Deepti Mandlaus vs State (Govt Of Nct Of Delhi) & Anr
2011 Latest Caselaw 1951 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Judgment delivered on: 05.04.2011

+       WP (CRL) 1338/2010

DEEPTI MANDLAUS                                            ...       Petitioner

                                        versus

STATE (GOVT OF NCT OF DELHI) & ANR ...                             Respondents

Advocates who appeared in this case:

For the Petitioner : Mr Sanjeev Narula with Mr Ashish Sharma and Ms Sangeeta Sondhi For the Respondent No.1/State : Mr Pawan Sharma For the Respondent No.2. : Mr J.P. Sengh, Sr Advocate with Mr Amiet Andley and Mr Arun K. Sharma

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE MANMOHAN SINGH

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

2. To be referred to the Reporter or not ? YES

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

BADAR DURREZ AHMED, J

1. This petition on behalf of a mother (Deepti Mandlaus) seeks the

issuance of a writ of habeas corpus directing the respondents, in particular

her husband, Nitin Mandlaus (respondent no.2), to produce her minor child,

Armaan Mandlaus before this court and to further direct respondent no.2 to

hand over custody of the child to the petitioner.

2. Briefly stated, the petitioner, respondent no.2 and the child, who are

all Indian citizens, were residing in Canada since 04.04.2009 where the

petitioner and respondent no.2 were working as software professionals. The

respondent no.2 and the child came to India on a visit for the duration

23.06.2010 to 10.08.2010. For this purpose, the petitioner, who stayed back

in Canada, had given her consent for travel of the minor son with the father

outside Canada i.e., to New Delhi, India. The Respondent no.2 decided not

to return to Canada. He got Armaan admitted to a school in NOIDA, India

and had the return tickets cancelled.

3. Before we address the legal issues which arise for consideration, we

need to set out the factual backdrop in somewhat greater detail. On

20.12.2000, the petitioner and respondent no.2 got married in New Delhi

according to Hindu rites and customs. They lived together in New Delhi. In

2002, the respondent no.2 applied for Canadian immigration under the

"skilled category - Professional Workers". While this application for

immigration was pending, on 16.04.2004, the minor child Armaan was born.

In 2008, the Canadian authorities granted permanent immigration to the

respondent no.2 under the said category with the petitioner and their minor

child Armaan as his dependants. On 04.04.2009, the respondent no.2

alongwith the petitioner and their minor son left India for Brampton,

Ontario, Canada. The petitioner took up a job in Toronto, Canada in June

2009. The respondent no.2 and Armaan travelled to India on 09.10.2009

and returned to Canada on 04.11.2009. The petitioner did not accompany

them on that visit and stayed back in Canada. However, the petitioner

travelled to India alone from 15.12.2009 to 26.12.2009.

4. Thereafter, certain disputes arose between the petitioner and the

respondent no.2, the details of which are not necessary for the purposes of

this petition. As mentioned above, the petitioner and the respondent no.2

signed the Parental Travel Consent for Armaan‟s trip to India between

23.06.2010 and 10.08.2010 with the respondent no.2 as the travelling parent.

The return ticket was for „to and fro‟ flights on 23.06.2010 and 10.08.2010.

Both, the respondent no.2 and Armaan, travelled to New Delhi on

23.06.2010 but did not return to Canada on 10.08.2010, or thereafter. In the

meanwhile, on 28.07.2010, Armaan was admitted to Class I in Lotus Valley

School, NOIDA, UP, India, where he continues to study. On 09.08.2010,

respondent no.2 cancelled the return tickets for his and his son‟s journey to

Canada which was to take place on 10.08.2010.

5. On the same day (09.08.2010), respondent no.2 filed a petition ( GP

No. 62/2010) under section 7 of the Guardian and Wards Act, 1890 and

section 6 of the Hindu Minority and Guardianship Act, 1956 before

guardianship court, Patiala House Courts, New Delhi for his appointment as

the sole guardian of Armaan. The said petition was listed before the Court

on 10.08.2010 when the said Court issued notice to the petitioner herein for

19.11.2010.

