Shilpi Gupta vs Union Of India & Ors
2016 Latest Caselaw 3071 Del

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*         IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Judgment reserved on 22nd April, 2016
                                      Judgment pronounced on 29th April, 2016

+         W.P.(CRL) 1003/2016

          SHILPI GUPTA                                              ..... Petitioner
                             Through :     Mr.Gurinder Pal Singh with Mr. Sidharth
                                           Borah, Advocates

                             versus

          UNION OF INDIA & ORS                                      ..... Respondents
                        Through :          Ms.Shiva Lakshmi, CGSC with Mr.
                                           Arindam Dey and Mr. Udit Grover,
                                           Advocates for UOI/respondent no.1.
                                           Mr.Rahul Mehra, Standing Counsel with
                                           Mr.Amrit Singh, Advocate for the
                                           State/respondents no.2 and 3 along with
                                           Inspector Mukesh Tyagi, SHO and SI
                                           Sunny, P.S. Rani Bagh.
                                           Mr.Vinod Khera, Advocate for
                                           respondent no.4.

CORAM:
   HON'BLE MR. JUSTICE G.S.SISTANI
   HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

G.S.SISTANI, J.

1. Present petition has been filed by the petitioner under Article 226 of the Constitution of India seeking an appropriate writ in the nature of habeas corpus thereby directing respondents no.1 to 5 to produce her elder son, Master Aadvik, and hand over his custody to the petitioner. Since Master Aadvik is alleged to have been illegally detained by respondent no.4 (husband of the petitioner), a direction is also sought to the respondent

authorities to take appropriate action against respondent no.4.

2. Notice in this petition was issued on 29.3.2016. Pleadings are complete in this matter. With the consent of the counsel for the parties, present writ petition is set down for final hearing and disposal.

3. The necessary facts, to be noticed for disposal of this writ petition, are that on 20.1.2010 marriage between the petitioner and respondent no.4 was solemnized in accordance with Hindu rites and ceremonies at New Delhi. After the marriage, the petitioner and her husband (respondent no.4 herein) moved to the United States of America as respondent no.4 was already residing in America and was gainfully employed there much prior to the marriage and he wished to finally migrate and settle in the said country. The parties were blessed with two sons. The elder son, being Aadvik was born on 28.9.2012, and the younger son, being Samath, was born on 10.9.2014. The present petition relates to Master Aadvik.

4. It is the case of the petitioner that from 25.1.2015 till 6.3.2015 Master Aadvik resided at 13622 C, Legacy Circle, Herndon, Virginia 20171. Even prior to that i.e. from 15.11.2014 till 24.1.2015, Master Aadvik resided with the petitioner at 13533, Davinci Lane, Herndon, Virginia, 20171, and from 7.11.2014 till 15.11.2014 he resided with the petitioner at 13622 C, Legacy Circle Herndon, Virginia 20171. From 1.7.2014 till 7.11.2014 and even prior to it from 12.10.2013 till 30.6.2014 Master Aadvik resided with the parties in Virginia at 13622 C, Legacy Circle Herndon, Virginia, 20171, and 2141, Raven Tower Ct, Herndon, Virginia 20170, respectively. From 28.9.2012 till 12.10.2013 Master Aadvik resided with the parties at Hackensack, NJ 07601, United States of America. It is in the month of September, 2014, the petitioner gave birth to his younger child, Master Samath, from Respondent No.4.

5. Mr.Gurinder Pal Singh, learned counsel for the petitioner, submits that

respondent no.4 was abusive towards the petitioner after their marriage. Counsel further submits that sometime around March, 2013, the petitioner and respondent no.4 started having grave marital issues due to respondent‟s no.4 volatile temperament and regular angry outbursts, often in front of Master Aadvik. The parties separated on or about 15.11.2014. It is further submitted that on 8.11.2014 respondent no.4 left for India leaving behind the petitioner and both the children. However, with a mala fide intention he took away with him the passport and Social Security Card of Master Aadvik, which fact came to the notice of the petitioner much later.

6. Learned counsel for the petitioner contends that on 18.1.2015 respondent no.4 returned to the United States and continued to live in his old house, while the petitioner was living with both her children in a separate house, where she had moved sometime in and around 14.11.2014. Respondent no.4 paid a short visit to the house of petitioner, where she was living with both the children, on the pretext of his desire to meet the children. The petitioner did not sense any trouble and allowed him to meet the children. On 24.1.2015 respondent no.4 paid another visit on the same pretext and took away Master Aadvik saying that he wanted to take him for a short while to the Dulles Mall. It is further contended that both the children were in the care and custody of the petitioner and all along it was the petitioner who was their primary caretaker. Counsel contends that the petitioner, without sensing any trouble and without realising the evil design of the respondent no.4, allowed him to take Master Aadvik to the Dulles Mall. At that time, respondent no.4 had assured the petitioner that visit to the Mall would be for a very short time and that he would leave Master Aadvik with her after that. However, respondent no.4 did not return either with Master Aadvik or alone. Counsel contends that

respondent no.4 had taken Master Aadvik only for a short outing to the Mall with an assurance that Master Aadvik would be brought back to the petitioner but respondent no.4 failed to bring back the child. It is further contended that between 24.1.2015 to 7.3.2015 the petitioner not only requested but pleaded respondent no.4 to return Master Aadvik to her, but to no avail. Since respondent no.4 did not accede to the repeated request of the petitioner, she even offered respondent no.4 a regular schedule to spend time with Master Aadvik while in her care and custody, however, to no effect. In turn, respondent no.4 did not allow the petitioner to even visit Master Aadvik between 24.1.2015 to 7.3.2015. After much persuasion, respondent no.4 allowed the petitioner to visit Master Aadvik only twice during the month of February, 2015, and that too only for a short period of time, which lasted 30 minutes each time.

