RAJESWARI CHANDRASEKAR GANESH versus THE STATE OF TAMIL NADU & ORS. on 14 July 2022

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SUPREME COURT REPORTS

[2022] 5 S.C.R.

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RAJESWARI CHANDRASEKAR GANESH

v.

THE STATE OF TAMIL NADU & ORS.

(Writ Petition (Criminal) No. 402 of 2021)

BJULY 14, 2022

[A. M. KHANWILKAR AND J. B. PARDIWALA, JJ.]

Constitution of India – Art.32 – Writ of Habeas Corpus –Object and scope of – Custody of minor children – Parties havingtwo minor children have been residing in the USA – As per theCpetitioner-mother, the respondent no.2-father picked up the minorchildren and left for Michigan, USA, from Cleveland, Ohio, withoutinforming her – A shared parenting plan was arrived at betweenthe parties by the order passed by the Court at Ohio – Case of thepetitioner is that the respondent no.2 clandestinely and with a viewto remove the children from the USA and from the joint custody ofDthe petitioner, left for India with the two minor children – Presentpetition filed by her seeking a Writ of Habeas Corpus – Held: Theemployment of the writ of Habeas Corpus in child custody cases isnot pursuant to, but independent of any statute – Jurisdictionexercised by the court rests in such cases on its inherent equitable Epowers and exerts the force of the State, as parens patriae, for theprotection of its minor ward, and the very nature and scope of theinquiry and the result sought to be accomplished call for the exerciseof the jurisdiction of a court of equity – Primary object of a HabeasCorpus petition, as applied to minor children, is to determine inwhose custody the best interests of the child will probably beFadvanced – In the present case, the petitioner is a resident of theUSA and has acquired H1B visa via sponsorship and has a goodjob in USA – She is earning handsome salary and has the resourcesto provide for a comfortable life to her children in the USA – She iscomfortably settled in the USA and is accustomed to different kindGof lifestyle, culture, society, etc. – She is a hard working womanand would be in a position to take good care of her minor childrenin accordance with the shared parenting plan – Allegations levelledby the respondent no.2 that the petitioner suffers from mental illnessappear to be wild and reckless – Even otherwise this is a highlydisputed question of fact – Further, both the minor children areH

residents of the USA – They have been brought up in the social andcultural milieu of the USA and are accustomed to the lifestyle,language, customs etc. of that country – Also, both the minor childrenhave already been enrolled in school in the USA, a special schoolmeant for children with remarkably high IQ – They have betterprospects of getting refined education that may ultimately enhancetheir potential they already possess and are already accustomed toand comfortable with – It will be in the interest and welfare of boththe children to go back to the USA for the purpose of their education,etc. – Respondent no.2 directed to go back to the USA with both theminor children and abide by the shared parenting plan as orderedby the Court at Ohio which though, stood terminated at the instanceof the petitioner, but can be revived once again by the authoritiesby going before the concerned court at Ohio – Further directionsissued – Guardians and Wards Act, 1890 – Hindu Minority andGuardianship Act, 1956.

Doctrines/Principles – Doctrine of Parental AlienationSyndrome – Discussed.

Child Custody – Welfare of the child – Factors to be considered– Discussed.

Allowing the writ petition, the Court

HELD: 1. A mere reading of the provisions of the Guardiansand Wards Act, 1890 and Hindu Minority and Guardianship Act,1956 makes it obvious that the welfare of the minor predominatesto such an extent that the legal rights of the persons claiming tobe the guardians or claiming to be entitled to the custody willplay a very insignificant role in the determination by the court.[Para 73][258-C]

Conclusion

2.1 In a petition seeking a writ of Habeas Corpus in a matterrelating to a claim for custody of a child, the principal issue whichshould be taken into consideration is as to whether from the factsof the case, it can be stated that the custody of the child is illegal.The writ of Habeas Corpus is a prerogative writ and anextraordinary remedy. It is a writ of right and not a writ of courseand may be granted only on reasonable ground or probable causebeing shown. The exercise of the extraordinary jurisdiction forissuance of a writ of Habeas Corpus would, therefore, be seen tobe dependent on the jurisdictional fact where the applicant A

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Aestablishes a prima facie case that the detention is unlawful. It isonly where the aforementioned jurisdictional fact is establishedthat the applicant becomes entitled to the writ as of right. Theprincipal duty of the court in such matters should be to ascertainwhether the custody of the child is unlawful and illegal and whetherthe welfare of the child requires that his present custody shouldBbe changed and the child be handed over to the care and custodyof any other person. Thus, it is well established that in issuingthe writ of Habeas Corpus in the case of minors, the jurisdictionwhich the Court exercises is an inherent jurisdiction as distinctfrom a statutory jurisdiction conferred by any particular provisionCin any special statute. In other words, the employment of the writof Habeas Corpus in child custody cases is not pursuant to, butindependent of any statute. The jurisdiction exercised by the courtrests in such cases on its inherent equitable powers and exertsthe force of the State, as parens patriae, for the protection of itsminor ward, and the very nature and scope of the inquiry and theDresult sought to be accomplished call for the exercise of thejurisdiction of a court of equity. The primary object of a HabeasCorpus petition, as applied to minor children, is to determine inwhose custody the best interests of the child will probably beadvanced. In a Habeas Corpus proceeding brought by one parentEagainst the other for the custody of their child, the court has beforeit the question of the rights of the parties as between themselves,and also has before it, if presented by the pleadings and theevidence, the question of the interest which the State, as parenspatriae, has in promoting the best interests of the child. [Paras75, 78-80 and 91][258-F; 260-C-E; 265-C-E]F

Mohd. Ikram Hussain v. State of Uttar Pradesh andOthers AIR 1964 SC 1625 : [1964] SCR 86; KanuSanyal v. District Magistrate, Darjeeling (1973) 2 SCC674 : [1974] 1 SCR 621; Nithya Anand Raghavan v.State (NCT of Delhi) and Another (2017) 8 SCC 454 :G[2017] 7 SCR 281; Syed Saleemuddin v. Dr. Rukhsanaand Others (2001) 5 SCC 247 : 2001 (1) Suppl. JT 1;Tejaswini Gaud and Others v. Shekhar Jagdish PrasadTewari and Others (2019) 7 SCC 42 : [2019] 7 SCR335; Anjali Kapoor v. Rajiv Baijal (2009) 7 SCC 322 :H[2009] 6 SCR 560; Rosy Jacob v. Jacob A.

Chakramakkal (1973) 1 SCC 840 : [1973] 3 SCR 918– relied on.

2.2 The following circumstances emerge from the materialson record so far as the two minor children are concerned : (1)Both the minor children are residents of the USA. (2) The son isa natural citizen and the daughter is a permanent resident of theUSA. (3) Both the children have been brought up in the socialand cultural milieu of the USA. They are accustomed to thelifestyle, language, customs, rules and regulations, etc. of thatcountry. (4) The children are residents of the USA. One of whomis a natural citizen and will have better future prospects if goesback to the USA.

The minor daughter has a remarkable high IQ. She hasbeen identified to be a gifted child. In such circumstances, boththe minor children were admitted in a special school meant forchildren with such remarkably high IQ in the USA. Such schoolsin the USA are specialized in providing education to the giftedchildren which, ultimately, helps in the overall development ofsuch children. The special education ultimately enhances thepotential of such children. Both the children in the present casehave better prospects of getting refined education that mayultimately enhance their potential they already possess and arealready accustomed to and comfortable with. Both the minorchildren, in the case on hand, have already been enrolled in theschool in the USA. Therefore, if the minor children are repatriatedto the USA, they will not be subjected entirely to any foreignsystem of education. It is the fundamental right of the petitioner-mother to have the company of her children and not to be deprivedof the same without a reasonable cause. [Paras 108, 109, 110][278-G-H; 286-F-H; 287-A]

2.3 Facts Supporting The Stay Of The Petitioner In TheUSA: The petitioner is a resident of the USA and has acquiredH1B visa via sponsorship and has a good job at Ranstad, USA.The petitioner is earning handsome salary and has the resourcesto provide for a comfortable life to her children in the USA. Thepetitioner is comfortably settled in the USA and is accustomed todifferent kind of lifestyle, culture, society, etc. Petitioner workedvery hard to secure admission in the Cleveland State University A

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Aand completed her studies with the GPA of more than 3, whiletaking care of her children. This is indicative of the fact that sheis a hard working woman and would be in a position to take goodcare of her minor children in accordance with the shared parentingplan. It would be too much for this Court to tell the petitionerthat she may periodically visit India to meet her children but theBchildren should not be asked to go back to the USA with theirfather, i.e. the respondent no.2. [Paras 111-113][287-B-E]

2.4 In the overall view of the matter, the respondent no.2,at the earliest, should be directed to go back to the USA withboth the minor children and abide by the shared parenting planCas ordered by the Court at Ohio. Although, the shared parentingplan as ordered by the Court at Ohio stood terminated at theinstance of the petitionermother, yet the same can be revivedonce again by the authorities by going before the concerned courtat Ohio. It is for the parties to take the necessary steps in thisDregard. The respondent no.2 shall immediately apply for the visaon the strength of this order. If the respondent no.2 is in a positionto obtain a job in the USA on the strength of a work permit or anyother document, then it is well and good. However, this Court issure of one thing that it will be in the interest and welfare of boththe children to go back to the USA for the purpose of theirEeducation, etc. The allegations levelled by the respondent no.2that the petitioner suffers from some mental illness appears tobe absolutely wild and reckless. Even otherwise this issue is ahighly disputed question of fact. In the case at bar the dominantconsideration to which all other considerations must remainFsubordinate must be the welfare of the child. This is not to saythat the question of custody will be determined by weighing theeconomic circumstances of the contending parties. The matterwill not be determined solely on the basis of the physical comfortand material advantages that may be available in the home of onecontender or the other. The welfare of the child must be decidedGon a consideration of these and all other relevant factors, includingthe general psychological, spiritual and emotional welfare of thechild. It must be the aim of the Court, when resolving disputesbetween the rival claimants for the custody of a child, to choosethe course which will best provide for the healthy growth, H

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RAJESWARI CHANDRASEKAR GANESH v. THE STATE OFTAMIL NADU & ORS.

development and education of the child so that he or she will beequipped to face the problems of life as a mature adult. Furtherdirections issued. [Paras 114, 115][287-E-H; 288-A-C]

Elizabeth Dinshaw v. Arvand M. Dinshaw (1987) 1 SCC42 : [1987] 1 SCR 175; V. Ravi Chandran v. Union ofIndia and Others (2010) 1 SCC 174 : [2009] 15 SCR960; Surya Vadanan v. State of Tamil Nadu (2015) 5SCC 450 : [2015] 4 SCR 903; Vivek Singh v. RomaniSingh (2017) 3 SCC 231 : [2017] 2 SCR 312; VasudhaSethi and Others v. Kiran V. Bhaskar and Another (2022)SCC OnLine SC 43 107 – relied on.

Sumedha Nagpal v. State of Delhi (2000) 9 SCC 745 :2000 (7) JT 450; Muthuswami Chettiar v. K.M. ChinnaMuthuswami Moopanar AIR 1935 Mad 195; ShilpaAggarwal v. Aviral Mittal (2010) 1 SCC 591 : [2009]16 SCR 287; Lahari Sakhamuri v. Sobhan Kodali(2019) 7 SCC 311 : [2019] 5 SCR 240; Surinder KaurSandhu v. Harbax Singh Sandhu (1984) 3 SCC 698 :[1984] 3 SCR 422; Dhanwanti Joshi v. Madhav Unde(1998) 1 SCC 112 : [1997] 5 Suppl. SCR 30 – referredto.

K. G. v. State of Delhi and Another dated 16.11.2017 inWrit Petition (Criminal) No. 374/2017 – approved.

Secretary of State for Home Affairs v. O’Brien (1923)AC 603 (609); Mckee v. McKee 1951 AC 352 101;InRe: McGrath (Infants) [1893] 1 Ch. 143; Inre “O”(An Infant) [1965] 1 Ch. 23; Walker v. Walker &Harrison 1981 New Ze Recent Law 257 – referredto.

Halsbury’s Laws of England, Fourth Edition, Vol. 24,Article 511; American Jurisprudence, Vol. 39, SecondEdition, Para 148 at pages 280-281 – referred to.

Case Law Reference

[1987] 1 SCR 175[2009] 15 SCR 960

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CRIMINAL ORIGINAL JURISDICTION: Writ PetitionD(Criminal) No. 402 of 2021.

Under Article 32 of The Constitution of India Prabhjit Jauhar, Ms. Tulika Bhatnagar, S. S. Jauhar, Advs. for thePetitioner.

