Aviral Mittal vs The State & Anr.
2009 Latest Caselaw 3059 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                      Reserved on     : 15.07.2009
                                       Date of decision: 07.08.2009

+                           W.P.(Crl.) 1553/2008


AVIRAL MITTAL                                      ... PETITIONER

                            Through:   Mr.Prabhjit Jauhar and
                                       Ms. Anupama Kaul, Advocates.

                                  Versus

THE STATE & ANR.                                   ...RESPONDENTS

                            Through:   Mr.Akshay Bipin, Adv. for R-1.

                                       Mr.Sidharth Luthra, Sr.Adv.with
                                       Mr.Neeraj K.Sharma, Advocate
                                       for R-2

CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.        Whether the Reporters of local papers         Yes
          may be allowed to see the judgment?

2.        To be referred to Reporter or not?            Yes

3.        Whether the judgment should be                Yes
          reported in the Digest?

SANJAY KISHAN KAUL, J.

1. The petitioner was married to respondent No.2 on

04.11.2003. The parties set up their matrimonial home

in U.K. as the petitioner was already working there since

November, 2000. A child was born out of the said

wedlock Ms.Elina who is now three and a half years old.

Respondent No.2 also started working in U.K. The

petitioner and respondent No.2 acquired the status of

permanent residents of U.K. in the year 2004 prior to the

birth of the child on 20.02.2006. The child acquired

British passport though the parents continued to hold

Indian passports.

2. The pleadings in the present petition show that there

were some problems in the marriage.

3. The allegation of the petitioner/husband is that

respondent No.2/wife failed to take care of the child and

was also not able to attend to her work properly while on

the other hand respondent No.2 alleges that it is the

petitioner who was least helpful and, in fact, needed

psychiatric attention. It is, however, not necessary to go

into all the details of allegations and counter allegations

as the scope of the present proceedings is limited

inasmuch as that the petition has been filed under Article

226 of the Constitution of India for a direction to

respondent No.2 to produce the minor child and for grant

of custody of the child to the petitioner. The facts

leading up to this litigation are being further set out

hereinafter.

4. It is the own case of the parties that there was a plan to

visit India and respondent No.2 along with the minor

child departed from U.K. for India on 12.09.2008. The

petitioner arrived at New Delhi, India on 10.10.2008. The

petitioner left for U.K. on 14.10.2008. The petitioner

claims that respondent No.2 was supposed to join him in

his family house at New Delhi once he arrived in India,

but respondent No.2 was not willing to do the same. It is

alleged that father of respondent No.2 told the petitioner

that he should see a psychiatrist in India and have a

medical report prepared about his mental health. The

petitioner claimed that he was even willing to undergo

that provided it was conducted by a neutral doctor which

was not acceptable to respondent No.2 and her father.

Respondent No.2 and the child were supposed to leave

for U.K. on 09.11.2008, but Respondent No.2 got the

tickets cancelled on 07.11.2008 and thus the child and

respondent No.2 did not join back the petitioner at their

matrimonial home in U.K. The aforesaid resulted in the

petitioner initiating proceedings before High Court of

Justice, Family Division, U.K. on 25.11.2008 seeking an

order that the minor be made a ward of the Hon'ble

Court and a direction be passed for respondent No.2 to

return the minor child to the jurisdiction of that Court.

On 26.11.2008, Hon'ble Mr.Justice Munby of the said High

Court directed that respondent No.2 should cause the

minor child Ms.Elina to be returned to the jurisdiction of

England and Wales within 14 days of the service of the

said order and that the child should thereafter be

forbidden (whether by herself or by instructing or

encouraging any other person) from causing or

permitting the minor to be removed from the jurisdiction

of England and Wales without permission of a Judge of

the said Court. A direction was also passed for the

passports and other international travel documents in

respect of the minor child to be handed over within 72

hours of the return of the minor to the solicitors of the

petitioner and the same would not to be released to

either party without permission of a Judge of the said

High Court. Respondent No.2, however, did not oblige.

The present proceedings were filed soon thereafter in

December, 2008.

