the mother on 03/03/2020 and got him
admitted in a school and that he is now feeling comfortable
with schooling and stay in Bengaluru could not have been
taken as factors for considering the welfare of the boy aged 11
years born and lived nearly for a decade in USA. The very fact
that he is a naturalised citizen of US with American passport
and on that account he might, in all probability, have good
avenues and prospects in the country where he is a citizen.
This crucial aspect has not been appreciated at all. In our
view, taking into account the entire facts and circumstances
and the environment in which the child had born and was
brought up for about a decade coupled with the fact that he is
a naturalised American citizen, his return to America would be
in his best interest. In this case it is also to be noted that on
two occasions American courts ordered to return the child to
USA. True that the first order to that effect was vacated at the
instance of respondent No. 3. However, taking into account all
aspects, we are of the view that it is not a fit case where courts
in India should refuse to acknowledge the orders of the US
Courts directing return of the minor child to the appellant
keeping in view the best interests of the child. In our view, a
consideration on the point of view of the welfare of the child
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would only support the order for the return of the child to his
native country viz., USA. For, the child is a naturalised
American citizen with American passport. He has been
brought up in the social and cultural milieu of USA and,
therefore, accustomed to the lifestyle, language, custom, rule
and regulations of his native country viz., USA. Further, he
will have better avenues and prospects if he returns to USA,
being a naturalized American citizen."
21 From the aforesaid decisions, it is evident to us that
the welfare of the child has always been considered of
paramount importance and at the same time, the principle of
Comity of Courts was also given its due weightage.
The question arises for consideration is, which of
the principle should have an over-reaching effect over the other,
as there may be situations and situations when there are orders
passed by foreign courts which, if permitted to be adhered to,
will hit the significant factor of welfare of the child, when the
dispute between the couple involving the child, is an inter-
country dispute.
Certain decisions which have given interest and
welfare of a child primacy over the orders passed by the foreign
court are also placed before us.
In Nithya Anand Raghavan Vs. State (NCT of Delhi
& Anr) (supra), while dealing with the power to be exercised
under Article 226 of the Constitution of India, in the form of
writ in the nature of Habeas Corpus relating to custody of child
in an inter-country dispute, the three Judges Bench of the Apex
Court, expected the High Court to undertake elaborate enquiry
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by considering question on merits bearing in mind the welfare
of the child as of paramount importance and reckoning order of
foreign court only as a factor to be taken into consideration,
unless it thinks it fit to exercise summary jurisdiction. It is
categorically held that High Court, in the interest and for
welfare of the child is not denuded of power to deny relief of
return of child to jurisdiction of UK Court on being satisfied
that child may be exposed to grave harm, physical or
psychological, and in such case, foreign court order must yield
to welfare of the child.
22 The facts involved a minor child Nethra, aged over
7 years, who was removed from foreign country by biological
mother in violation of interim/interlocutory order of foreign
court, where wardship issue was pending, and Habeas Corpus
Petition was filed before the High Court in India by the father
from whose custody the child was removed.
The Apex Court held that the remedy of writ of
Habeas Corpus cannot be used for enforcement of directions of
foreign court and convert jurisdiction of High Court into an
executing Court, but held that the petitioner can take recourse
to other remedy or proceedings for enforcement of foreign
court's order.
While dealing with the issue of custody of a child,
his welfare was accorded prime consideration, by declaring that
the Court must take into consideration all attending
circumstances and the totality of situation. The Court
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specifically observed as below:
"66 The invocation of first strike principle as a decisive factor, in
our opinion, would undermine and whittle down the wholesome
principle of the duty of the Court having jurisdiction to consider
the best interests and welfare of the child, which is of paramount
importance. If the Court is convinced in that regard, the fact that
there is already an order passed by a foreign Court in existence
may not be so significant as it must yield to the welfare of the
child. That is only one of the factors to be taken into
consideration. The interests and welfare of the child are of
paramount consideration. The principle of comity of courts as
observed in Dhanwanti Joshi's case (supra), in relation to non-
convention countries is that the Court in the country to which the
child is removed will consider the question on merits bearing the
welfare of the child as of paramount importance and consider the
order of the foreign Court as only a factor to be taken into
consideration. While considering that aspect, the Court may
reckon the fact that the child was abducted from his or her country
of habitual residence but the Court's overriding consideration
must be the child's welfare.
