foreign national Child Custody order in India
IN THE SUPREME COURT OF INDIA
CRIMINAL
ORIGINAL JURISDICTION
WRIT
PETITION (CRL.) NO.112/2007
Dr.
V. Ravi Chandran ..Petitioner
Versus
Union
of India & Ors. ..Respondents
JUDGMENT
R.M.
LODHA, J.
Adithya
is a boy of seven, born on July 1, 2002, in the
United
States of America. He is a foreign national. The petition before
us is
by the father - Dr. V . Ravi Chandran--praying for a writ of
habeas
corpus for the production of his minor son Adithya and for
handing
over the custody and his passport to him.
2. On
August 28, 2009, this Court passed an order
requesting
Director, Central Bureau of Investigation (CBI) to trace
minor
Adithya and produce him before this Court. The necessity of
such
order arose as despite efforts made by the police officers and
officials of different states, Adithya and his mother - respondent
officials of different states, Adithya and his mother - respondent
no.
6--Vijayasree Voora--could not be traced and their whereabouts
could
not be found for more than two years since the notice was
issued
by this Court. In pursuance of the order dated August 28,
2009,
CBI issued look out notices on all India basis through heads of
police
of States, Union Territories and Metropolitan Cities and also
alert
notices through Deputy Director, Bureau of Immigration
(Immigration),
Ministry of Home Affairs, New Delhi and flashed
photographs
of the child Adithya and his mother Vijayasree Voora.
Ultimately
with its earnest efforts, CBI traced Adithya and his mother
Vijayashree
Voora in Chennai on October 24, 2009 and brought them
to
Delhi and produced the child along with his mother at the
residential
office of one of us (Tarun Chatterjee, J.) on October 25,
2009.
On that day, the CBI authorities were directed to keep the child
under
their custody and produce him before the Court on October 27,
2009.
Respondent no. 6 was also directed to be produced on that
date.
On October 27, 2009, the matter was adjourned for November
4,
2009 since respondent no.6 wanted to engage a lawyer and file a
counter
affidavit. On November 4, 2009, matter was adjourned to
November
10, 2009 and then to November 12, 2009. The petitioner
2
was
permitted to meet the child for one hour on November 10, 2009
and
November 12, 2009. In the meanwhile, respondent no. 6 has
filed
counter affidavit in opposition to the habeas corpus petition and
petitioner
has filed rejoinder affidavit to the counter affidavit filed by
respondent
no.6.
3. We
heard Ms. Pinky Anand, learned senior counsel for
the
petitioner and Mr. T.L.V. Iyer, learned senior counsel for
respondent
no. 6. Now since minor Adithya has been produced, the
only
question that remains to be considered is with regard to the
prayer
made by the petitioner for handing over the custody of minor
Adithya
to him with his passport.
4.
But before we do that, it is necessary to notice few
material
facts. Dr. V. Ravi Chandran - petitioner - is an American
citizen.
He and respondent no. 6 got married on December 14, 2000
at
Tirupathi, Andhra Pradesh according to Hindu rites. On July 1,
2002,
Adithya was born in United States of America. In the month of
July
2003, respondent no. 6 approached the New York State
Supreme
Court for divorce and dissolution of marriage. A consent
order
governing the issues of custody and guardianship of minor
3
Adithya
was passed by the New York State Supreme Court on April
18,
2005. The Court granted joint custody of the child to the
petitioner
and respondent no. 6 and it was stipulated in the order to
keep
the other party informed about the whereabouts of the child.
On
July 28, 2005, a Separation Agreement was entered between the
petitioner
and respondent no.6 for distribution of marital property,
spouse
maintenance and child support. As regards custody of the
minor
son Adithya and parenting time, the petitioner and respondent
no. 6
consented to the order dated April 18, 2005. On September 8,
2005,
the marriage between the petitioner and respondent no.6 was
dissolved
by the New York State Supreme Court. Child custody order
dated
April 18, 2005 was incorporated in that order.
5. Upon
the petition for modification of custody filed by the
petitioner
and the petition for enforcement filed by him and upon the
petition
for enforcement filed by respondent no.6 before the Family
Court
of the State of New York, on June 18, 2007, upon the consent
of
both parties, inter - alia, the following order came to be passed:
"ORDERED,
the parties shall share joint legal and physical custody of the minor child;
and it is further
4
ORDERED, that commencing during August 2007,
Adithya
shall reside in Allen, Texas; and it is further
ORDERED,
that the parties acknowledge that it is the intention of the parties to reside
within the same community. As such, it is the mother's current intention to
relocate to Texas, within a forty (40) mile radius of the father's residence.
If the mother does relocate to a forty (40) mile radius of the father's
residence (which shall be within a twenty (20) mile radius from the child's
school),, the parties shall equally share physical custody of Adithya. The
parties shall alternate physical custody on a weekly basis, with the exchange
being on Friday, at the end of the School day, or at the time when school would
ordinarily let out in the event that there is no school on Friday;
................ .....................................................................
.....................................................................
ORDERED,
that in the event that the mother does not relocate within forty (40) miles
from the father's residence located in Allen, Texas (and within twenty (20)
miles of Adithya's school), the mother shall have custodial time with the minor
child, as follows:
A. On
Alternating weekends from Friday, at the end of the school day until Monday,
prior to the beginning of school, commencing during the first week of
September, 2007. Such periods of custodial time shall take place within forty
(40) miles from the father's residence located in Allen, Texas. In the event
that there is no school on the Friday of the mother's weekend, she shall have
custodial time with the child beginning at 7.00 a.m. on Friday morning, and, in
the event that there is no school on Monday of the mother's custodial weekend,
she shall have custodial time until 5.00 p.m. on Monday, and
B.
