Karnataka High Court

Smt. Sneha ... vs State Of Karnataka on 22 December, 2021

Bench: Alok Aradhe, Anant Ramanath Hegde

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 22ND DAY OF DECEMBER 2021

                        PRESENT

          THE HON'BLE MR. JUSTICE ALOK ARADHE

                           AND

     THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

                 W.P.H.C. NO.145 OF 2019

BETWEEN:


SMT. SNEHA HARISHCHANDRASUMITHRA
W/O SRI. SUDHIR DAS VENKATA DAS
AGED ABOUT 37 YEARS
PRESENTLY R/AT SOBHA SUNSCAPE
UTTARAHALLI HOBLI
OFF KANAKAPURA ROAD
BANGALORE-560062.

PERMANENT R/O 120
CINDER ROAD
EDISON, NEW JERSEY-08820
UNITED STATE OF AMERICA.
                                           ... PETITIONER
(BY MR. ANANT MANDGI, SR. COUNSEL FOR
   MRS. GEETHA MENON, ADV.)

AND:


1.   STATE OF KARNATAKA
     REPRESENTED BY ITS SECRETARY
     DEPARTMENT OF HOME
     BANGALORE-560001.

2.   THE INSPECTOSR OF POLICE
     VIJAYANAGAR POLICE STATION
     BANGALORE-560040.
                               2



3.   MR. SUDHIR DAS VENKATA DAS
     AGED ABOUT 44 YEARS
     R/A NO.790, 7TH CROSS
     5TH MAIN, M C LAYOUT
     VIJAY NAGAR, BANGALORE-560040.

4.   DETENU
     MASTER VIHAAN SUDHIR RAO
     S/O MR. SUDHIR DAS VENKATA DAS
     AGED ABOUT 8 YEARS.

                                         ... RESPONDENTS
(BY MR. THEJESH P, HCGP FOR R1 & R2
    MR. NAGANAND S.S. SR. COUNSEL FOR
    MR. S. MANJUNATH, ADV., FOR R3)

                                  ---

      THIS WPHC IS FILED UNDER ARTICLE 226 AND 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE APPROPRIATE
ORDER, DIRECTION OR WRIT IN THE NATURE OF HABEAS
CORPUS DIRECTING 3RD RESPONDENT TO CAUSE THE
PRODUCTION OF THE PERSON DETENUE NAMELY VIHAAN SUDIR
RAO AGED 8 YEARS BEFORE THIS HON'BLE COURT AND HAND
OVER THE DETENUE TO THE LEGAL CUSTODY OF THE
PETITIONER. ISSUE APPROPRIATE ORDER, DIRECTION OR WRIT
IN THE NATURE OF HABEAS CORPUS DIRECTING THE 3RD
RESPONDENT TO CAUSE THE PRODUCTION OF THE PERSON
DETENUE NAMELY VIHAAN SUDHIR RAO AGED 8 YEARS TO THE
STATE OF NEW JERSEY, UNITED STATES OF AMERICA
FORTHWITH.

     THIS WPHC HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 16.12.2021, COMING ON FOR PRONOUNCEMENT
OF JUDGMENT THIS DAY, ALOK ARADHE J., DELIVERED THE
FOLLOWING:

                           ORDER

This writ petition has been filed seeking a writ of

habeas corpus seeking production of minor child viz., Vihaan

(hereinafter referred to as 'the son' for short) aged about 10

years inter alia on the ground that the child is in illegal

custody of the husband of the petitioner viz., respondent

No.3 (hereinafter referred to as 'the Respondent' for short).

In order to appreciate the grievance of the petitioner, it is

necessary to set out the facts from which this petition arises.

2. The petitioner is natural mother of the son viz.,

Master Vihaan. The marriage between the petitioner and the

respondent was solemnized as per hindu rights and customs

on 04.12.2008. Out of the wedlock, Master Vihaan Sudhin

Rao was born on 30.08.2011 at Bangalore. On 30.10.2014,

after the birth of their son, as the respondent was employed

with a company viz., Cognizant Technologies, the petitioner

and the respondent as well as the son relocated to New

Jersey, United States of America. The respondent was issued

a work Visa and the petitioner and the son were issued

dependant Visas. In the year 2016, the son was admitted to

James Medison Primary School in New Jersey in Kindergarten

and studied from Kindergarten to Grade II in the aforesaid

school. The petitioner, respondent as well as the son

secured a US Permanent Resident Green Card in October

2016.

3. The summer vacation of the school of the son

was from last week of June to first week of September 2019.