Ms. Meenakshi Arora, Sr. Adv., Sushila Ram, Anurag Pandey,EMs. Suchitra Upadhyay, Varnim Gupta, Ms. Anuradha K., Ms. ReenaPandey, Dr. Joseph Aristotle S., Ms. Nupur Sharma, Shobhit Bhardwaj,Sanjeev Kumar Mahara, Advs. for the Respondents.

The Judgment of the Court was delivered by

J. B. PARDIWALA, J.F

1. This writ petition under Article 32 of the Constitution of Indiainvolves a contest over the custody of children born out of the wedlockbetween the petitioner-mother and the respondent no.2-father. Therespondents nos.4 and 5 respectively are the brother and father of therespondent no.2.G

2. The petitioner-mother has prayed for the following reliefs :

“(a) Issue an appropriate writ, order or direction in the natureHabeas Corpus to the Respondent No.1 to immediately traceand produce the minor children Lakshaya Ganesh and BhavinSai Ganesh before this Hon’ble Court and deliver their H

custody to the Petitioner Mother so as to repatriated them tothe U.S. in compliance with the Order passed by the U.S. Courtdated 30.07.2021.

(b) issue a direction to the Respondent No.3/Director of CBIto trace the minor children Lakshaya Ganesh and Bhavin SaiGanesh and to produce them before this Hon’ble Court, sincethe Respondent No.2 is not traceable.

(c) issue an appropriate writ, order or direction in the natureHabeas Corpus to Respondent No.2 to cooperate with anyoneappointed by the Petitioner Ex-Wife to transport the minorchildren – Lakshaya Ganesh and Bhavin Sai Ganesh to theUnited States within a time frame; (d) Pass such other order or further orders and directions asthis Hon’ble Court may deem fit and proper in the facts andcircumstances of the case and in the interest of justice.”

3. The case put up by the petitioner-mother may be summarisedas under :

4. The marriage between the petitioner and the respondent no.2was solemnized on 31[st] October 2008 as per the Hindu rites and ritualsat Chennai, India. Within one month from the date of the marriage, theparties migrated to the Bear, Delaware, USA.

5. The respondent no.2, at the relevant point of time, was workingwith the Satyam Computers. Sometime in May 2009, the parties wereconstrained to return to Chennai, India, as the project that the respondentno.2 had been working on with the Satyam Computers got terminatedon account of some internal issues in the company.

6. On 7[th] October 2009, the parties were blessed with a daughternamed Lakshaya Ganesh. It appears from the materials on record thatsometime in January 2012, the respondent no.2 was able to secure a jobin Kansas, USA. Since 2012, the parties have been residing in the USA.

7. It further appears that between April 2012 and November 2012,the respondent no.2 lost several jobs, and in such circumstances, theparties had to shift from Kansas, USA, to Boston, Massachusetts, USA.Sometime later, they shifted to Findlay, Ohio, USA. In January 2012, theminor daughter Lakshaya Ganesh started her preschool at the Owen’sDay Care, Findlay, Ohio, and thereafter, was admitted to a kindergartenat the Lincoln Elementary School, Findlay, Ohio. While the minor daughter A

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ALakshaya was studying in the kindergarten, the teachers over therenoticed that Lakshaya was a gifted child, i.e. a child with a remarkableIQ level. The parties were blessed thereafter with a son named BhavinSai Ganesh on 20[th] July 2013 at the Blanchard Valley Hospital, Findlay,Ohio. The minor son Bhavin Sai Ganesh is a U.S. citizen by naturalizationand holds an American passport.B

8. In March 2016, the petitioner cleared her GRE and TOEFLand secured admission in the Cleveland State University Ohio, USA.The respondent no.2, on the other hand, lost yet another job.

9. It is the case of the petitioner that she started living in a roomwith eight other girls and her minor children. She attended the universityCand had to take up two jobs to feed and take care of herself and herminor children.

10. By December 2016, both the children started going to school.It is her case that she used to take care of her children in all respects.Sometime in August 2016, the respondent no.2 moved for yet anotherDjob to Milwaukee, Wisconsin, and in such circumstances, the petitionerhad to stay all alone with the minor children and take care of them.

11. In May 2018, the petitioner completed her Master’s inComputer and Information Science and also obtained a GraduateCertificate in Data Analytics with the GPA of 3.64. She started workingEwith the G&S Metal Products. On the other hand, in April 2019, therespondent no.2-father managed to find a full time job in Michigan, USA.

12. It is the case of the petitioner that once the respondent no.2was able to procure a full time job in Michigan, USA, he started conceivingideas of taking away the minor children.

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13. It is the case of the petitioner that on 1[st] June 2019, therespondent no.2 picked up the minor children and left for Michigan, USA,from Cleveland, Ohio, without informing the petitioner-mother.

14. It is alleged that the respondent no.2 also took away all thelegal documents of the petitioner including her passport, State ID, homeGkeys, car keys along with the documents of the minor children.

15. It is alleged that the petitioner was locked in her own house. Itis also alleged that with a view to ensure that the petitioner had norecourse/redressal, the respondent no.2, before leaving for Michigan,USA, lodged a false complaint with the local police that the petitionerHwas mentally ill and that she had run away from a mental ward.

16. In such circumstances referred to above, the petitioner wasconstrained to immediately file an Emergency Motion for TemporaryCustody of the minor children along with a complaint for divorce beforethe Court of Common Pleas, Division of Domestic Relations, CuyahogaCounty, Ohio. The court concerned, vide order dated 17[th] June 2019,granted temporary custody of the minor children to the petitioner.

17. It is alleged that despite such order being passed by the courtof Common Pleas referred to above, the respondent no.2 paid no heedto such order and continued to keep the children away without allowingthem to talk with their mother.

18. It appears that the petitioner also filed for an Emergency Motionrestraining the removal of the minor children from the jurisdiction of theOhio Court. The court concerned passed a restraint order in favour ofthe petitioner on the same date, i.e. 17[th] June 2019.

19. Sometime in July 2019, one Ms. Megan was appointed by theUS Court as the guardian-ad-litem. However, the order granting thecustody of the minor children to the petitioner was not acted upon by therespondent no.2.

20. In August 2019, the US Court directed supervised visitationand referred the parties to mental evaluation experts.

21. It is the case of the petitioner that despite the custody orderdated 17[th] June 2019 passed in favour of her, the respondent no.2, withoutseeking permission of the US Court and without informing the petitioner,removed the minor children from the specialized school in Ohio toAllegan, Michigan. While doing so, the respondent no.2 did not evenfurnish the details of the petitioner-mother including her contact number,etc. so as to completely alienate the petitioner from her children.

22. It is the case of the petitioner that thereafter the respondentno.2 started administering threats that he would take away the childrento India. As a result of such threats, the petitioner was constrained tobring the necessary facts to the notice of the Court concerned. TheCourt concerned directed that the passport of both the minor children beput in the Court’s custody.

23. As the respondent no.2 was not able to remove the minorchildren from the USA, he decided to alienate the children from thepetitioner-mother by refusing her unsupervised visitation. It is allegedthat the respondent no.2 prevented the children from reaching out to AB

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Atheir mother and it was only with the intervention of the expert evaluator,namely Dr.Mark Lovinger, that the petitioner was allowed to spend timewith the minor children.

24. In November 2019, both the expert evaluators, submitted theiropinion, stating that the petitioner was fit to have unsupervised time withBthe children and there was no merit in any of the allegations levelled bythe respondent no.2.

25. In February 2020, the petitioner was able to procure a newjob and obtained H1B visa via sponsorship. The petitioner moved backto Findlay, Ohio, where the minor son was born and was able to securea new apartment with good facilities for the children. However, accordingCto the petitioner, the respondent no.2 failed to abide by the custody orderdated 17[th] June 2019 and also failed to abide by the evaluation reportsrecommending unsupervised visitation to the petitioner qua the minorchildren. It is alleged that the respondent no.2 declined to bring the childrento the petitioner and allowed her to visit them only in his presence.D

26. It appears that a shared parenting plan was arrived at betweenthe parties vide order dated 12[th] May 2021 passed by the Court ofCommon Pleas, Division of Domestic Relations, Cuyahoga County, Ohio.The shared parenting means the parents share the rights andresponsibilities as provided for in a plan approved by the Court as to allEor some of the aspects of the physical and legal care of their children.The mother and the father together, under a shared parenting agreement,are granted custody, care and control of the minor children until furtherorder that may be passed by the Court subject to certain terms andconditions. By virtue of the shared parenting plan referred to above,both the parties got joint custody of their children. The visitation scheduleFwas clearly laid down in the shared parenting plan dated 12[th] May 2021.The parties agreed to not relocate without the consent of the other partyand without the Court’s permission by way of a 60 day prior notice andthe passports of the children were to stay in alternation with the non-custodian parent while the children were in the custody of the otherGparent.

27. It appears that a separation agreement was also entered uponbetween the parties dated 27[th] July 2021. On 28[th] July 2021, therespondent no.2 sent an email to the US Court in the form of an intimationthat he would like to take his minor children on a vacation to India andasked the petitioner-mother to keep the children for three weeks.H

28. On 15[th] August 2021, the respondent no.2 posted a travelitinerary. The petitioner noticed that the itinerary was such that thechildren would miss their school by a week. The petitioner declined toaccept the itinerary. The petitioner requested the respondent no.2 to goto India for his vacation, and during that period, the kids would stay withtheir mother.

29. It is the case of the petitioner that the respondent no.2, out ofspite, called upon the local police levelling false allegations that thepetitioner was causing harm to her children owing to an alleged mentalillness. The local police responded to the call and after due verificationarrived at the conclusion that the children were healthy and were welltaken care of by the petitioner. The case was accordingly closed.

30. It appears that on 16[th] August 2021, the respondent no.2 lodgedone another complaint with the police. The petitioner had to leave herhouse with the minor children so as to consult her lawyer. She requestedher friend to take care of her children while she was gone. When thefriend of the petitioner reached the petitioner’s house, the children werenowhere to be found. In such circumstances, the petitioner immediatelycalled up the US police at Findlay, Ohio. At 10:00 pm., the respondentno.2 informed the petitioner that the children were in Michigan.

31. It is the case of the petitioner that on 16/17[th] August 2021 at2:55 am, she received a distress call from her minor daughter LakshayaGanesh aged 12. The petitioner noticed that her minor daughter LakshayaGanesh was crying on phone. The minor daughter also informed thepetitioner-mother that she was in Chicago and the father was intendingto take them to India. The petitioner was shocked to hear what wasinformed by her daughter on phone, as the respondent no.2 was notscheduled to travel to India before 19[th] August 2021 as per his ownitinerary. The minor daughter revealed to the petitioner-mother that therespondent no.2-father had sent an incorrect itinerary.

32. It is the case of the petitioner that the respondent no.2clandestinely and with a view to solely removing the children from theUSA and from the joint custody of the petitioner, left for India with thetwo minor children on 17[th] August 2021.

33. On 18[th] August 2021, being completely unaware of therespondent no.2 having left for India with the minor children, thepetitioner immediately moved an Emergency Motion for restraining therespondent no.2 from removing the minor children from the USA. The A

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ACourt concerned granted the order as prayed for by the petitioner. Itwas after this order that, according to the petitioner, she checked withthe Etihad Airways to confirm the itinerary of the respondent no.2 andfound that the one submitted by the respondent no.2 was incorrect.

34. The petitioner later discovered that the respondent no.2 hadBalready flown out with the minor children on 17[th] August 2021 againsthis own itinerary. The respondent no.2 was supposed to leave on 19[th]August 2021.

35. The petitioner desperately tried to get in touch with her minordaughter on phone between 16[th] August 2021 and 21[st] August 2021 buther phone was found to be switched off. On 21[st] August 2021, theCpetitioner received a call from her minor daughter pleading with thepetitioner-mother to take her back to the USA.

36. The petitioner-mother consoled her minor daughter not to panicor confront the respondent no.2-father less he would harm her. Thepetitioner was also informed by her minor daughter that the respondentDno.2 had first taken them to someone’s house at Chennai and wasthereafter planning to move to the house of their grandfather.

37. At this stage, we would like to reproduce the verbatimaverments made by the petitioner as contained in paragraphs 25 to 28respectively. We quote the necessary averments thus :E

“25. That the Petitioner Ex-Wife has been deliberately keptaway from the children since 2019 and finally when theSettlement Agreement/In-Court Agreement allowed thePetitioner Ex-Wife to enjoy the company of the minor childrenthat the Respondent no. 2 had deprived her off, the minorFchildren have now been abducted by the Respondent No.2and illegally removed from the US. That the Respondent No.2deliberately left with the legal documents of the minor childrenin absolute breach of the terms of the Settlement Agreementdated 30.07.2021 and switched off the minor daughter’sphone to block any and every channel of communication withGthe Petitioner Ex-Wife. The Respondent No.2 has a manictendency of harassing and torturing the Petitioner Ex-Wifeto no extent and in this final blow has misused the children asa weapon to seek vengeance from the Petitioner Ex-Wife.