67. The facts in all the four cases primarily relied upon by the
respondent no.2, in our opinion, necessitated the Court to issue
direction to return the child to the native state. That does not mean
that in deserving cases the Courts in India are denuded from
declining the relief to return the child to the native state merely
because of a pre-existing order of the foreign Court of competent
jurisdiction. That, however, will have to be considered on case to
case basis - be it in a summary inquiry or an elaborate inquiry. We
do not wish to dilate on other reported judgments, as it would
result in repetition of similar position and only burden this
judgment.
68. In the present case, we are of the considered opinion that
taking the totality of the facts and circumstances of the case into
account, it would be in the best interests of the minor (Nethra) to
remain in custody of her mother (appellant) else she would be
exposed to harm if separated from the mother. We have, therefore,
no hesitation in overturning the conclusion reached by the High
Court. Further, we find that the High Court was unjustly
impressed by the principle of comity of courts and the obligation
of the Indian Courts to comply with a pre-existing order of the
foreign Court for return of the child and including the "first
strike" principle referred to in Surya Vadanan's case (supra).
23 Leaving an option open to the minor child, on
attaining the age of majority to exercise her choice to go to UK
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and stay with her father, until then she was directed to remain
in custody of her mother, unless the Court of competent
jurisdiction trying the issue of custody of the child ordered to
the contrary. The father was also given visitation rights
whenever he visits India, with an expectation that the mother
shall positively respond to a request made in advance for
availing access to the child.
Another Supreme Court decision in case of Kanika
Goel Vs. State (NCT of Delhi) (supra), once again summed up
the essential considerations while issuing a writ in the nature of
Habeas Corpus under Article 226, 136 and 32 of the
Constitution of India and the said considerations were held to
be; (a) it has to be considered by Courts whether the custody of
the child can be said to be unlawful or illegal and (b) whether
welfare of the child requires that the present custody should be
changed and child should be given to care and custody of
somebody else.
24 One another decision on this point which deserve to
be taken note of, is the decision of the Bombay High Court in
case of Richard Alexander Geary Vs. State of Maharashtra,
represented by Commissioner of Police and others, 2023 SCC
Online Bom 2608 on a petition filed by the father of the minor
girl, aged 3, seeking writ of Habeas Corpus for directing
respondent no.2, the mother to produce the child. In addition,
the petitioner also prayed for custody of the child together with
the child's original passport, birth certificate, immigration and
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health documents from respondent no.2 and for permission to
take the child to Singapore.
The child born out of the wedlock between the
couple in New York in USA, and the petitioner being a citizen of
U.K and the respondent mother being an Indian citizen. Within
two years of solemnization of the marriage, a child was born in
New Jersey, USA, and the couple along with the child, moved to
Singapore in April 2022 and child was enrolled in the school in
Singapore. The parties surrendered their Green Card in USA
and the respondent along with the child came to India in
December 2022, and she did not return to Singapore. Habeas
Corpus Petition was filed on 3/2/2023 and the Court
considered the rival submissions advanced on behalf of the
petitioner as well as the respondent. A series of decisions
involving the issue of child custody were cited before the Court
which included the decision in case of Nithya Raghavan,
Elizabeth Dinshaw, Shilpa Agarwal, Surinder Kaur, Kanika Goel,
Lahiri Sakhamuri, etc.