For ten (10) consecutive days during Spring vacation from school; and
C.
For the entirety of the Christmas recess from School, except for Christmas Eve
and Christmas day, which shall be with the father. In the event that the school
recess is prior to Christmas Eve, the mother shall have the right to have
custodial time during those recessed
5
days to long as she produces the child at the
father's residence for Christmas Eve and Christmas day ; and
D.
During the following holidays:
i)
Mother's birthday, which is on April 25;
ii)
Mother's Day;
iii)
Hindu Festival of Diwali and Deepavali;
iv)
Adithya's birthday (July 1) in alternating years;
v)
Thanks giving in alternating years (so that the mother has custodial time
during even -
numbered
years and the father has custodial
time
during odd - numbered years);
vi)
New Year's Day in alternating years (so that the mother has custodial time
during even -
numbered
years and the father has custodial
time
during odd -numbered years) ;............ .................
............................................................
ORDERED, that the parties shall share the
summer
recess from school so that the mother has custodial time for a total of up to
fifty (50) days on a schedule so that each party has custodial time for 4
consecutive weeks, with the mother's custodial time commencing on the Monday
following the final day of school..........
ORDERED,
for the summer of 2007, the
mother
shall have custodial time from June 18 until June 20; the father shall have
custodial time from June 20 until June 24; the mother shall have custodial time
from June 25 until July 1; the father shall have custodial time from July 1
until July 6; and the mother shall then have custodial time from July 6 until
August 3 and she shall be solely responsible for transporting the child to the
father's residence in Allen, Texas on August 3. The father shall have custodial
time until the commencement of school. Thereafter the father shall continue to
have custodial time until such time as the mother either a) returns from India
and/or begins her alternating weekly
6
schedule as set froth herein, or b) moves
within 40 miles of the father's residence in Allen, Texas and commences her
custodial time during alternating weeks;....................................
.............................................................
.............................................................
ORDERED,
that each party agrees that they
shall
provide the other parent with a phone number and address where the child will
be located at all time, and that the other parent shall have reasonable and
regular telephone communication with the minor child; and it is further
ORDERED,
that each party agrees to provide
the
other party with the child's passport during each custodial exchange of the minor
child, and that each party shall sign and deliver to the other, whatever
written authorization may be necessary for travel with the child within the
Continental United States or
abroad;"..............................................
6. On
June 28, 2007 respondent no.6 brought minor Adithya
to
India informing the petitioner that she would be residing with her
parents
in Chennai. On August 08, 2007, the petitioner filed the
petition
for modification (Custody) and Violation Petition (Custody)
before
the Family Court of the State of New York on which a show
cause
notice came to be issued to respondent no.6. On that very
day,
the petitioner was granted temporary sole legal and physical
custody
of Adithya and respondent no. 6 was directed to immediately
turn
over the minor child and his passport to the petitioner and further
her
custodial time with the minor child was suspended and it was
7
ordered
that the issue of custody of Adithya shall be heard in the
jurisdiction
of the United States Courts, specifically, the Albany
County
Family Court.
7. It
transpires that the Family Court of the State of New
York
has issued child abuse non-bailable warrants against
respondent
no.6.
8. In
the backdrop of the aforenoticed facts, we have to
consider--now
since the child has been produced--what should be
the
appropriate order in the facts and circumstances keeping in mind
the
interest of the child and the orders of the courts of the country of
which
the child is a national.
9. In
re B--'s Settlement,1 Chancery Division was concerned
with
an application for custody by the father of an infant who had
been
made a ward of court. The father was a Belgian national and
the
mother a British national who took Belgian nationality on marriage
to
him. The infant was born in Belgium. The mother was granted a
divorce
by a judgment of the Court in Belgium, but the judgment was
reversed
and the father became entitled to custody by the common
1
{1940}
Ch. 54
8
law
of Belgium. The mother, who had gone to live in England, visited
Belgium
and was by arrangement given the custody of the infant for
some
days. She took him to England and did not return him. The
infant
had been living with mother in England for nearly two years.
The
father began divorce proceedings in Belgium, and the Court
appointed
him guardian. Pending the proceedings, the Court gave
him
the custody and ordered the mother to return the infant within
twenty-four
hours of service of the order on her. She did not return
the
infant. The Correctional Court in Brussels fined her for
disobedience
and sentenced her to imprisonment should the fine be
not
paid. The Correctional Court also confirmed the custody order.
In
the backdrop of these facts, the summons taken out by the father
that
custody of the infant be given to him came up before Morton, J.
who
after hearing the parties and in view of the provisions of the
Guardianship
of Infants Act, 1925 observed thus:
"...At
the moment my feeling is very strong that, even assuming in the father's favour
that there is nothing in his character or habits which would render him
unfitted to have the custody of the child, the welfare of the child requires,
in all the circumstances as they exist, that he should remain in England for the
time being..............................