6. In Canada, on 10.08.2010, the petitioner filed a petition (Court File

No. FS-10-69713-00) before the Superior Court of Justice, Family Court

Branch, Ontario, Canada, claiming, inter alia, the following reliefs:-

Divorce under the Divorce Act; support for child, custody of child and

restraining/non-harassment order under the Family Law Act and/or

Children‟s Law Reform Act; and, exclusive possession of the matrimonial

home, freezing of assets and sale of family property. It was also prayed, as a

term of the custody order, that the respondent no.2 (Nitin Mandlaus) shall

bring back Armaan Mandlaus to the jurisdiction of the Superior Court of

Justice, Ontario. On 11.08.2010, the said court passed, inter alia, a "without

prejudice" ad-interim ex-parte order directing that Deepti Mandlaus shall

have sole custody of Armaan and as a term of the custody order, the

respondent no.2 (Nitin Mandlaus) shall bring back Armaan to the

jurisdiction of the said Court, forthwith. On 14.08.2010, the respondent

no.2 received a copy of the petition filed by the petitioner in Canada as well

as a copy of the said order dated 11.08.2010.

7. On 06.09.2010, the petitioner filed the present writ petition and the

same was listed before this Court on 08.09.2010, when, notice was issued on

the petition and it was further directed that the notice issued to respondent

no.2 should indicate that he shall produce the child Armaan before court on

16.09.2010, i.e., the next date of hearing. On 08.09.2010, itself, the

respondent no.2, perhaps oblivious of the present writ petition, filed a civil

suit [CS(OS) 1853/2010] in the Original Side of this Court praying for an

order of injunction restraining the petitioner herein from proceeding with her

petition before the Superior Court of Justice, Family Court Branch, Ontario,

Canada. On 13.09.2010, the said suit was registered. On 15.09.2010, dasti

(by hand) summons were taken. Since, the petitioner did not appear, she

was proceeded against ex-parte by virtue of an order dated 22.09.2010 and

she was also injuncted from prosecuting the petition in Canada.

Subsequently, the petitioner herein entered appearance in the said suit and

the ex-parte proceeding against her was set aside. She filed the written

statement and the suit is pending before the original side of this Court.

8. Coming back to the present petition, on 16.09.2010 this Court, inter

alia, passed the following order:-

"Renotify on 20.09.2010. In the meanwhile, without prejudice to the rights and contentions of the parties, the petitioner as well as the respondent No.2 are agreeable that they shall explore the possibilility of a settlement. For this purpose, they are directed to appear before the Delhi High Court Mediation and Conciliation Centre today itself at 4.30 p.m. We direct that Ms Sadhna Ramachandran and Ms Maldeev Sidhu shall conduct the mediation proceedings. The object being that the petitioner and the respondent No.2 should, in the first instance, try to get back inasmuch as that would be in the best interest of the minor child [Arman]."

9. Initially, the mediation process showed promise and produced some

positive results as would be apparent from this Court‟s order dated

21.09.2010. But, on 27.09.2010, the learned counsel for the petitioner stated

that there was no possibility of a settlement and that the matter be heard on

merits. The petitioner, who had come from Canada, went back on

24.09.2010. Thereafter, the petition was heard on merits and is being

disposed of by this judgment.

10. The learned counsel for the petitioner submitted that this Court must

recognize the comity of courts principle and direct the respondent no.2 to

honour the order dated 11.08.2010 of the Canadian Court and take the child

Armaan to Canada and submit to the jurisdiction of the Superior Court of

Justice, Ontario, Canada. He placed reliance on a number of decisions.

They are:-

1. Aviral Mittal v. State & Anr: 163(2009) DLT 627 (DB);

2. Mrs Elizabeth Dinshaw v. Arvand M. Dinshaw & Anr: AIR 1987 SC 3;

3. Smt Surinder Kaur Sandhu v. Harbax Singh Sandhu & Anr: (1984) 3 SCC 698;

4. Shilpa Aggarwal v. Aviral Mittal & Anr: (2010) 1 SCC 591;

5. V. Ravi Chandran v. Union of India & Ors: (2010) 1 SCC

174.