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26. The minor children are currently nowhere to be foundand the Petitioner’s father has made all possible attempts totrace the minor children in Chennai. The Petitioner Ex-Wife’sfather tried to trace the minor children to the RespondentNo.2’s brother’s house i.e. the Respondent No.3 at TriptiApartments, Apt No.20, Marshall Enclave, 15/8 Egmore,Chennai but the guard told him that the said house had beenvacated alongwith the two children. Thereafter, he alsochecked at the Respondent No.2’s parental home i.e. theRespondent no.5’s house at No.5, State Bank Colony, A.ARoad, Virudhunagar, Tamil Nadu however, the children werenot even found here. The Respondent No. 2 has therefore,fled the US with the minor children and has been movingaround the country completely unknown to the Petitionermother and to the complete detriment to the minor childrenwho have been missing their school and their home in theUS. The Respondent No. 2 and his family have been hand inglove in keeping the Petitioner Ex-Wife deprived of thecompany of the minor children. That the Petitioner’s fatherfearing for the safety and welfare of the minor children hasmade a complaint to the Superintendent of Police, CollectorateComplex, Virudhunagar, Tamil Nadu on 13.09.2021 requestinghim to investigate into the case of searching for the minorchildren who have been illegally removed from their parentnation.

27. That on 21.9,2021 in furtherance to the complaint madeby the Petitioner Ex-Wife’s father, the Virudhanagar Police,Chennai informed the Petitioner’s father that the minorchildren could not be found neither at the residence of theRespondent No.4 at Tripti Apartments, Egmore, Chennai norat the residence of the grandfather i.e. the Respondent No.5.Further now the Petitioner Ex-Wife has also found out throughthe Police Authorities in Ohio, USA that the Respondent No.2is planning to shift to Maharashtra and shifted his job inPerrigo, Allegan, ‘Michigan, USA to Maharashtra, India. ThePetitioner is thus at a complete loss is absolutely unaware ofthe whereabouts of the minor children and of the Respondentno. 2.

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SUPREME COURT REPORTS

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A28. The minor children are being kept away from thePetitioner Ex-Wife who has equal parental rights andresponsibilities qua the minor children as laid out in SettlementAgreement dated 30.07.2021. The Respondent no. 2Ex-Husband is willfully disobeying the Orders of the US Courtby detaining the minor children somewhere in India not justBcontrary to the Settlement Agreement but also against thewishes and interest of the minor children who have beenplucked out of their society based on the RespondentEx-Husband’s whim. The US Court is the ONLY Court havingjurisdiction over the minor children as the children areCpermanent citizens of the USA and the minor son Bhavin SaiGanesh is a citizen of the USA and holds an AmericanPassport. The children’s education is suffering as they wereabducted from the USA mid-term and despite the PetitionerEx-Wife’s incessant efforts to make the Respondent No.2understand the implications of his actions, the RespondentDNo.2 Ex-Husband has become unresponsive and untraceablealongwith the children.”

38. It would not be out of place to state over here that the sharedparenting plan referred to above by us in paragraph 26 ultimately cameto be terminated by the Court at Ohio vide order dated 9[th] FebruaryE2022 at the instance of the petitioner-mother. We quote few relevantobservations made by the Court at Ohio as under :

“33. Defendant/Father’s failure to return the children fromIndia was a clear violation of the consent order, as follows :

“a. Defendant/Father failed to honor Part I(C)(1) of theShared Parenting Plan, whereby he pledged to “providethe children with an emotional environment in which thechildren are free to continue to love the other Parent andspend time with them.”

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b. Defendant/Father failed to honor Part I(C)(3) of theShared Parenting Plan, whereby he pledged to “allow thechildren to telephone on a reasonable basis.”

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c. Defendant/Father failed to honor Part I(C)(4) of theShared Parenting Plan, whereby he pledged to“communicate with the other Parent openly, honestly, and H

regularly to avoid misunderstandings which are harmfulto the children.”

d. Defendant/Father failed to honor Part I(C)(7) of theShared Parenting Plan, whereby he pledged “not towithhold time with the other Parent as a punishment to thechildren or the other Parent.”

e. Defendant/Father failed to honor Part I(C)(10)(a) ofthe Shared Parenting Plan, whereby he pledged to honorthe children’s rights to a continuing relationship with bothparents.

f. Defendant/Father failed to honor Part I(C)(g) of theShared Parenting Plan, whereby he pledged to honor thechildren’s rights to “experience regular and consistentcontact with both Parents and the right to know the reasonfor any cancellation or change of plans.”

g. Defendant/Father has withheld parenting time fromPlaintiff/Mother, as specified above. :

h. Defendant/Father never provided the children’spassports to the Plaintiff/Mother.

34. It is in the best interests of both children to be returnedimmediately to the jurisdiction of the United States.

35. The children are familiar with and acclimated to the cultureof the United States and have thrived while studying in schoolsin the United States. In addition, the minor children havefriends in the United States, and are acclimated to thesurroundings of the United States.

36. Defendant/Father violated the Shared Parenting Plan byfailing to provide three weeks prior notice of the itinerary.

37. Defendant/Father violated the Shared Parenting Plan byfailing to place the passports with Plaintiff/Mother

38. Defendant/Father took the children surreptitiously toIndia, a country of which the children had little familiarity.

39. One of the major components of the Shared ParentingPlan is that the Plaintiff and Defendant consistentlycommunicate regarding the best interests of their children.

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Defendant/Father has failed to communicate with Plaintiff/Mother. Plaintiff/Mother does not know where her minorchildren are living or if Defendant/Father ever intends toreturn them to the United States.

40. A change of circumstances exists in the children’s situation,they being surreptitiously removed to India without notice toPlaintiff/Mother and without any plans to return.

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41. It is in the children’s best interest for the Shared ParentingPlan to be terminated.

42. It is in the children’s best interest for Plaintiff/Mother tobe named as residential parent and legal custodian.

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IT IS THEREFORE ORDERED, ADJUDGED AND DECREEDthat:

1. Plaintiff/Mother’s Motion to Terminate the SharedParenting Plan and Designate Plaintiff as Residential ParentDand Legal Custodian (No. 444481) is GRANTED in the bestinterests of the minor children.

2. Plaintiff/Mother, Rajeswari Chandresekar is herebydesignated as the residential parent and legal custodian ofdaughter Lakshaya Ganesh, DOB 10/7/2009, and sonBabvinsai Ganesh, DOB 7/20/2013.

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3. Defendant/Father shall make the children immediatelyavailable to communicate with Plaintiff/Mother and allow fordaily communication between the children and their motheruntil the children are in her custody.

4. Defendant/Father shall immediately return the children’spassports to Plaintiff/Mother, or in the alternative arrangefor and surrender the children’s passports to the Indian Courtor a US Consulate in India. Plaintiff/Mother may apply forreplacement passports for the minor children without consentof Defendant/Father.

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5. Defendant/Father shall incur all transportation costs forthe return of the children to the United States of America, peran itinerary to be determined by Plaintiff/Mother.

6. Defendant/Father shall submit to an independentpsychological evaluation at DeBalzo, Elugdin, Levine, Risen H

LLC, with Dr.Mark Lovinger for the determination ofDefendant/Father’s ability to appropriately care for and co-parent the minor children, which shall include psychologicaland chemical evaluation as deemed appropriate, at Defendant/Father’s costs.

7. Defendant/Father’s visitation with the minor children issuspended until this Court can determine if visitation isappropriate.

8. Plaintiff/Mother shall be responsible for all non-emergencymedical decisions, emergency medical decisions, andeducational decisions regarding the minor children.

9. For school purposes, Plaintiff/Mother’s residence shalldictate school enrollment for the children.

10. This order is enforceable by any and all law enforcementagencies, including, but not limited to the Federal Bureau ofInvestigation, State Departments, and Immigration Authoritiesin both the United States of America and India.

11. This matter shall be set for further hearing upon Plaintiff/Mother’s Motion to Show Cause, filed September 27, 2021(No. 444480), and the request of Plaintiff/Mother forattorney’s fees pursuant to ORC §3105.73 for the change ofcustody motion.”

39. In such circumstances referred to above, the petitioner-motheris here before this Court with the present petition under Article 32 of theConstitution of India seeking a Writ of Habeas Corpus.

40. Vide order dated 28[th] September 2021, this Court issued noticeto the respondents, making it returnable within two weeks.

41. On 8[th] December 2021, time was prayed for on behalf of therespondents nos.2, 4 and 5 respectively to file counter-affidavit. Threedays’ time was granted to the respondents to file their counter affidavit.

42. On 28[th] January 2022, this Court passed the following order :

“List this matter on 04.02.2022, as in the meantime, learnedcounsel for the respondent no.2 has expressed hope that shewould be able to impress upon respondent no.2 to takeappropriate measures for finding amicable solution betweenthe parties themselves.”

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A43. On 28[th] February 2022, this Court passed the following order:“The Mediator’s Report does indicate that the parties wereunable to arrive at an amicable settlement.

Nevertheless, in deference to the observation made by thisCourt, learned counsel for the respondent(s) prays for someBmore time to find out some workable arrangement betweenthe parties.

As the respondent(s) has shown willingness in this regard, byway of indulgence, we defer the hearing of this matter till04.04.2022.”C44. On 8[th] April 2022, this Court passed the following order :

“Learned counsel for respondent no.2 on instructions submitsthat respondent no.2 is seeking one week’s more time tointeract with the petitioner and try to work out amicablearrangement, if possible.

DAs a result, we give one more chance to respondent no.2, asprayed.

List this matter on 02.05.2022.”

45. On 2[nd] May 2022, this Court passed the following order :E“By way of indulgence and on the insistence of learnedcounsel for the private respondents, we defer the hearing ofthis matter till 13[th] May 2022.

We make it amply clear that no further request foradjournment will be entertained at the instance of the privaterespondents on future date.”F46. Thus, as the parties were not able to arrive at an amicablesettlement, the matter was finally heard on 13[th] May 2022.

STANCE OF THE RESPONDENT NO.2:

47. According to the respondent no.2, the present petition filed byGthe petitioner seeking custody of her minor children so as to repatriatethem to the USA is nothing but an abuse of the process of law and notmaintainable. According to the respondent no.2, the present petition isnot maintainable as India is not a signatory to the Hague Convention.The terms of the Hague Convention are not binding on the Indian partiesand courts.H

48. The respondent no.2 had given prior notice to the petitionerabout his travel to India with children for a period of two weeks viaemail dated 28[th] July 2021. The respondent no.2 had also informed thepetitioner about the travel date, i.e. 19[th] August 2021, via email dated15[th] August 2021. The respondent no.2 had, via email dated 16[th] August2021, informed the petitioner about the address where they would bestaying in India. However, owing to the pandemic, there were changesin the international travel norms. The transit locations of travel, i.e. theMiddle East countries, were removed from the safety green list and astay of 14 days in a transit location was made necessary before flying tothe home country. According to the respondent no.2, it is on account ofsuch unforeseen circumstances that he had to make prompt changes inthe travel plan, get the RTPCR test, etc. and then travel to India to avoida 14 days’ stopover in the Middle East, which would have caused lot ofinconvenience to the children including the financial burden for threepersons.

49. It is the case of the respondent no.2 that the custody of thechildren with him cannot be said to be unlawful in any manner. Thecustody of the minor children with the father can never be termed asunlawful or illegal. According to the respondent no.2, the holiday wasplanned with the express consent of the petitioner-mother and both thechildren had a talk with their mother, i.e. the petitioner, on 17[th] August2021 before leaving for India. Thereafter also, the children spoke to thepetitioner-mother on 22[nd] August 2021 on arrival in India. All throughout,the petitioner was kept informed about the whereabouts of the minorchildren.

50. According to the respondent no.2, this litigation is nothing butan outcome of several mental health issues on the part of the petitioner.The respondent no.2 has levelled serious allegations against the petitionerthat she has been diagnosed with several mental health issues and hasbeen on medication for several issues for treatment of depression, bipolardisorder, schizophrenia, obsessive compulsive disorder, etc. Accordingto the respondent no.2, it is the erratic behaviour of the petitioner thathas resulted in his loss of job. It is alleged that the petitioner hadapproached the employer of the respondent no.2, namely Perrigo, Allegan,Michigan, USA, and created a distressing seen, thereby resulting intermination of the respondent no.2’s employment with immediate effect.As the respondent no.2 is not an American citizen nor is he a Green AB

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ACard holder, the loss of job means that he cannot go back to the USwithout the work permit.