7. Mr.Gurinder Pal Singh further submits that later the petitioner learnt that on 7.3.2015 respondent no.4 fled from U.S.A. to India along with Master Aadvik without the permission or consent of the petitioner, in whose care and custody the said child was. Faced with the aforesaid unfortunate twist of events, the petitioner contacted U.S. Department of States Office of Children‟s Issues for help and soon thereafter on 15.5.2015 she filed "Emergency Motion For Return of Minor Child and Establish Temporary Custody" in the Juvenile and Domestic Relations Court of Fairfax County, wherein respondent no.4 was duly served. The date of emergency motion was set to 19.5.2015. On 19.5.2015 counsel for respondent no.4 made a „special appearance‟ to contest the service. On 28.5.2015 when the aforesaid petition came up for hearing before the learned Judge, the Lawyer of respondent no.4 informed the court that respondent no.4 was not contesting the service upon respondent no.4 and made a "General Appearance". It is further submitted that the Lawyer for respondent no.4

was heard by the said Court at length and in those proceedings it was represented by respondent no.4 that his trip was for a short duration of six weeks and he planned to bring the child back to U.S. and that the only reason of respondent‟s no.4 not coming back with the child was his mother‟s illness.

8. Learned counsel for the petitioner submits that on 28.5.2015 the Juvenile and Domestic Relations Court of Fairfax County had passed an order principally holding as under:

(i) That court has proper jurisdiction over the parties.

(ii) That it is in the best interest of the child Aadvik Gupta that he be immediately returned to the custody of the Petitioner.

(iii) That Aadvik be returned to the Commonwealth of Virginia immediately.

(iv) That good cause exists with which to require that the Petitioner take immediate possession of the child by all means necessary.

9. Counsel submits that the said court has thus granted sole legal and physical custody of Aadvik Gupta pending further Order of the court. Relevant portion of the order reads as under:

(a) The Respondent (i.e. Respondent No.4 herein) to immediately return Aadvik to the Commonwealth of Virginia.

(b) To immediately return Aadvik to the custody and control of the Petitioner or her agent and that;

(c) On compliance of orders (a) & (b) aforementioned the Respondent (i.e. Respondent No.4) shall not remove the child from the Commonwealth of Virginia under any circumstances without further order of the court.

10. Mr.Gurinder Pal Singh further submits that the court at U.S. vide order dated 28.05.2015, a copy of which has been annexed to the petition, had also directed all law enforcement agencies and related agencies, not limited to Police Department(s), Sheriff‟s Department(s), U.S. State Department, Federal Bureau of Investigations, to assist and / or facilitate the transfer of Aadvik to the petitioner including taking the child into custody from anyone who has possession of him and placing him in the physical custody of the petitioner.

11. It is further contended by Mr.Gurinder Pal Singh that since respondent no.4 failed to comply with the specific directions given to him vide Order dated 28.5.2015, the petitioner was constrained to file a contempt petition wherein respondent no.4 was duly served with the copy of the notice, Motion for Entry of a Rule to Show Cause, Affidavit and petition and Rule to Show Cause so filed by the petitioner against him. Reference in this regard has been made by Mr.Gurinder Pal Singh to the letter dated 29.06.2015 sent to the counsel for the respondent no.4 and the Affidavit of Service dated 04.08.2015.

12. Learned counsel for the petitioner further submits that to secure the presence of respondent no.4 through publication, the order dated 28.05.2015 of the Fairfax County Court was published in the daily, „The Washington Times‟, on 03.09.2015. In support of this submission, counsel has drawn the attention of the Court to the copy of the publication dated 03.09.2015, which has been filed on record. Counsel further submits that the order dated 28.5.2015 was passed in the presence of counsel for respondent no.4 and that too after giving her a complete hearing and the counsel had signed the order with the following objection:

"Objected to for returning the child to Mother sole legal and physical custody".

13. Counsel for the petitioner contends that the aforesaid order passed by the Juvenile and Domestic Relations Court of Fairfax County has become final and binding as no appeal has been filed against it. Counsel further contends that after the order dated 28.5.2015 the aforesaid court passed the following Order on 20.10.2015 on the petition preferred by the petitioner for child custody and visitation rights:

"VIRGINIA:

IN THE JUVENILE & DOMESTIC RELATIONS DISTRICT COURT FOR FAIRFAX COUNTY

SHILPI GUPTA, . In re: Aadvik Gupta . D.O.B.: September 28, 2012

Petitioner, .

        V.                           .     Case No. JJ431468-01-00/02-00
        PRATEEK GUPTA                .
                                     .
        Respondent.                  .

        CUSTODY AND VISITATION ORDER

THIS CAUSE came before this Court on the 20th day of October, 2015, upon the Petitioner SHILPI GUPTA'S Petitions for Custody and Visitation of Aadvik Gupta;

IT APPEARING TO THE COURT that it has jurisdiction over the parties and the subject matter of the above-styled matter;

IT FURTHER APPEARING TO THE COURT that the Respondent, PRATEEK GUPTA, unilaterally removed Aadvik Gupta to India without notice to or consent of the Petitioner and has further refused to return said child to the United States and into the custody of the Petitioner in direct violation of this Court's Order entered on May 28, 2015;

Having considered all of the factors of 20-124.3 of the Code of Virginia, 1950, as amended, it is hereby

ADJUDGED AND ORDERED that Petitioner is granted sole legal and physical custody of Aadvik Gupta; it is further

ADJUDGED AND ORDERED that no visitation is granted to the Respondent at this time;

ORIGINAL DOCUMENT STAMPED IN RED"

14. It is contended that the aforesaid order was passed after respondent no.4 failed to appear despite personal service. The aforesaid Order dated 20.10.2015 was also served upon respondent no.4 vide letter dated 21.10.2015, a copy of which has been filed along with the present petition.

15. Learned counsel for the petitioner submits that Aadvik is an American citizen by birth and, thus, Virginia is the home state of Aadvik. Counsel further submits that since respondent no.4 has illegally detained Master Aadvik, who is a child of three years of age, and also failed to hand over the custody of Advik to the petitioner, despite the fact that the petitioner has been granted sole legal and physical custody by the Court of competent jurisdiction, the petitioner was left with no other option but to approach this Court to restore his custody.

16. Mr.Gurinder Pal Singh further submits that the petitioner approached various Government offices, both in India and in the United States including the Consular, Government of India, Ministry of Home Affairs, Ministry of External Affairs, Ministry of Overseas Indians, Indian Consulate in Washington DC and NRI cell of National Commission for Women. Counsel in support of this submission has relied upon the emails dated 02.12.2015 sent by the petitioner to the Consular of Government of India, Ministry of Home Affairs, Government of India, as well as to the

United States‟ Consulate in New Delhi, copies of which have been annexed to the present petition.

