V. RAVI CHANDRAN v. UNION OF INDIA & ORS (2)

Citation: [2009] 15 S.C.R. 960

Court: Supreme Court of India

Bench: TARUN CHATTERJEE, RAJENDRA MAL LODHA, B.S. CHAUHAN

Case summary

V. RAVI CHANDRAN v. UNION OF INDIA & ORS (2).pdf

Judgment text

[2009] 15 (ADDL. ) S. C. R. 960 V. RAVI CHANDRAN v. UNION OF INDIA &ORS. (Writ Petition (Crl. ) No. 112 of 2007) NOVEMBER 17, 2009 [TARUN CHATTERJEE, R. M. LODHA AND DR. B. S. CHAUHAN, JJ. ] Child Welfare - Custody and guardianship of foreign child - Removed from foreign jurisdiction by one parent - In contravention of the orders of the Court - Held: In such cases court should either conduct an elaborate enquiry on the question of custody or to summarily direct the parent to return the case to the court of the country from which the child was removed to be investigated there - On facts, the case does not warrant enquiry by the court in India - Parent who removed the child from the jurisdiction of the foreign country, directed to produce the child to the competent court there, within 15 days from the date of the order- On failure to do so, custody of the child with his passport to be restored to the other parent.

Constitution of India, 1950 - Article 32 - Jurisdiction · under - Custody of foreign child decided by foreign court - Removal of the child from foreign jurisdiction by one parent - · ~ Petition for issuance of writ ofhabeas corpus by otherparent- Held: Jurisdiction of Supreme Court is invokable in the facts of the case. Petitioner, an American citizen got married to respon6dent No. 6. He obtained an order of dissolution of marriage from the competent court in the United States of America. Several orders were passed by the court with the consent of the parties, regarding custody and guardianship of their minor child (7 years) who is also an American Citizen. By order dated 18. 6. 2005, a joint custody was given to them. Respondent No. 6 brought the child to India informing the petitioner that she would b~ residing with her parents in India. ~ Petitioner filed petitions before the Family court in "' ....

America, whe·reby petitioner was granted temporary sole legal and physical custody of the child, and respondent No. 6 was directed to give the child and his passport to the petitioner. Her custodial time with the child was suspended. The Family Court in America issued child abuse non-bailable warrants against respondent No. 6. Petitioner filed writ petition under Article 32 of the Constitution of India, praying for a writ of habeas corpus ... for the production of his minor son and for handing over the custody and his passport to him. ~ Despite the efforts made by the police of different States, the child and respondent No. 6 could not be traced and their whereabouts could not be found for more than I two years. This Court directed CBI to trace them and produce the child before this Court. CBI traced the child and respondent No. 6 and produced them before this ... Court. Disposing of the petition, the Court HELD: 1. 1.

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 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 or for declaration that the orders passed by the American courts concerning the custody of minor child are 8 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 leave no manner of doubt that merely because the child has been brought to India by ~· respondent No.

6, the custody issue concerning the minor child 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. [Para 21] [990-8-E] 1. 5. 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 '"""'\ J. 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 affidavitfiled by respondent No. 6, it is apparent that in last two years the child did not have education at one place. He has moved from one school to another. Respondent No. 6 and the child have 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 the minor child 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 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. [Para 22] [990-F-H; 991- A-C] r 1. 6. It is ordered that 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 the petition that may be moved r. by the parties henceforth and, accordingly, she will take the child of her own to the United States of America within fifteen days from the date of the judgment and report to , that court. The petitioner shall bear all the traveling expenses and make arrangements for their residence in the United States of America till further orders are passe~ "' by the competent court. 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. Respondent No.

6 shall furnish her address and contact number in India to the CBI i- ·,authorities and also inform them in advance the date and flight details of her departure along with the child for United States of America. In the event of respondent No. 6 ~.. ~ not taking the child to United States of America within the •" stipulated time, the child with his passport shall be 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. [Para 26] (992-D-G; 993-A-B] 4,. , ~· Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu and Anr. (1984) 3 SCC 698; Mrs. Elizabeth Dinshaw vs. Arvand M. Dinshaw and Anr. (1987) 1 SCC 42; Dhanwanti Joshi vs. . ,, .... Madhav Unde (1998) 1 SCC 112; Sarita S~c:rma vs. Sushi/ Sharma (2000) 3 SCC 14, relied on.

In re B's Settlement (1940) Ch. 54; Mark T. Mc. Kee vs. EyelynMcKee (1951) A. C. 352; Harben vs. Harben (1957) 1. ·I W. L. R. 261; Kemotvs. Kemot(1965) Ch. 217; In re H. (Infants) (1966) 1 W. L. R. 381; In re. L. (minors) (1974) 1 All ER 913, referred to. ' .. 2. In the peculiar facts and circumstances of the case invocation of jurisdiction of this Court under Article 32 of the Constitution of India cannot be said to be inappropriate. [Para 24] (992-8] : Case Law Reference : (1940) Ch. 54 Referred to. Para 9 (1951) A. C. 352 Referred to. Para 10 (1957) 1. W. L. R. 261 Referred to. Para 11 _. (1965) Ch. 217 Referred to. Para 12 (1966) 1 W. L. R. 381 Referred to. Para 13 (1974) 1 All ER 913 Referred to. Para 14 (1984) 3 sec 698 Relied on. Para 16 (1987) 1 sec 42 Relied on. Para 17 (1998) 1sec112 Relied on. Para 18 (2000) 3 sec 14 Relied on. Para 19 CIRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl. ) ...... No. 112 of 2007. '- Under Article 32 of the Constitution of India Ms.

