Calcutta High Court (Appellete Side)
Pranav Khaitan vs The State Of West Bengal & Others on 21 December, 2022
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
APPELLATE SIDE
Present:
The Hon'ble Justice Tapabrata Chakraborty
&
The Hon'ble Justice Raja Basu Chowdhury
WPA 6937 of 2020
with
I.A. No. CAN 1 of 2020
with
I.A. No. CAN 2 of 2020
with
I.A. No. CAN 3 of 2020
with
I.A. No. CAN 4 of 2021
Pranav Khaitan
versus
The State of West Bengal & Others
For the Petitioner : Mr. Subir Sanyal,
Mr. Abhijit Basu,
Mr. Dwarika Nath Mukherjee,
Mr. Ratul Biswas,
Mr. Bratin Kumar Dey,
Ms. Sumouli Sarkar.
For the Respondent No.6 : Mr. Bikash Ranjan Bhattacharyya,
Mr. Nilanjan Bhattacharya,
Mr. Vivek Singh,
Mr. Rathindra Nath Bandyopadhyay,
Ms. Komal Toshniwal.
Hearing is concluded on : 17th November, 2022.
Judgment On : 21st December, 2022.
Tapabrata Chakraborty, J. :
1. During infancy and impressionable age, the care and warmth of the
parents are required for the welfare of the child. However, in the instant case
two educated persons have failed to discharge their mutual obligations and are
not even agreeable to set right their broken home for the sake of their child.
The petitioner, namely, Pranav Khaitan (in short, Pranav) has preferred the
instant habeas corpus petition levelling serious allegations against his wife,
namely, Neha Singhal (in short, Neha) and her parents and relatives and
seeking a writ of habeas corpus for production of his child, namely, Ishaan to
enable him to take the child with him to United States of America (in short,
USA) inter alia on the grounds that Neha had illegally detained Ishaan and had
violated the orders of the foreign Court.
2. The petitioner's case is that he is a permanent resident of the County
of Santa Clara, California, United States of America. He married Neha on 15th
July, 2014. Such marriage was solemnized at Rourkela and was registered
under the Special Marriage Act, 1954. In the month of December, 2014, he
along with his wife returned to USA. They were blessed with a male child,
namely, Ishaan on 27th January, 2016. Ishaan is a citizen of USA by birth. The
couple, along with Ishaan, travelled to India on 15th October, 2018. Pranav
returned to USA on 20th October, 2018 and Neha stayed back and was
supposed to return to California on 24th February, 2019. After Pranav's return
to USA, Neha was initially residing along with her parents-in-law in New Town
and was admitted in a school in New Town where he studied till the month of
May, 2019. In the midst thereof, Neha left her matrimonial house and went
back to her parental house at Rourkela. The relationship between the two
families deteriorated. Pranav's mother lodged a complaint case at Barasat on
16th April, 2019 under the provisions of Protection of Women and Domestic
Violation Act (in short, DV Act). Coming to learn about such complaint,
Pranav's parents were threatened and as such Pranav's father, namely, Pawan
Khaitan (in short, Pawan) lodged a complaint at New Town police station on
25th June, 2019. Immediately thereafter Neha filed an application under the
Guardians and Wards Act being G.Misc. Case No. 18 of 2021 at Rourkela and
the same is still pending. She lodged a further complaint under Sections 498A,
307 and 506 of the Indian Penal Code (in short, IPC) against Pranav and his
parents on 5th July, 2019. Thereafter, Pranav filed an application for custody
of child before the Superior Court of California. On 24th July, 2019 a temporary
order was passed awarding custody of Ishaan to Pranav and the matter was
made returnable on 15th August, 2019. In spite of notice, Neha did not appear
on the said date and recording such absence the Court directed Neha to return
Ishaan to Pranav. Thereafter, on 12th September, 2019, the Court passed an
order observing inter alia that 'it is detrimental to the child's best interest for
NEHA KHAITAN to have any custody of ISHAAN KHAITAN and that NEHA
KHAITAN is abusing ISHAAN KHAITAN and must stop, and that ISHAAN
KHAITAN is best protected by removal from NEHA KHAITAN and returned to
Pranav KHAITAN's sole custody in California'. In the midst thereof, Pranav
obtained an order of dissolution of marriage from USA Court on 19th June,
2020 and he was also granted complete legal and physical custody of Ishaan.