17. Counsel has also relied upon the email dated 04.12.2015 sent to the US Department of State; the reply dated 13.01.2016 received from Congress of United States; emails/letters dated 27.01.2016 sent to the Ministry of External Affairs and Ministry of Home Affairs, Government of India; reply dated 28.01.2016 received from the non-profit organisation „Asha‟, helping South Asian Women in Washington DC Metro Area; email dated 29.01.2016 sent by the Petitioner to the National Commission for Women, New Delhi; reminder email dated 3.2.2016 written to Ministry of External Affairs and Ministry of Overseas Indian Affairs; and response to the email dated 26.2.2016 received from Ministry of Overseas Indian Affairs, copies of which have been filed along with the present petition.

18. Mr.Khera, learned counsel for respondent no.4, has opposed the present petition stating that the present petition is not maintainable inasmuch as there is no imminent danger to the life or the physical or moral well being of the minor. Counsel further submits that effective and efficacious remedy is under the Hindu Minority and Guardianship Act, 1956, and Guardian & Wards Act, 1890. It is further submitted that respondent no. 4 has already filed a petition in this regard, which is pending adjudication.

19. Counsel for respondent no.4 further submits that the matter in the present case pertains to the custody of the child, which cannot be adjudicated upon by a summary procedure, such as the present one but has to be decided through a proper trial. In support of this contention, counsel has relied upon a decision rendered by the Supreme Court of India in Dr.(Mrs.) Veena Kapoor v. Sh. Varinder Kumar Kapoor‟, reported at AIR 1982 SC 792. Counsel contends that respondent no.4 has already filed a petition in this regard as mentioned hereinabove.

20. Mr.Khera further submits that in the case of Sarita Sharma v. Sushil Sharma, reported at 2000 AIR (SC) 1019, it has been held by the Supreme Court that the decree passed by the American Court though a relevant factor, cannot override the consideration of welfare of the minor children.

21. It is further submitted that in the case of Ruchika Abbi & Anr. v. State of NCT of Delhi & Anr., reported at 2015 (12) JT 78, it has been held by the Apex Court that it would be just and proper to direct Family Court, which has been seized of main custody case to dispose of pending main case while allowing the custody of minor girl child with respondent/father.

22. It has been strongly urged before this Court by the learned counsel for respondent no.4 that the parties were living happily for nearly three years, however, with the passage of time disputes and differences arose between them.

23. Learned counsel for respondent no.4 has drawn the attention of the Court to the counter affidavit, which has been filed, to show various reasons for the acrimony between the parties including the interference of the parents of the petitioner at the time of delivery of her second son and non- disclosure of the password of a joint account by the husband during the presence of the father of the petitioner.

24. Learned counsel for respondent no.4 submits that to resolve the misunderstanding between the parties, the father of respondent no.4, who enjoys a good rapport with the parents of the petitioner for the last over thirty years, and other family members intervened. The father of respondent no.4 travelled to the United States of America and sorted out all the differences. On 24.1.2015, as an interim arrangement, both the petitioner and respondent no.4 mutually agreed that they would continue to live separately in their separate rented houses and each parent would

keep one child, pursuant to which care and custody of the elder son, Aadvik, was given to respondent no.4. Parties were living in the same vicinity at a distance of 500 meters. Parties and their children would met off and on.

25. Learned counsel for respondent no.4 has also opposed this petition on the ground that three proceedings have already been initiated by respondent no.4, being (i) a petition under Section 9 of Hindu Marriage Act for restitution of conjugal rights filed on 27.5.2015; (ii) a suit for declaration that the decree passed by the Courts at U.S. is null and void; (iii) and the petition for grant of custody in the family court.

26. Learned counsel for respondent on.4 has urged before this Court that the Courts at Delhi are seized of the matter and no orders pertaining to the custody of the child should be passed in the proceedings as the family court alone is the competent court to pass the order. Counsel has also urged before this Court that the child, Aadvik, has been residing with his father and he is attached to his father. Counsel further submits that while dealing in cases of custody of children, the interest of the minor is of paramount importance and the petitioner, being a single working woman, would not be capable of looking after the two children. Additionally, it has also been argued that the custody of the child is lawful and legal as the petitioner has handed over the custody to respondent no.4, who is none else but the father of the child. The petitioner and respondent on.4 have maintained good relations, which is evident upon reading of the emails.

27. Learned counsel for respondent no.4 has relied upon Mausami Moitra Ganguli v. Jayant Ganguli, reported at (2008) 7 SCC 673, more particularly paras 21 to 23, which read as under:

21. In Rosy Jacob v. Jacob A. Chakramakkal1, a three- Judge Bench of this Court in a rather court language had observed that:

"15. ... The children are not mere chattels; nor are they mere play-things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them."

22. In Halsbury's Laws of England (Fourth Edition, Vol.13), the law pertaining to the custody and maintenance of children has been succinctly stated in the following terms:

"809. Principles as to custody and upbringing of minors. Where in any proceedings before any court, the custody or upbringing of a minor is in question, the court, in deciding that question, must regard the welfare of the minor as the first and paramount consideration, and must not take into consideration whether from any other point of view the claim of the father in respect of such custody or upbringing is superior to that of the mother, or the claim of the mother is superior to that of the father. In relation to the custody or upbringing of a minor, a mother has the same rights and authority as the law allows to a father, and the rights and authority of mother and father are equal and are exercisable by either without the other."

23. Having bestowed our anxious consideration to the material on record and the observations made by the courts below, we are of the view that in the present case there is no ground to upset the judgment and order of the High Court. There is nothing on record to suggest that the welfare of the child is in any way in peril in the hands of the father. In our opinion, the stability and security of the child is also an essential ingredient for a full development of child's talent and personality. As noted above, the appellant is a teacher, now employed in a school at Panipat, where she had shifted from

Chandigarh some time back. Earlier she was teaching in some school at Calcutta. Admittedly, she is living all alone. Except for a very short duration when he was with the appellant, Master Satyajeet has been living and studying in Allahabad in a good school and stated to have his small group of friends there. At Panipat, it would be an entirely new environment for him as compared to Allahabad."

28. In rejoinder, Mr.Gurinder Pal Singh, learned counsel for the petitioner, has submitted that all the three proceedings referred to hereinabove are subsequent to the proceedings initiated by the petitioner on 15.5.2015. The parties last resided together in the United States of America and a final decree of custody has already been passed.