11. It was also submitted that the respondent no.2 cannot be permitted to

have sole custody through subterfuge. The learned counsel submitted that

the petitioner is only asking that the respondent no.2 should return to Canada

with Armaan and face the Divorce and custody proceedings there. It was

also contended that the court in Canada had the closest connection with

Armaan inasmuch as the respondent no.2 and the petitioner (and Armaan,

with them) had migrated to Canada on 04.04.2009 and were living there as

permanent residents. It was submitted that the respondent no.2 betrayed the

trust of the petitioner when he cancelled the return tickets and did not return

to Canada on 10.08.2010 alongwith Armaan, as promised. It was finally

submitted that it would also be in the interest of Armaan that he be taken

back to Canada and that it cannot be presumed that the petitioner, by herself,

would not be able to look after her son - Armaan.

12. Mr J.P. Sengh, senior advocate, appearing on behalf of the respondent

no.2 submitted that the most important aspect of this case is that the minor

child Armaan is an Indian citizen. In fact, all the three persons, that is, the

petitioner, the respondent no.2 and Armaan are Indian citizens and hold

Indian Passports. None of them is a citizen of Canada. It was also

submitted that the petitioner and the respondent no.2 got married in India in

2000 and Armaan was born in India in 2004. They only left for Canada on

04.04.2009. Armaan was then about 5 years old. When respondent no.2 and

Armaan travelled to India on 23.06.2010, they had been in Canada for only

14 months. It was also submitted that both the petitioner and respondent

no.2 are IT professionals. While respondent no.2 works from home, the

petitioner has taken up a job. Mr Sengh, further drew our attention to the

petition filed by the petitioner in Canada wherein she has indicated that

support of "Day Care Services" would be taken in caring for the child. It

was submitted that in contrast, respondent no.2 would be directly looking

after Armaan. All of Armaan‟s grand-parents (even the petitioner‟s parents)

are in India. Other relatives and friends are also in India. And, therefore, it

would be in Armaan‟s interest and welfare that he is in India. In any event,

it was submitted on behalf of respondent no.2 that this petition be dismissed

and the matter be left to the Guardianship Court at Patiala House, New Delhi

to decide the issue of custody. On the strength of the Supreme Court

decision in the case of Syed Saleemuddin v. Dr Rukhsana and others: AIR

2001 SC 2172, it was contended that unless the respondent no.2‟s custody of

Armaan could be said to be unlawful or illegal and not in the welfare of the

child (Armaan), no interference of this Court by way of exercise of its

extraordinary writ jurisdiction was called for.

13. The learned counsel for the petitioner had placed great reliance on this

Court‟s decision in Aviral Mittal (supra) which was affirmed by the

Supreme Court in appeal in Shilpa Aggarwal (supra). Undoubtedly, the

principle of comity of courts was recognized and the minor child was

directed to be taken back to UK for a decision as regards custody. Although

the learned counsel for the petitioner suggested that the facts of that case and

the present case are similar, we find that there is a striking difference. In

that case the minor child was born in UK and was a citizen of UK. Here,

Armaan was born in India and continues to be an Indian citizen. Then,

again, in that case there were no proceedings in India, apart from the writ

petition, but, in the present case, before the Court in Canada passed the order

dated 11.08.2010, the respondent no.2 had already invoked the jurisdiction

of the Guardianship Court in New Delhi, on 09.08.2010 and that Court had

already taken up the case on 10.08.2010 when it issued notice of the petition

to the petitioner herein. As would be apparent from a reading of the decision

in Aviral Mittal (supra), particularly paragraphs 15, 16 and 20, the fact that

the child in that case was a British citizen weighed heavily with the court.

The Supreme Court, in Shilpa Aggarwal (supra), noted in paragraph 27

thereof, that it found itself placed between "two contrasting principles of

law" and that "of the two principles, the High Court has placed greater

reliance upon the theory of comity of nations and comity of judgments of

courts of two different countries in deciding the matter". The two

contrasting principles were the principle that the welfare of the child was

paramount and the comity of courts principle. The Supreme Court, while

accepting this court‟s application of the comity principle in that case took

note of the fact that the UK Court was already in seisin of the matter and that

the ultimate decision as to custody ought to be left to the English courts

"having regard to the nationality of the child and the fact that both parents

had worked for gain in the UK and had also acquired permanent resident

status in the UK". Thus, it is clear that the fact that the minor child was a

British national and also the fact that the UK court was already in seisin of

the custody matter, weighed heavily with the Supreme Court in upholding

the application of the comity of courts principle in the facts of that case.