25 Consideration of the factual situation which was
placed before the Court through affidavits and counter
affidavits, the Court recorded that owing to the differences and
disputes between the parties, the child never received any
stability at any place and she is neither a citizen of Singapore
and nor had she lived there for a considerable long time to
make it a habitual place of residence. The Court did not find
merit in the submission of the petitioner that because the
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parties decided to reside in Singapore permanently, the child
should go to Singapore. The child was enrolled in a pre-school
in Singapore, but none of these factors were deemed to be
sufficient enough to conclude that the parties had decided to
live in Singapore permanently. The respondent wife raised
various contentions to justify her decision to come to India
along with the child for their safety, the Court recorded that the
respondent has not illegally removed the child from Singapore,
or that she has illegally detained the child in India, but
considering the petitioner's conduct, she was justified in
bringing the child to India to give her a secured life. Accepting
the contention raised by the respondent that the child's safety
was of paramount consideration, as the petitioner was guilty of
violent and abusive conduct and despite a serious attempt being
made by the respondent to concile, eventually, it could not be
worked out.
Recording that the child is a US citizen and
Singapore and India are both foreign countries to her, however,
the respondent, who is her biological mother, is an Indian
citizen having roots in India and therefore, it cannot be said
that the child is residing in a country which is completely
foreign to her. Singapore, being a foreign country and not a
habitual place of the child or of either of the parties, the Court
opined that it cannot be said that Singapore will be a better
place to ensure fulfilment of the child's basic rights and needs,
identity, social well being and physical, emotional and
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intellectual development.
Holding that any direction to return the child to
foreign jurisdiction will expose the child to some other physical,
mental, psychological or other harm, the relief was declined to
the petitioner father.
In paragraph 59 and 60, the Court specifically
observed thus :-
"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 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 pending in the court in
India or in Singapore, which will be decided on its own merits
uninfluenced by our observations."
26 The factual background in which the petition before
us, filed by father, is largely not in dispute, so far as the
solemnization of the marriage of the parties in Houston, Texas.
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Both the petitioner and respondent were on work visa, and it is
a bone of contention whether some vedic rites in relation to
marriage were performed in India, but in any case at this stage,
we may not be detained for determination of this issue. After
solemnization of the marriage, the couple continued to reside in
USA and daughter 'L' was also born there.
It is not in dispute that the mother i.e. respondent
no.2, with the child of 2 ½ year old returned to India on
20/09/2020, though it is the claim of the respondent no.2 that
she returned to attend to her mother who was in critical
condition, whereas according to the petitioner, she had planned
the exit from the matrimonial house with an intention not to
return back. The respondent no.2 was on H1B Visa at the time
of her return. 'L' a US citizen at the relevant time, possessed a
valid passport which expired on 12/07/2023 i.e. during the
pendency of the present petition.
The petitioner alleged that the respondent no.2 with
a deliberate intention not to come back, had resigned from her
job, and though she continued to remain in touch with him, she
did not assure about her return to U.S.A.
Within 10 days of return of his wife along with his
daughter leaving for India, the petitioner filed a petition before
the Williamson County Court and to be precise, on
30/09/2020, requesting the Court to pass orders for
conservatorship of possession of, access to and support of 'L'.
Despite filing of the proceedings, the petitioner did not take any
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positive steps to obtain any orders and this according to him,
was in the hope that the respondent no.2 would return along
with his daughter. It is only in February, 2021, the notices were
issued, and according to the petitioner, duly served upon the
respondent who avoided participation in the proceedings.
27 It was on 21/09/2021, the Court granted sole
conservatorship of his daughter, by recording that his wife had
wrongly removed the daughter from U.S. to India and the Court
directed her immediate return and cession of the daughters
retention in India. In addition, the Court also granted divorce.