29. Learned counsel for the petitioner has relied upon Surinder Kaur Sandhu v. Harbax Singh Sandhu, reported at AIR 1984 SC 1224, more particularly paras 8 to 10, which read as under:

"[8] Some of these circumstances mentioned by the learned Judge are not beside the point but, their comparative assessment is difficult to accept as made. For example, the 'traumatic experience of a conviction on a criminal charge' is not a factor in favour of the father, especially when his conduct following immediately upon his release on probation shows that the experience has not chastened him. On the whole, we are unable to agree that the welfare of the boy requires that he should live with his father or with the grand- parents. The father is a man without a character who offered solicitation to the commission of his wife's murder. The wife obtained an order of probation for him but, he abused her magnanimity by running away with the boy soon after the probationary period was over Even in that act, he displayed a singular lack of respect for law by obtaining a duplicate passport for the boy on an untrue representation that the original passport was lost. The original passport was, to his knowledge, in the keeping, of his wife. In this background, we do not regard the affluence of the husband's parents to be a circumstance of such overwhelming importance as to tilt the balance in favour of the father on the question of what is truly for the welfare of the minor. At any rate, we are unable to agree that it will be less for the

welfare of the minor if he lived with his mother. He was whisked away from her and the question is whether, there are any circumstances to support the view that the new environment in which he is wrongfully brought is more conducive to his welfare. He is about 8 years of age and the loving care of the mother ought not to be denied to him. The father is made of coarse stuff. The mother earns an income of £100 a week, which is certainly not large by English standards, but is not so low as not to enable her to take reasonable care of the boy.

[9] Section 6 of the Hindu Minority and Guardianship Act, 1956 constitutes the father as the natural guardian of a minor son. 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.

[10] We may add that the spouses had set up their matrimonial home in England where the wife was working as a clerk and the husband as a bus driver. The boy is a British citizen, having been born in England, and he holds a British passport. It cannot be controverted that, in these circumstances, the English Court had jurisdiction to decide the question of his custody. The modern theory of Conflict of Laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging form shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the off springs of marriage. The spouses in this case had made England their home where this boy was born to them. The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing him to India, not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the peace of that home. The fact that the matrimonial home of the spouses was in England, establishes sufficient contacts or ties with that State in order to

make it reasonable and just for the Courts of that state to assume jurisdiction to enforce obligations which were incurred therein by the spouses. (See International Shoe Company v. State of Washington, 90 L. Ed. 95 which was not a matrimonial case but which is regarded as the fountainhead of the subsequent developments of jurisdictional issues like the one involved in the instant case.) It is our duty and function to protect the wife against the burden of litigating in an inconvenient forum which she and her husband had left voluntarily in order to make their living in England, where they gave birth to this unfortunate boy."

30. Reliance is also placed by learned counsel for the petitioner on Elizabeth Dinshaw v. Arvand M. Dinshaw, reported at 1987 (1) SCC 42, more particularly at paras 8 and 9, which read as under:

[8] Whenever a question arises before Court pertaining to the custody of a minor child, the matter is to be decided not on considerations of the legal rights of parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor. We have twice interviewed Dustan in our Chambers and talked with him. We found him to be too tender in age and totally immature to be able to form any independent opinion of his own as to which parent he should stay with. The child is an American citizen. Excepting for the last few months that have elapsed since his being brought to India by the process of illegal abduction by the father, he has spent the rest of his life in the United States of America and he was doing well in school there. In our considered opinion it will be in the best interests and welfare of Dustan that he should go back to the United States of America and continue his education there under the custody and guardianship of the mother to whom such custody and guardianship have been entrusted by a competent Court in that country. We are also satisfied that the Petitioner who is the mother is full of genuine love and affection for the child and she can be safely trusted to look after him, educate him and attend in every possible way to his proper up-bringing. The child has not taken root in this country and he is still accustomed and acclimatized to the conditions and environments obtaining in the place of his origin in the United States of America. The child's presence in India is the result of an illegal act of abduction and the father who is guilty of the said act

cannot claim any advantage by stating that he has already put the child to some school in Pune. The conduct of the father has not been such as to confidence in us that he is a fit and suitable person to be entrusted with the custody and guardianship of the child for the present.

[9] In Re H. (infants) (1966) 1 All ER 886 the Court of Appeal in England had occasion to consider a somewhat similar question. That case concerned the abduction to England of two minor boys who were American citizens. The father was a natural-born American citizen and the mother, though of Scottish origin, had been resident for 20 years in the United States of America. They are divorced in 1953 by a decree in Mexico, which embodied provisions entrusting the custody of the two boys to the mother with liberal access to the father. By an amendment made in that order in December, 1964, a provision was incorporated that the boys should reside at all times in the State of New York and should at all times be under the control and jurisdiction of the State of New York. In March, 1965, the mother removed the boys to England, without having obtained the approval of the New York Court, and without having consulted the father; she purchased a house in England with the intention of remaining there permanently and of cutting off all contacts with the father. She ignored an order made in June, 1965, by the Supreme Court of New York State to return the boys there. On a motion on notice given by the father in the Chancery Division of the Court in England, the trial Judge Cross, J. directed that since the children were American children and the American Court was the proper Court to decide the issue of custody, and as it was the duty of courts in all countries to see that a parent doing wrong by removing children out of their country did not gain any advantage by his or her wrongdoing, the Court without going into the merits of the question as to where and with whom the children should live, would order that the children should go back to America. In the appeal filed against the said judgment in the Court of Appeal, Willmer L.J. while dismissing the appeal extracted with approval the following passage from the judgment of Cross, J.:--

The sudden and unauthorised removal of children from one country to another is far too frequent nowadays, and as it seems to me, it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing.

..... ..... .....

..... .....

The Courts in all countries ought, as I see it, to be careful not to do anything to encourage this tendency. This substitution of self-help for due process of law in this field can only harm the interests of wards generally, and a judge should, as I see it, pay regard to the orders of the proper foreign Court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child."

