Madras High Court
23124 vs 9 The Commissioner Of Police on 21 January, 2021
H.C.P. No.654 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON 06.10.2021
DELIVERED ON 28.10.2021
CORAM:
THE HON’BLE MR. JUSTICE P.N. PRAKASH
and
THE HON’BLE MS. JUSTICE R.N. MANJULA
H.C.P. No.654 of 2021
Girish Arunagiri
American Citizen
S/o Dr. M. Arunagiri
Having occupation at
Business Development Financial Service
Amazon Web Services (AWS)
Hemdon, Virginia
United States of America
Also at:
23124, Newcut Road
Clarksburg
MD 20871 Petitioner
vs.
1 Mahalakshmi Senthil Nathan
American Citizen
23124, Newcut Road
Clarksburg, MD 20871
Now at India:
Flat No.5-B, Mayflower Silver Ridge
62 East Venkataswamy Road
R.S. Puram
Coimbatore 641 002
Tamil Nadu State, India
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H.C.P. No.654 of 2021
2 Minor Girl Shakthi Girish (12 years)
American Citizen
D/o Girish Arunagiri
Now, at India under the custody of
Mahalakshmi Senthil Nathan
Flat No.5-B, Mayflower Silver Ridge
62 East Venkataswamy Road
R.S. Puram
Coimbatore 641 002
Tamil Nadu State, India
3 Minor child Sharadha Girish (3 years)
American Citizen
D/o Girish Arunagiri
Now, at India under the custody of
Mahalakshmi Senthil Nathan
Flat No.5-B, Mayflower Silver Ridge
62 East Venkataswamy Road
R.S. Puram
Coimbatore 641 002
Tamil Nadu State, India
4 Dr. S.S. Senthil Nathan (68 years)
Doctor at R.S. Hospital
No.6, 224, Sambandam Road E
R.S. Puram (West)
Coimbatore – 641 002
Tamil Nadu State, India
Residing at:
Flat No.5-B, Mayflower Silver Ridge
62 East Venkataswamy Road
R.S. Puram
Coimbatore 641 002
Tamil Nadu State, India
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H.C.P. No.654 of 2021
5 Rajeswari Senthil Nathan (64 years)
W/o Dr. S.S. Senthil Nathan
Residing at:
Flat No.5-B, Mayflower Silver Ridge
62 East Venkataswamy Road
R.S. Puram
Coimbatore 641 002
Tamil Nadu State, India
6 The Secretary
Ministry of Home Affairs
Government of India
New Delhi – 110 001, India
7 The Secretary
Foreign Affairs
Ministry of Foreign Affairs
Government of India
New Delhi – 110 001
India
8 The Foreigners Registration Office (FRO)
Lok Naik Bavan
New Delhi – 110 001
9 The Commissioner of Police
Coimbatore City
Office of the Commissioner of Police
Coimbatore – 641 018 Respondents
Habeas Corpus Petition filed under Article 226 of the Constitution of India
to direct the ninth respondent, viz., the Commissioner of Police, Coimbatore City,
Tamil Nadu, to produce the bodies of respondents 1 to 3 before this Court by
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H.C.P. No.654 of 2021
removing them from the custody of the fourth and fifth respondents, for their due
safe return to the United States of America, since they are the citizens of the said
country.
For petitioner Mr. N. Jothi
for Mr. S. Vinod
For RR 1 – 5 Mr. I. Abrar Mohammed Abdullah
For RR 6 – 8 Mrs. S.P. Arthi
Sr. Panel Counsel for Central. Govt.
For R9 Mr. R. Muniyapparaj
Additional Public Prosecutor
------
ORDER
P.N. PRAKASH, J.
This is a petition for habeas corpus filed by the father seeking the return of
his two minor children to the United States of America. For the sake of
convenience, Girish Arunagiri, the petitioner herein and Mahalakshmi Senthil
Nathan, the first respondent herein, who are spouses, will be referred to as
Arunagiri and Mahalakshmi, respectively.