During vacation, the petitioner and the respondent intended

to travel to India along with their son to perform a religious

ceremony viz., 'Dhanvantri Homa' on 10.08.2019, before the

son turns 8. The petitioner could not accompany the

respondent and her son as she did not get leave from her

employer. The respondent and the son traveled to India on

24.07.2019 and were scheduled to return to U.S. on

26.08.2019 after performing the religious ceremony. The

petitioner traveled to India on 07.08.2019 for performing the

religious ceremonies of son on 10.08.2019 and was

scheduled to return to U.S. on 22.08.2019. The petitioner as

well as respondent performed 'Dhanvantri Homa' together.

4. It is the case of the petitioner that while she

boarded the flight for traveling to New Jersey, an e-mail

dated 26.08.2019 was received from the respondent, by

which the petitioner was informed that the son has been

admitted to NAFL School in Bangalore. It was further stated

in the e-mail that respondent has taken up a role with the

same company, which requires him to be present in

Bangalore. The petitioner was further informed that staying

in Bangalore, would enable the respondent to take care of

health of his father and he would be able to provide

conducive environment to the son for academic and overall

development. The petitioner thereupon sent a reply on

09.10.2019 by e-mail in which it was stated that respondent

has stealthily got the son admitted to NAFL school without

consent of the petitioner and the petitioner was not given

any clue about the plans of the respondent to stay back in

India. It was further stated that respondent is forcefully

retaining the son with the aim of separating him from his

mother. The petitioner therefore, requested the respondent

to send back the son to U.S.

5. The petitioner thereafter, approached the

superior court of New Jersey with a prayer that son be

handed over to her along with his passport and green card.

In the aforesaid petition, exparte order was passed on

03.12.2019 by which application preferred by the petitioner

was allowed and a direction was issued to the respondent to

return the child with his passport and green card. The

respondent however, did not return the son as per the

aforesaid order dated 03.12.2019. The Petitioner, thereupon,

filed this writ petition seeking a writ of Habeus Corpus in

which a bench of this court had passed an interim order

dated 29.01.2020, by way of an interim arrangement and the

son was permitted to remain with the respondent subject to

conditions mentioned therein. Against the aforesaid order

Special Leave Petition viz., SLP No.16112-14/2020 was filed,

which was disposed of by an order dated 20.10.2020 and this

court was requested to expeditiously decide the writ petition

within eight weeks. In the aforesaid factual background, this

petition arises for our consideration.

6. Learned Senior counsel for the petitioner

submitted that the petitioner is the natural mother of the

son. However, on a pretext of performing a religious function

in India, the child was brought to India and was admitted in

in NAFL School on 23.08.2019 without consent of the

petitioner. It is further submitted that the petitioner was not

even informed about the intention of the respondent to settle

in India. It is also argued that respondent is employed in a

U.S. company in India and admittedly earns Rs.62 Lakhs per

annum and can afford to travel to U.S. It is also urged that

the respondent should not be permitted to take advantage of

his own wrong and no premium can be put on the conduct of

the respondent, which is not fair, in the facts and

circumstances of the case. It is also urged that petition

seeking custody of the child under the provisions of

Guardians and Wards Act has been filed as a counterblast to

the order dated passed by Superior court at New Jersey. It

is contended that it is not the case of the respondent that in

case, the child shifts to U.S. it would be harmful to his

interest. It is also urged that welfare of the child is of

paramount consideration, which requires to be taken into

consideration. It is also argued that the child is a U.S. citizen

and India is a foreign country for him. In support of aforesaid

submissions, reliance has been placed on decisions 'NITHYA

ANAND RAGHAVAN VS. STATE (NCT OF DELHI)',

(2017) 8 SCC 454, 'V.RAVI CHANDRAN VS. UNION OF

INDIA (UOI) AND ORS.', MANU/SC/1826/2009,

YASHITA SAHU VS. STATE OF RAJASTHAN ANDO RS.',

(2020) 3 SCC 67 AND MRS. ELIZABETH DINSHAW VS.

ANAND M. DINSHAW AND ANR.', (1987) 1 SCC 42.

7. Learned Senior counsel for the respondent has

invited the attention of this Court to Sections 6 and 13 of

Hindu Minority and Guardianship Act, 1956 as well as Section

19 and 24 of the Guardians and Wards Act, 1890. It is

submitted that a writ of habeas corpus is not the right

remedy when the son is in the custody of natural guardian.

It is argued that Court in United States has no jurisdiction to

deal with the issue pertaining to custody of son and the order

passed by the Court in United States does not bind the

respondent. It is also urged that the Court at U.S. is forum

non-convenience for the respondent. It is also argued that

the petitioner and respondent as well as the son came

voluntarily and happily to India to perform a religious

ceremony and thereafter, the son is residing with the

respondent in India. It is also pointed out that no grounds in

the writ petition has been raised either with regard to

unsuitability of respondent as guardian of the son or about

the quality of education imparted to the son. It is also

contended that the order passed by the Court in U.S. cannot

be enforced by way of writ petition under Article 226 of the

Constitution of India.