However, the facts here are entirely different. Armaan was born in India and

continues to be an Indian citizen. Moreover, when the Canadian Court

passed the order on 11.08.2010, the Guradianship Court in New Delhi was

already seized of the custody matter filed by the respondent no.2. Thus, no

parallel can be drawn from the Aviral Mittal (supra) and the Shilpa

Aggarwal (supra) decisions. They are clearly distinguishable.

14. In Elizabeth Dinshaw (supra), the Supreme Court, as noticed in

Aviral Mittal (supra), emphasized that in matters of custody of minor

children, the sole and predominant criterion is what would best serve the

interest and welfare of the minor. The Supreme Court also observed that

courts in all countries are bound to ensure that a parent does not gain

advantage by any wrong-doing like removing children from one country to

another. This would be hardly applicable in the present case as it cannot be

said that the respondent no.2 has gained any advantage over the petitioner in

deciding not to return to Canada with Armaan. The petitioner, like the

respondent no.2, is an Indian citizen. Her parents reside in India as do her

other relatives and friends. She is not alien to the Indian circumstance. She

has lived her entire life in India except the period post 04.04.2009.

15. Similarly, the Supreme Court decision in Smt Surinder Kaur Sandhu

(supra) is also distinguishable for the reason that the minor child in that case

was a Bristish citizen and the father was regarded by the Supreme Court as

"a man without a character" who had offered solicitation to the commission

of his wife‟s murder! The Supreme Court, in any event, invoking the well

established principle that the welfare of the minor is paramount, held the

custody of the mother in his best interest in the following words:-

"..But, that provision cannot supersede the paramount consideration as to what is conducive to the welfare of the minor. As the matters are presented to us today, the boy, from his own point of view, ought to be in the custody of the mother."

16. Another factor which weighed heavily with the Supreme Court was

the fact that the child in that case was a British Citizen and therefore the

Courts in England had the most intimate connection with the issue of his

custody. This facet is clearly absent in the present case as Armaan is an

Indian citizen. The character of the father, respondent no.2, is also not in

question as it was in that case.

17. The decision in V. Ravi Chandran (supra) is also a case where the

child was born in USA. The child was brought to India at a time when a

custody dispute was already pending in a court in USA and the child was

brought to India in violation of that court‟s order. The position here is

entirely different.

18. Thus, none of the decisions sought to be relied upon by the petitioner

actually come to her aid. The common factors running through those

decisions are that the child was a citizen of a foreign state and that a court of

that state was already in seisin of the custody case. Both these factors are

missing in the present case. Thus, the comity of courts principle would not

come to the aid of the petitioner. It must also be remembered that each of

this decisions have also emphasized the golden rule in all custody matters

that the welfare of the child would be paramount. There has been too much

focus on the parents‟ right to custody, when in fact, the issue must always be

addressed from the standpoint of the child. An issue of custody of a minor is

actually a facet of the minor‟s right to life guaranteed under article 21 of the

constitution of India. Irrespective of anything, the courts have to look after

the interests of the minor and not let themselves to be sucked into the ugly

battles of the minor‟s parents. It is not so much a question as to which

parent deserves to gain custody of the child as it is a question of which

parent‟s care is best for the child.

19. In view of the foregoing discussion we are not inclined to allow the

reliefs prayed for in this petition as we do not find the custody of respondent

no.2 to be unlawful or illegal. Whether it is in the best interest and welfare

of the minor will have to be decided by the guardianship court in GP

No.62/2010 pending in the Patiala House Courts, New Delhi. It is for this

reason that we have not expressed any opinion on which of the parents of

Armaan is best suited to look after his welfare. With these observations, the

petition is dismissed. In the circumstances, the parties are left to bear their

respective costs.

BADAR DURREZ AHMED, J

MANMOHAN SINGH, J APRIL 05, 2011 HJ