9
In the present case the position is that
nearly two years ago, when the child was already in England, an interlocutory
order was made by the Divorce Court in Belgium giving the custody of the child
to the father I do not know how far, if at all, the matter was considered on
the footing of what was best for the child at that time, or whether it was
regarded as a matter of course that the father, being the guardian by the
common law of Belgium and the applicant in the divorce proceedings and the only
parent in Belgium, should be given the custody. I cannot regard that order as
rendering it in any way improper or contrary to the comity of nations if I now
consider, when the boy has been in this country for nearly two years, what is
in the best interests of the boy. I do not think it would be right for the
Court, exercising its jurisdiction over a ward who is in this country, although
he is a Belgian national, blindly to follow the order made in Belgium on
October 5, 1937. I think the present case differs from Nugent v. Vetzera
{FN10}, the case that was before Page Wood V.-C., and it is to be observed that
even in that case, and in the special circumstances of that case, the
Vice-Chancellor guarded himself against anything like abdication of the control
of this Court over its wards. It does not appear what the Vice-Chancellor's
view would have been if there had been evidence, for example, that it would be
most detrimental to the health and well-being of the children if they were
removed from England and sent to
Austria..................................................
........I
ought to give due weight to any views formed by the Courts of the country
whereof the infant is a national. But I desire to say quite plainly that in my
view this Court is bound in every case, without exception, to treat the welfare
of its ward as being the first and paramount consideration, whatever orders may
have been made by the Courts of any other country."..................
.................. .............
10.
In Mark T. Mc.Kee vs. Eyelyn McKee2, the Privy Council
was
concerned with an appeal from the Supreme Court of Canada.
That
was a case where the parents of the infant were American
2
{1951}
A.C. 352
10
citizens.
They were married in America and to whom a son was born
in
California in July 1940. They separated in December 1940 and on
September
4, 1941, executed an agreement which provided,
inter-
alia, that neither of them should remove the child out of the
United
States without the written permission of the other. By a
judgment
of December 17, 1942, in divorce proceedings before the
Superior
Court of the State of California, the custody of the child was
awarded
to the father. On August 1, 1945, following applications by
the
father and the mother, the previous order as to custody was
modified
to provide full custody of the child to the mother with right of
reasonable
visitation to the father. Thereafter, and without the
consent
or knowledge of the mother, the father went from the
United
States of America with the child into the Province of Ontario.
The
mother thereupon instituted habeas corpus proceedings in the
Supreme
Court of Ontario seeking to have the child delivered to her.
Wells,
J., before whom the matter came held that infant's best
interests
would be served in the custody of his father. The Court of
Appeal
for Ontario dismissed the appeal preferred by the mother.
However,
the Supreme Court of Canada by majority judgment
allowed
the appeal of the mother and set aside the order of custody
11
of
child to the father. On appeal from the Supreme Court of Canada
at
the instance of the father, the Privy Council held as follows:
"..........For,
after reaffirming "the well established general rule that in all questions
relating to the custody of an infant the paramount consideration is the welfare
of the infant", he observed that no case had been referred to which
established the proposition that, where the facts were such as he found them to
exist in the case, the salient features of which have been stated, a parent by
the simple expedient of taking the child with him across the border into
Ontario for the sole purpose of avoiding obedience to the judgment of the
court, whose jurisdiction he himself invoked, becomes "entitled as of
right to have the whole question retried in our courts and to have them reach a
anew and independent judgment as to what is best for the infant". and
it is, in effect, because he held that the father had no such right that the
judge allowed the appeal of the mother, and that the Supreme Court made the
order already referred to. But with great respect to the judge, this was not
the question which had to be determined. It is possible that a case might arise
in which it appeared to a court, before which the question of custody of an
infant came, that it was in the best interests of that infant that it should
not look beyond the circumstances in which its jurisdiction was invoked and for
that reason give effect to the foreign judgment without further inquiry. But it
is the negation of the proposition, from which every judgment in this case has
proceeded, namely, that the infant's welfare is the paramount consideration, to
say that where the trial judge has in his discretion thought fit not to take
the drastic course above indicated, but to examine all the circumstances and
form an independent judgment, his decision ought for that reason to be
overruled. Once it is conceded that the court of Ontario had jurisdiction to
entertain the question of custody and that it need not blindly follow an order
made by a foreign court, the consequence cannot be escaped that it must form an
independent judgment on the question, though in doing so it will give proper
weight to the foreign judgment. What is the proper weight will depend on the
circumstances of each case. It may be that, if the matter comes before the
court of Ontario within a very short time of the foreign judgment and there is
no new circumstance to be considered, the weight may be
12
so great that such an order as the Supreme
Court made in this case could be justified. But if so, it would be not because
the court of Ontario, having assumed jurisdiction, then abdicated it, but
because in the exercise of its jurisdiction it determined what was for the
benefit of the infant.
It
cannot be ignored that such consequences might follow as are suggested by
Cartwright, J. The disappointed parent might meet stratagem by stratagem and,
taking the child into the Province of Manitoba, invoke the protection of its
courts, whose duty it would then be to determine the question of custody. That
is a consideration which, with others, must be weighed by the trial judge. It
is not, perhaps, a consideration which in the present case should have weighed
heavily.
It
has been said that the weight or persuasive effect of a foreign judgment must
depend on the circumstances of each case. In the present case there was ample
reason for the trial judge, in the first place, forming the opinion that he
should not take the drastic course of following it without independent inquiry
and, in the second place, coming to a different conclusion as to what was for
the infant's benefit."...................................
11.