Stating such facts a complaint was lodged by Pawan at Chetla Police station at
Kolkata on 27th July, 2020 but in vain and as such on 3rd September, 2020,
Pranav was constrained to prefer the present writ petition.
3. Neha entered appearance and filed an affidavit in opposition denying
the averments made in the writ petition and stating that this Court does not
have the territorial jurisdiction since the marriage was solemnized at Rourkela,
Odisha and she along with her son resides at Rourkela and Ishaan is studying
in Carmel school at Rourkela since the year 2019. It is her case that Pranav
obtained the alleged orders from the foreign Court behind her back without
serving any notice and by practicing fraud. After the said orders were passed,
Pawan filed an application under Section 25 of the Guardians and Wards Act
being Act VIII Case No. 45 of 2020 on 24th July, 2020 at Alipore.
4. Mr. Sanyal, learned advocate appearing for Pranav submits that
Ishaan had been illegally detained by Neha and her parents. Neha had
deliberately violated the orders passed by the Superior Court of California by
which Ishaan's custody was granted to Pranav upon arriving at a finding that
Neha was abusing Ishaan, who is a citizen of USA. The Court called upon all
government entities or law enforcement authorities to return the abducted and
abused child to Pranav but in vain. Neha had thus illegally detained Ishaan.
5. He contends that Pranav is presently working in the post of
Engineering Director at Google in California. He always took care of Ishaan.
While in USA, Ishaan was admitted in a renowned school at California. In the
month of October, 2018, Neha persuaded Pranav to travel to India. Keeping her
wishes, Pranav came over but had to return to USA within a few days.
Thereafter Neha and Ishaan were residing with Pranav's parents at New Town,
Kolkata. Neha was supposed to return to USA on 24th February, 2019. Taking
advantage of Pranav's absence, she went to her paternal house in the month of
February, 2019 and illegally detained Ishaan and refused to return to USA.
6. Mr. Sanyal strenuously argues that Pranav has the financial
competence to maintain her child and is entitled to Ishaan's custody. Ishaan's
quality of life is bound to improve if Pranav is granted custody and is allowed to
bring back Ishaan to USA. Keeping in view the facilities of education at USA,
Ishaan should not be deprived of the same only on the ground that Neha does
not want to return to USA. Safety and welfare of Ishaan can be assured only if
his custody is given to Pranav. Ishaan is already more than 6 years of age and
as such Neha does not have any preferential right to claim custody. Ishaan was
illegally taken away from Pranav's paternal house in Kolkata and was shuttled
to Rourkela.
7. According to Mr. Sanyal the entitlement of the petitioner to the custody
of the child is not disputed. The orders passed by the foreign Court clearly
reveal the conduct of Neha. There are clinching materials to show that the
welfare of the minor children is at peril. The trauma that the child is facing
needs to be appreciated and as such interference is called for in the present
petition.
8. In support of his arguments, Mr. Sanyal has placed reliance upon the
judgments delivered in the cases of Vasudha Sethi and Others -vs- Kiran V.
Bhaskar and Another, reported in 2022 SCC OnLine(SC) 43, Rohith Thammana
Gowda -vs- State of Karnataka and Others, reported in 2022 SCC OnLine (SC)
937, Yashita Sahu -vs- State of Rajasthan & Ors., reported in (2020) 3 SCC 67,
Dr. V. Ravi Chandran -vs- Union of India & Ors., reported in (2010) 1 SCC 174
and Surya Vadanan -vs- State Tamilnadu & Ors., reported in AIR 2015 SC
2243. Reliance has also been placed upon three unreported judgments
delivered in the cases of Dr. Prithwiraj Choudhury -vs- State of West Bengal &
Ors., Sri Nilanjan Bhattacharya -vs- The State of Karnataka and Others and
Rajeswari Chandrasekar Ganesh -vs- The State of Tamilnadu & Ors.
9. Mr. Bikash Ranjan Bhattacharyya, learned senior advocate, assisted
by Mr. Nilanjan Bhattacharya, learned advocate, appearing for Neha submits
that this Court does not have the territorial jurisdiction to entertain the present
writ petition and through a habeas corpus petition the petitioner cannot seek
enforcement of a foreign decree. The petition is thus liable to be summarily
rejected. No part of the cause of action had arisen within the territory of the
State of West Bengal. The marriage was solemnized at Rourkela. On the date
of filing of the petition, Neha along with Ishaan was residing at Rourkela. Prior
to filing of the writ petition, Pawan preferred a custody application at Alipore
though subsequently withdrawn. In course of the hearing of the writ petition
itself, a Coordinate Bench of this Court on 14th October, 2020 observed as
follows :
'What appears at the present stage is that the minor son of the petitioner
may be in Rourkela. Notwithstanding the Second Clause of Article 226 of the
Constitution, in such a scenario when a writ in the nature of habeas corpus is
sought and it appears reasonably certain that the relevant person may be in
another State, in deference to the principle of comity of courts, the petitioner
should be required to work out his further remedies elsewhere.