8. It is also urged that the petitioner is a career

oriented women and has refused to stay with the respondent

along with his parents in Bangalore. It is also argued that the

petitioner would not would not be able to give necessary care

and attention to the son, as she is employed. It is also

pointed out that none of the parties to this petition are U.S.

citizen. It is further submitted that the issue of custody of

the son is pending adjudication in a proceeding under

Guardian and Wards Act at the instance of the respondent. It

is also urged that the contention with regard to health of

respondent is incorrect and respondent is healthy and fit

enough to take care of the son. It is submitted that

decisions relied upon by the learned counsel for the

petitioner are distinguishable and have no application to the

facts and circumstances of the case. In support of aforesaid

submissions, reliance has been placed on the decisions of the

Supreme Court in 'SARITA SHARMA Vs. SUSHEEL

SHARMA' 2000 CRL L J 1459, 'NITHYA ANANDA

RAGHAVAN Vs. STATE & ANR.' (2017) 8 SCC 454,

'PRATHEEK GUPTA Vs. SHILPI GUPTA' (2018) 2 SCC

309, 'TEJASWINI GAUD Vs. SHEKAR JAGDISH PRASAD'

(2019) 7 SCC 42 AND 'LAHARI SAKHAMURI Vs.

SOBHAN KODALI' (2019) 7 SCC 311.

9. By way of rejoinder submission, learned Senior

counsel for the petitioner submitted that son of the petitioner

is in the custody of patients viz., the respondent and his

parents the respondent in their counter affidavit has not

denied the fact of their illness. In this connection, our

attention has been invited to para 3, 4 and 5 of the counter

affidavit filed on behalf of the respondent. It is also urged

that child has been brought deceitfully to India and the

question of custody is different from guardianship. In support

of aforesaid submissions, reference has been made to

decisions in 'ATHAR HUSSAIN VS. SYED SIRAJ AHMED

AND OTHERS', (2010) 2 SCC 654 and 'SURINDER KAUR

SANDHU VS. HARBAX SINGH SANDHU', (1984) 3 SCC

698.

10. We have considered the submissions made by

learned counsel for the parties and have perused the record.

From close scrutiny of the decision rendered by a three judge

bench of the Supreme Court in NITHYA ANANDA

RAGAHVAN SUPRA following broad propositions which are

relevant for deciding the controversy in hand can be culled

out:

(i) When the child is removed from the foreign country

by a parent, the custody of the child would be

presumed to be legal and merely because there is an

order of the foreign court directing the mother to

produce the child before it, the custody of the child

would not be unlawful per se.

(ii) In such a case, the parent of the child who does

not have the custody of the child can be asked to

resort to the substantive remedy prescribed for getting

the custody of the child.

(iii) In dealing with the issue pertaining to the custody

of the child, the welfare of the child is of paramount

consideration and the court has to take into account

all the attending circumstances as well as totality of

situations.

(iv) If the child has been brought to India, the Courts

in India may conduct either a summary enquiry or an

elaborate enquiry on the question of custody. In case

of a summary enquiry, the Court may deem it fit to

order return of the child to the country from where

he/she was removed unless such return is shown to be

harmful to the child.

(v) It is open for the Court to decline the relief of

return of the child to the country from where the child

was removed irrespective of a pre existing order of

return of child by a foreign court.

(vi) The principle of Comity of Courts cannot be given

primacy or more weightage for declining the matter of

custody or for return of the child to the native State.

11. The aforesaid decision in the case of NITHYA

ANANDA RAGHAVAN SUPRA was considered in LAHARI

SAKHAMURI VS SOBHAN KODALI and in Paragraph 41, it

was held as under:

The essence of the judgment in Nithya Anand

Raghavan's case(supra) is that the doctrines of comity

of courts, intimate connect, orders passed by foreign

courts having jurisdiction in the matter regarding

custody of the minor child, citizenship of the parents

and the child etc. cannot override the consideration of

the best interest and the welfare of the child and that

the direction to return the child to the foreign

jurisdiction must not result in any physical, mental,

psychological, or other harm to the child.