2 The minimum uncontroverted facts that resulted in the dispute
betwixt the spouses, viz., Arunagiri and Mahalakshmi, qua custody of their two
daughters, viz., Shakthi Girish and Sharadha Girish, are as under:
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2.1 Arunagiri’s father and Mahalakshmi’s father are leading orthopaedic
surgeons in Tamil Nadu. After completing his higher education in the United
States, Arunagiri was gainfully employed there since February 2004. He married
Mahalakshmi, for visa purposes, on 14.06.2006. On 15.01.2007, their marriage
was customarily solemnized at Coimbatore, Tamil Nadu. The couple left for the
United States shortly thereafter.
2.2 Their first daughter Shakthi Girish was born in India on 15.01.2009
and their second daughter Sharadha Girish was born in the United States on
07.09.2017, on account of which, the latter became a naturalised American citizen.
Subsequently, on 14.02.2020, Arunagiri, Mahalakshmi and Shakthi Girish became
American citizens and acquired American passports.
2.3 The family was living in the State of Maryland. Mahalakshmi left the
United States on 11.09.2020 with her two children and reached Coimbatore on
13.09.2020 for visiting her ailing grandmother. Arunagiri came to India on
18.12.2020 and went to meet Mahalakshmi and his children in Mahalakshmi’s
natal home in Coimbatore on 21.12.2020.
2.4 According to Arunagiri, he was not able to meet his children and his
father-in-law told him that he has no intention of sending his daughter and
granddaughters to the United States.
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2.5 According to Mahalakshmi, Arunagiri came to her house in
Coimbatore on 21.12.2020, picked up a quarrel with her, demanding partition of
her parents’ properties and in that quarrel, he manhandled her and their children.
In this connection, a police complaint was lodged by Mahalakshmi to the
A.W.P.S. (West), Coimbatore City, which was registered on 15.01.2021 in CSR
No.16 of 2021.
2.6 Arunagiri returned to the United States on 10.01.2021. When he
learnt that Mahalakshmi had admitted their elder daughter Shakthi Girish in a
school in Coimbatore, it became clear to him that Mahalakshmi has no idea of
returning to the United States and so, he issued a legal notice on 18.01.2021
through his advocate, to Mahalakshmi, informing her of his intention to initiate
custody proceedings in America in the Circuit Court for Montgomery County,
Maryland (for brevity “the Maryland Court”). Mahalakshmi replied to the notice
on 20.01.2021 and on the same day, i.e., on 20.01.2021, Arunagiri filed a petition
for custody in the Maryland Court.
2.7 On 21.01.2021, Hon’ble Bibi M. Berry, Judge of the Maryland Court,
directed Arunagiri and Mahalakshmi, to appear via video conferencing in her
Court. After hearing them extensively, the learned judge passed an order directing
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Mahalakshmi to bring the children to the United States by 04.02.2021. A copy of
the order was emailed to both Arunagiri and Mahalakshmi.
2.8 On 02.02.2021, Mahalakshmi filed a petition in G.W.O.P. No.316 of
2021 in the Family Court, Coimbatore, for guardianship of her children invoking
Section 14 of the Guardians and Wards Act, 1890. Further, on 05.02.2021, she
initiated proceedings under the Protection of Women from Domestic Violence Act
in D.V.A. No.17 of 2021 in the Court of the Special Judicial Magistrate,
Coimbatore, against Arunagiri and his parents, alleging acts of domestic violence.
2.9 On 26.02.2021, a staff from the US Consulate in Chennai, conducted
a virtual welfare and whereabouts visit for the two children, Shakthi Girish and
Sharadha Girish, in order to find out their whereabouts and well-being as they are
US citizens.
2.10 On 03.03.2021, the Indian visa that was given to Mahalakshmi and
her two children expired.
2.11 On 08.03.2021, Arunagiri filed the present habeas corpus petition
seeking custody of the children, based on the judgment of the Supreme Court in
Surya Vadanan vs. State of Tamil Nadu and others [(2015) 5 SCC 450].
2.12 Since the children did not return to the United States by 04.02.2021
as ordered by the Maryland Court, Arunagiri initiated contempt proceedings on
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19.03.2021 and summons was issued to Mahalakshmi for her appearance in person
on 14.05.2021.
2.13 However, Mahalakshmi sent her response to the contempt petition on
06.05.2021 alleging that Arunagiri used to physically and mentally abuse the
children and therefore, their first daughter Shakthi Girish is scared to go to him.