51. It is the case of the respondent no.2 that it is the petitionerwho created a situation beyond repair, which ultimately led to thecancellation of visa.B52. According to the respondent no.2, he is not in a position to go

B52. According to the respondent no.2, he is not in a position to goback to the US as he has no means to reach the US and start a livingwithout a steady job. According to him, he cannot allow his children togo back to their mother, i.e. the petitioner, having regard to the allegedmental disorder of the petitioner. According to the respondent no.2, themental illness of the petitioner may increase the risk of the minorCchildren’s emotional and developmental growth. It is the case of therespondent no.2 that both the children are very happy residing in Indiawith their grandparents. Both the children have been admitted in a verygood school at Chennai. Their education is being taken care of in thebest possible manner. All other allegations levelled in the memorandumDof the writ petition have been denied.

53. According to the respondent no.2, he was to return to Chicagoon 2[nd] September with the children. He had confirmed tickets of EtihadAirways, but for the unnecessary hue and cry raised by the petitioner, asituation was brought around by which the respondent no.2 lost his jobEand consequently, the work permit came to be cancelled.

54. In such circumstances, it is the case of the respondent no.2that the present petition under Article 32 of the Constitution of Indiaseeking a Writ of Habeas Corpus is not maintainable. It is not maintainableas the father, being the natural guardian of his children, the custody ofFthe father cannot be termed as illegal or unlawful restrain on the minorchildren. In that context, no writ of Habeas Corpus can be issued. It isthe case of the respondent no.2 that before a writ of Habeas Corpuscan be issued, it has to be shown that there is either unlawful detentionor custody or there is an imminent or serious danger to the persondetained, particularly if he or she is a minor.G

55. We take notice of the fact that a rejoinder has also been filedto the reply of the respondent no.2. Few additional affidavits have alsobeen filed by the respondent no.2, by and large reiterating what hasbeen referred to above.

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SUBMISSIONS ON BEHALF OF THE PETITIONER :

56. Mr. Prabhjit Jauhar, the learned counsel appearing for thepetitioner, vehemently submitted that both the children are not residentsof India. The minor daughter Lakshaya came to the USA at the age of2 in the year 2012 and started her schooling from Findlay, Ohio, USA.She is well entrenched in the social and cultural milieu of the USA andcould be said to have been plucked out of the same without ascertainingher wishes. The minor daughter Lakshaya, as on date, is 12 years of ageand can well express her desires. The minor daughter is a permanentresident of the USA and has been residing, studying and socializing inthe USA. The custody of the minor daughter Lakshaya with her father,i.e. the respondent no.2, could be termed as illegal as the same is againstthe settlement agreement dated 30[th] July 2021 that had been mutuallyarrived at by and between the parties before the US court. The respondentno.2 – father has managed to keep the custody of the children by floutingvarious orders passed by the US courts. He cannot be a beneficiary ofhis own wrongs.

57. The minor son Bhavin Sai Ganesh is an American citizen holdingan American passport and, therefore, he is ordinarily a resident of theUSA. The minor son Ganesh Sai is 8 years of age and has been in theUSA since his birth. His custody with the respondent no.2 at Chennaicould also be said to be illegal, more particularly, could be said to be incontravention of the settlement agreement dated 30[th] July 2021.

58. The allegations levelled by the respondent no.2 that thepetitioner is suffering from various mental disorders are reckless, farfrom being true. If the petitioner had any mental issues and the respondentno.2 was so much concerned about the interest and welfare of his twominor children, then there was no good reason for him to go for thesettlement agreement dated 30[th] July 2021. The respondent no.2 couldbe said to be in gross and blatant contempt of the various orders passedby the US court. He could be said to have kept the custody of the custodyof the minor children illegally. His act has deprived the petitioner as amother to take care of her minor children in accordance with the sharedparenting plan and allocation of parental rights and responsibilities.

59. Mr. Jauhar, the learned counsel appearing for the petitioner,submitted that even with all that the respondent no.2 has done, thepetitioner is still ready and willing to abide by the shared parenting planand allocation of parental rights and responsibilities. The respondent no.2

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Ashould, at the earliest, return to the USA with both the minor childrenand abide by the various orders passed by the US courts, more particularly,the shared parenting plan.

60. The learned counsel would submit that the respondent no.2should be asked to apply for a fresh visa at the earliest pointing out to theBauthorities concerned that he is duty-bound in law to go back to the USAwith both the minor children so as to abide by the shared parenting planand the order that may be passed by this Court.

61. Mr. Jauhar, the learned counsel, has placed strong reliance, insupport of his submissions, on the following case-law:

C(1) Elizabeth Dinshaw v. Arvand M. Dinshaw,

(1987) 1 SCC 42;

(2) V. Ravi Chandran v. Union of India and others,

(2010) 1 SCC 174;

(3) Shilpa Aggarwal v. Aviral Mittal,D(2010) 1 SCC 591;

(4) Lahari Sakhamuri v. Sobhan Kodali,

(2019) 7 SCC 311;

(5) Surinder Kaur Sandhu v. Harbax Singh Sandhu,E(1984) 3 SCC 698.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

NO.2:

62. Ms. Meenakshi Arora, the learned senior counsel appearingFfor the respondent nos. 2, 4 and 5, on the other hand, has vehementlyopposed this writ petition substantially on the ground that the same seekingfor a Writ of Habeas Corpus is not maintainable as the custody of thetwo minor children with their father, i.e. the respondent no.2, cannot betermed as illegal or unlawful.

63. Ms. Arora would submit that both the minor children, as onGdate, are well-settled at Chennai. They are being taken care of in thebest possible manner. They have been admitted in a very good school atChennai. Both the minor children are now well-settled and to take themback to the USA all of a sudden will take a very heavy toll on them both;physically and mentally.H

64. According to Ms. Arora, when a party is seeking a discretionaryrelief under Article 32 of the Constitution of India, the court must lookinto the bona fide and the overall conduct of such party.

65. The learned senior counsel would submit that it is the petitionerwho has brought around a situation whereby the respondent no.2 is nownot in a position to go back to the USA and start a new life. The respondentno.2 has no work permit as his employment has been terminated. It isthe petitioner who is responsible for the termination of services of therespondent no.2 from the company where he was serving earlier. Shewould submit that, as on date, if the respondent no.2-father is asked togo back to the USA with his two minor children and if the respondentno.2 is not in a position to settle down in the USA, then he may have tocome back to India. In such circumstances, it would be too dangerous toleave behind both the minor children all alone with their mother who issuffering from various mental disorders. The argument of the learnedsenior counsel is that in such circumstances why should the father bedeprived of his love and affection towards his own children and alsosupervision.

66. It is submitted that it is always open for the petitioner-motherto travel to India and spend some time with her minor children ratherthan insisting that both the minor children should come back to the USA.

67. The learned senior counsel submitted that it is a well-settledposition of law, more particularly, after the decision of this Court in thecase of Nithya Anand Raghavan v. State (NCT of Delhi) and another,(2017) 8 SCC 454, that the paramount consideration in cases like theone on hand, should be the welfare of the minor child – in respect ofwhom the Habeas Corpus writ petition is preferred by one or the otherparent. The other considerations – like comity of courts; orders passedby foreign courts having jurisdiction in the matter regarding custody of aminor child; citizenship of the parents and the child; the ‘intimate connect’;the manner in which the child is brought in India, i.e. even if it is inbreach of order of competent court in foreign jurisdiction, cannot overridethe consideration of child’s welfare, since it is the responsibility of acourt, which exercises parens patriae jurisdiction, to ensure that theexercise of extraordinary writ jurisdiction is in the best interest of thechild, and the direction to return the child to a foreign jurisdiction doesnot result in any physical, mental, psychological, or other harm to thechild.

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A68. The learned senior counsel would submit that if it is not in thebest interest and welfare of the minor child that he/she should return tothe foreign jurisdiction, and giving of such direction would harm his/herinterest in the welfare, the other considerations and principles whichmay persuade this Court to take a view in favour of directing the returnof the minor child to the foreign court jurisdiction shall stand relegatedBand the court would not direct the return of the child to the place fallingwithin the jurisdiction of the foreign court.

69. In such circumstances referred to above, Ms. Arora, thelearned senior counsel appearing for the respondent nos. 2, 4 and 5respectively prays that there being no merit in the present writ petition,Cthe same may be rejected.

ANALYSIS:

70. Having heard the learned counsel appearing for the partiesand having gone through the materials on record, the only question thatfalls for our consideration is, whether the petitioner is entitled to any ofDthe reliefs prayed for ?

PRINCIPLES OF LAW GOVERNING THE RIGHTS OFTHE PARTIES:

71. The Guardians and Wards Act, 1890, was primarily enactedto consolidate the various Acts then in force keeping in view the personalElaw of diverse communities in India. It, however, did not encroach uponthe jurisdiction of the Courts of Wards and did not take away any powersvested in the High Courts or the Supreme Court. A ‘minor’ under theAct has been defined as a person who, under the provisions of the IndianMajority Act, 1875, is to be deemed not to have attained his majority. AF‘guardian’ has been defined as a person having the care of the person ofa minor or of his property or of both his person and property. Section 6of the Act provides that no provision in the Act shall be construed to takeaway or derogate from any power to appoint a guardian of a minor’sperson or property, or both, which is valid by the law to which the minoris subject. Section 7 gives power to the Court that if it is satisfied that itGis for the welfare of a minor that an order should be made, it may makean order appointing a guardian of his person or property, or both, ordeclaring a person to be such a guardian. Section 8 lays down that noorder under Section 7 will be made except on the application of theperson desirous of being, or claiming to be, the guardian of the minor orHany relative or friend of the minor or the Collector of the district in which the minor ordinarily resides or in which he has property or the Collectorhaving authority with respect to the class to which the minor belongs.Section 9 deals with the territorial jurisdiction of the court. Section 10lays down the manner in which an application is to be made and what isto be stated in the application. Section 11 provides for the procedure onadmission of such an application. Section 12 gives power to the court tomake interlocutory order for production of a minor and interim protectionof his person and property. Section 17 enjoins upon the court to have dueregard to the personal law of the minor and specially take note of thecircumstances which point towards the welfare of the minor in eitherappointing a guardian or declaring a guardian. If the minor is old enoughto form an intelligent preference, the court may be justified to considerthat preference also in coming to the final conclusion. Further, no personcan be appointed as a guardian against his own will.

72. The Hindu Minority and Guardianship Act, 1956 was enactedas a law complementary to the Guardians and Wards Act, 1890. Thisdefines a ‘minor’ to be a person who has not completed the age ofeighteen years. ‘Guardian’ has been defined as a person having the careof the person of a minor or of his property or of both his person andproperty and includes - (i) a natural guardian, (ii) a guardian appointedby the will of the minor’s father or mother, (iii) a guardian appointed ordeclared by a Court, and (vi) a person empowered to act as such by orunder any enactment relating to any court of wards. ‘Natural guardian’,according to this Act, means any of the guardians mentioned in Section6. Section 6 says that the natural guardians of a Hindu minor, in respectof the minor’s person as well as in respect of the minor’s property(excluding his or her undivided interest in the joint family property) are -(a) in the case of a boy or an unmarried girl, the father, and after him, themother, provided that the custody of a minor who has not completed theage of five years shall ordinarily be with the mother. Section 8 lays downthat the natural guardian of a Hindu minor has power, subject to theprovisions of this section, to do all acts which are necessary or reasonableand proper for the benefit of the minor or for the realization, protectionor benefit of the minor’s estate but the guardian can, in no case, bind theminor by a personal covenant. Sub-section (5) of Section 8 lays downthat the Guardians and Wards Act, 1890, shall apply in certaincircumstances. Section 13 of the Act lays down that in the appointmentor declaration of any person as guardian of Hindu minor by a Court, thewelfare of the minor shall be the paramount consideration. Indeed sub- AB

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Asection (2) of Section 13 lays down that no person shall be entitled to theguardianship by virtue of the provisions of the Act or of any law relatingto guardianship in marriage among Hindus, if the Court is of opinion thathis or her guardianship will not be for the welfare of the minor. Thissection is complementary to Section 17 of the Guardians and WardsAct, 1890 which lays down that in appointing or declaring the guardianBof a minor the Court shall be guided by what, consistently with the law towhich the minor is subject, appears in the circumstances to be for thewelfare of the minor.