31. Mr.Gurinder Pal Singh, learned counsel for the petitioner, has also relied upon Marggarate Maria Pulparampil Nee Feldman v. Chacko Pulparampil, reported at 1970 AIR (Ker) 1, more particularly para 20, which reads as under:

"[20] In using the writ of habeas corpus for the custody of infants the jurisdiction exercised by the court in deciding whether the custody should be entrusted with one or other of the contesting parties depends not on the legal right of one of those parties to the custody of the child but as to whether in the best interests and welfare of the child the custody should be entrusted with one or the other. This is clear from the following passages from the American Jurisprudence, Volume 25, pages 202, 203, 204 and 205:

"Habeas corpus is a proper remedy to obtain the discharge of an infant from a detention which is illegal and to determine controversies concerning the right to the custody of the infant, at least under the conditions requisite to the issuance of the writ generally. Where the writ is availed of for the latter purpose, the proceeding partakes of the incidents of a suit in equity and is considered to be one in rem, the child being the res."

"The writ of habeas corpus is a proper remedy on the part of one parent to recover a child from the other parent, either before or after the parents have been legally separated or divorced. Since the

welfare of the child is the primary consideration in making an award for the custody of it, such an award may be made in a habeas corpus proceeding without reference to where the domicil of the parents may be, and the fact that the infant was brought within the jurisdiction in violation of an order of the court of another State docs not preclude the exercise of jurisdiction in a habeas corpus proceeding to make an order in respect of its custody, at least to the extent of determining whether changes in circumstances following the rendition of the foreign order require, in view of the best interests of the child, a new order for the custody of the child, and whether the interests of the child can be served best by leaving further proceedings to the foreign court that acted first in the matter of its custody."

"It should be observed that as a general rule, where the writ is prosecuted for the purpose of determining the right to the custody of a child, the inquiry extends far beyond the issues that ordinarily are involved in a habeas corpus proceeding. The controversy does not involve the question of personal freedom, because an infant, for humane and obvious reasons, is presumed to be in the custody of someone until it has attained its majority. The court, in passing upon the writ in a case Involving the custody of a child, deals with a matter of an equitable nature; it is not bound by any mere legal right of parent or guardian, but is to give his or her claim to the custody of the child due weight as a claim founded on human nature and generally equitable and just. Therefore, these cases are decided not upon the legal right of the petitioner to be relieved from unlawful imprisonment or detention, as in the cases of an adult, but on the court's view of the best interests of those whose welfare requires that they be in custody of one person or another; and hence a court is In no case bound to deliver a child into the custody of any claimant or of any person, but should, in the exercise of a sound discretion, after a careful consideration of the facts, leave it in such custody as the welfare of the child at the lime appears to require. In short, the child's welfare is the supreme consideration, irrespective of the rights and wrongs of its contending parents, although the natural rights of the parents art entitled to due consideration."

32. Mr.Gurinder Pal Singh has also relied upon Kuldeep Sidhu v. Chanan Singh, reported at 1989 AIR (P&H) 103, more particularly paras 17 and

18, which read as under:

"[17] It is in the fitness of things too that the children should go back to the country whose citizens they are and the dispute regarding their custody be finally settled by the Courts there. In the meanwhile the petitioner has in her favour an order of the competent Court in Canada granting her custody of the children. This order must be honoured and respected, as observed by M. M. Punchhi, J. in Marilynn Anita Dhillon Gilmore v. Margaret Nijjar ILR (1984) 1 P & H 1 : AIR 1983 SCC 217 as under :--

"Courts all over the world frown on the attitude of parents running away from their legal obligations. The prevailing view in Private International Law is that the Courts all over the world should, other thing being equal, set its pace against the conduct of unilateral movement of children and they should be careful not to do anything to encourage this tendency. The predominant view also is that a Judge should pay regard to the orders of the proper foreign Court unless he is satisfied beyond reasonable doubt that to do so, would inflict serious harm on the child...."

A similar view was expressed by the Supreme Court in Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu, AIR 1984 SC 1224, where it was observed, "the modern theory of Conflict of Laws recognises and, in any event, prefers the jurisdiction of the State which has (sic) intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. To allows the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum- shopping."

[18] In dealing with somewhat similar situation as has arisen in the present case, namely of an order having been passed by the competent Court in the United States granting custody of the minor to the mother and the father in disobedience of it bringing the child to India, the Supreme-Court in Mrs. Elzabeth Dinshaw v. Arvand

M. .Dinshaw, - : AIR 1987 SC 3, expressly approved the judgment of the Court of Appeal in England in Re H. (Infants) (1966) 1 All ER 886, Willmer, LJ there observed :--

"The sudden and unauthorised removal of children from one country to another is far too frequent nowadays, and as it seems to me, it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by this wrongdoing.

xxxxx

The Courts in all countries ought, as I see it, to be careful not to do anything to encourage this tendency. This substitution of self-help for due process of law in this field can only harm the interests of wards generally and a judge should as I see it, pay regard to the orders of the proper foreign Court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child."

33. Learned counsel for the petitioner has lastly relied upon a judgment rendered in Re H. (Infants), 1965 H. No.2428], relevant portion of which reads as under:

"These children are American children and their home has always been in the United States. The action of their mother in bringing them in the United States. The action of their mother in bringing them to this country in March without their father's consent or any order of the American court, in the hope that she might be able to set up a home here and in effect cut them off from their father entirely, was to my mind most reprehensible. I do not myself attach much importance to the fact that she involved her husband and her lawyers in an unwitting deception of the New York courts. A woman who is not herself a lawyer cannot perhaps be expected to view that as a serious offence. But, however badly Mr.H. treated Mrs. I. -and I am prepared for present purposes to assume that he had treated her badly -Mr. H. loved his children and they loved him, and Mrs. I. knew perfectly well that if she removed them to England, she would cut them off from him for good. Indeed, she made no bones of it that her object was to cut him off from them for good. The

sudden and unauthorised removal of children from one country to another is far too frequent nowadays, and, as it seems to me, it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing. Now for this court to go into the merits of this case will inevitably result in a great advantage to the mother and a great disadvantage to the father. With the best will in the world -and in this case there is not likely to be much good will -a wardship case of this sort, with masses of evidence from abroad, will not come on for many months. By then, Mr. I. will have uprooted himself from America and settled in England, the children will have taken root here, and there may well be evidence of English child psychiatrists to the effect, that it would be bad for them to go back to America. All this may make it very hard indeed for an English judge perhaps a year hence to order the return of the child to America.