She further alleged that Arunagiri was in the habit of excessive drinking and that
he used to abuse her and their children.
2.14 On 12.05.2021, Mahalakshmi made a request to the Maryland Court
for appearance via video conferencing which was rejected and she was directed to
appear in person on 14.05.2021.
2.15 On 14.05.2021, the Maryland Court found that Mahalakshmi had
committed contempt, but, did not issue any warrant to her, inasmuch as, according
to Arunagiri, he did not want to precipitate the matter any further.
2.16 On 14.06.2021, Mahalakshmi filed a suit in O.S. No.55 of 2021 in the
Additional Family Court, Coimbatore, seeking, inter alia, a declaration that the
proceedings before the Maryland Court are sans jurisdiction and to set aside the ex
parte interim custody order dated 21.01.2021 passed by the Maryland Court.
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2.17 On 16.06.2021, Mahalakshmi filed a writ petition in W.P. No.10128
of 2021 before this Court for grant of Indian citizenship to her and the children .
This writ petition is stated to be pending as on date.
3 In these proceedings, Mahalakshmi filed a counter affidavit dated
12.06.2021 levelling various allegations against Arunagiri, for which, a reply
affidavit dated 28.06.2021 was filed by Arunagiri, refuting the same.
4 On our direction, Mahalakshmi appeared before us, along with her
two children, on 07.09.2021. On an enquiry made by us, she stated that she is not
willing to take the children to the United States.
5 Heard Mr. N. Jothi, learned counsel representing Mr. S. Vinod,
learned counsel on record for Arunagiri, Mr. I. Abrar Mohammed Abdullah,
learned counsel for respondents 1 to 5 and Mr. R. Muniyapparaj, learned
Additional Public Prosecutor appearing for the ninth respondent.
6 Mr. N. Jothi, learned counsel for Arunagiri, drew our attention to the
oath of allegiance taken by Mahalakshmi and her children in the United States
while obtaining US citizenship and laid emphasis on the following passage from
the said pledge of allegiance:
“That I will support and defend the constitution and the laws of
the United States of America against all enemies, foreign and
domestic, that I will bear true faith and allegiance to the same.”
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7 He contended that for 14 years, the couple was living happily in the
United States and their elder daughter Shakthi Girish was studying in a school in
the United States right from the beginning. He denied the various allegations that
were leveled by Mahalakshmi in her counter affidavit via a reply affidavit.
8 He further contended that both parents and their two children are US
citizens and therefore, the unitary act of Mahalakshmi in bringing the children to
India and overstaying in India is illegal and that she should have to participate in
the pending custody proceedings in the Maryland Court and not initiate frivolous
litigations in Coimbatore.
9 As regards the allegation of Mahalakshmi that she was subjected to
abuse in the United States by Arunagiri, Arunagiri, in his reply affidavit, has
stated that some member of Mahalakshmi’s family used to stay with them in the
United States and has given the details of the same in paragraphs 6 and 7 of his
reply affidavit which read as under:
“6 To nullify this incorrect statement, it is submitted that a person
from her family always used to be at America with our family as per the details
given in the table hereunder:
TABLE
“Mahalakshmi’s father, mother and aunt’ Dr. Kalanithi Ramasamy travelled to
the US and stayed with the family beginning the month of August 2017 to
assist with Sharadha’s birth in September, 2017. Ever since then (August
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2017), either Mahalakshmi’s mother Rajeswari or Mahalakshmi’s relative,
Shanthi Karunagaran (Cell # 91 97892 31368) (who is also employed by
Mahalakshmi’s father at his hospital as a Receptionist) had lived with them
until September, 2020.
Here’s the timeline of their stay with the family of Mahalakshmi and girish in
America:
1. August 2017 to January 2018 – Rajeswari
2. January 2018 to June 2018 – Shanthi
3. June 2018 to July 2018 – Mahalakshmi had travelled to India
with the children.
4. July 2018 to December 2018 – Rajeswari
5. December 2018 – June 2019 – Shanthi
6. June 2019 – July 2019 – Mahalakshmi, Girish and the two
children visited India for two weeks.