73. A mere reading of the provisions of the two Acts referred toabove makes it obvious that the welfare of the minor predominates toCsuch an extent that the legal rights of the persons claiming to be theguardians or claiming to be entitled to the custody will play a veryinsignificant role in the determination by the court.

74. Ms. Arora does not really contest the above proposition. Whatshe contends is that the father being the natural guardian of his twoDminor children, the custody of the father cannot be termed as illegal orunlawful restraint on the minor. In that context no writ of Habeas Corpuscan issue. Her contention is that before a writ of Habeas Corpus canissue, it has to be shown that there is either unlawful detention or custodyor there is imminent or serious danger to the person detained, particularlyif he or she is minor.E

WRIT OF HABEAS CORPUS:

75. In a petition seeking a writ of Habeas Corpus in a matterrelating to a claim for custody of a child, the principal issue which shouldbe taken into consideration is as to whether from the facts of the case, itFcan be stated that the custody of the child is illegal.

76. The writ of Habeas Corpus has always been given duesignification as an effective method to ensure release of the detainedperson from prison. In P. Ramanatha Aiyar’s Law Lexicon (1997 edition),while defining ‘habeas corpus’, apart from other aspects, the followinghas been stated :G

“The ancient prerogative writ of habeas corpus takes its namefrom the two mandatory words habeas. corpus, which itcontained at the time when it, in common with all forms oflegal process, was framed in Latin. The general purpose ofthese writs, as their name indicates, was to obtain theHproduction of an individual.”

77. In Secretary of State for Home Affairs v. O’Brien reportedin (1923) AC 603 (609), it has been observed that it is perhaps the mostimportant writ known to the constitutional law of England, affording as itdoes a swift and imperative remedy in all cases of illegal restraint orconfinement. It is of immemorial antiquity, an instance of its use occurringin the thirty-third year of Edward I. It has through the ages been jealouslymaintained by the Courts of Law as a check upon the illegal usurpationof power by the Executive at the cost of the liege.

78. The writ of Habeas Corpus is a prerogative writ and anextraordinary remedy. It is a writ of right and not a writ of course andmay be granted only on reasonable ground or probable cause being shown,as held by this Court in Mohd. Ikram Hussain v. State of Uttar Pradeshand others, AIR 1964 SC 1625 and Kanu Sanyal v. DistrictMagistrate, Darjeeling, (1973) 2 SCC 674. The observations madeby a Constitution Bench in the case of Kanu Sanyal (supra) with regardto the nature and scope of a writ of Habeas Corpus are being extractedbelow :

“4. It will be seen from this brief history of the writ of habeascorpus that it is essentially a procedural writ. It deals withthe machinery of justice, not the substantive law. The objectof the writ is to secure release of a person who is illegallyrestrained of his liberty. The writ is, no doubt, a commandaddressed to a person who is alleged to have another personunlawfully in his custody requiring him to bring the body ofsuch person before the Court, but the production of the bodyof the person detained is directed in order that thecircumstances of his detention may be inquired into, or to putit differently, “in order that appropriate judgment be renderedon judicial enquiry into the alleged unlawful restraint”. Theform of the writ employed is “We command you that you havein the King’s Bench Division of our High Court of Justice-immediately after the receipt of this our writ, the body of A.B.being taken and detained under your custody-together withthe day and cause of his being taken and detained to undergoand receive all and singular such matters and things as ourcourt shall then and there consider of concerning him in thisbehalf”. The italicized words show that the writ is primarilydesigned to give a person restrained of his liberty a speedyand effective remedy for having the legality of his detention A

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Aenquired into and determined and if the detention is found tobe unlawful, having himself discharged and freed from suchrestraint. The most characteristic element of the writ is itsperemptoriness and, as pointed out by Lord Halsbury, L.C. inCox v. Hakes (supra), “the essential and leading theory ofthe whole procedure is the immediate determination of theBright to the applicant’s freedom and his release, if the detentionis found to be unlawful. That is the primary purpose of thewrit; that is its substance and end.”

79. The exercise of the extraordinary jurisdiction for issuance ofa writ of Habeas Corpus would, therefore, be seen to be dependent onCthe jurisdictional fact where the applicant establishes a prima facie casethat the detention is unlawful. It is only where the aforementionedjurisdictional fact is established that the applicant becomes entitled tothe writ as of right.

80. The object and scope of a writ of Habeas Corpus in the contextDof a claim relating to the custody of a minor child fell for the considerationof this Court in Nithya Anand Raghavan (supra) and it was held thatthe principal duty of the court in such matters should be to ascertainwhether the custody of the child is unlawful and illegal and whether thewelfare of the child requires that his present custody should be changedand the child be handed over to the care and custody of any other person.E

81. Taking a similar view in the case of Syed Saleemuddin v.Dr. Rukhsana and others, (2001) 5 SCC 247, it was held by this Courtthat in a Habeas Corpus petition seeking transfer of custody of a childfrom one parent to the other, the principal consideration for the courtwould be to ascertain whether the custody of the child can be said to beFunlawful or illegal and whether the welfare of the child requires that thepresent custody should be changed. It was stated thus :

“11…it is clear that in an application seeking a writ of HabeasCorpus for custody of minor children the principalconsideration for the Court is to ascertain whether the custodyGof the children can be said to be unlawful or illegal andwhether the welfare of the children requires that presentcustody should be changed and the children should be left incare and custody of somebody else. The principle is well settledthat in a matter of custody of a child the welfare of the childis of paramount consideration for the court…”H

82. The question of maintainability of a Habeas Corpus petitionunder Article 226 of the Constitution of India for the custody of a minorwas examined by this Court in Tejaswini Gaud and others v. ShekharJagdish Prasad Tewari and others, (2019) 7 SCC 42, and it was heldthat the petition would be maintainable where the detention by parentsor others is found to be illegal and without any authority of law and theextraordinary remedy of a prerogative writ of Habeas Corpus can beavailed in exceptional cases where the ordinary remedy provided by thelaw is either unavailable or ineffective. The observations made in thejudgment in this regard are as follows :

“14. Writ of habeas corpus is a prerogative process forsecuring the liberty of the subject by affording an effectivemeans of immediate release from an illegal or improperdetention. The writ also extends its influence to restore thecustody of a minor to his guardian when wrongfully deprivedof it. The detention of a minor by a person who is not entitledto his legal custody is treated as equivalent to illegal detentionfor the purpose of granting writ, directing custody of the minorchild. For restoration of the custody of a minor from a personwho according to the personal law, is not his legal or naturalguardian, in appropriate cases, the writ court has jurisdiction.

x x x x

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19. Habeas corpus proceedings is not to justify or examinethe legality of the custody. Habeas corpus proceedings is amedium through which the custody of the child is addressedto the discretion of the court. Habeas corpus is a prerogativewrit which is an extraordinary remedy and the writ is issuedwhere in the circumstances of the particular case, ordinaryremedy provided by the law is either not available or isineffective; otherwise a writ will not be issued. In child custodymatters, the power of the High Court in granting the writ isqualified only in cases where the detention of a minor by aperson who is not entitled to his legal custody. In view of thepronouncement on the issue in question by the Supreme Courtand the High Courts, in our view, in child custody matters,the writ of habeas corpus is maintainable where it is provedthat the detention of a minor child by a parent or others wasillegal and without any authority of law.

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A20. In child custody matters, the ordinary remedy lies onlyunder the Hindu Minority and Guardianship Act or theGuardians and Wards Act as the case may be. In cases arisingout of the proceedings under the Guardians and Wards Act,the jurisdiction of the court is determined by whether the minorordinarily resides within the area on which the court exercisesBsuch jurisdiction. There are significant differences betweenthe enquiry under the Guardians and Wards Act and theexercise of powers by a writ court which is of summary innature. What is important is the welfare of the child. In thewrit court, rights are determined only on the basis of affidavits.CWhere the court is of the view that a detailed enquiry isrequired, the court may decline to exercise the extraordinaryjurisdiction and direct the parties to approach the civil court.It is only in exceptional cases, the rights of the parties to thecustody of the minor will be determined in exercise ofextraordinary jurisdiction on a petition for habeas corpus.”D

83. In the case of Anjali Kapoor v. Rajiv Baijal, (2009) 7 SCC322, where the custody of a minor child was being claimed by the fatherbeing the natural parent from the maternal grandmother, the mother havingdied in child birth, it was held that taking proper care and attention inupbringing of the child is an important factor for granting custody ofEchild, and on facts, the child having been brought up by the grandmothersince her infancy and having developed emotional bonding, the custodyof the child was allowed to be retained by the maternal grandmother.While considering the competing rights of natural guardianships vis-a-vis the welfare of the child, the test for consideration by the Court wasFheld to be; what would best serve the welfare and interest of the child.Referring to the earlier decisions in Sumedha Nagpal v. State of Delhi,(2000) 9 SCC 745; Rosy Jacob v. Jacob A. Chakramakkal, (1973)1 SCC 840; Elizabeth Dinshaw v. Arvand M. Dinshaw, (supra) andMuthuswami Chettiar v. K.M. Chinna Muthuswami Moopanar, AIR1935 Mad 195, it was also held that the welfare of child prevails over theGlegal rights of the parties while deciding the custody of minor child. Theobservations made in the judgment in this regard are as follows :

“14. The question for our consideration is, whether in thepresent scenario would it be proper to direct the appellant tohand over the custody of the minor child Anagh to theHrespondent.

15. Under the Guardians and Wards Act, 1890, the father isthe guardian of the minor child until he is found unfit to bethe guardian of the minor female child. In deciding suchquestions, the welfare of the minor child is the paramountconsideration and such a question cannot be decided merelybased upon the rights of the parties under the law. (SeeSumedha Nagpal vs. State of Delhi.” (2000) 9 SCC 745 (SCCp. 747, paras 2 & 5).

84. In Rosy Jacob v. Jacob A. Chakramakkal (supra), this Courthas observed that :

“7…the principle on which the court should decide the fitnessof the guardian mainly depends on two factors: (i) the father’sfitness or otherwise to be the guardian, and (ii) the interestsof the minors.”

85. This Court considering the welfare of the child also statedthat : (SCC p. 855, para 15)

“15….The children are not mere chattels: nor are they mereplaythings for their parents. Absolute right of parents overthe destinies and the lives of their children has, in the modernchanged social conditions, yielded to the considerations oftheir welfare as human beings so that they may grow up in anormal balanced manner to be useful members of thesociety….”

86. In Elizabeth Dinshaw (supra), this Court has observed thatwhenever a question arises before a court pertaining to the custody ofthe minor child, the matter is to be decided not on consideration of thelegal rights of the parties but on the sole and predominant criterion ofwhat would best serve the interest and welfare of the child.

87. The question as to how the court would determine what isbest in the interest of the child was considered In Re: McGrath(Infants), [1893] 1 Ch. 143 C.A., and it was observed by Lindley L.J.,as follows :

“…The dominant matter for the consideration of the Court isthe welfare of the child. But the welfare of a child is not to bemeasured by money only, nor by physical comfort only. Theword welfare must be taken in its widest sense. The moral andreligious welfare of the child must be considered as well as its AB

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Aphysical well-being. Nor can the ties of affection bedisregarded.”

88. The issue as to the welfare of the child again arose In re “O”(An Infant), [1965] 1 Ch. 23 C.A., where Harman L.J., stated as follows:

“It is not, I think, really in dispute that in all cases theBparamount consideration is the welfare of the child; but that,of course, does not mean you add up shillings and pence, orsituation or prospects, or even religion. What you look at isthe whole background of the child’s life, and the firstconsideration you have to take into account when you arelooking at his welfare is : who are his parents and are theyCready to do their duty?”

89. The question as to what would be the dominating factors whileexamining the welfare of a child was considered in Walker v. Walker& Harrison, 1981 New Ze Recent Law 257 and it was observed thatwhile the material considerations have their place, they are secondaryDmatters. More important are stability and security, loving andunderstanding care and guidance, and warm and compassionaterelationships which are essential for the development of the child’scharacter, personality and talents. It was stated as follows :

“Welfare is an all-encompassing word. It includes materialEwelfare; both in the sense of adequacy of resources to providea pleasant home and a comfortable standard of living and inthe sense of an adequacy of care to ensure that good healthand due personal pride are maintained. However, whilematerial considerations have their place they are secondaryFmatters. More important are the stability and the security, theloving and understanding care and guidance, the warm andcompassionate relationships that are essential for the fulldevelopment of the child’s own character, personality andtalents.”