28 It is worth to note that decree of divorce is passed
by the Williamson County Court by noting that the respondent
wife was served with citation via substituted service by personal
email and through her counsel on record in India and also by
pasting a copy of citation and petition on the door of the flat of
her mother's home in Mahim Mumbai, on 12/03/2021, in
accordance with the applicable provisions of Texas Rules of
Civil Procedure. Since there was no appearance on part of the
respondent, the Court passed the decree of divorce ex-parte by
dissolving the marriage on the ground of insupportability and
appointed the petitioner as sole managing conservator and
possessory conservator. The petitioner and the respondent no.2,
as parent conservator, were assigned specific rights as per the
Texas Family Code which included the rights and duties
delegated exclusively to the father.
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The Court rendered the following finding:-
"1. The child was born in the United States and resided in the
United States with both parents until Respondent wrongfully removed
her to India in September 2020.
2. Respondent has wrongfully withheld the child from Petitioner
in India since the wrongful removal of the child from the United States
in September 2020.
3. The child is a citizen of the United States.
4. The United States is the country of habitual residence of "L"
The Court finds that credible evidence has been presented
that there is a risk of continued international abduction of "L" by her
mother.
The Court further finds that the mother has taken, enticed
away, kept, withheld, or concealed the child, "L" in violation of the
father's right of possession of or access to the child."
It was, therefore, ordered that the respondent shall
surrender the child to the petitioner immediately and a restrain
order was also imposed upon her from applying for a new or a
replacement passport or international travel Visa.
29 The question that arises before us is of grave
significance about Comity of Courts, as it is the contention of
the petitioner that the ex-parte decree shall bind the
respondent. What the petitioner is praying before us, is
enforcement of the decree, which according to him, is passed by
Court of competent jurisdiction, but it is the case of the
respondent wife that when she left India with her daughter, the
petitioner was aware of her whereabouts, and was in touch
with the daughter. There is a specific denial at the end of the
respondent that the notice was received by her and in absence
of adequate proof being tendered to that effect, the ex-parte
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proceedings in the Williamson County Court gave her no
chance for appearance, as the proceedings were filed within 10
days of her leaving the country. There is also some conundrum
about the maintainability of the proceedings filed by the wife,
three months thereafter, in the Family Court, Bandra, as she
claims that the marriage was solemnized in India and therefore,
the Family Court, Bandra has jurisdiction to entertain the
petition filed under Section 13(1)(A) r/w Section 24, 25 and 27
of the Hindu Marriage Act.
30 The present Writ of Habeas Corpus is, however, filed
by the petitioner only on 12/05/2023 i.e. after a period of 2
year and 8 months, and much after the Williamson County
Court, gave a declaration that the wife had wrongfully
removed the daughter from US to India in September, 2020.
As on date 'L' is 6 ½ years and from 20/09/2020,
she is residing with her mother in India. By no stretch of
imagination, we intend to convey a message that India is a
country which encourages abduction of children, or it is an
abduction heaven for those who in breach of comity of
nations/courts bring a child to India and permit flouting of the
orders passed by the competent court.
We are conscious as to how India is perceived
globally in such scenario, and we must make it clear that we
feel ourselves bound by the principle of comity of court orders
and comity of nations, but we have before us a case, where the
child aged 2 ½ years accompanied her mother to India and who
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took a decision not to return, as according to the respondent,
she suffered physical, verbal and mental abuse at the end of the
petitioner and his behaviour deteriorated with time.
In the reply affidavit filed by the respondent no.2
and particularly in paragraph no.26, she has thrown light on
the conduct of the petitioner, which is described as extremely
controlling/dominating and that he was in a habit of creating
tantrum, if things did not go his way. The affidavit also give the
narration about the treatment which he had meted out to his
own daughter and she alleged that the petitioner was mentally
unstable and extremely negligent and unfit for parenting and
due to his negligence, his daughter would have lost her life. She
had offered her explanation to the allegations levelled against
her in paragraph no.28 of the petition, and has made a specific
averment that the petitioner used to sleep in another room and
hardly attended to her, but in contrast, he was totally cruel in
his behaviour, and when it came to taking care of the child, she
was on maternity leave after the daughter was born.
31 It is with this counter submission, we are called
upon to exercise our power by issuing the writ of Habeas
Corpus at the instance of the father.