7. July 2019 – January 2020 – Rajeswari
8. January 2020 – September 2020 – Shanthi”
7 As mentioned above, there was always a third person from
Mahalakshmi’s family continuously residing with Mahalakshmi, Girish and the
children since August 2017 in America. In such circumstances, where is the
question of ill-treatment to her or to children? Where is the proof for that? Why
were there no complaints ever made to law enforcement in America during this 3
year and 1 month period?”
10 As regards the allegation that he came to Coimbatore on 21.12.2020
and picked up a quarrel with Mahalakshmi demanding partition of her parents’
properties, Arunagiri has stated in paragraphs 8 and 9 of his reply affidavit as
under:
“8. As far as para no.5 of the counter is concerned, her false
statement of “demanding a partition of the properties” is again now completely
fabricated. It is made only to cause prejudice against this petitioner. The alleged
criminal complaint to which CSR 16/2021 was obtained on 15th January 2021 is
24 days after the alleged incident. The said CSR 16/2021 seems to have been
obtained only to use it in her pleadings before various Courts which she now
belatedly commenced.
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9. In fact, this petitioner is fully aware that as foreigners, we
have got legal restrictions in owning or acquiring immovable properties or assets
in India without Central Government’s permission. I am also aware of the legal
position on this issue and the effect of a special enactment called “the Foreign
Exchange Management Act, 1999.” This Act, Rules and Orders issued under the
Act, prohibits foreigners to acquire assets in India without Central Government’s
permission. Hence, the question of demanding partition, that too on that night is
nothing but a “cock and bull story”.
11 In support of his contentions, Mr. Jothi placed reliance on the
following judgments:
Mrs. Elizabeth Dinshaw vs. Arvand M. Dinshaw
1 (1987) 1 SCC 42
& anr.
Nithya Anand Raghavan vs. State (NCT of Delhi)
2 (2017) 8 SCC 454
and another
3 Lahari Sakhamuri vs. Sobhan Kodali (2019) 7 SCC 311
4 Yashita Sahu vs. State of Rajasthan and others (2020) 3 SCC 67
12 Per contra, Mr. Abrar Mohammed Abdullah, learned counsel for
Mahalakshmi, submitted that Mahalakshmi was not given a fair opportunity
during the hearing on 21.01.2021 in the video conferencing by the Maryland Court
and therefore, she was forced to file an anti-suit injunction in O.S.No.55 of 2021
in the Additional Family Court, Coimbatore, based on the judgment of the
Supreme Court in Madhavendra L. Bhatnagar vs. Bhavna Lall [(2021) 2 SCC
755]. He further submitted that Mahalakshmi will not get complete justice in the
Maryland Court and that apart, she does not have any relative there to go and
litigate. It is his further contention that the comity of court principle has slowly
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given way to the principle of paramount welfare of children. In support of this
contention, he took this Court through the various passages in the judgment of the
Supreme Court in Nithya Anand Raghavan (supra).
13 We have considered the rival submissions and carefully examined the
material on record.
14 The preliminary question is whether a habeas corpus petition is
maintainable to secure the custody of the two children and direct their return to the
United States. We find that this issue is no longer res integra, and is settled by a
decision of the Supreme Court in Yashita Sahu (supra), wherein, it is observed
thus:
“10. It is too late in the day to urge that a writ of habeas corpus is not
maintainable if the child is in the custody of another parent. The law in this regard
has developed a lot over a period of time but now it is a settled position that the
court can invoke its extraordinary writ jurisdiction for the best interest of the
child. This has been done in Elizabeth Dinshaw v. Arvand M. Dinshaw [Elizabeth
Dinshaw v. Arvand M. Dinshaw, (1987) 1 SCC 42 : 1987 SCC (Cri) 13] , Nithya
Anand Raghavan v. State (NCT of Delhi) [Nithya Anand Raghavan v. State (NCT
of Delhi), (2017) 8 SCC 454:(2017) 4 SCC (Civ) 104] and Lahari
Sakhamuri v. Sobhan Kodali [Lahari Sakhamuri v. Sobhan Kodali, 2019) 7 SCC
311 : (2019) 3 SCC (Civ) 590] among others. In all these cases, the writ petitions
were entertained. Therefore, we reject the contention of the appellant wife that the
writ petition before the High Court of Rajasthan was not maintainable.”