Therefore, since the American court is the proper court to decide this case, and the father would suffer a grave injustice if the English court assumed the task of deciding it, I would have thought, speaking always apart from authority, that the court should send the children back to American courts, unless that course was fraught with danger for them. As I have said, though I have formed no view whatever as to the respective merits of the parents, I am satisfied that there will be no such danger even if the children have to travel and stay with their father."

34. We have heard learned counsel for the parties and considered their rival submissions.

35. It is the case of the petitioner that prior to the marriage, respondent on.4 was working for gain in the United States of America. Petitioner on joining her husband has also been working in the USA. Post marriage, the parties resided in the United States of America. Children of the petitioner and respondent no.4 were born in the United States of America. Both the children are US citizens. Keeping in view the above facts, it can reasonably be said that it was the intention of both the petitioner and respondent no.4 to settle down finally and make United States of America their home.

36. It is further the case of the petitioner that the custody of Master Aadvik was illegally removed by respondent no.4 from the petitioner. It is also the case of the petitioner that the petitioner had taken the first step of instituting proceedings against respondent no.4 with respect to custody of her son. The proceedings were instituted on 15.5.2015. The order was passed on 28.5.2015 granting interim custody of the son to the petitioner herein. Attention of the Court has been drawn to the photocopy of the order, which shows the presence of the counsel for the respondent no.4 where an endorsement has been made "objected to for returning the child to mother, sole legal and physical custody". This order was signed by Rebecca Melone, counsel for respondent".

37. It is, thus, contended that respondent no.4 submitted to the jurisdiction of the courts in the United States of America. After due hearing the interim order was passed and thereafter since the order was not complied with a final order was passed on 28.05.2015. It has also been submitted before us that after the passing of the final order, various representations were made, details of which have been noticed by this Court in paragraph aforegoing. Left with no other option, the present writ petition was filed without any delay.

38. The main thrust of the arguments of learned counsel for respondent no.4 is that although a writ of habeas corpus would be maintainable but no order should be passed as three proceedings have already been initiated by the respondent no.4 and only after evidence is led before the Family Court, the issue of custody be decided. It is also urged before this Court that in cases of custody, interest of the minor is of paramount importance and, thus, the interest of the minor in the present case would be if the custody remains with the father as the mother, who is a working lady, would not be able to lookafter two minor children. It is also urged that the

petitioner should be called from the United States of America and an endeavour should be made for reconciliation.

39. We may note that this suggestion was put to the learned counsel for the petitioner, who submitted that he has already obtained instructions from the petitioner, who informed him that it is not possible for her to travel from United States of America to India and secondly keeping in view the conduct of respondent no.4 and the trauma and torture she had undergone, she does not wish to join the company of her husband. This statement was supported by the father of the petitioner, who was present in the Court. It is only thereafter we proceeded to hear the matter on merits.

40. Learned counsel for respondent no.4 has contested this petition on the ground that three proceedings are pending in India and no orders should be passed in the present writ petition and the decision by the Family Court where proceedings for custody are pending should be allowed to prevail over the order passed by the foreign court. This submission of the learned counsel for the respondent is without any force.

41. In a recent decision rendered by the Supreme Court of India in the case of Surya Vadanan v. State of Tamil Nadu & Ors., (2015) 5 SCC 450, the entire law has been discussed. To appreciate the law laid down in the case of Surya Vadanan(supra), it would be useful to notice some of the facts of the said case. The petitioner in the aforesaid matter approached the Supreme Court of India upon refusal of the Madras High Court to issue a writ of habeas corpus for the production of the children. The appellant had sought their production to enable him to take the children with him to the UK since they were wards of the court in the UK to enable the foreign court to decide the issue of their foreign custody. The Supreme Court held that the High Court was in error in declining to issue the writ of habeas corpus. The parties were married in Chennai in January. The

husband was resident and citizen of the UK at the time of marriage while his wife was a resident and citizen of India. Soon after marriage, she had joined her husband. Both acquired British citizenship and were working for gain in the UK. Both the children were born in the UK. Since the couple were having matrimonial problem, the wife left UK and came to India along with two children. Thereafter, she filed a petition for divorce under the Hindu Marriage Act. An application for custody of the children was also filed, but no orders were passed on the application. After the husband came to know of the same, the husband decided to initiate legal action in the High Court of Justice in U.K. The High Court of Justice in UK passed an order making the children as wards of the court till the time the order was vacated or varied and the wife was directed to return the children to the jurisdiction of the foreign court. The Madras High Court had taken a decision as we are being persuaded to by the learned counsel for the respondent that the welfare of the children and not the legal right of either parties were of paramount importance. The Madras High Court took the view that since custody of the children was with the wife, she was the legal guardian and it could not be said that the custody was illegal. The Supreme Court of India rejected the arguments of the wife and allowed the petition.

42. After discussing five recent and important judgments passed by the Supreme Court of India being (1) Sarita Sharma v. Sushil Sharma, (2000) 3 SCC 14; (2) Shilpa Aggarwal v. Aviral Mittal, (2010) 1 SCC 591; (3) V. Ravi Chandran(2) v. Union of India, (2010) 1 SCC 174; (4) Ruchi Majoo v.Sanjeev Majoo, (2011) 6 SCC 479 and (5) Arathi Bandi v. Bandi Jagadrakshaka Rao, (2013) 15 SCC 790, the Supreme Court allowed the petition.

43. The submission made by learned counsel for respondent no.4 that since three petitions have been filed by respondent no.4 in Delhi, i.e., (i) a petition under Section 9 of Hindu Marriage Act for restitution of conjugal rights filed on 27.5.2015; (ii) a suit for declaration that the decree passed by the Courts at U.S. is null and void; (iii) and the petition for grant of custody in the family court; the present writ petition should not be entertained and the order passed by the foreign court should not be given effect has been answered by the Supreme Court of India in paras 46 and 60 of Surya Vadanan (supra), which read as under:

"46. The principle of the comity of courts is essentially a principle of self-restraint, applicable when a foreign court is seized of the issue of the custody of a child prior to the domestic court. There may be a situation where the foreign court though seized of the issue does not pass any effective or substantial order or direction. In that event, if the domestic court were to pass an effective or substantial order or direction prior in point of time then the foreign court ought to exercise self- restraint and respect the direction or order of the domestic court (or vice versa), unless there are very good reasons not to do so.