It will be open to the petitioner to obtain copies of the report filed by the
police. The matter will appear four weeks after the vacation. Since the object of
the exercise is, in effect, to enforce a foreign decree pertaining to the custody of a
child, the petitioner is left free to take whatever appropriate steps may be
available to him in accordance with law.'
On 8th April, 2021 the Court also passed an interim order as follows:
'This matter has to be decided finally after final hearing. For the time
being, we are inclined to direct that the child shall continue to be with his mother
at Rourkela. Neither the mother shall go out of India nor shall take the child out
of India or permit the child to be taken out of India without the leave of the Court
until further order. The visitation right that the writ petitioner is enjoying through
video conferencing shall continue until disposal of this application.'
10. He further submits that Neha filed custody application being G. Case
No. 18 of 2021 at Rourkela and the same is pending. In child custody matters,
the ordinary remedy lies under the Hindu Minority and Guardianship Act or
the Guardians and Wards Act. The lap of a mother is the natural cradle where
the safety and welfare of the children can be assured and there is no substitute
for the same. The child is with the mother and such custody cannot be
construed to be an illegal one. For determination of the issue of custody of
child, it is not the right of the parties but welfare of the child, which is of
determinative significance and applies with equal force to a situation like the
case in hand.
11. He submits that Neha along with Ishaan is residing at Rourkela
along with her parents and uncles in a joint family. There are three more
children in the family. Company of such family members inextricably binds
Ishaan. Ishaan is presently studying at Rourkela. All his expenses are being
borne by Neha and her family members. Claim for custody has to be judged on
the touch stone of the welfare of the child. The child had already gained roots
at Rourkela and issuance of any direction to hand over his custody to the
petitioner would affect him psychologically and his welfare would be at peril.
12. He argues that Ishaan cannot be detached from his mother and his
maternal family members on a pretext that his future would be secure if he is
allowed to stay at USA. At this stage it also cannot be ruled out that Pranav
may enter into a new relationship as his marriage with Neha stands dissolved.
Pranav is staying in USA alone and there would be none to take care of Ishaan
at California in the event Ishaan's custody is handed over to Pranav.
13. In reply, Mr. Sanyal submits that the foundation and affectation of
the petitioner's right originated in the State of West Bengal and complaining
about such illegal detention of his child the petitioner lodged his first complaint
in Kolkata. The subsequent events are inextricably bound with the above facts
and as such it cannot be denied that a part of the cause of action arose within
the territory of West Bengal and the present petition is, thus, maintainable.
14. He further submits that Pranav's parents want to travel to USA and
stay at California after Ishaan returns and as such the apprehension that there
would be none at home to take care of Ishaan is absolutely unfounded.
15. In the order dated 14th October, 2022 it was observed 'it appears
reasonably certain' that the petitioner 'should be required to work out his further
remedies elsewhere'. There was no conclusive finding as regards
maintainability of the writ petition. The proposition of law that can be culled
out pertaining to maintainability of the writ petition, is that on the basis of the
averments made in the petition, the truth or otherwise whereof being
immaterial, it has to be explicit that a part of cause of action has arisen within
the jurisdiction of the Court. In the present case, after returning from USA,
Neha was residing at her matrimonial house at Kolkata along with her child.
Ishaan was also admitted in a school in New Town which he was attending
regularly. Complaint was lodged at Kolkata when Neha left for Rourkela. From
the averments made in the writ petition, we are of the opinion that the
petitioner has been able to establish that a part of the cause of action had
arisen within the jurisdiction of this Court. The application being I.A. No. CAN
3 of 2020 preferred by Neha is, accordingly, dismissed.
16. It is well known that a decision is an authority for what it decides
and not what can logically be deduced therefrom. Even a slight distinction in
fact or an additional fact may make a lot of difference in decision making
process. The judgment is a precedent for the issue of law that is raised and
decided and not observations made in the facts of any particular case.