15 We also notice that the basis of our jurisdiction under Article 226 of
the Constitution of India, in a case of this nature, is essentially predicated on the
best interests of the children. We have, therefore, consciously refrained from being
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sidetracked into the matrimonial allegations levelled by the spouses against each
other in their respective affidavit and counter affidavit.
16 In cases of child custody, the jurisdiction of the Court is essentially
parens patriae. The welfare and best interests of the children must be the pre-
dominant consideration. In Elizabeth Dinshaw (supra), the Supreme Court has
observed as under:
“Whenever a question arises before a 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.”
When a writ of habeas corpus is sought to direct the return of a child to another
country, the Court would also examine which of the two Courts (the domestic or
foreign) would have the most intimate connect with the minor for the purposes of
securing the child’s safety and well-being. In Surinder Kaur Sandhu vs.
Harbax Singh Sandhu [(1984) 3 SCC 698], the Supreme Court dealt with an
identical case of spouses who had set up their matrimonial home in England. Their
child was a British citizen. The Court, speaking through Chief Justice
Y.V.Chandrachud, opined thus:
“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 offsprings of marriage. The spouses in
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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.”
(emphasis supplied by us)
17 Keeping in mind the best interests of the minor children and the
“most intimate connect” principle, the line of enquiry in a case of this nature has
been set out by the Supreme Court in V. Ravi Chandran (Dr.) (2) vs. Union of
India and others [(2010) 1 SCC 174], in the following passage:
“29. While dealing with a case of custody of a child removed by a
parent from one country to another in contravention of the orders of the court
where the parties had set up their matrimonial home, the court in the country to
which the child has been removed must first consider the question whether the
court could conduct an elaborate enquiry on the question of custody or by dealing
with the matter summarily order a parent to return custody of the child to the
country from which the child was removed and all aspects relating to the child's
welfare be investigated in a court in his own country. Should the court take a view
that an elaborate enquiry is necessary, obviously the court is bound to consider the
welfare and happiness of the child as the paramount consideration and go into all
relevant aspects of welfare of the child including stability and security, loving and
understanding care and guidance and full development of the child's character,
personality and talents. While doing so, the order of a foreign court as to his
custody may be given due weight; the weight and persuasive effect of a foreign
judgment must depend on the circumstances of each case.
30. However, in a case where the court decides to exercise its jurisdiction
summarily to return the child to his own country, keeping in view the jurisdiction
of the court in the native country which has the closest concern and the most
intimate contact with the issues arising in the case, the court may leave the aspects
relating to the welfare of the child to be investigated by the court in his own native
country as that could be in the best interests of the child. The indication given in
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McKee v. McKee [1951 AC 352 : (1951) 1 All ER 942 (PC)] that there may be
cases in which it is proper for a court in one jurisdiction to make an order
directing that a child be returned to a foreign jurisdiction without investigating the
merits of the dispute relating to the care of the child on the ground that such an
order is in the best interests of the child has been explained in L (Minors), In re
[(1974) 1 WLR 250 : (1974) 1 All ER 913 (CA)] and the said view has been
approved by this Court in Dhanwanti Joshi [(1998) 1 SCC 112] . Similar view
taken by the Court of Appeal in H. (Infants), In re[(1966) 1 WLR 381 (Ch & CA)
: (1966) 1 All ER 886 (CA)] has been approved by this Court in Elizabeth
Dinshaw [(1987) 1 SCC 42 : 1987 SCC (Cri) 13].”
18 To complete the picture, we also notice a mild jurisprudential shift in
Nithya Anand Raghavan (supra) and Kanika Goel v. State (NCT of Delhi)
[(2018) 9 SCC 578], wherein, it was held that the doctrine of “intimate and closest
concern” are merely of persuasive relevance when the child is uprooted from its
native country and taken to a place to encounter alien environment, language,
custom, etc. with the portent of mutilative bearing on the process of its overall
growth and grooming; the adjudicative mission in such cases has the obligation to
secure the unreserved welfare of the child as the paramount consideration. These
principles have been cited and reiterated in Lahari Sakhamuri (supra). In its
recent decision in Nilanjan Bhattacharya vs. State of Karnataka [2021 SCC
Online SC 928], the Supreme Court opined that where a child has been removed
from its native country to India, it would be in the best interests of the child to
return to its native country if the child has not developed roots in India and no
harm would be caused to the child on such return. It was held that where one
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parent had acted with sufficient promptitude, the Court is only required to conduct
a summary inquiry to ascertain whether there is any harm if the child returns to the
United States, where he was born and has been brought up. The Court is required
to engage in an elaborate inquiry on the merits of the case, only if a considerable
time has passed since the child has been removed and if the child has developed
roots in India. In either event, the primary consideration of the Court is to
ascertain the welfare of the child.