5. The claim of the petitioner is that the parties had set up

their matrimonial home in Scotland and thereafter in

England and were subject to jurisdiction of U.K. since the

year 2003. The parties worked for gain in U.K. and the

minor child was holding a British passport with parents

acquiring permanent resident status in U.K. It is thus

pleaded that the status of the minor child in India is of an

illegal migrant in view of the directions passed by the

English courts and the child should be returned to that

jurisdiction. This plea is predicated on the Principle of

Comity of Courts as in matters relating to matrimony and

custody, the law of the place which has the closest

connection with the well-being of the spouses and the

welfare of the offsprings of marriage must govern the

said disputes. It was contended by learned counsel for

the petitioner that the factum of respondent No.2 and the

child coming to India with the consent of the petitioner

would make no difference since the consent was to visit

India and thereafter come back in November, 2008. The

conduct of respondent No.2 in cancelling her ticket and

refusing to come back to U.K. would amount to improper

retention of the child outside the jurisdiction of the Court

which was entitled to deal with such custody matters and

that too despite the directions passed by a competent

court. The petitioner claims to have moved promptly in

the matter both before the Court in England and

thereafter before this Court.

6. Learned counsel for the petitioner sought to draw

strength from the observations of the Supreme Court in

Mrs.Elizabeth Dinshaw v. Arvand M.Dinshaw & Anr; AIR

1987 SC 3 where it was emphasized that in matters of

custody of the minor children, the sole and predominant

criterion is what would best serve the interest and

welfare of the minor. It was observed that courts in all

countries are bound to ensure that a parent does not

gain advantage by any wrongdoings like removing

children from one country to another. A reference was

made to the judgment in Re H. (infants); (1966) 1 All ER

886 where the mother had removed the children to

England without approval of the New York Court and

without having consulted the father though they were

residing in New York. It was held that the children were

American children and that the American court was the

proper court to decide the issue of custody.

7. In Smt.Surinder Kaur Sandhu v. Harbax Singh Sandhu

and Anr.; (1984) 3 SCC 698 orders had been passed by

the Court in England regarding custody of the minor

child. The parents were Indian citizens, but after

marriage had settled in England. The child was a British

citizen by birth. The father brought the child to India and

the mother obtained an order from the English court

directing the father to deliver the custody of the child to

the mother and on that basis a writ petition was filed in

the High Court in India for production and custody of the

child. It was held that English courts have the most

intimate contact with the issue and jurisdiction and the

custody should be given to the mother instead of father,

natural guardian in the circumstances of the case. A

reference was also made to the judgment in Kuldeep

Sidhu v. Chanan Singh & Ors; AIR 1989 Punjab and

Haryana 103. The children and parents were Canadian

citizens and an order was passed by the Supreme Court

of Ontario (Canada) granting interim custody to the

mother. The unauthorized removal of the children from

Canada to India by the father was held to be improper

and the order of the Canadian Court was directed to be

honoured.

8. In the end a reference was made to Dhanwanti Joshi v.

Madhav Unde; (1998) 1 SCC 112. In the facts of that

case, the effect of international norms regarding

applicability of judgments of US courts on Indian courts

was considered and it was found that the same was

subject to paramount consideration of welfare of child.

The order of US court granting custody of the child to the

respondent was held not binding on Apex Court as the

child was well settled with the mother. The Hague

Convention of 1980 on "Civil Aspects of International

Child Abduction" was examined to which India was not a

signatory. It was observed that the court to which the

child was removed could conduct summary enquiry and

the court would return the child to the country from

which the child had been removed unless such return

could be shown to be harmful to the child. The over-

riding concern, however, remains the child's welfare. If

the courts are moved promptly, then those aspects can

be considered by the court from whose jurisdiction the

child had been removed.