Plentitude of pronouncements leaves cleavage in the opinions formed in the
respective 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 are always complex and
complicated. There can never be a straitjacket 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. There is no dispute as regards the proposition of law
as laid down in the judgments upon which reliance has been placed by Mr.
Sanyal, however, the same are distinguishable on facts. In the case of
Vasudha Sethi (supra) the child was suffering hydronephrosis and the husband
had temperamental issues. In the case of Rohith Thammana Gowda (supra) the
child was about eleven years of age and he spent about a decade in USA since
his birth. In the case of Dr. Prithwiraj Choudhury (supra) the issue which
weighed with the Court was that the child was suffering from an allergy caused
by eating peanuts and nuts in general and in India such an allergy cannot be
treated. The said allergy is life threatening and in America such kind of
disease can best be treated. The facts in the case of Tejesvini Goud (supra) do
not have any striking resemblance to the facts of the case at hand inasmuch as
in the said matter custody of the child was sought by a parent from persons,
who were not the parent/ local guardian. In the case of Jashmeet Kaur (supra)
the appellant filed a guardianship petition which was rejected by the family
Court under Order 7 Rule 11 of the Code on the ground that the parties were
nationals of USA and that the USA Court had 'intimate contact' with the matter.
In the case of Nithya Ananda Ragavan (supra) the child was removed from a
foreign country (UK) by mother in violation of interim order of foreign Court. In
the case of Surya Vadanan (supra), directions were issued taking into
consideration the fact that the father agreed to and did temporarily shift his
residence to Coimbatore and apparently met the children. In the said case
divorce petition was filed by the mother. In the case of Sri Nilanjan
Bhattacharyya (supra) the challenge was against the conditions imposed by the
Hon'ble Court while allowing the appellant to take the child back to USA. In
Yashita Sahu (supra) the child was brought to India in violation of orders of
jurisdictional Court in USA. It was held that Courts of one jurisdiction shall
give respect to the orders of the Court of competent jurisdiction even if it is
beyond its territories; however, welfare of the child is of paramount importance.
In the case of Rajeswari Chandrasekar Ganesh (supra) a shared parenting plan
was arrived at between the parties and initially they got joint custody of their
children on the basis of an order passed by the foreign Court but later the
father acted in violation of the same and removed the children from the foreign
country.
17. The proposition of law that can be culled out from the judgments is
that the Court in exercise of habeas corpus jurisdiction may decline the relief of
return of the child to the country from where he/she was removed irrespective
of any pre-existing order of return of the child by a foreign Court. Both in
summary inquiry or an elaborate inquiry, the crucial question to be considered
is the welfare of the child and the decision needs to be taken in the totality of
facts and circumstances of each case independently. The principle of comity of
Courts cannot be given primacy or more weightage for deciding the matter for
custody.
18. Habeas corpus proceedings are not to justify or examine the legality
of the custody. It is a medium through which the custody of the child is
addressed to the discretion of the Court. It is true that in child custody matters
a detailed enquiry is required, however, there is nothing which can stand in the
way of the Court exercising its parens patriae jurisdiction. The claim for
custody can only be judged on the touch stone of the welfare of Ishaan.
19. Where the dispute as to the custody of a child is essentially between
two parents, such dispute stands on a different footing and extraordinary writ
jurisdiction can be invoked on the principle of welfare only. The principle
consideration is as to whether the welfare of the child requires that the present
custody should be changed or the child should be left in care and custody of
someone else.
20. Welfare of the minor is a broad and elastic expression. Every factor
which bears upon the overall development of the child needs to be given due
weightage. The approach of the Court in ascertaining and determining the
welfare of the minor ought to be well informed and pragmatic. It is thus said
that the Court is called upon to deal with a human problem with a humane
touch. The welfare of the child shall include various factors like ethical
upbringing, economic well-being of the guardian, child's ordinary comfort,
health, education etc.
21. Pranav is working as the Engineering Director of Google and is
financially well placed. According to him, Ishaan's quality of life is bound to
improve if he is granted custody and is allowed to bring back Ishaan to USA.
Such contention of the petitioner needs to be weighed with the contention of
Neha that Ishaan was in USA hardly for a period of about 2 years, 8 months.
Since the month of May, 2019, he is residing with Neha at Rourkela. He had
been admitted in a renowned school in Rourkela and is presently studying
there. Neha, her parents and uncles are taking care of Ishaan. Ishaan is
growing up in a joint family atmosphere. Money cannot be a factor towards
overall development of the child. Admittedly, Pranav is residing alone at
California. His parents are in Kolkata. Thus, there is no family member of
Pranav to look after the child in California if custody is granted to Pranav.