19 Keeping the aforesaid jurisdictional parameters in mind, we are
required to decide as to whether we should conduct a summary enquiry or an
elaborate enquiry. In the facts and circumstances of this case, we are of the
considered view that a summary enquiry would suffice for the following reasons:
a) The couple was living in the United States for 14 years and the
two children, grew up in the U.S, from their birth. Both
children are American citizens. Shakthi Girish, the elder
daughter, was also attending a local school in Maryland.
b) Mahalakshmi left the United States for India with her children
on 11.09.2020 to visit her ailing grandmother and reached
Coimbatore on 13.09.2020, after which, she decided to remain
in Coimbatore with her children. When she got admission for
her elder daughter in a school in Coimbatore, Arunagiri
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immediately approached the Maryland Court on 20.01.2021
seeking custody of the children. The Maryland Court passed an
order on 21.01.2021 directing Mahalakshmi to return her
children to the United States by 04.02.2021. Mahalakshmi
flouted this order resulting in Arunagiri approaching this Court
on 08.03.2021 by filing the present petition for a writ of habeas
corpus.
c) On any view of the matter, considering the facts set out above,
we are of the view that Arunagiri had acted with sufficient
alacrity in approaching this Court for redress. It cannot possibly
be said that the two children, who have spent their entire lives
in the United States prior to 11.09.2020, have had sufficient
time to develop roots in India over the past few months and get
acclimatized to the Indian environment. On the contrary, we
find that they have been uprooted from their natural
environment and social circles in the United States which was,
after all, their home prior to 2020.
d) In Nilanjan Bhattacharya (supra), the Supreme Court dealt
with a case, the facts of which approximate very closely to the
case on hand. Speaking for the Court, D.Y. Chandrachud, J has
observed thus:
“The Court has come to the conclusion that
the welfare of the child would best be served by
his accompanying the appellant to the US. The
child was born in the US and is a citizen of the US
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by birth. The appellant has taken the responsibility
for shared parenting while the child was in the US.
The respondent left US shores for a brief sojourn
but has unilaterally resolved not to return. Both
the appellant and the respondent are qualified
professionals who have been employed in the US
and the appellant continues to be employed there.
Faced with the departure of his spouse and child,
the appellant moved the court of jurisdiction in
New Jersey for orders of temporary custody. He
has followed their tracks to India and invoked
judicial remedies here. The child has remained
here for a short period and it would not be
contrary to his interest to allow the appellant to
take him back.” (emphasis supplied)
e) For the aforesaid reasons, having regard to the totality of
circumstances, we are of the considered view that it would be
in the best interests of the minor children if they are directed to
be returned to the United States and placed in the jurisdiction of
the Maryland Court, which would then be best placed to pass
such orders as may be necessary to secure their safety and well-
being. The best interest of the children, being of paramount
importance, will be served if they return to United States and
enjoy their natural environment with love, care and attention of
their parents and to resume school and be with their teachers
and peers.
20 Mr. Abrar Mohammed Abdullah, learned counsel for the respondent
contended that Hon’ble Judge Bibi M. Berry did not give a fair opportunity to
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Mahalakshmi in the proceedings before the Maryland Court on 21.01.2021. We
carefully perused the proceedings of the Maryland Court and found that the
learned Judge has interacted extensively with Mahalakshmi and has explained to
her as to why she is required to bring back the children to the United States. For
instance, we extract the following exchange from the transcript between
Mahalakshmi and the learned Judge:
“Ms. Nathan No, like that, that is actually wrong, it says in the order because like I
am the mom and I’ve been taking care of the kids, like I have been
doing this all the time. That is like--
The Court I appreciate that, Ms. Nathan. I appreciate that. But you don’t get to
make that choice. You don’t get to decide that these children are
going to be taken thousands of miles away from their home, and from
the other parent, just because you want to do it. You don’t get to do
that, okay?
