V. Ravi
Chandran Vs. Union of India & Ors. [2009] INSC 1742 (17 November 2009)
Judgment
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
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 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."
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 where under 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
November 17, 2009.
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