60. It would have been another matter altogether if the Family Court had passed an effective or substantial order or direction prior to 13th November, 2012 then, in our view, the foreign court would have had to consider exercising self-restraint and abstaining from disregarding the direction or order of the Family Court by applying the principle of comity of courts. However, since the first effective order or direction was passed by the foreign court, in our opinion, principle of comity of courts would tilt the balance in favour of that court rather than the Family Court. We are assuming that the Family Court was a court of competent jurisdiction although we must mention that according to Surya, the Family Court has no jurisdiction over the matter of the custody of the two children of the couple since they are both British citizens and are ordinarily residents of the U.K. However, it is not necessary for us to go into this issue to decide this because even on first principles, we are of the view that the orders or directions passed by the

foreign court must have primacy on the facts of the case, over the Family Court in Coimbatore. No specific or meaningful reason has been given to us to ignore or bypass the direction or order of the foreign court." (emphasis added)

44. Applying the law to the facts of the present case, it may be noticed that all the three proceedings instituted by respondent no.4 were after the passing of the order by the foreign Court. We may notice that in the case of Surya Vadanan (supra), the domestic court was seized of the issue prior in time but did not pass an effective substantial order or direction. The Supreme Court held that it is the effective or substantial order or direction prior in point of time that is to be considered. As already noticed in this case, all the three proceedings instituted by respondent no.4 are after the order passed by the foreign court.

45. There is no quarrel to the proposition urged by learned counsel for respondent no.4 that the best interest and welfare of the child are of paramount importance. The Supreme Court in the case of Surya Vadanan (supra) also held that upon review of the five decisions there was complete unanimity that the best interest and welfare of the child are of paramount importance. The Supreme Court also held while considering the best interest and welfare of the child principle of comity of courts must also be considered. The Supreme Court also took into account the important relevant factor that is the „most intimate contact doctrine‟ and the „closest concern doctrine‟. It was further held that it would not be appropriate that a domestic court having much less intimate contact with a child as against a foreign court should take upon itself the onerous task of determining the best interest and welfare of the child. In this backdrop, the Court also held that the principle of „comity of courts‟ should be jettisoned, except for compelling reasons. We may note that in the

opening line of para 47, the Supreme Court referred to the five judgments in aforegoing para 42 noted above. It would be useful to refer to paras 47 to 56 of the judgment in the case of Surya Vadanan (supra), which read as under:

"47. From a review of the above decisions, it is quite clear that there is complete unanimity that the best interests and welfare of the child are of paramount importance. However, it should be clearly understood that this is the final goal or the final objective to be achieved - it is not the beginning of the exercise but the end.

48. Therefore, we are concerned with two principles in a case such as the present. They are (i) The principle of comity of courts and

(ii) The principle of the best interests and the welfare of the child. These principles have been referred to "contrasting principles of law"[32] but they are not 'contrasting' in the sense of one being the opposite of the other but they are contrasting in the sense of being different principles that need to be applied in the facts of a given case.

49. What then are some of the key circumstances and factors to take into consideration for reaching this final goal or final objective? First, it must be appreciated that the "most intimate contact" doctrine and the "closest concern" doctrine of Surinder Kaur Sandhu are very much alive and cannot be ignored only because their application might be uncomfortable in certain situations. It is not appropriate that a domestic court having much less intimate contact with a child and having much less close concern with a child and his or her parents (as against a foreign court in a given case) should take upon itself the onerous task of determining the best interests and welfare of the child. A foreign court having the most intimate contact and the closest concern with the child would be better equipped and perhaps best suited to appreciate the social and cultural milieu in which the child has been brought up rather than a domestic court. This is a factor that must be kept in mind.

50. Second, there is no reason why the principle of "comity of courts" should be jettisoned, except for special and compelling reasons. This is more so in a case where only an interim or an interlocutory order has been passed by a foreign court (as in the present case). In McKee which has been referred to in several

decisions of this court, the Judicial Committee of the Privy Council was not dealing with an interim or an interlocutory order but a final adjudication. The applicable principles are entirely different in such cases. In this appeal, we are not concerned with a final adjudication by a foreign court - the principles for dealing with a foreign judgment are laid down in Section 13 of the Code of Civil Procedure.[33] In passing an interim or an interlocutory order, a foreign court is as capable of making a prima facie fair adjudication as any domestic court and there is no reason to undermine its competence or capability. If the principle of comity of courts is accepted, and it has been so accepted by this court, we must give due respect even to such orders passed by a foreign court. The High Court misdirected itself by looking at the issue as a matter of legal rights of the parties. Actually, the issue is of the legal obligations of the parties, in the context of the order passed by the foreign court.

51. If an interim or an interlocutory order passed by a foreign court has to be disregarded, there must be some special reason for doing so. No doubt we expect foreign courts to respect the orders passed by courts in India and so there is no justifiable reason why domestic courts should not reciprocate and respect orders passed by foreign courts. This issue may be looked at from another perspective. If the reluctance to grant respect to an interim or an interlocutory order is extrapolated into the domestic sphere, there may well be situations where a Family Court in one State declines to respect an interim or an interlocutory order of a Family Court in another State on the ground of best interests and welfare of the child. This may well happen in a case where a person ordinarily resident in one State gets married to another person ordinarily resident in another State and they reside with their child in a third State. In such a situation, the Family Court having the most intimate contact and the closest concern with the child (the court in the third State) may find its orders not being given due respect by a Family Court in the first or the second State. This would clearly be destructive of the equivalent of the principle of comity of courts even within the country and, what is worse, destructive of the rule of law.

52. What are the situations in which an interim or an interlocutory order of a foreign court may be ignored? There are very few such situations. It is of primary importance to determine, prima facie,

that the foreign court has jurisdiction over the child whose custody is in dispute, based on the fact of the child being ordinarily resident in the territory over which the foreign court exercises jurisdiction. If the foreign court does have jurisdiction, the interim or interlocutory order of the foreign court should be given due weight and respect. If the jurisdiction of the foreign court is not in doubt, the "first strike" principle would be applicable. That is to say that due respect and weight must be given to a substantive order prior in point of time to a substantive order passed by another court (foreign or domestic).