The aforesaid two cases came up for consideration in
Harben
vs. Harben3, wherein Sachs J. observed as follows:
"It
has always been the practice of this court to ensure that a parent should not
gain advantage by the use of fraud or force in relation to the kidnapping of
children from the care of the other spouse, save perhaps where there is some
quite overwhelming reason in the children's interest why the status quo should
not be restored by the court before deciding further issues. In the present
case I am concerned with three young children, two of whom are girls and the
youngest is aged only three. It is a particularly wicked thing to snatch such
children from the care of a mother, and, in saying that, I have in mind not
merely the mother's position but the harm that can be done 3
{1957}
1. W.L.R. 261
13
to the children. No affidavit of the husband
tendering either his regrets or any vestige of excuse for his action has been
proffered. Further, as I have already mentioned, when first I asked Mr. Syms
what was the nature of the case which he might wish to make, if so minded, for
depriving these children of a mother's care, he only spoke of her association
with a certain man and never suggested that she had in any way whatsoever
failed to look after the children properly."
12.
In Kernot vs. Kernot4 , the facts were thus: In May 1961,
the
plaintiff mother, an Italian lady, married an English man in Italy
where
both were residents. A boy was born there on March 29, 1962.
On
October 19, 1963, they obtained in Italian Court a separation
order
by consent providing therein that custody of the child would
remain
with father, with rights of access to the mother . On October
29,
1963, the father brought the infant to England with intention to
make
England his home. The mother commenced wardship
proceedings
in which she brought a motion for an order that the
father
return the infant to her in Italy. She also prayed for restraint
order
against him from taking the infant out of her care. Buckley, J. in
these
facts held thus:
"So
that even where a foreign court has made an order on the merits - which is not
the present case, because the only order which has been made was a consent
order without any investigation of the merits by the Italian court - that
domestic court before whom the matter comes (the Ontario 4
{1965}
Ch.217
14
court in the case to which I have just
referred, or this court in the case before me) is bound to consider what is in
the best interests of the infant; and although the order of the foreign court
will be attended to as one of the circumstances to be taken into account it is
not conclusive one way or the other. How much stronger must the duty of this
court be to entertain the case where the foreign court has not made any order
based on any investigation of the case on its merits."
13.
In re H. (Infants)5, the Court of Appeal was concerned
with
two American boys whose divorced parents were both citizens
of
United States of America. On December 11, 1964, the Supreme
Court
of New York State made a consent order directing that the
two
boys whose custody had been given to the mother should be
maintained
in her apartment in New York and not be removed from
a 50
miles' radius of Peekskill without the prior written consent of
the
father. However, the mother in March 1965 brought these boys
to
England and bought a house for herself and children in June
1965.
On June 15, 1965, the New York Court ordered the children
to be
returned to New York. The mother started wardship
proceedings
in the English court. The father took out motion asking
the
mother that the two children should be delivered into his care,
that
he should be at liberty to convey them to New York and that the
wardship
of the children should be discharged. The Trial Judge held 5
(1966)
1 W.L.R. 381 = (1966) 1 All.E.R. 886
15
that
the justice of the case required the children to be returned
without
delay to the jurisdiction of the New York court, so that the
question
of where and with whom they should live might be decided
as
soon as possible by that court. The mother appealed to the Court
of
Appeal. Willmer L.J. and Harman L.J. by their separate judgments
affirmed
the view of the Trial Judge and held that the proper order
was
to send these two boys back to their State of New York, where
they
belong (and where the Supreme Court is already seized of their
case),
and more especially so having regard to the fact that they
have
been kept in flagrant contempt of New York Court's order.
Willmer
L.J. agreed with the remark of Cross J. where he said:
"The
sudden and unauthorized 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."
Willmer
L.J. went on to hold:
"The
judge took the view (and I think it was the right view) that in a case such as
the present it was not necessary to go into all the disputed questions between
the parents, but that he ought to send these boys back to their own country to
be dealt with by the court of their own country, provided that he was satisfied
(as he was satisfied, having seen the father himself, and having had the
benefit of the view expressed on behalf of the Official Solicitor) that they
would come to no harm if the father took them back to the United States; and
that this was so, even though it might
16
subsequently turn out, after all the merits of
the case had been thoroughly thrashed out in the court in New York, that it
would perhaps be better after all for the boys to reside in England and see
little or nothing of their father."
Harman
L.J. in his separate judgment held thus:
".......But
if he chose to take the course which the judge here took in the interests of
the children , as he thought, of sending them back to the United States with no
more inquiry into the matter than to ensure, so far as he could, that there was
no danger to their moral or physical health in taking that course, I am of
opinion that he was amply justified, and that that was the right way in which
to approach the issue.
These
children had been the subject of an order (it is true made by consent) made in
the courts of their own country in December, 1964. It was only three months
later that the mother flouted that order, deceived her own advisers and
deceived the court , and brought the children here with the object of taking
them right out of their father's life and depriving him altogether of their
society. The interval is so short that it seems to me that the court inevitably
was bound to view the matter through those spectacles; that is to say, that the
order having been made so shortly before, and there being no difference in the
circumstances in the three months which had elapsed , there was no
justification for the course which the mother had taken, and that she was not
entitled to seek to bolster her own wrong by seeking the assistance of this
court in perpetuating that position, and seeking to change the situation to the
father's disadvantage."
14.
In re. L (minors)6, the Court of Appeal was
concerned
with the custody of the foreign children who were
removed
from foreign jurisdiction by one parent. That was a
case
where a German national domiciled and resident in
Germany
married an English woman. Their matrimonial home 6
(1974)
1 All ER 913
17
was
Germany and the two children were born out of the
wedlock
and brought up in Germany. The lady became
unhappy
in her married life and in August, 1972, she brought
her
children to England with an intention of permanently
establishing
herself and the children in England. She obtained
residential
employment in the school in England and the
children
were accommodated at the school. The children not
having
returned to Germany, the father came to England to find
them.