It is well established that while exercising the power
in the case of minors, the jurisdiction which the court exercises
is inherent jurisdiction as distinct from statutory jurisdiction
conferred by any particular provision in any special statute. The
jurisdiction to be exercised by the Court rests in such cases on
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its inherent equitable powers and follow the principle of parens
patriae , for protection of minor wards and the very nature of
the scope of the enquiry and the result to be accomplished
contemplate exercise of jurisdiction of a Court of equity. The
primary object of a Habeas Corpus Petition, which proceedings
are in the nature of summary proceedings is limited to
determine the question, in whose custody the best interest of
the child will probably be advanced.
Before approaching the said question in a petition
seeking writ of Habeas Corpus claiming the custody of a child,
one question which would fall for consideration is whether
from the facts of the case, it can be stated that the custody of
the child is illegal.
As far as 'Habeas Corpus' is concerned, it convey,
obtaining the production of an individual. The Writ of Habeas
Corpus is a prerogative writ and an extraordinary remedy. It has
received the recognization as writ of rights and not a writ of
course, and it deserve to be granted only on a reasonable
ground or probable cause being shown as its object is to secure
a release of a person, who is illegally restrained of his liberty.
The writ is, a command addressed to a person, who
is alleged to have another person unlawfully in his custody
requiring his production before the Court, that the production
of the body of the person detained is directed in order that the
circumstances of his detention may be enquired into, or in
order that the appropriate judgment may be rendered on
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judicial enquiry into the alleged unlawful restraint.
32 It is trite position of law, that exercise of
extraordinary jurisdiction for issuance of Writ of Habeas
Corpus, would therefore be seen to be dependent on the
jurisdictional fact, where the applicant establishes a prima facie
case that the detention is unlawful and only when such
jurisdictional fact is established, the Court will issue a Writ of
Habeas Corpus. As indicated in Nithya Anand Raghvan (supra),
the principle duty of the Court is to ascertain whether the
custody of the child is unlawful and illegal and whether the
welfare of the child requires that her present custody should be
changed and the child to be handed over to the care and
custody of any other person.
Thus, the principal consideration in a writ of
seeking issuance of Habeas Corpus would be to ascertain
whether the custody of the child with the other biological
parent is unlawful or illegal, and where does the welfare of the
child lie, since Writ of Habeas Corpus is a prerogative process of
securing the liberty of the corpus through effective mechanism
of immediate release from an illegal and improper detention, if
the minor is detained by a person, who is not entitled to his
legal custody, it may amount to illegal detention for the purpose
of issuance of the writ, directing the custody of a minor child to
the person who is entitled for it.
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In case of Tejaswini Gaud Vs Shekhar
Jagdishprasad Tiwari9 it is held that the petition in the nature
of Habeas Corpus would be maintainable, where the detention
by parents is found to be illegal, since it is without any
authority of law. The Apex Court specifically observed thus:-
"19. Habeas corpus proceedings is not to justify or examine the legality of
the custody. Habeas corpus proceedings is a medium through which the
custody of the child is addressed to the discretion of the court. Habeas
corpus is a prerogative writ which is an extraordinary remedy and the writ
is issued where in the circumstances of the particular case, ordinary remedy
provided by the law is either not available or is ineffective; otherwise a writ
will not be issued. In child custody matters, the power of the High Court in
granting the writ is qualified only in cases where the detention of a minor
by a person who is not entitled to his legal custody. In view of the
pronouncement on the issue in question by the Supreme Court and the High
Courts, in our view, in child custody matters, the writ of habeas corpus is
maintainable where it is proved that the detention of a minor child by a
parent or others was illegal and without any authority of law.