90. In the context of consideration of an application by a parentGseeking custody of a child through the medium of a Habeas Corpusproceeding, it has been stated in American Jurisprudence, 2nd Edn. Vol.39 as follows :

“…An application by a parent, through the medium of a habeascorpus proceeding, for custody of a child is addressed to theH

discretion of the court, and custody may be withheld from theparent where it is made clearly to appear that by reason ofunfitness for the trust or of other sufficient causes thepermanent interests of the child would be sacrificed by achange of custody. In determining whether it will be for thebest interest of a child to award its custody to the father ormother, the court may properly consult the child, if it hassufficient judgment.”

91. Thus, it is well established that in issuing the writ of HabeasCorpus in the case of minors, the jurisdiction which the Court exercisesis an inherent jurisdiction as distinct from a statutory jurisdiction conferredby any particular provision in any special statute. In other words, theemployment of the writ of Habeas Corpus in child custody cases is notpursuant to, but independent of any statute. The jurisdiction exercisedby the court rests in such cases on its inherent equitable powers andexerts the force of the State, as parens patriae, for the protection of itsminor ward, and the very nature and scope of the inquiry and the resultsought to be accomplished call for the exercise of the jurisdiction of acourt of equity. The primary object of a Habeas Corpus petition, asapplied to minor children, is to determine in whose custody the bestinterests of the child will probably be advanced. In a Habeas Corpusproceeding brought by one parent against the other for the custody oftheir child, the court has before it the question of the rights of the partiesas between themselves, and also has before it, if presented by thepleadings and the evidence, the question of the interest which the State,as parens patriae, has in promoting the best interests of the child.

92. The general principle governing the award of custody of aminor is succinctly stated in the following words in Halsbury's Laws ofEngland, Fourth Edition, Vol. 24, Article 511 at page 217 :

“… Where in any proceedings before any court the custodyor upbringing of a minor is in question, then, in deciding thatquestion, the court must regard the minor's welfare as thefirst and paramount consideration, and may not take intoconsideration whether from any other point of view the father'sclaim in respect of that custody or upbringing is superior tothat of the mother, or the mother's claim is superior to that ofthe father.”

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A93. In the American Jurisprudence, Vol. 39, Second Edition, Para148 at pages 280-281, the same principle is enunciated in the followingwords :

“..... a court is not bound to deliver a child into the custodyof any claimant or of any person, but should, in the exerciseBof a sound discretion, after careful consideration of the facts,leave it in such custody as its welfare at the time appears torequire.”

94. In the footnote 14 at page 281, the following extracts fromtwo American cases are set-out which also emphasise this point :

C“The employment of the forms of habeas corpus in a childcustody case is not for the purpose of testing the legality of aconfinement or restraint as contemplated by the ancientcommon law writ, or by statute, but the primary purpose is tofurnish a means by which the court, in the exercise of itsjudicial discretion, may determine what is best for the welfareDof the child, and the decision is reached by a considerationof the equities involved in the welfare of the child, againstwhich the legal rights of no one, including the parents, areallowed to militate.” Howarth v. Northcott, 152 Conn 460,208 A 2d and 540, 17 ALR3d 758.

EPRECEDENTS ON THE SUBJECT :

EPRECEDENTS ON THE SUBJECT :

95. As Mr. Jauhar, the learned counsel appearing for the petitioner,has placed strong reliance on the decision of this Court in the case ofV. Ravi Chandran (supra), we must look into the same. This Court, inV. Ravi Chandran (supra), held as follows :F

“29. While dealing with a case of custody of a child removedby a parent from one country to another in contravention ofthe orders of the Court where the parties had set up theirmatrimonial home, the Court in the country to which the childhas been removed must first consider the question whetherGthe Court could conduct an elaborate enquiry on the questionof custody or by dealing with the matter summarily order aparent to return custody of the child to the country from whichthe child was removed and all aspects relating to the child’swelfare be investigated in a Court in his own country. Shouldthe Court take a view that an elaborate enquiry is necessary, H

obviously the Court is bound to consider the welfare andhappiness of the child as the paramount consideration andgo into all relevant aspects of welfare of the child includingstability and security, loving and understanding care andguidance and full development of the child’s character,personality and talents. While doing so, the order of a foreignCourt as to his custody may be given due weight; the weightand persuasive effect of a foreign judgment must depend onthe circumstances of each case.

30. However, in a case where the Court decides to exercise itsjurisdiction summarily to return the child to his own country,keeping in view the jurisdiction of the Court in the nativecountry which has the closest concern and the most intimatecontact with the issues arising in the case, the Court mayleave the aspects relating to the welfare of the child to beinvestigated by the Court in his own native country as thatcould be in the best interests of the child. The indication givenin McKee v. McKee [1951 AC 352 : (1951) 1 All ER 942(PC)] that there may be cases in which it is proper for a Courtin one jurisdiction to make an order directing that a child bereturned to a foreign jurisdiction without investigating themerits of the dispute relating to the care of the child on theground that such an order is in the best interests of the childhas been explained in L (Minors), In re [(1974) 1 WLR 250 :(1974) 1 All ER 913 (CA)] and the said view has beenapproved by this Court in Dhanwanti Joshi [(1998) 1 SCC112] . Similar view taken by the Court of Appeal in H. (Infants),In re [(1966) 1 WLR 381 (Ch & CA) : (1966) 1 All ER 886(CA)] has been approved by this Court in Elizabeth Dinshaw,(1987) 1 SCC 42 : 1987 SCC (Cri) 13]”.

96. This Court then proceeded to consider the issue, whether thefacts of the case before it warranted an elaborate inquiry into the questionof custody of the minor and should the parties be relegated to the saidprocedure before an appropriate forum in India. This Court concluded inits judgment that it was not necessary to relegate the parties to an elaborateprocedure in India. Its reasons are found in paras 32 to 35, which readas follows :

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“32. Admittedly, Adithya is an American citizen, born andbrought up in the United States of America. He has spent hisinitial years there. The natural habitat of Adithya is in theUnited States of America. As a matter of fact, keeping in viewthe welfare and happiness of the child and in his best interests,the parties have obtained a series of consent ordersconcerning his custody/parenting rights, maintenance, etc.from the competent Courts of jurisdiction in America. Initially,on 18.4.2005, a consent order governing the issues of custodyand guardianship of minor Adithya was passed by the NewYork State Supreme Court whereunder the Court granted jointcustody of the child to the petitioner and Respondent 6 and itwas stipulated in the order to keep the other party informedabout the whereabouts of the child. In a separation agreemententered into between the parties on 28.7.2005, the consentorder dated 18.4.2005 regarding custody of minor son Adithyacontinued.

33. In 8.9.2005 order whereby the marriage between thepetitioner and Respondent 6 was dissolved by the New YorkState Supreme Court, again the child custody order dated18.4.2005 was incorporated. Then the petitioner andRespondent 6 agreed for modification of the custody orderand, accordingly, the Family Court of the State of New Yorkon 18.6.2007 ordered that the parties shall share joint legaland physical custody of the minor Adithya and, in this regard,a comprehensive arrangement in respect of the custody ofthe child has been made.

34. The fact that all orders concerning the custody of theminor child Adithya have been passed by the American Courtsby consent of the parties shows that the objections raised byRespondent 6 in the counter-affidavit about deprivation ofbasic rights of the child by the petitioner in the past; failureof the petitioner to give medication to the child; denial ofeducation to the minor child; deprivation of stableenvironment to the minor child; and child abuse are hollowand without any substance. The objection raised byRespondent 6 in the counter-affidavit that the AmericanCourts which passed the order/decree had no jurisdiction andbeing inconsistent with Indian laws cannot be executed in

India also prima facie does not seem to have any merit sincedespite the fact that Respondent 6 has been staying in Indiafor more than two years, she has not pursued any legalproceeding for the sole custody of the minor Adithya or fordeclaration that the orders passed by the American Courtsconcerning the custody of minor child Adithya are null andvoid and without jurisdiction. Rather it transpires from thecounter-affidavit that initially Respondent 6 initiated theproceedings under the Guardians and Wards Act, 1890 butlater on withdrew the same.

35. The facts and circumstances noticed above leave nomanner of doubt that merely because the child has beenbrought to India by Respondent 6, the custody issueconcerning minor child Adithya does not deserve to be goneinto by the Courts in India and it would be in accord withprinciples of comity as well as on facts to return the childback to the United States of America from where he has beenremoved and enable the parties to establish the case beforethe Courts in the native State of the child i.e. the United Statesof America for modification of the existing custody orders.There is nothing on record which may even remotely suggestthat it would be harmful for the child to be returned to hisnative country.”

97. Despite the fact that the minor child Adithya had remained inIndia for over two years, this Court concluded that it could not be saidthat the he had developed his roots in India. This Court directed therespondent mother to take the child, of her own, to the USA and toreport before the Family Court of the State of New York. This Courtalso imposed the condition on the petitioner that he shall bear all thetravelling expenses of the mother and the minor child and makearrangements for their residence in the USA till further orders are passedby the competent Court. He was also directed to request the authoritiesthat the warrants issued against the mother be dropped and he wasdirected not to file or pursue any criminal charge for violation by themother of the consent order in USA.

98. In Surya Vadanan v. State of Tamil Nadu, (2015) 5 SCC450, the husband and wife both were of the Indian origin but the husbandbecame a resident and citizen of the UK. The parties got married in AB

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AIndia and had two daughters in the UK. The wife had acquired theBritish citizenship and the British passport as well. Both the parties wereworking for gain in the UK. The parties started having some matrimonialproblems, as a result of which the wife came back to India with her twodaughters. The wife filed a petition under Section 13(1)(i-a) of the HinduMarriage Act, 1955 seeking divorce in the Family Court, Coimbatore.BSubsequently, the husband filed a petition in the High Court of Justice inthe UK for making the children wards of the Court. The High Courtmade the children wards of the Court during their minority, or until furtherorders of the Court and the wife was directed to return the children tothe jurisdiction of the foreign Court. As the wife failed to obey the ordersCof the foreign Court, the husband filed a writ petition of Habeas Corpusseeking production of his children and their return to the UK, in theMadras High Court. The High Court dismissed the petition. This Courtdiscussed the law on the custody of the children and observed thefollowing :

D“46. The principle of the comity of Courts is essentially aprinciple of self-restraint, applicable when a foreign Court isseized of the issue of the custody of a child prior to thedomestic Court. There may be a situation where the foreignCourt though seized of the issue does not pass any effectiveor substantial order or direction. In that event, if the domesticECourt were to pass an effective or substantial order ordirection prior in point of time then the foreign Court oughtto exercise self-restraint and respect the direction or order ofthe domestic Court (or vice versa), unless there are very goodreasons not to do so.F47. From a review of the above decisions, it is quite clear thatthere is complete unanimity that the best interests and welfareof the child are of paramount importance. However, it shouldbe clearly understood that this is the final goal or the finalobjective to be achieved — it is not the beginning of theexercise but the end.G48. Therefore, we are concerned with two principles in a casesuch as the present. They are:

(i) the principle of comity of Courts; and

(ii) the principle of the best interests and the welfare of theHchild.

These principles have been referred to as “contrastingprinciples of law” [Shilpa Aggarwal v. Aviral Mittal, (2010)1 SCC 591 : (2010) 1 SCC (Civ) 192] but they are not“contrasting” in the sense of one being the opposite of theother but they are contrasting in the sense of being differentprinciples that need to be applied in the facts of a given case.

49. What then are some of the key circumstances and factorsto be taken into consideration for reaching this final goal orfinal objective? First, it must be appreciated that the ‘mostintimate contact’ doctrine and the ‘closest concern’ doctrineof Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3SCC 698 : 1984 SCC (Cri) 464 are very much alive and cannotbe ignored only because their application might beuncomfortable in certain situations. It is not appropriate thata domestic Court having much less intimate contact with achild and having much less close concern with a child andhis or her parents (as against a foreign Court in a given case)should take upon itself the onerous task of determining thebest interests and welfare of the child. A foreign Court havingthe most intimate contact and the closest concern with thechild would be better equipped and perhaps best suited toappreciate the social and cultural milieu in which the childhas been brought up rather than a domestic Court. This is afactor that must be kept in mind.

52. What are the situations in which an interim or aninterlocutory order of a foreign Court may be ignored? Thereare very few such situations. It is of primary importance todetermine, prima facie, that the foreign Court has jurisdictionover the child whose custody is in dispute, based on the factof the child being ordinarily resident in the territory over whichthe foreign Court exercises jurisdiction. If the foreign Courtdoes have jurisdiction, the interim or interlocutory order ofthe foreign Court should be given due weight and respect. Ifthe jurisdiction of the foreign Court is not in doubt, the ‘firststrike’ principle would be applicable. That is to say that duerespect and weight must be given to a substantive order priorin point of time to a substantive order passed by another Court(foreign or domestic).