On October 25, 1972, the mother issued an originating
summons
making them wards of court. The trial judge found
that
the children should be brought up by their mother and
treating
the case as a `kidnapping' class of case, approached
the
matter by observing that in such a case where the children
were
foreign children, who had moved in a foreign home, their
life
should continue in what were their natural surroundings,
unless
it appeared to the court that it would be harmful to the
children
if they were returned. He concluded that in view of the
arrangements
which their father could make for them, the
children
would not be harmed by being returned. He,
accordingly,
ordered that they be returned to Germany and that
18
they
remain in their father's custody until further order. The
mother
appealed, contending that in every case the welfare of
the
child was the first and paramount consideration and that the
welfare
of the children would be best served by staying with
their
mother in England. Buckley, LJ in his detailed
consideration
of the matter, wherein he referred to the
aforenoticed
decisions and few other decisions as well, held as
follows
:
".......Where
the court has embarked on a full-scale investigation of that facts, the
applicable principles, in my view, do not differ from those which apply to any
other wardship case. The action of one party in kidnapping the child is
doubtless one of the circumstances to be taken into account, any may be a
circumstance of great weight; the weight to be attributed to it must depend on
the circumstances of the particular case. The court may conclude that
notwithstanding the conduct of the `kidnapper' the child should remain in his
or her care (McKee v. McKee, Re E (an infant) and Re. T.A. (infants), where the
order was merely interim); or it may conclude that the child should be returned
to his or her native country or the jurisdiction from which he or she has been
removed. Where a court makes a summary order for the return of a child to a
foreign country without investigating the merits, the same principles, in my
judgment apply, but the decision must be justified on somewhat different
grounds.
..............................................................................
...........The judge may well be persuaded that it would be better for the
child that those merits should be investigated in a court in his native country
than that he should spend in this country the period which must necessarily
elapse before all the evidence can be assembled for adjudication here. Anyone
who has had experience of the exercise of this delicate jurisdiction knows what
complications can result from a child developing roots in new soil, and what
conflicts this can occasion in the child's own life. Such roots can grow
rapidly. An order that the child should be returned forthwith to the country
from which he has been removed in the expectation that any dispute about his
custody will be satisfactorily
19
resolved in the courts of that country may
well be regarded as being in the best interests of the child......"
15.
In re. L. (minors)6, the Court of Appeal has made a
distinction
between cases, where the court considers the facts and
fully
investigates the merits of a dispute, in a wardship matter in
which
the welfare of the child concerned is not the only consideration
but
is the first and paramount consideration, and cases where the
court
do not embark on a full-scale investigation of the facts and
make
a summary order for the return of a child to a foreign country
without
investigating the merits. In this regard, Buckley, L.J. noticed
what
was indicated by the Privy Council in McKee v. McKee2 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
interest
of the child.
16.
This Court in Smt. Surinder Kaur Sandhu v. Harbax Singh
Sandhu
and Another7 was concerned with the custody of a child--
British
citizen by birth--to the parents of Indian citizens, who after
7
(1984)
3 SCC 698
20
their
marriage settled in England. The child was removed by the
husband
from the house when the wife was in the factory where she
was
working and brought him to India. The wife obtained an order
under
Section 41(English) Supreme Court Act, 1981 whereby the
husband
was directed to handover the custody of the boy to her. The
said
order was later on confirmed by the High Court in England. The
wife
then came to India and filed a writ petition under Article 226 in
the
High Court praying for production and custody of the child. The
High
Court dismissed her writ petition against which the wife
appealed
before this Court. Y.V. Chandrachud, C.J. (as he then was)
speaking
for the Court held thus :
"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 forum-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 offsprings 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
21
incurred therein by the spouses. (See
International Shoe Company v. State of Washington 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."
17.
In Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and
Another8,
this Court held that it was the duty of courts in all countries
to
see that a parent doing wrong by removing children out of the
country
does not gain any advantage by his or her wrongdoing. In
para
9 of the report, this Court considered the decision of the Court of
Appeal
in re H.5 and approved the same in the following words:
"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 were 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
8
(1987)
1 SCC 42
22
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. [(1965) 3 All ER at p. 912. (Ed. : Source of the second quoted para
could not be traced.)]:
"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."
10.
With respect we are in complete agreement with the aforesaid enunciation of the
principles of law to be applied by the courts in situations such as
this."
18.
In the case of Dhanwanti
Joshi v. Madhav Unde9, this
Court
was again concerned with the matter relating to removal of a
child
from one country to another contrary to custody order of the
court
from where the child was removed. This court considered
English
decisions, inter alia, McKee v. McKee2 and H. (infants), re.5
and
also noticed the decision of this Court in Mrs. Elizabeth Dinshaw8
and
observed as follows :
9
(1998)
1 SCC 112
23
"28. The leading case in this behalf
is the one rendered by the Privy Council in 1951, in McKee v. McKee [(1951) AC
352]. In that case, the parties, who were American citizens, were married in
USA in 1933 and lived there till December 1946. But they had separated in
December 1940. On 17-12-1941, a decree of divorce was passed in USA and custody
of the child was given to the father and later varied in favour of the mother.
At that stage, the father took away the child to Canada. In habeas corpus
proceedings by the mother, though initially the decisions of lower courts went
against her, the Supreme Court of Canada gave her custody but the said Court
held that the father could not have the question of custody retried in Canada
once the question was adjudicated in favour of the mother in the USA earlier.