9. Learned senior counsel for the respondent has strongly

opposed the prayer made by the petitioner on the ground

that the minor child's health, safety and morals would be

seriously hampered if the custody of the minor child is

handed over to the petitioner. The custody is of a female

child of a tender age and thus it is pleaded that removing

her from the custody of the mother and handing her over

to the petitioner would not be in the interest of the minor

child specifically in view of the provisions contained in

Section 6 of the Hindu Minority and Guardianship Act,

1956. The orders passed by the High Court of Justice are

stated to be ex parte and on concealment of material

facts by the petitioner and thus it cannot be enforced

against respondent No.2 or the minor child Ms.Elina. It

has been pointed out that the parents continue to be

Indian citizens and the child has been issued a British

passport only on account of birth. The order is only an

interim one relating to interim custody of the child until

further orders. It is alleged that respondent No.2 and the

child were subjected to the worst forms of cruelty.

10. Learned senior counsel for the respondent No.2 relied

upon the observations made in Sarita Sharma v. Sushil

Sharma; (2000) 3 SCC 14. In the said matter, the mother

had removed the children from USA despite orders of the

court of that country. It was observed that a female child

should ordinarily be allowed to remain with the mother so

that she can be properly looked after and in the given

facts of that case proper care was being given to the

children in India and thus in spite of the order passed by

the Court in USA it was held that it would not be proper

to hand over the custody of the children to the

respondent and permit him to take the children to USA.

Suppression of material facts from the court would make

the order of a foreign court not binding on the Indian

Court.

11. A reference has also been made to a Division Bench

judgment in Paul Mohinder Gahun v. State of NCT of

Delhi and Ors; 113 (2004) DLT 823 (DB) where it was

observed that in view of what has been stated in Sarita

Sharma v. Sushil Sharma's case (supra) the courts in this

country cannot be guided entirely by the fact that one of

the parents had violated an order passed by a competent

court abroad. The legal position was stated to be

consistently in favour of the courts determining the issue

regarding custody of the minor child, question of conflict

of laws and jurisdictions and orders passed by foreign

courts granting custody to one or other parent thus take

a backseat. It was observed that a girl child of tender

age is bound to shape better in the care of the mother.

12. A reference was also made to Rajesh K.Gupta v. Ram

Gopal Agarwala and Ors; (2005) 5 SCC 359 where it has

been observed that in such habeas corpus petitions, the

principle consideration for the court is to ascertain

whether the custody of the child can be said to be lawful

or illegal and whether the welfare of the child requires

that the present custody should be changed and the

child should be left in the care and custody of someone

else.

13. We have given considerable thought to the matter as the

issue is one of best interest of the child, who is of a

tender of three and half years and, at present, is with

respondent No.2/mother at Delhi. We have also taken

note of the orders passed by the High Court of Justice of

England and Wales.

14. In our considered view, the important fact to be taken

note of is that both the parents had set up their

matrimonial home in U.K. from 2003 onwards - earlier in

Scotland and then in England. The allegations against

each other in the petition and the counter affidavit are of

a serious nature. The petitioner has alleged that the

mother was not taking care of the child and she was

doing a job which also she could not perform successfully

and thus had to leave the job. Respondent No.2/mother

on the other hand has made serious allegations about

neglect by the petitioner as a husband and even in

respect of the physical handing of the child. The

allegations reflect that it is a no holds barred fight in

respect of the conduct of the parties while they were

residing in U.K. for five years. The determination of truth

of these allegations would become necessary while

considering the aspect of custody of the minor child. All

the relevant evidence in this behalf arising from main

allegations made by one against the other would be

available in U.K.

15. The parties have filed documents and the Respondent

No.2/mother even with the synopsis has tried to slip in

documents, an aspect which we fail to appreciate. The

parties continued to live, cohabit, work for gain and bring

up the child together in the U.K. The child is holding a

British passport and both the parents have permanent

resident status in the U.K. In such a situation, it can

hardly be said that any court other than the courts in the

U.K. would best serve the ends of justice for determining

the allegations and counter allegations between the

parties.

16. We are conscious of the fact that in view of the

observations made by the Supreme Court and judgments

referred to aforesaid, it is the interest of the child which

is paramount. The interest of the child is always to have

the benefit of company of both the parents. However,

where such an ideal situation is not possible, the

question would arise as to which of the parents is in a

better position to look after the child. It is no doubt true

that the child in the present case is a female child and as

observed by the Supreme Court in Sarita Sharma v.