20. In child custody matters, the ordinary remedy lies only under the Hindu
Minority and Guardianship Act or the Guardians and Wards Act as the case
may be. In cases arising out of the proceedings under the Guardians and
Wards Act, the jurisdiction of the court is determined by whether the minor
ordinarily resides within the area on which the court exercises such
jurisdiction. There are significant differences between the enquiry under the
Guardians and Wards Act and the exercise of powers by a writ court which
is of summary in nature. What is important is the welfare of the child. In the
writ court, rights are determined only on the basis of affidavits. Where the
court is of the view that a detailed enquiry is required, the court may
decline to exercise the extraordinary jurisdiction and direct the parties to
approach the civil court. It is only in exceptional cases, the rights of the
parties to the custody of the minor will be determined in exercise of
extraordinary jurisdiction on a petition for habeas corpus."
33 In determining the welfare of the child, while
exercising the powers under its writ jurisdiction, the Court
would adopt a summary enquiry as an elaborate enquiry on the
question of custody would be held in the Court of competent
jurisdiction, where the Court would go into the merits as to
9 (2019) 7 SCC 42
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whether, where the permanent welfare lie and ignore the order
of foreign Court or treat the fact of removal of a child from
another country as only one of the circumstance. The summary
jurisdiction to return the child would be exercised prima facie
looking at the circumstance of the child's placement in the
country other than the country from his native land, and where
the child is likely to be impacted by absence of his native
language, social customs and contacts to which he has been
accustomed or her education is likely to be interrupted, and
he/she is subjected to foreign system of education or for all
those acts which would physiologically disturb the child.
In the present case, what we have noticed is, the
mother moved with the child on account of the alleged
harassment, she and her child suffered, at the hands of the
petitioner and definitely while exercising our writ jurisdiction,
we may not demand or expect her to prove the said assertion.
Suffice it to note that it is all the while the case of the
respondent no.2 wife, that when she took the daughter from US
to India, the petitioner was much aware of this factum and the
Whatsapp messages on record do reveal that the couple was in
contact, as regards the well being of the child. What is
surprising to note and which we hold against the petitioner is, if
with an intention, the respondent no.2 took 'L' to India on
28/09/2020, what prohibited him from filing a writ of Habeas
Corpus before 12/05/2023, as his claim is based upon illegal
detention of his daughter and she being kept in illegal custody
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of the mother.
Definitely, the custody with the biological mother, is
not an illegal custody. The mother is equally entitled to the
custody of her daughter as is the father, who is also one of her
biological parent, but amidst the discord between the parents,
and since they have decided to part, the child can stay with
either of them. In fact, the petitioner has already obtained a
decree of divorce from the Williamson County Court on
21/09/2021, and as far as his marriage with respondent no.2 is
concerned, it is already dissolved. Though he had being
conferred with the conservatorship of his daughter by the
Williamson County Court, the proceedings which are filed by
the respondent no.2 for divorce and custody are still pending in
the Family Court at Bandra and the contest is yet to be laid
before the Family Court.
Since we are of the clear opinion that the custody of
the child with the mother is not illegal detention, the first limb
of the exercise of our extraordinary power by Writ of Habeas
Corpus fails the petitioner.
34 The second aspect of the writ jurisdiction, being
what should be the paramount consideration, when we exercise
our extraordinary jurisdiction and the answer to this, is to be
found in various decisions and a few of them which we have
referred to above, being the welfare of the child to be a
paramount consideration.
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The consistent view of the Courts had always being
that if the child is brought within India, the Courts in India may
conduct summary enquiry or an elaborate enquiry on the
question of custody. In the course of summary enquiry, the
Court may be deem it fit to return the child to the country from
where he/she was removed, unless such return is shown to be
harmful to the child. Thus, even in the matter of summary
enquiry, it is open to the Court to decline the relief for return of
the child to the country from where he/she was removed
irrespective of any order of return of the child by a foreign
court. However, in an elaborate enquiry, the Court is obliged to
examine the merits, as to where the paramount interest and
welfare of the child lie and reckon the fact of a pre-existing
order of the foreign court for return of the child as only one of
the circumstance is to be considered. In either case, the
question is to be answered by the Court by taking into
consideration the child's welfare, and this has to be undertaken
by bearing in mind the totality of facts and circumstances of
each case independently.