On appeal to the Privy Council, Lord Simonds held that in proceedings relating
to custody before the Canadian Court, the welfare and happiness of the infant
was of paramount consideration and the order of a foreign court in USA as to
his custody can be given due weight in the circumstances of the case, but such
an order of a foreign court was only one of the facts which must be taken into
consideration. It was further held that it was the duty of the Canadian Court
to form an independent judgment on the merits of the matter in regard to the
welfare of the child. The order of the foreign court in US would yield to the
welfare of the child. "Comity of courts demanded not its enforcement,
but its grave consideration". This case arising from Canada which lays
down the law for Canada and U.K. has been consistently followed in latter
cases. This view was reiterated by the House of Lords in J v. C (1970 AC 668).
This is the law also in USA (see 24 American Jurisprudence, para 1001) and
Australia. (See Khamis v. Khamis [(1978) 4 Fam LR 410 (Full Court) (Aus)].
29.
However, there is an apparent contradiction between the above view and the one
expressed in H. (infants), Re[(1966) 1 All ER 886] and in E. (an infant), Re
[(1967) 1 All ER 881] to the effect that the court in the country to which the
child is removed will send back the child to the country from which the child
has been removed. This apparent conflict was explained and resolved by the
Court of Appeal in 1974 in L. (minors) (wardship : jurisdiction), Re [(1974) 1
All ER 913, CA] and in R. (minors) (wardship : jurisdiction), Re [(1981) 2 FLR
416 (CA)]. It was held by the Court of Appeal in L., Re [(1974) 1 All ER 913,
CA] that the view in McKee v. McKee [1951 A.C. 352 : (1951) All ER 942] is
still the correct view and that the limited question which arose in the latter
decisions was whether the court in the country to which the child was removed
could conduct (a) a summary inquiry or (b) an elaborate inquiry on the question
of custody. In the case of (a) a summary inquiry, the court would return
custody to the country from which the child was
24
removed
unless such return could be shown to be harmful to the child. In the case of
(b) an elaborate inquiry, the court could go into the merits as to where the
permanent welfare lay and ignore the order of the foreign court or treat the
fact of removal of the child from another country as only one of the
circumstances. The crucial question as to whether the Court (in the country to
which the child is removed) would exercise the summary or elaborate procedure
is to be determined according to the child's welfare. The summary jurisdiction
to return the child is invoked, for example, if the child had been removed from
its native land and removed to another country where, maybe, his native
language is not spoken, or the child gets divorced from the social customs and
contacts to which he has been accustomed, or if its education in his native
land is interrupted and the child is being subjected to a foreign system of
education, -- for these are all acts which could psychologically disturb the
child. Again the summary jurisdiction is exercised only if the court to which
the child has been removed is moved promptly and quickly, for in that event,
the Judge may well be persuaded that it would be better for the child that
those merits should be investigated in a court in his native country on the
expectation that an early decision in the native country could be in the
interests of the child before the child could develop roots in the country to
which he had been removed. Alternatively, the said court might think of
conducting an elaborate inquiry on merits and have regard to the other facts of
the case and the time that has lapsed after the removal of the child and
consider if it would be in the interests of the child not to have it returned
to the country from which it had been removed. In that event, the unauthorised
removal of the child from the native country would not come in the way of the
court in the country to which the child has been removed, to ignore the removal
and independently consider whether the sending back of the child to its native
country would be in the paramount interests of the child. (See Rayden &
Jackson, 15th Edn., 1988, pp. 1477-79; Bromley, Family law, 7th Edn., 1987.) In
R. (minors) (wardship : jurisdiction), Re [(1981) 2 FLR 416 (CA)] it has been
firmly held that the concept of forum conveniens has no place in wardship
jurisdiction.
30.
We may here state that this Court in Elizabeth
Dinshaw v. Arvand M. Dinshaw [(1987)
1 SCC 42 : 1987 SCC (Crl.) 13] while dealing with a child removed by the father
from USA contrary to the custody orders of the US Court directed that the child
be sent back to USA to the mother not only because of the principle of comity
but also because, on facts, -- which were independently considered -- it was in
the interests of the child to be sent back to the native State. There the
removal of the child by the father and the mother's
25
application in India were within six months.
In that context, this Court referred to H. (infants), Re which case, as pointed
out by us above has been explained in L. Re as a case where the Court thought
it fit to exercise its summary jurisdiction in the interests of the child. Be
that as it may, the general principles laid down in McKee v. McKee and J v. C
and the distinction between summary and elaborate inquiries as stated in L.
(infants), Re are today well settled in UK, Canada, Australia and the USA. The
same principles apply in our country. Therefore nothing precludes the Indian
courts from considering the question on merits, having regard to the delay from
1984 -- even assuming that the earlier orders passed in India do not operate as
constructive res judicata."
However,
in view of the fact that the child had lived with his
mother
in India for nearly twelve years, this Court held that it would
not
exercise a summary jurisdiction to return the child to United
States
of America on the ground that its removal from USA in 1984
was
contrary to orders of U.S. Courts. It was also held that whenever
a
question arises before a court pertaining to the custody of a minor
child,
matter is to be decided not on considerations of the legal rights
of
the parties but on the sole and predominant criterion of what would
best
serve the interest of the minor.
19.