53. There may be a case, as has happened in the present appeal, where one parent invokes the jurisdiction of a court but does not obtain any substantive order in his or her favour and the other parent invokes the jurisdiction of another court and obtains a substantive order in his or her favour before the first court. In such an event, due respect and weight ought to be given to the substantive order passed by the second court since that interim or interlocutory order was passed prior in point of time. As mentioned above, this situation has arisen in the present appeal - Mayura had initiated divorce proceedings in India before the custody proceedings were initiated by Surya in the U.K. but the foreign court passed a substantive order on the custody issue before the domestic court. This situation also arose in Ruchi Majoo where Ruchi Majoo had invoked the jurisdiction of the domestic court before Rajiv Majoo but in fact Rajiv Majoo obtained a substantive order from the foreign court before the domestic court. While the substantive order of the foreign court in Ruchi Majoo was accorded due respect and weight but for reasons not related to the principle of comity of courts and on merits, custody of the child was handed over to Ruchi Majoo, notwithstanding the first strike principle.

54. As has been held in Arathi Bandi a violation of an interim or an interlocutory order passed by a court of competent jurisdiction ought to be viewed strictly if the rule of law is to be maintained. No litigant can be permitted to defy or decline adherence to an interim or an interlocutory order of a court merely because he or she is of the opinion that that order is incorrect - that has to be judged by a superior court or by another court having jurisdiction to do so. It is in this context that the observations of this court in Sarita Sharma and Ruchi Majoo have to be appreciated. If as a general principle, the violation of an interim or an interlocutory order is not viewed

seriously, it will have widespread deleterious effects on the authority of courts to implement their interim or interlocutory orders or compel their adherence. Extrapolating this to the courts in our country, it is common knowledge that in cases of matrimonial differences in our country, quite often more than one Family Court has jurisdiction over the subject matter in issue. In such a situation, can a litigant say that he or she will obey the interim or interlocutory order of a particular Family Court and not that of another? Similarly, can one Family Court hold that an interim or an interlocutory order of another Family Court on the same subject matter may be ignored in the best interests and welfare of the child? We think not. An interim or an interlocutory is precisely what it is - interim or interlocutory - and is always subject to modification or vacation by the court that passes that interim or interlocutory order. There is no finality attached to an interim or an interlocutory order. We may add a word of caution here - merely because a parent has violated an order of a foreign court does not mean that that parent should be penalized for it. The conduct of the parent may certainly be taken into account for passing a final order, but that ought not to have a penalizing result.

55. Finally, this court has accepted the view[34] that in a given case, it might be appropriate to have an elaborate inquiry to decide whether a child should be repatriated to the foreign country and to the jurisdiction of the foreign court or in a given case to have a summary inquiry without going into the merits of the dispute relating to the best interests and welfare of the child and repatriating the child to the foreign country and to the jurisdiction of the foreign court.

56. However, if there is a pre-existing order of a foreign court of competent jurisdiction and the domestic court decides to conduct an elaborate inquiry (as against a summary inquiry), it must have special reasons to do so. An elaborate inquiry should not be ordered as a matter of course. While deciding whether a summary or an elaborate inquiry should be conducted, the domestic court must take into consideration:

(a) The nature and effect of the interim or interlocutory order passed by the foreign court.

(b) The existence of special reasons for repatriating or not repatriating the child to the jurisdiction of the foreign court.

(c) The repatriation of the child does not cause any moral or physical or social or cultural or psychological harm to the child, nor should it cause any legal harm to the parent with whom the child is in India. There are instances where the order of the foreign court may result in the arrest of the parent on his or her return to the foreign country.[35] In such cases, the domestic court is also obliged to ensure the physical safety of the parent.

(d) The alacrity with which the parent moves the concerned foreign court or the concerned domestic court is also relevant. If the time gap is unusually large and is not reasonably explainable and the child has developed firm roots in India, the domestic court may be well advised to conduct an elaborate inquiry."

46. Applying the law laid down to the facts of the present case. It is admitted that respondent no.4 was working for gain in USA prior to his marriage.

The petitioner after joining her husband post marriage is also working in the USA. Soon after the marriage, the parties decided to settle in USA. It is also evident from the fact that both the children including the elder son of the petitioner were born in the United States of America who are USA citizens. In this case, it is the husband who left the USA along with his son. We may also notice that all the three proceedings initiated by respondent no.4 were after the petition seeking custody was filed by the petitioner in the United States of America and after the passing of the order. Since the petitioner, respondent no.4 and their children were residing in the United States of America, including the elder son, who was residing in the United States of America since 28.9.2012 till March, 2015, in our view that the domestic court would have much less intimate contact with the child and much less class concern with the child as against the foreign court, which has already passed the order much prior in time.

47. No special or compelling reasons have been urged before us, for us to ignore the principles of comity of courts. We must respect the orders passed by the foreign court especially when there are no justifiable reasons and more particularly when respondent no.4 was represented before the foreign court through counsel and respondent no.4 submitted to the jurisdiction of the foreign court and the only objection raised was "objected to for returning the child to mother, sole legal and physical custody". Since, the child has remained in the United States of America since birth upto March, 2015, it can safely be said that the child is accustomed and has adapted himself to the social and cultural milieu different from that of India. [Also see Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu & Anr., (1984) 3 SCC 698].

48. Another aspect which requires consideration in this case is that respondent no.4 was represented before the court in United States of America as noticed in the paragraph aforegoing. Even during the course of the argument, no argument has been raised that the foreign court is either incompetent or incapable or has not passed a reasonable or fair decision in the best interest of the child and his welfare. Since the parties were residing in the United States of America, both the children are USA citizens, husband and wife were working for gain in the United States of America, the foreign court would have most intimate contact with the parties and their children and would have the closest concern with their well-being. No special reasons have been brought to our notice that an elaborate inquiry should be conducted in India.

49. In the case of V. Ravi Chandran(Dr.)(2) v. Union of India, (2010) 1 SCC 174, it was held that merely because a child had been brought to India from a foreign country does not necessarily mean that the domestic court should decide the custody issue and it would be in accord with principles of

comity of justice court to return the child back to the appellate court from which he or she has been removed.

50. For the reasons aforegoing, we allow the writ petition.

51. Respondent no.4 is directed to produce the child in Court on 3rd May, 2016, to enable this Court to issue directions for handing over custody of the child, Master Aadvik, to the mother through her father.

G.S.SISTANI, J

SANGITA DHINGRA SEHGAL, J APRIL 29, 2016 msr/pst