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A53. There may be a case, as has happened in the presentappeal, where one parent invokes the jurisdiction of a Courtbut does not obtain any substantive order in his or her favourand the other parent invokes the jurisdiction of another Courtand obtains a substantive order in his or her favour beforethe first Court. In such an event, due respect and weight oughtBto be given to the substantive order passed by the secondCourt since that interim or interlocutory order was passedprior in point of time.

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55. Finally, this Court has accepted the view [L. (Minors), InCre, (1974) 1 WLR 250 : (1974) 1 All ER 913 (CA)] that in agiven case, it might be appropriate to have an elaborate inquiryto decide whether a child should be repatriated to the foreigncountry and to the jurisdiction of the foreign Court or in agiven case to have a summary inquiry without going into theDmerits of the dispute relating to the best interests and welfareof the child and repatriating the child to the foreign countryand to the jurisdiction of the foreign Court.”

99. Thus, it is evident that while the paragraph 49 referred toabove recognised the well-settled principle/doctrine of the ‘most intimateEcontact’ and the ‘closest concern’ doctrine, the paragraphs 47, 52 & 53respectively emphasized the doctrine of comity of Courts and the firststrike principle. Even before stating the aforesaid principles, in paragraph47, the Court observed that there is complete unanimity that the bestinterests and welfare of the child are of paramount importance.

F100. The Court allowed the appeal on the ground that the UKCourt had passed an effective and substantial order declaring the childrenof the parties as wards of that Court and also that the UK Court has themost intimate contact with the welfare of the children.

101. In Nithya Anand Raghavan (supra), this Court struckaltogether a different note and gave a new dimension. In that case, theGcouple married on 30.11.2006 at Chennai and shifted to the UK in theearly 2007. Disputes between the spouses arose. The wife havingconceived in December 2008, came to New Delhi in June 2009 andstayed with her parents and gave birth to a girl child - Nethra on 07.08.2009at Delhi. After the husband arrived in India, the couple went back to theHUK in March, 2010 and following certain unsavoury events, the wife and the daughter returned to India in August 2010. After exchange oflegal correspondence, the wife and her daughter went back to Londonin December, 2011, and in January 2012 the daughter was admitted in anursery in the UK. In December, 2012, the child was granted the UKcitizenship and the husband was also granted the UK citizenship in January2013. They bought a home in the UK to which they shifted their family.In September, 2013 the child was admitted in a primary school in the UKand she was around four years old. In July, 2014 the wife returned toIndia along with her daughter. She again returned to the UK along withthe child. Between late 2014 and early 2015 the child became ill andwas diagnosed with cardiac disorder. On 02.07.2015, the wife returnedto India with her daughter due to the alleged violent behaviour of herhusband. On 16.12.2015, the wife filed a complaint against the husbandat the CAW Cell, New Delhi, and in spite of the notices to the husbandand her parents, neither of them appeared. The husband filed a custody/wardship petition on 08.01.2016 in the UK to seek return of the child.On 23.1.2016, he also filed a Habeas Corpus petition in the Delhi HighCourt which was allowed on 08.07.2016. The wife carried the case tothis Court. This Court strongly relied upon its earlier judgment inDhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112, which in turn,referred to Mckee v. McKee, 1951 AC 352 : (1951) 1 All ER 942 (PC),where the Privy Council held that the order of the foreign court wouldyield to the welfare of the child and that the comity of courts demandednot its enforcement, but its grave consideration. While taking note of thefact that India is not a signatory to the Hague Convention of 1980, on the“Civil Aspects of International Child Abduction”, this Court, inter alia,held as under :

“40. … As regards the non-Convention countries, the law isthat the court in the country to which the child has beenremoved must consider the question on merits bearing thewelfare of the child as of paramount importance and reckonthe order of the foreign court as only a factor to be takeninto consideration, unless the court thinks it fit to exercisesummary jurisdiction in the interests of the child and its promptreturn is for its welfare. In exercise of summary jurisdiction,the court must be satisfied and of the opinion that theproceeding instituted before it was in close proximity and filedpromptly after the child was removed from his/her native stateand brought within its territorial jurisdiction, the child has AB

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Anot gained roots here and further that it will be in the child'swelfare to return to his native state because of the differencein language spoken or social customs and contacts to whichhe/she has been accustomed or such other tangible reasons.In such a case the court need not resort to an elaborate inquiryinto the merits of the paramount welfare of the child but leaveBthat inquiry to the foreign court by directing return of thechild. Be it noted that in exceptional cases the court can stillrefuse to issue direction to return the child to the native stateand more particularly in spite of a pre-existing order of theforeign court in that behalf, if it is satisfied that the child'sCreturn may expose him to a grave risk of harm. This meansthat the courts in India, within whose jurisdiction the minorhas been brought must “ordinarily” consider the question onmerits, bearing in mind the welfare of the child as of paramountimportance whilst reckoning the pre-existing order of theforeign court if any as only one of the factors and not getDfixated therewith. In either situation—be it a summary inquiryor an elaborate inquiry—the welfare of the child is ofparamount consideration. Thus, while examining the issue thecourts in India are free to decline the relief of return of thechild brought within its jurisdiction, if it is satisfied that theEchild is now settled in its new environment or if it would exposethe child to physical or psychological harm or otherwise placethe child in an intolerable position or if the child is quitemature and objects to its return. We are in respectful agreementwith the aforementioned exposition.”F102. This Court also relied upon the judgment in V. Ravi Chandran(supra) and inter alia held that the role of the High Court in examiningthe cases of custody of a minor is on the touchstone of principle ofparens patriae jurisdiction, as the minor is within the jurisdiction of thecourt. It has held that the High Court while dealing with the petition forissuance of Habeas Corpus concerning a minor child in a given case,Gmay direct return of the child or decline to change the custody of thechild keeping in mind all the attending facts and circumstances includingthe settled legal position discussed therein. It has further added that thedecision of the court, in each case, must depend on the totality of thefacts and circumstances of the case brought before it while consideringHthe welfare of the child which is of paramount consideration and that the order of the foreign court must yield to the welfare of the child and theremedy of writ of Habeas Corpus cannot be used for mere enforcementof the directions given by the foreign court against a person within itsjurisdiction and convert that jurisdiction into that of an executing court. Ithas further observed that the writ petitioner can take recourse to suchother remedy as may be permissible in law for enforcement of the orderpassed by the foreign court or resort to any other proceedings as may bepermissible in law before the Indian Court for the custody of the child, ifso advised. This Court has disapproved paragraph 56(a) to (d) in SuryaVadanan (supra) which reads as follows:

“56. However, if there is a pre-existing order of a foreigncourt of competent jurisdiction and the domestic court decidesto conduct an elaborate inquiry (as against a summaryinquiry), it must have special reasons to do so. An elaborateinquiry should not be ordered as a matter of course. Whiledeciding whether a summary or an elaborate inquiry shouldbe conducted, the domestic court must take intoconsideration:

(a) The nature and effect of the interim or interlocutory orderpassed by the foreign court.

(b) The existence of special reasons for repatriating or notrepatriating the child to the jurisdiction of the foreign court.

(c) The repatriation of the child does not cause any moral orphysical or social or cultural or psychological harm to thechild, nor should it cause any legal harm to the parent withwhom the child is in India. There are instances where the orderof the foreign court may result in the arrest of the parent onhis or her return to the foreign country. [Arathi Bandi v. BandiJagadrakshaka Rao, (2013) 15 SCC 790: (2014) 5 SCC (Civ)475]. In such cases, the domestic court is also obliged toensure the physical safety of the parent.

(d) The alacrity with which the parent moves the foreign courtconcerned or the domestic court concerned, is also relevant.If the time gap is unusually large and is not reasonablyexplainable and the child has developed firm roots in India,the domestic court may be well advised to conduct anelaborate inquiry.”

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103. As regards (a) to (c) of paragraph 56 above, this Court termedthe same as tending to drift away from the exposition in DhanwantiJoshi (supra) and V. Ravi Chandran (supra) and with regard to clause(d), the Court disagreed with the same. For better appreciation, paragraphs62, 63 and 66 respectively of the report are extracted herein below :

“62. As regards clauses (a) to (c) above, the same, in ourview, with due respect, tend to drift away from the expositionin Dhanwanti Joshi case, which has been quoted withapproval by a three-Judge Bench of this Court in V. RaviChandran case. In that, the nature of inquiry suggested thereininevitably recognises giving primacy to the order of the foreigncourt on the issue of custody of the minor. That has beenexplicitly negated in Dhanwanti Joshi case. For, whether it isa case of a summary inquiry or an elaborate inquiry, theparamount consideration is the interests and welfare of thechild. Further, a pre-existing order of a foreign court can bereckoned only as one of the factor to be taken intoconsideration. We have elaborated on this aspect in the earlierpart of this judgment.

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63. As regards the fourth factor noted in clause (d) of para56, Surya Vadanan v. State of T.N., (2015) 5 SCC 450: (2015)3 SCC (Civ) 94], we respectfully disagree with the same. TheEfirst part gives weightage to the “first strike” principle. Asnoted earlier, it is not relevant as to which party firstapproached the court or so to say “first strike” referred to inpara 52 of the judgment. Even the analogy given in para 54regarding extrapolating that principle to the courts in India,Fif an order is passed by the Indian Court is inapposite. For,the Indian Courts are strictly governed by the provisions ofthe Guardians and Wards Act, 1890, as applicable to the issueof custody of the minor within its jurisdiction.

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66. The invocation of first strike principle as a decisive factor,in our opinion, would undermine and whittle down thewholesome principle of the duty of the court havingjurisdiction to consider the best interests and welfare of thechild, which is of paramount importance. If the Court isconvinced in that regard, the fact that there is already an H

order passed by a foreign court in existence may not be sosignificant as it must yield to the welfare of the child. That isonly one of the factors to be taken into consideration. Theinterests and welfare of the child are of paramountconsideration. The principle of comity of courts as observedin Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112, inrelation to non-Convention countries is that the court in thecountry to which the child is removed will consider thequestion on merits bearing the welfare of the child as ofparamount importance and consider the order of the foreigncourt as only a factor to be taken into consideration. Whileconsidering that aspect, the court may reckon the fact thatthe child was abducted from his or her country of habitualresidence but the court's overriding consideration must bethe child's welfare.”

104. Finally this Court, in Nithya Anand Raghavan (supra),concluded as under :

“69. We once again reiterate that the exposition in DhanwantiJoshi v. Madhav Unde, (1998) 1 SCC 112 is a good law andhas been quoted with approval by a three-Judge Bench ofthis Court in V. Ravi Chandran. We approve the view taken inDhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112, interalia, in para 33 that so far as non-Convention countries areconcerned, the law is that the court in the country to whichthe child is removed while considering the question must bearin mind the welfare of the child as of paramount importanceand consider the order of the foreign court as only a factorto be taken into consideration. The summary jurisdiction toreturn the child be exercised in cases where the child hadbeen removed from its native land and removed to anothercountry where, may be, his native language is not spoken, orthe child gets divorced from the social customs and contactsto which he has been accustomed, or if its education in hisnative land is interrupted and the child is being subjected toa foreign system of education, for these are all acts whichcould psychologically disturb the child. Again the summaryjurisdiction be exercised only if the court to which the childhas been removed is moved promptly and quickly. The ABC

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Aoverriding consideration must be the interests and welfare ofthe child.”

105. The essence of the judgment in Nithya Anand Raghavan(supra) is that the doctrines of comity of courts, intimate connect, orderspassed by foreign courts having jurisdiction in the matter regarding theBcustody of the minor child, the citizenship of the parents and the child,etc. cannot override the consideration of the best interest and the welfareof the child, and that the direction to return the child to the foreignjurisdiction must not result in any physical, mental, psychological, or otherharm to the child.

106. As observed by this Court in Vivek Singh v. Romani Singh,C(2017) 3 SCC 231, in cases of this nature, where a child feels tormentedbecause of the strained relations between her parents and ideally needsthe company of both of them, it becomes, at times, a difficult choice forthe court to decide as to whom the custody should be given. However,even in such a dilemma, the paramount consideration is the welfare ofDthe child. However, at times the prevailing circumstances are so puzzlingthat it becomes difficult to weigh the conflicting parameters and decideon which side the balance tilts.

FINAL ANALYSIS:

FINAL ANALYSIS:

107. Keeping in mind the principles of law as explained by thisECourt in Nithya Anand Raghavan (supra), we now proceed to consider,whether it will be in the paramount interest and welfare of both theminor children to go back to the USA ? To put it in other words, whetherwe should direct the respondent no.2 to go back to the USA with boththe minor children and abide by the shared parenting plan as ordered byFthe Court of Common Pleas, Division of Domestic Relations, CuyahogaCounty, Ohio, or handover the custody of both the minor children to thepetitioner-mother ?