So, I understand a complaint for custody was filed. You have the
option certainly of filing a counter-complaint, and once you are
served, I don’t know if you’ve been served, and participate in the
action in Maryland. And you may very well wind up with custody,
but I can let you know right now if this the way that you do this, you
may very well lose custody of your children.
So, I am going to issue, based on what I’ve been advised, the motion
that I’ve heard, what I have been advised by Mr. Shipe, what I’ve
been advised by you. I am going to give you some time to get back
here, because I know it could be difficult to do it immediately. And
what I would propose is the children must be returned to their
residence in the State of Maryland by, what’s today, February 4th.
That gives you two weeks to get your tickets. That’s more than
enough time to get your tickets and get back here with the children.
If you don’t do it, that is certainly a decision you can make, but I
would strongly encourage you not to do that.”
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21 After examining the record, we are unable to countenance the
submission of Mr. Abrar Mohammed Abdullah that Mahalakshmi was not given a
fair opportunity before the Maryland Court. On the contrary, Mahalakshmi has, in
fact, told the Judge that she would return to the United States by March or first
week of April 2021. The relevant exchange from the transcript between
Mahalakshmi and the Judge is as under:
The Court: Okay, when do you plan on returning, Ms. Nathan?
Ms. Nathan: I would say like end of March or first week of April.
The Court: Is Mr. Arunagiri not to see his children for the next four
months, ma’am? Is that your suggestion?
22 Since the learned Judge felt that March 2021 was too long a period,
she directed Mahalakshmi to return the children to the United States by
04.02.2021. What has really troubled us is that, after these proceedings before the
Maryland Court, Mahalakshmi immediately filed a police complaint against
Arunagiri and also followed it up with a complaint under the Protection of Women
from Domestic Violence Act against him and his parents. In the process, she has
successfully ensured that the sword of arrest in India is kept hanging over
Arunagiri’s head eternally so that he does not venture to come to India to even see
the children, lest, he should end up in a legal quagmire.
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23 We are constrained to pen down our lament on the sorry state of
affairs which we have observed, of late. A peculiar trend exists in matrimonial
cases where a chain reaction is triggered with a complaint for cruelty followed up
by a complaint under the Protection of Women from Domestic Violence Act,
followed by petitions for divorce and maintenance, and in some extreme cases,
even a complaint under the POCSO Act. A barrage of these petitions is oftentimes
filed with oblique and tainted motives of denying custody or visitation rights to a
child to one of the spouses by misusing the machinery of the law.
24 In Re: H (Infants) [1966 1 WLR 381], Cross, J. had observed thus:
“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.”
The aforesaid passage was cited and approved by the Supreme Court in Elizabeth
Dinshaw (supra).
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H.C.P. No.654 of 2021
25 Reverting to the case on hand, we also find that Arunagiri’s parents,
who are senior citizens aged 74 years and 71 years and are living in Chennai, are
unfortunately embroiled in the litigation under the Protection of Women from
Domestic Violence Act that has been initiated by Mahalakshmi in Coimbatore,
which is about 500 kms. from Chennai.
26 As contended by Mr. N. Jothi, both parents and two children are
American citizens and the children were not ordinarily residing in Coimbatore. In
this connection, it may be profitable to refer to the following observation of the
Supreme Court in Lahari Sakhamuri (supra).
“31. In the given facts and circumstances, we find no difficulty in
upholding the opinion of the High Court that the minor children were not ordinary
residents of Hyderabad (India) as envisaged under Section 9(1) of the Guardians
and Wards Act, 1890. Resultantly, the application for custody of minor children
filed before the Family Court, Hyderabad is rightly rejected by the High Court in
exercise of power under Order 7 Rule 11 CPC. At the same time, when the orders
have been passed by the US court, the parties cannot disregard the proceedings
instituted before the US court filed at the instance of the appellant (Lahari
Sakhamuri) who is supposed to participate in those proceedings.”
27 Thus, in our opinion, filing of G.W.O.P. No.316 of 2021 in the
Additional Family Court, Coimbatore, by Mahalakshmi, seeking custody of
children, appears misconceived.