Sushil Sharma's case (supra) and by a Division Bench of

this Court in Paul Mohinder Gahun v. State of NCT of

Delhi and Ors's case (supra), normally a child may be

better taken care of by the mother, but then this in turn

depends on the conduct of the parents. The facts in the

present case, to some extent, are akin to the facts of

Smt.Surinder Kaur Sandhu v. Harbax Singh Sandhu and

Anr' case (supra) where both the parties were settled in

England and the child was born and brought up in

England and had British citizenship. In the facts of that

case also, a plea was advanced on behalf of the mother

that she had no relatives in England and the child would

have to live alone and in dismal surroundings in England.

However, since the parents set up their matrimonial

home in England where both the husband and wife were

working, it was held that courts in England would best

determine the aspect of custody of the child. We can

draw strength from the observations made in the

aforesaid judgment that in matters relating to matrimony

and custody, the law of that place must govern the

parties which has the closest connection with the well-

being of the spouses and the welfare of the offsprings of

marriage. The present case is not one where the wife is

an uneducated lady, who is married and has just gone to

a foreign country where she has been unable to settle

down. Both the parties are well-educated and were

gainfully employed though the mother may have give up

her job subsequently. The child is a British citizen by

birth. The allegations and counter allegations of the

parties against their personal conduct have all happened

in the U.K. and thus it is in those courts that interest of

the parties would be best taken care of.

17. It is no doubt true that the visit of the mother and the

child to India was with the consent of the petitioner. The

custody of the child with the mother is not illegal.

However, this visit was on the premise of a return to the

U.K. in November, 2008 which did not materialize. Once

the High Court of Justice has directed that the child be

produced, in our considered view, the retention of the

child in India would be unlawful though it may not have

been illegal at the inception.

18. We must also take note of the fact that the learned Judge

in England has not directed that the custody of the child

should be handed over to the petitioner and all that is

required is that respondent No.2 should go back with the

child to the U.K. and the court in the U.K. would examine

as to who is best suited to have the custody of the child

and make necessary enquiry in that behalf. Respondent

No.2 can hardly have a grievance in this behalf since she

has not been asked to go in unfamiliar surroundings but

to a place where she has lived and worked for gain. The

jurisdiction of a competent court cannot be ousted in this

manner by continuing to abstain from those proceedings

and the principle of Comity of Courts, in our considered

view, requires respondent No.2 and the child to join

proceedings in U.K.

19. Learned counsel for the petitioner, on instructions from

the petitioner, has fairly stated that to facilitate a proper

adjudication no adverse action would be prayed before

the courts in England and Wales on the ground that till

now respondent No.2 has not joined those proceedings

and not brought the child back to jurisdiction of those

courts. Not only that, an offer was made that both the

respondent No.2 and the child can stay in the house and

would be provided the same monetary facilities as were

being provided earlier apart from the fact that once they

come back, the courts in England and Wales would be

competent to deal with even that aspect of

maintenance. We may note that this offer had also been

put to learned counsel for respondent No.2 but on

instructions he informed us that respondent No.2 was not

willing to oblige.

20. We may notice the observations in para 9 of the

judgment in Mrs.Elizabeth Dinshaw v. Arvand M.Dinshaw

& Anr's case (supra) where what has been stated in Re H.

(infants)'s case (supra) has been referred to with

approval. What holds true between the American and

U.K. courts equally applies between U.K. courts and

Indian Courts and thus since the child is a British citizen

by birth, with the parents having a permanent resident

status in U.K., it is the courts in U.K. which would be

proper to decide the issue of custody. The principle of

Comity of Courts and interest of minor child would

require so.

21. We thus direct that at the first instance, a period of 14

days be granted to respondent No.2 to take the child of

her own to England and join the proceedings before the

Courts of England and Wales, failing which the child be

handed over to the petitioner to be taken to England as a

measure of interim custody and thereafter it is for the

courts of England and Wales to determine which parent

would be best suited to have the custody of the child.

22. The petition is accordingly allowed leaving the parties to

bear their own costs.

SANJAY KISHAN KAUL, J.

AUGUST 07, 2009                                    AJIT BHARIHOKE, J.
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