In Nithya Anand, the three Judge Bench permitted
exercise of the power by the Indian Courts to decline a relief of
return of the child brought within its jurisdiction, if it is
satisfied that, the child is now settled in new environment or it
would expose the child to physical or physiological harm or
otherwise place the child in a intolerable position or if the child
is mature and he/she object to its return.
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In no uncertain terms, it is held that overriding
consideration must be the interest and welfare of the child, and
no primacy be attached to the order of foreign court, and it
must yield in best interest and welfare of the child, which is of
paramount importance. Since India is not yet a signatory to the
Hague Convention of 1980 on 'Civil Aspects of International
Child Abduction' as regards the non-convention countries, the
law is that the Court and the country to which the child has
been removed must consider the question on merits by keeping
in mind the welfare of the child.
35 One important point which must be given due
weightage in exercise of summary jurisdiction is, that the Court
must be satisfied 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 and that the child has not gained roots here, and
further it will be in the child's welfare and best interest to
return to his native State, because he feels uprooted on account
of the different language being spoken, distinct customs, social
customs adopted and severing the contacts to which he/she is
accustomed to or such other like reasons. If the Court is
satisfied during this summary enquiry that the child's return
may expose him/her to grave risk of harm then it may refuse
the return of the child.
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In the present scenario we find that when the
daughter is brought to India by her mother she was 2 ½ year
old and now she is almost 6 ½ years. Last four years she has
gained roots in India as she continued to stay with her mother
and her grandparents. When she was removed from USA, she
had hardly settled there and was not introduced to its social
customs, language, way of leading life, but now within period
of 4 years she is definitely accustomed to the culture of this
country, and has established bond with her grandparents and
has started rooting herself in its cultural atmosphere. She is
now settled in the new environment and transferring her to
USA to be with the petitioner, who definitely is serving and
with no one to take care of the child, we feel that the child
would be exposed to physical and physiological harm on her
return.
The petitioner has approached this Court at a
belated stage, and now on expiry of period of 4 years, by
exercising our jurisdiction and by keeping in mind the welfare
of the child which is of paramount importance and the order of
the foreign court, can be only one of the factor for
consideration, according to us the former overweighs the latter,
and removing the child from mother and restoring the child to
be with the father at this stage, according to us would do more
harm to her than any benefit and therefore, we are not inclined
to consider the claim of the petitioner.
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36 As far as the arguments of the petitioner that her
passport has expired, we have noticed that 'L' is an OCI holder
and on this basis she is entitled to stay in India and once she
attains majority she will be entitled to choose, whether she
would give up her US citizenship. Though OCI holder is not
recognized as citizenship of India, but definitely it is a form of
permanent residency available to people of Indian origin and
the holder of OCI card is entitle to multiple entry, multipurpose
life long permit to enter/stay in India and with 'permitted
period of time' being complete, OCI card holder is entitled to
continue the stay lifelong.
Merely by dangling a carrot that 'L' will have a better
life in US without specifically asserting in what scenario it
would be better, we do not find that welfare of a girl aged 6 ½
lies in removing her from the custody of her biological mother
with whom she has lived throughout. In any case, it is always
open for the petitioner as a father to avail access to his
daughter and we direct that the respondent no.2 shall permit
him to visit his daughter as and when he deems it appropriate
and convenient and when it suits both the parents and the
child, keeping in mind her academic calender as she is now
admitted to a School in India.
37 In the wake of the aforesaid reasons, the writ
petition filed by the petitioner seeking issuance of writ in the
nature of Habeas Corpus and custody of his minor daughter 'L'
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is dismissed, as according to us her welfare lies in her staying
with her mother, respondent no.2.
No order as to costs.
(MANJUSHA DESHPANDE,J) (BHARATI DANGRE, J.)
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