The aforesaid decisions in NITHYA ANANDA

RAGHAVAN and LAHARI SAKHAMURI SUPRA, were again

considered and relied upon in TEJASWINI GAUD VS

SHEKHAR JAGDISH PRASAD and in YASHITA SAHU VS

STATE OF RAJASTHAN SUPRA

12. On the touchstone of the aforesaid legal principles

which have been extracted for the facility of ready reference,

we may advert to the facts of the case in hand. The solitary

issue that arises for our consideration in this writ petition is

with regard to the custody of the son during the pendency of

proceeding under Guardian and Ward Act, 1890. The

principle of comity of court is salutory in nature, yet it cannot

override the consideration of the best interest and the

welfare of the child. The principle of comity of courts in the

facts of the case has to yield to paramount consideration

overriding consideration i.e., the interest and welfare of the

child, which has to be answered in the facts of each case.

13. The issue with regard to the best interest and

welfare of the child has to be answered bearing in mind the

totality of facts and circumstances of each case. In the

instant case, following circumstances / reasons have to be

taken into account:

(i) Admittedly, the son was born on 30.08.2011 at

Bangalore. The son is not a U.S citizen and is residing in

India for the past 2 years and 5 months and has developed

roots here.

(ii) The son is studying in a school at Bangalore. In

the petition, neither any averments have been made nor any

grounds have been urged with regard to unsuitability of the

respondent to take care of son.

(iii) The petitioner is employed and is working in U.S.

The son will have to live alone with the petitioner. The child

presently is residing with the respondent and his grand

parents as well as the relatives who are in Bangalore in an

atmosphere which is conducive to his overall growth.

(iv) The brother of the petitioner with his wife is also

residing at Bangalore. Though in the written submissions

furnished after the conclusion of the hearing, the petitioner

has stated that she is working from home and has a flexible

job, however, no such averment has been made in the writ

petition.

(v) Though a stand has been taken in the written

submissions that petitioner has cousins in U.S. who have

children around the age of the child and who all stay in the

same vicinity, yet, no such averment was made in the writ

petition and no particulars have been furnished with regard

to cousins of the petitioner as well as their children in

support of their plea that the child will have the company of

his cousins and relatives.

(vi) After the hearing of the writ petition had

commenced, the petitioner filed an affidavit in which a stand

was taken that parents of respondent as well as respondent

are not maintaining good health and is suffering from renal

disorder. The aforesaid averment has been controverted by

filing an affidavit on behalf of the respondent and certificates

issued by the doctor has also been annexed in support of the

contention that respondent is hale and hearty. It has also

been asserted in the counter affidavit that he is in a fit

condition to take care of the child.

(vii) The academic session in U.S. usually commences

in the month of August every year. Therefore, in case, the

petitioner is permitted to take the child to U.S., he would

lose one academic year.

(viii) As per the assertion made by the respondent, the

child along with respondent and his grand parents stays at

Thanisandra and the extended family of the respondent visit

their house in Vijayanagar during weekends. Therefore, it

cannot be said that child has no stable residence and is

always being moved from one place to another.

(ix) At this point of time, if the custody of the child is

given to the petitioner, it would suddenly and abruptly

disturb the child's daily routine and would interrupt his

education in formative years.

(x) The presence of grand parents and their love and

affection for the son is needed for better growth of the child

and the same would not be available in U.S. where the

petitioner is staying alone.

14. For the aforementioned reasons, in our opinion, in

the best interest of the child, he should be allowed to stay

with the respondent in India till decision of the issue

pertaining to custody of son in a proceeding under Guardian

and Wards Act, 1890 is adjudicated. Needless to state that

the petitioner is at liberty to prosecute her remedy in the

courts in U.S. In view of law laid down by Supreme Court in

YASHITA SAHU SUPRA, it is trite law that extraordinary

jurisdiction of this court can be invoked in the best interest of

the child. It is also well settled in law that concept of

guardianship of a ward is essentially different from custody of

the ward. The court has to ensure that sufficient visitation

rights to a parent who is not given child's custody should be

granted so that the child may not loose social, physical and

psychological contact with her. The parent who is denied the

custody of the child should have access to the child specially

where both parents live in different countries. The parents

under an obligation to provide for an environment which is

reasonably conducive to the development of the child. It is in

the best interest of the child to have parental care of both

the parents if not joint then atleast separate. Therefore, in

the facts and circumstances of the case and bearing in mind

the best interest of the child, we issue following directions:

(i) The mother is entitled to communicate with the child through phone / video call / skype etc. at any time.

(ii) The respondent shall provide the school calendar of the child with list of holidays

along with dates of examination to the petitioner.

(iii) The respondent shall keep informed the petitioner of day to day developments of the son on a weekly basis and aforesaid communication will be sent to the petitioner on a Sunday every week.

(iv) The respondent shall provide tickets by air to the petitioner every six months to enable her to travel to India to meet the child at her convenience. The petitioner shall intimate her desire to visit India to meet the child to respondent in advance to enable him to procure the tickets.