Pinky Anand, T. L. V. Iyer, D. N. Goburdhan, Arrin S. Rastogi, Prabal Bagchi, V. G. Pragasam, A. T. M. Sampath, T. S. Shanthi, P. N. Ramalingam, Kamini Jaiswal, D. Bharathi Reddy, Anitha Shenoy, S. Thananjayan, Subhash Kaushik, P. K. Dey, M. Tatia, AK. Sharma, Sudarshan Rajan, K. L. N. V. Veeranjaneyulu, Merusagar Samantaray, Ms. Chandan Ramamurthi, for the '-#- . 1.. appearing parties. The Judgment of the Court was delivered by R. M. LODHA, J. 1. 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 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 was permitted to meet the child for one hour on November 10, 2009 and November 12, 200S. 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 4 the petitioner and Mr. T. L. V. Iyer, learned senior counsel for respondent no. 6.

Now since minor Adithya has been produced, tne only question that remains to be considered is with regard V. RAVI CHANDRAN v. UNION OF INOIA & ORS. 967 to the prayer made by the petitioner for handing over the custody -... ( -. t 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 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 0 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, 20Q5. 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_9ourt 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 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 aweekly basis, with the exchange being on Friday, at the end of the School day, or at the time when 8 school would ordinarily let out in the event that there is no sch_ool 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 follo~s: 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 scho'ol on Monday of the mother's custodial weekend, she shall have custodial time until 5. 00 p. m. on Monday, and - 8. For ten (10) consecutive days during Spring vacation from school; and C.

For the entirety of the Christmas reces$ f~vm School, except for Christmas Eve and Christmas day, which shalt 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 days to long as she produces the child at the father's residence for Christmas Eve and Christmas day ; and [RM. LODHA, J. ] 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; 8 (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 shallthen 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 schedule as set froth herein, orb) 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 minorAdithya 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 not'ice 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 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 --- 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, o 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 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 2 Council in McKee vs. McKee 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. 0 16. This Court in Smt. Surinder Kaur Sandhu v. Harbax .

Singh Sandhu and Another was concerned with the custody of a child-British citizen by birth-to the parents of Indian citizens, who after their marriage settled in England. The child was removed by ~he 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 circwnstances such as the circumstance as to where the child, whose custody is in 7. 91984) 3 sec 698. j. 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 . I· spouses in this case had made England their home where this boy was born to them.

The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing him to India, not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the peace of that home. The fact that the matrimonial home of the spouses was in England, establishes sufficient contacts or ties with that State in order to make it reasonable and just for the courts of that State to ' -> assume jurisdiction to enforce obligations which were incurred therein by the spouses. (See International Shoe Company vs. State of Washington which was not a matrimonial case but which is regarded as the fountainhead I of the subsequent developments ofjurisdictional issues like the orie involved in the instant case. ) It is our duty and function to protect the wife against the burden of litigating in an --4 ;;. 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 • Another3, 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 8. (1987) 1 sec 42. 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 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. [(196! =') 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 -t 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 8 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 inftict serious harm on the child. " . JL 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. " 9 18. In the case of Dhanwanti Joshi v. Madhav Unde , 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 2 considered English decisions, inter alia, McKee vs. McKee and 5 H. (infants), re. and also noticed the decision of this Court in Mrs. Elizabeth Dinshaw8 and observed as follows : "28. The leading case in this behalf is the one rendered by the Privy Council in 1951, in McKee vs. 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, J. --t 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 tbefore the Canadian Court, the welfare and happiness of the infant was of paramount consideration and the order of 9. (1998) 1sec112.

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 whicli 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 vs. C (1970 AC 668). This is the law also in USA (see 24 American Jurisprudence, para 1001) and Australia. (See-Khamis vs. Khamis [(1978) 4 Fam LR 410 (Full ·Courl) (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 i_nfant), 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 vs. 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 car. duct j_ (a) a summary inquiry or (b) an elaborate inquir;1 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 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 foreig:n 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 ofconducting 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 th~ native country ..... would not come in the way ofthe 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 Elizabet/1 Dinshaw vs. Arvand M.

Dinshaw [(1987) 1 SCC 42 : 1987 SCC (Crl. ) 13] while dealing with a child removed ·by... th~ father from USA contrary to the custody orders of the US Cou·rtdirected 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 inte. rests of the child to be sent back to the native State. There the removal of the child by the father and the mother's 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 summar:Y 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 fornearlytwelve years, this Court held that itwould 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 lhe legal·rights of the parties but on the sole ,; :and predominant criterion of what would best serve the interest of the minor. 10 19. In the case of Sarita Sharma v.

Sushi/ Sharma , this Court was seized with a matter where the mother had removed the children from U. S. A. despite the order ofthe American Court. It was held: "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, 10. (2000) 3 sec 14. 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 8 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 th~ 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 , 0 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 petitton 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 ' ... l 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. " . 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 rernoved 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 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 indicatior:i given in McKee 2 vs.

McKee 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) and the said view has been approved by this Court in DhanwantiJosh1'9. 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 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 NewYork 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, comprehensive arrangement in respect ofthe custody ofthe 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 e~ucation 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 8 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 leave no manner of doubt that merely because. the child has been brought to India by respondent no.

6, the custody issue concerning mir'lDr 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 Ghi! (l 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 ofthe 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-=Gontrary 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 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 ~ I [RM. LODHA, J. ] rnonths. 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 ro. 6 has been moving from one State to another and her whereabouts were not known, the notice, could not be serve_d 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 -f being, from where he has been removed and brought here would ;..

be 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 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 underArticle 8 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 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 I. 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 A _. 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 B. restored to the custody ofthe 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. c (vi) The parties shall bear their own costs. K. K. T. Writ Petition disposed of. --1 --; -) " ~ . >