However, Mr. Sanyal has submitted that appropriate steps would be taken by
the petitioner to shift her parents to California so that Ishaan can grow up in
their company. Another important factor which needs to be taken into
consideration is that Pranav obtained divorce on 19th June, 2020. The fact that
the minor child will have better prospects upon return to his/her native
country, may be a relevant aspect in substantive proceedings for grant of
custody of the minor child but not decisive to examine the threshold issues in a
habeas corpus petition.
22. Simply because a foreign Court has taken a particular view on any
aspect concerning the welfare of a child, is not enough for the Courts in this
country to shut out an independent consideration of the matter. The principle
of comity of courts simply demands consideration of an order passed by a
foreign Court and not necessarily its enforcement. The comity of nations does
not require a Court to blindly follow an order made by a foreign Court. Ishaan
was in USA since his birth on 27th January, 2016 till 15th October, 2018. He
is, thus, residing in India more than three years. In the light of all these
circumstances, repatriation of the minor to USA on the principle of 'comity of
courts' does not appear to us to be an acceptable option worthy of being
exercised at this stage. Ishaan being a six years old child is not in a position to
indicate his preference and his preference also cannot be a decisive factor. In
the present case the child is staying in India along with his mother, his grand-
parents and other family members and relatives, unlike in USA where he lived
in a nuclear family consisting of his parents with no extended family. The
period of schooling of the child in India is more than that of his schooling in
USA. In our opinion the child would be more comfortable and feel secure to
live with his mother who can provide her love, understanding, care and
guidance for his complete development of character personality and
intelligence. The interest of the minor shall be better served if he continues in
the custody of his mother especially when Pranav resides alone at California
and there would be no family member to look after Ishaan, whose school hours
would certainly not tally with Pranav's working hours. Though it has been
stated that Pranav's parents want to travel to USA and stay at California after
Ishaan returns, we cannot issue any mandatory direction to that effect since
they are aged persons and they might be facing insurmountable inconvenience
to shift their residence from Kolkata to California. In the absence of any family
member at California, Pranav may not have any other option but to place
Ishaan in a crèche. In such circumstances, we are of the opinion that taking
away the child from the custody of his mother and handing over such custody
to the petitioner would cause insurmountable inconvenience to the child and
as such we are unable to accede to the petitioner's prayer for production of the
child to enable him to take the child with him to USA. However, we may not be
understood to have expressed any opinion on the merits of the guardianship
application and the competent Court shall decide the same on its own merits
without being influenced by any observation made in this judgment.
23. Needless to observe that after Ishaan attains the age of majority he
would be free to exercise his choice to go to USA and to stay with his father but
until he attains majority he should remain in the custody of Neha unless the
Court of competent jurisdiction in this country trying the issue of custody of
the child orders to the contrary.
24. The role of the father in his child's upbringing and grooming to face
the realities of life cannot be undermined and he must be given visitation
rights; that will enable the two of them to stay in touch and share moments of
joy, learning and happiness with each other. Accordingly, we direct that Pranav
shall be given visitation rights, whenever he visits India. He can do so by giving
notice of atleast two weeks in advance intimating over phone/whatsapp/
writing/e-mail to Neha and if such request is received, Neha must positively
respond in writing/e- mail to grant visitation rights to Pranav for two hours per
day twice a week at the mentioned venue in Rourkela or as may be agreed by
the parties. Neha shall take all such steps to comply with the visitation rights
in its letter and spirit. Besides, Neha shall also permit Pranav to interact with
Ishaan over telephone/mobile/video conferencing on school holidays between 5
p.m. to 7:30 p.m. IST. In the event the visitation rights, as granted to Pranav
by this order, are denied by Neha or her family members, the State
respondents shall provide the necessary aid to Pranav.
25. Keeping in view the interest of the child, both the parties shall co-
operate with each other in compliance with the directions of the Court.
26. The writ petition being WPA 6937 of 2020 and the applications being
I.A. No. CAN 1 of 2020, I.A. No. CAN 2 of 2020 and I.A. No. CAN 4 of 2021 are,
accordingly, disposed of.
27. There shall be no order as to costs.
28. Urgent Photostat certified copy of the order if applied for, be made
over to the parties as expeditiously as possible.
(Raja Basu Chowdhury, J.) (Tapabrata Chakraborty, J.)