In the case of Sarita Sharma v. Sushil Sharma10, this
Court
was seized with a matter where the mother had removed the
children
from U.S.A. despite the order of the American Court. It was
held
:
10
(2000)
3 SCC 14
26
"6. Therefore, it will not be proper
to be guided entirely by the fact that the appellant Sarita had removed the
children from U.S.A. despite the order of the Court of that country. So also,
in view of the facts and circumstances of the case, the decree passed by the
American Court though a relevant factor, cannot override the consideration of
welfare of the minor children. We have already stated earlier that in U.S.A.
respondent Sushil is staying along with his mother aged about 80 years. There
is no one else in the family. The respondent appears to be in the habit of
taking excessive alcohol. Though it is true that both the children have
American citizenship and there is a possibility that in U.S.A they may be able
to get better education, it is doubtful if the respondent will be in a position
to take proper care of the children when they are so young. Out of them, one is
a female child. She is aged about 5 years. Ordinarily, a female child should be
allowed to remain with the mother so that she can be properly looked after. It
is also not desirable that two children are separated from each other. If a
female child has to stay with the mother, it will be in the interest of both
the children that they both stay with the mother. Here in India also proper
care of the children is taken and they are at present studying in good schools.
We have not found the appellant wanting in taking proper care of the children.
Both the children have a desire to stay with the mother. At the same time it
must be said that the son, who is elder then the daughter, has good feelings
for his father also. Considering all the aspects relating to the welfare of the
children, we are of the opinion that in spite of the order passed by the Court
in U.S.A. it was not proper for the High Court to have allowed the habeas
corpus writ petition and directed the appellant to hand over custody of the
children to the respondent and permit him to take them away to U.S.A. What
would be in the interest of the children requires a full and thorough inquiry
and, therefore, the High Court should have directed the respondent to initiate
appropriate proceedings in which such an inquiry can be held. Still there is
some possibility of the mother returning to U.S.A. in the interest of the
children. Therefore, we do not desire to say anything more regarding
entitlement of the custody of the children. The chances of the appellant
returning to U.S.A. with the children would depend upon the joint efforts of
the appellant and the respondent to get the arrest warrant cancelled by
explaining to the Court in U.S.A. the circumstances under which she had left
U.S.A. with the children without taking permission of the Court. There is a
possibility that both of them may thereafter be able to approach the Court
which passed the decree to suitably modify the order with respect to the
custody of the children and visitation rights."
27
20.
While dealing with a case of custody of a child removed
by a
parent from one country to another in contravention to the orders
of
the court where the parties had set up their matrimonial home, the
court
in the country to which 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 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 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. 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
28
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 interest of the
child.
The indication given in McKee v. McKee2 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 interest of the child
has
been explained in re. L (minors)6 and the said view has been
approved
by this Court in Dhanwanti Joshi9. Similar view taken by the
Court
of Appeal in re. H5 has been approved by this Court in
Elizabeth
Dinshaw8.
21.
Do the facts and circumstances of the present case
warrant
an elaborate enquiry into the question of custody of minor
Adithya
and should the parties be relegated to the said procedure
before
appropriate forum in this country in this regard? In our
judgment,
this is not required. Admittedly, Adithya is an American
citizen,
born and brought up in United States of America. He has
spent
his initial years there. The natural habitat of Adithya is in United
29
States
of America. As a matter of fact, keeping in view the welfare
and
happiness of the child and in his best interest, the parties have
obtained
series of consent orders concerning his custody/parenting
rights,
maintenance etc. from the competent courts of jurisdiction in
America.
Initially, on April 18, 2005, a consent order governing the
issues
of custody and guardianship of minor Adithya was passed by
the
New York State Supreme Court whereunder the court granted
joint
custody of the child to the petitioner and respondent no. 6 and it
was
stipulated in the order to keep the other party informed about the
whereabouts
of the child. In a separation agreement entered into
between
the parties on July 28, 2005, the consent order dated April
18,
2005 regarding custody of minor son Adithya continued. In
September
8, 2005 order whereby the marriage between the
petitioner
and respondent no. 6 was dissolved by the New York State
Supreme
Court, again the child custody order dated April 18, 2005
was
incorporated. Then the petitioner and respondent no. 6 agreed
for
modification of the custody order and, accordingly, the Family
Court
of the State of New York on June 18, 2007 ordered that the
parties
shall share joint legal and physical custody of the minor
Adithya
and, in this regard, a comprehensive arrangement in respect
30
of
the custody of the child has been made. The fact that all orders
concerning
the custody of the minor child Adithya have been passed
by
American courts by consent of the parties shows that the
objections
raised by respondent no. 6 in counter affidavit about
deprivation
of basic rights of the child by the petitioner in the past;
failure
of petitioner to give medication to the child; denial of education
to
the minor child; deprivation of stable environment to the minor
child;
and child abuse are hollow and without any substance. The
objection
raised by the respondent no. 6 in the counter affidavit that
the
American courts which passed the order/decree had no
jurisdiction
and being inconsistent to Indian laws cannot be executed
in
India also prima facie does not seem to have any merit since
despite
the fact that the respondent no. 6 has been staying in India
for
more than two years, she has not pursued any legal proceeding
for
the sole custody of the minor Adithya or for declaration that the
orders
passed by the American courts concerning the custody of
minor
child Adithya are null and void and without jurisdiction. Rather
it
transpires from the counter affidavit that initially respondent no. 6
initiated
the proceedings under Guardianship and Wards Act but later
on
withdrew the same. The facts and circumstances noticed above
31
leave
no manner of doubt that merely because the child has been
brought
to India by respondent no. 6, the custody issue concerning
minor
child Adithya does not deserve to be gone into by the courts in
India
and it would be in accord with principles of comity as well as on
facts
to return the child back to the United States of America from
where
he has been removed and enable the parties to establish the
case
before the courts in the native State of the child, i.e. United
States
of America for modification of the existing custody orders.