28 Lastly, the fact remains that the Indian visa that was given to
Mahalakshmi and her children had expired on 03.03.2021. Thereafter, their
overstay would become an offence which is punishable under Section 14 of the
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H.C.P. No.654 of 2021
Foreigners Act. Therefore, this Court, cannot turn a blind eye and tacitly approve
her overstay in India.
29 Having thus concluded that it would be in the best interests of the
minor children if they are returned to the United States, the next issue is the nature
of directions that ought to be passed to facilitate this process. In Lahari
Sakhamuri (supra), the Supreme Court had directed as under:
“57. We accordingly direct the appellant (LahariSakhamuri) to return to
US along with both the children, namely, Arthin and Neysa, within a period of six
weeks from today. …..”
30 However, in Yashita Sahu (supra), the Supreme Court has observed
as follows:
“35. A writ court in India cannot, in proceedings like this, direct that an
adult spouse should go to America.”
31 Since Yashita Sahu (supra) is subsequent in point of time to Lahari
Sakhamuri (supra), we do not propose to issue any positive direction to
Mahalakshmi to return to the United States.
32 We go no further than to advise Mahalakshmi to return to the United
States with her children within a period of six weeks from today. We further direct
that if Mahalakshmi returns to the United States with her two children within the
aforesaid period, Arunagiri shall make all arrangements for accommodating
Mahalakshmi and the children in their own house and also to bear their travel
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H.C.P. No.654 of 2021
expenses (including air tickets). If Mahalakshmi is not willing to stay in the
matrimonial house for any personal reasons, Arunagiri shall make all
arrangements for stay at the place of her choice at a reasonable cost.
33 In case, Mahalakshmi reports that she is not inclined to travel to the
United States along with the minor children or does not show any interest to
accompany the children within the aforesaid period, Arunagiri shall deposit a sum
of Rs.15 lakhs in the bank account of Mahalakshmi. Proof of such deposit shall be
filed before the Registry of this Court. The Registrar General shall, thereafter, call
upon the Consulate General of the US at Chennai to take the custody of the minor
children, viz., Shakthi Girish and Sharadha Girish, along with their passports and
other travel documents from Mahalakshmi and hand over the same to Arunagiri,
with a condition for taking the custody of the minor children (Shakthi Girish and
Sharadha Girish) for being taken to the United States and placing them before the
jurisdictional Court in the United States until further orders are passed in the
pending proceedings by the Maryland Court. Mahalakshmi will be at liberty to
utilize the money deposited by Arunagiri in connection with her visit to the United
States, if so desired, in future and Arunagiri shall not take any coercive steps
against her which, in any manner, may result in adverse consequences. In giving
the aforesaid directions, we are implicitly following the directions issued by the
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Supreme Court in Lahari Sakhamuri (supra). In the event of Arunagiri coming to
India for the aforesaid purpose, he shall not be arrested in the frivolous police
complaint that is pending in C.S.R. No.16 of 2021 on the file of the A.W.P.S.
Coimbatore City, which can, any time, metamorphose into a regular FIR.
34 We make it clear that the observations made by us in this order are
only for the limited purpose of facilitating a summary enquiry for consideration of
the prayer for habeas corpus and will have no bearing in the proceeding before the
Maryland Court which will, obviously, be decided on its own merits.
This habeas corpus petition is allowed on the above said terms.
(P.N.P., J.) (R.N.M., J.)
28.10.2021
cad
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H.C.P. No.654 of 2021
To:
1 The Secretary
Ministry of Home Affairs
Government of India
New Delhi – 110 001, India
2 The Secretary
Foreign Affairs
Ministry of Foreign Affairs
Government of India
New Delhi – 110 001, India
3 The Foreigners Registration Office (FRO)
Lok Naik Bavan
New Delhi – 110 001
4 The Registrar General
Madras High Court
Chennai 600 104
5 The Commissioner of Police, Coimbatore City
Office of the Commissioner of Police
Coimbatore – 641 018
6 The Public Prosecutor
Madras High Court
Chennai 600 104
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H.C.P. No.654 of 2021
P.N. PRAKASH, J.
and
R.N. MANJULA, J.
cad
H.C.P. No.654 of 2021
28.10.2021
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