There
is nothing on record which may even remotely suggest that it
would
be harmful for the child to be returned to his native country.
22.
It is true that child Adithya has been in India for almost
two
years since he was removed by the mother--respondent no. 6
--contrary
to the custody orders of the U.S. court passed by consent
of
the parties. It is also true that one of the factors to be kept in mind
in
exercise of summary jurisdiction in the interest of child is that
application
for custody/return of the child is made promptly and
quickly
after the child has been removed. This is so because any
delay
may result in child developing roots in the country to which he
has
been removed. From the counter affidavit that has been filed by
respondent
no. 6, it is apparent that in last two years child Adithya did
32
not
have education at one place. He has moved from one school to
another.
He was admitted in school at Dehradun by respondent no. 6
but
then removed within few months. In the month of June, 2009, the
child
has been admitted in some school at Chennai. As a matter of
fact,
the minor child Adithya and respondent no. 6 could not be traced
and
their whereabouts could not be found for more than two years
since
the notice was issued by this Court. The respondent no. 6 and
the
child has been moving from one State to another. The parents of
respondent
no. 6 have filed an affidavit before this Court denying any
knowledge
or awareness of the whereabouts of respondent no. 6 and
minor
child Adithya ever since they left in September, 2007. In these
circumstances,
there has been no occasion for the child developing
roots
in this country. Moreover, the present habeas corpus petition
has
been filed by the petitioner promptly and without any delay, but
since
the respondent no. 6 has been moving from one State to
another
and her whereabouts were not known, the notice could not
be
served and child could not be produced for more than two years.
23.
In a case such as the present one, we are satisfied that
return
of minor Adithya to United States of America, for the time
being,
from where he has been removed and brought here would be
33
in
the best interest of the child and also such order is justified in view
of
the assurances given by the petitioner that he would bear all the
traveling
expenses and make living arrangements for respondent no.
6 in
the United Sates of America till the necessary orders are passed
by
the competent court; that the petitioner would comply with the
custody/parenting
rights as per consent order dated June 18, 2007 till
such
time as the competent court in United States of America takes a
further
decision; that the petitioner will request that the warrants
against
respondent no. 6 be dropped; that the petitioner will not file or
pursue
any criminal charges for violation by respondent no. 6 of the
consent
order in the United States of America and that if any
application
is filed by respondent no. 6 in the competent court in
United
States of America, the petitioner shall cooperate in expeditious
hearing
of such application. The petitioner has also stated that he has
obtained
confirmation from Martha Hunt Elementary School, Murphy,
Texas,
75094, that minor son Adithya will be admitted to school
forthwith.
24.
The learned Senior Counsel for respondent no. 6 sought
to
raise an objection regarding the maintainability of habeas corpus
petition
under Article 32 of the Constitution before this Court but we
34
are
not persuaded to accept the same. Suffice it to say that in the
peculiar
facts and circumstances of the case which have already
been
noticed above and the order that we intend to pass, invocation
of
jurisdiction of this Court under Article 32 cannot be said to be
inappropriate.
25.
We record our appreciation for the work done by the
concerned
officers/officials of CBI in tracing the minor child Adithya
and
producing him in less than two months of the order passed by
this
Court, although, the Police Officers and Officials of different
States
failed in tracing the child Adithya and respondent no. 6 for
more
than two years. But for the earnest efforts on the part of the CBI
authorities,
it would not have been possible for this Court to hear and
decide
this habeas corpus petition involving the sensitive issue
concerning
a child of seven years who is a foreign national.
26.
In the result and for the reasons stated, we pass the
following
order :
(i)
The respondent no. 6 shall act as per the consent
order
dated June 18, 2007 passed by the Family Court of the
State
of New York till such time any further order is passed on
35
the
petition that may be moved by the parties henceforth and,
accordingly,
she will take the child Adithya of her own to the
United
States of America within fifteen days from today and
report
to that court.
(ii)
The petitioner shall bear all the traveling expenses
of
the respondent no. 6 and minor child Adithya and make
arrangements
for the residence of respondent no. 6 in the
United
States of America till further orders are passed by the
competent
court.
(iii)
The petitioner shall request the authorities that the
warrants
against respondent no. 6 be dropped. He shall not file
or
pursue any criminal charges for violation by respondent no. 6
of
the consent order in the United States of America.
(iv)
The respondent no. 6 shall furnish her address and
contact
number in India to the CBI authorities and also inform
them
in advance the date and flight details of her departure
along
with child Adithya for United States of America.
(v)
In the event of respondent no. 6 not taking the child
Adithya
of her own to United States of America within fifteen
days
from today, child Adithya with his passport shall be
36
restored to the custody of the petitioner to
be taken to United
States
of America. The child will be a ward of the concerned
court
that passed the consent order dated June 18, 2007. It will
be
open to respondent no. 6 to move that court for a review of
the
custody of the child, if so advised.
(vi)
The parties shall bear their own costs.
..................
......J
(Tarun Chatterjee)
...................
.....J
(R.
M. Lodha)
........................J
(Dr.
B.S. Chauhan)
New
Delhi