108. We take notice of the following circumstances emerging fromthe materials on record so far as the two minor children are concerned:

G (1) Both the minor children are residents of the USA.

(2) The son is a natural citizen and the daughter is a permanentresident of the USA.

(3) Both the children have been brought up in the social and culturalmilieu of the USA. They are accustomed to the lifestyle, language,Hcustoms, rules and regulations, etc. of that country.

(4) The children are residents of the USA. One of whom is anatural citizen and will have better future prospects if goes back to theUSA.

As observed by this Court in the case of Vasudha Sethi andothers v. Kiran V. Bhaskar and another, (2022) SCC OnLine SC 43,the natural process of grooming in the environment of the native countryis indispensable for comprehensive development. We quote the relevantobservations made by this Court in the case of Vivek Singh (supra)thus :

“9. We have given our utmost serious consideration to therespective submissions which a case of this nature deservesto be given. In cases of this nature, where a child feelstormented because of the strained relations between herparents and ideally needs the company of both of them, itbecomes, at times, a difficult choice for the court to decide asto whom the custody should be given. No doubt, paramountconsideration is the welfare of the child. However, at timesthe prevailing circumstances are so puzzling that it becomesdifficult to weigh the conflicting parameters and decide onwhich side the balance tilts.

10. The Hindu Minority and Guardianship Act, 1956 laysdown the principles on which custody disputes are to bedecided. Section 7 of this Act empowers the Court to makeorder as to guardianship. Section 17 enumerates the matterswhich need to be considered by the Court in appointingguardian and among others, enshrines the principle of welfareof the minor child. This is also stated very eloquently inSection 13 which reads as under :

“13. Welfare of minor to be paramount consideration. (1)In the appointment or declaration of any person asguardian of a Hindu minor by a court, the welfare of theminor shall be the paramount consideration.

(2) No person shall be entitled to the guardianship by virtueof the provisions of this Act or of any law relating toguardianship in marriage among Hindus, if the court is ofopinion that his or her guardianship will not be for thewelfare of the minor.”

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11. This Court in the case of Gaurav Nagpal v. SumedhaNagpal stated in detail, the law relating to custody in Englandand America and pointed out that even in those jurisdictions,welfare of the minor child is the first and paramountconsideration and in order to determine child custody, thejurisdiction exercised by the Court rests on its own inherentequality powers where the Court acts as 'Parens Patriae'. TheCourt further observed that various statutes give legislativerecognition to the aforesaid established principles. The Courtexplained the expression 'welfare', occurring in Section 13of the said Act in the following manner :

“51. The word “welfare” used in Section 13 of the Act hasto be construed literally and must be taken in its widestsense. The moral and ethical welfare of the child must alsoweigh with the court as well as its physical well-being.Though the provisions of the special statutes which governthe rights of the parents or guardians may be taken intoconsideration, there is nothing which can stand in the wayof the court exercising its parens patriae jurisdictionarising in such cases.

52. The trump card in the appellant's argument is that thechild is living since long with the father. The argument isattractive. But the same overlooks a very significant factor.By flouting various orders, leading even to initiation ofcontempt proceedings, the appellant has managed to keepcustody of the child. He cannot be a beneficiary of hisown wrongs. The High Court has referred to these aspectsin detail in the impugned judgments.”

12. We understand that the aforesaid principle is aimed atserving twin objectives. In the first instance, it is to ensurethat the child grows and develops in the best environment.The best interest of the child has been placed at the vanguardof family/custody disputes according the optimal growth anddevelopment of the child primacy over other considerations.The child is often left to grapple with the breakdown of anadult institution. While the parents aim to ensure that the childis least affected by the outcome, the inevitability of theuncertainty that follows regarding the child’s growth lingers

on till the new routine sinks in. The effect of separation ofspouses, on children, psychologically, emotionally and evento some extent physically, spans from negligible to serious,which could be insignificant to noticeably critical. It couldalso have effects that are more immediate and transitory tolong lasting thereby having a significantly negativerepercussion in the advancement of the child. While theseeffects don’t apply to every child of a separated or divorcedcouple, nor has any child experienced all these effects, thedeleterious risks of maladjustment remains the objective ofthe parents to evade and the court’s intent to circumvent. Thisright of the child is also based on individual dignity.

13. Second justification behind the 'welfare' principle is thepublic interest that stand served with the optimal growth ofthe children. It is well recognised that children are the supremeasset of the nation. Rightful place of the child in the sizeablefabric has been recognised in many international covenants,which are adopted in this country as well. Child- centrichuman rights jurisprudence that has been evolved over aperiod of time is founded on the principle that public gooddemands proper growth of the child, who are the future of thenation. It has been emphasised by this Court also, time andagain, following observations in Bandhua Mukti Morcha vs.Union of India & Ors. :

“4. The child of today cannot develop to be a responsibleand productive member of tomorrow's society unless anenvironment which is conducive to his social and physicalhealth is assured to him. Every nation, developed ordeveloping, links its future with the status of the child.Childhood holds the potential and also sets the limit to thefuture development of the society. Children are the greatestgift to humanity. Mankind has the best hold of itself. Theparents themselves live for them. They embody the joy oflife in them and in the innocence relieving the fatigue anddrudgery in their struggle of daily life. Parents regainpeace and happiness in the company of the children. Thechildren signify eternal optimism in the human being andalways provide the potential for human development. If ABC

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the children are better equipped with a broader humanoutput, the society will feel happy with them. Neglectingthe children means loss to the society as a whole. If childrenare deprived of their childhood — socially, economically,physically and mentally — the nation gets deprived of thepotential human resources for social progress, economicempowerment and peace and order, the social stability andgood citizenry. The Founding Fathers of the Constitution,therefore, have emphasised the importance of the role ofthe child and the need of its best development.”

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14. Same sentiments were earlier expressed in Rosy Jacob vs.Jacob A. Chakramakkal in the following words:

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“15. ...The children are not mere chattels : nor are theymere play-things for their parents. Absolute right of parentsover the destinies and the lives of their children has, in themodern changed social conditions, yielded to theconsiderations of their welfare as human beings so thatthey may grow up in a normal balanced manner to be usefulmembers of the society...”

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15. It hardly needs to be emphasised that a proper educationencompassing skill development, recreation and culturalEactivities has a positive impact on the child. The children arethe most important human resources whose development hasa direct impact on the development of the nation, for the childof today with suitable health, sound education andconstructive environment is the productive key member of thesociety. The present of the child links to the future of the nation,Fand while the children are the treasures of their parents, theyare the assets who will be responsible for governing the nation.The tools of education, environment, skill and health shapethe child thereby moulding the nation with the child equippedto play his part in the different spheres aiding the public andGcontributing to economic progression. The growth andadvancement of the child with the personal interest isaccompanied by a significant public interest, which arisesbecause of the crucial role they play in nation building.

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17. While coming to the conclusion that the respondent asmother was more appropriate to have the custody of the childand under the given circumstances the respondent herein wasfully competent to take care of the child, the High Courtproceeded with the following discussion:

“31. The role of the mother in the development of a child'spersonality can never be doubted. A child gets the bestprotection through the mother. It is a most natural thingfor any child to grow up in the company of one's mother.The company of the mother is the most natural thing for achild. Neither the father nor any other person can givethe same kind of lover, affection, care and sympathies to achild as that of a mother. The company of a mother is morevaluable to a growing up female child unless there arecompelling and justifiable reasons, a child should not bedeprived of the company of the mother. The company ofthe mother is always in the welfare of the minor child.

32. It may be noticed that the stand of the appellant is thatsince August 04, 2010 she had been pursuing for thecustody of her child. She had also visited the police stationand approached the CAW Cell. It is also admitted positionthat within 22 days, i.e., on August 26, 2010 the petitionfor the grant of custody of child was filed by her. Had sheabandoned the child of her own she would not havepursued continuously thereafter for getting the custody ofthe child. Even she had requested the learned PrincipalJudge, Family Court for interim custody of the child whichwas given to her in the form of visitation rights thrice in amonth and she and her family had been meeting the childduring that period. After filing the appeal, the appellanthas been taking the interim custody of the child as is statedabove. In these circumstances, it cannot be said that theappellant has not care for the child. Further, respondentis any army Officer. During the course of his service hewill be also getting non- family stations and it will bedifficult for him to keep the child. Further, even though asper him his parents are looking after the child but whenthe natural mother is there and has knocked the door of A

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the court without any delay and has all love and affectionfor the child and is willing to do her duty with all love andaffection and since the birth of the child she has beenkeeping the child. In these circumstances, she should notbe deprived of her right especially considering the tenderage and child being a girl child. The grandparents cannotbe a substitute for natural mother. There is no substitutefor mother’s love in this world. The grandparents are old.Old age has its own problems. Considering the totality offacts and circumstances, the welfare of the child lies withthe mother, i.e, appellant who is educated, working andearning a good salary and after school hours has ampletime to spend with the child. In these circumstances,impugned order is set aside and the request of the appellantfor the grant of custody of the said child to her beingnatural mother is allowed and the appellant is alsoappointed as guardian of her child being a naturalguardian/mother.”

18. The aforesaid observations, contained in para 31 of theorder of the High Court extracted above, apply with greaterforce today, when Saesha is 8 years' old child. She is at acrucial phase when there is a major shift in thinking abilitywhich may help her to understand cause and effect betterand think about the future. She would need regular andfrequent contact with each parent as well as shielding fromparental hostility. Involvement of both parents in her life andregular school attendance are absolutely essential at this agefor her personality development. She would soon be able toestablish her individual interests and preferences, shaped byher own individual personality as well as experience. Towardsthis end, it also becomes necessary for parents to exhibit modelgood behaviour and set healthy and positive examples as muchand as often as possible. It is the age when her emotionaldevelopment may be evolving at a deeper level than everbefore. In order to ensure that she achieves stability andmaturity in her thinking and is able to deal with complexemotions, it is necessary that she is in the company of hermother as well, for some time. This Court cannot turn a blindeye to the fact that there have been strong feelings of

bitterness, betrayal, anger and distress between the appellantand the respondent, where each party feels that they are ‘right’in many of their views on issues which led to separation. Theintensity of negative feeling of the appellant towards therespondent would have obvious effect on the psyche of Saesha,who has remained in the company of her father, to the exclusionof her mother. The possibility of appellant's effort to get thechild to give up her own positive perceptions of the otherparent, i.e., the mother and change her to agree with theappellant’s view point cannot be ruled out thereby diminishingthe affection of Saesha towards her mother. Obviously, theappellant, during all this period, would not have said anythingabout the positive traits of the respondent. Even thematrimonial discord between the two parties would have beenunderstood by Saesha, as perceived by the appellant.Psychologist term it as ‘The Parental Alienation Syndrome’.It has at least two psychological destructive effects:

(i) First, it puts the child squarely in the middle of a contestof loyalty, a contest which cannot possibly be won. Thechild is asked to choose who is the preferred parent. Nomatter whatever is the choice, the child is very likely toend up feeling painfully guilty and confused. This isbecause in the overwhelming majority of cases, what thechild wants and needs is to continue a relationship witheach parent, as independent as possible from their ownconflicts.

(ii) Second, the child is required to make a shift in assessingreality. One parent is presented as being totally to blamefor all problems, and as someone who is devoid of anypositive characteristics. Both of these assertions representone parent's distortions of reality.

19. The aforesaid discussion leads us to feel that continuouscompany of the mother with Saesha, for some time, isabsolutely essential. It may also be underlying that the notionthat a child’s primary need is for the care and love of itsmother, where she has been its primary care giving parent, issupported by a vast body of psychological literature.Empirical studies show that mother infant “bonding” begins AB

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Aat the child’s birth and that infants as young as two monthsold frequently show signs of distress when the mother isreplaced by a substitute caregiver. An infant typically respondspreferentially to the sound of its mother’s voice by four weeks,actively demands her presence and protests her absence byeight months, and within the first year has formed a profoundBand enduring attachment to her. Psychological theoryhypothesizes that the mother is the center of an infant’s smallworld, his psychological homebase, and that she “mustcontinue to be so for some years to come.” Developmentalpsychologists believe that the quality and strength of thisCoriginal bond largely determines the child's later capacity tofulfill her individual potential and to form attachments to otherindividuals and to the human community.”

Thus, what has been explained by this Court as aforesaid is thedoctrine of Parental Alienation Syndrome, i.e. the efforts made by oneDparent to get the child to give up his/her own positive perceptions of theother parent and get him/her to agree with their own viewpoint. It hastwo psychological destructive effects :

(1) It puts the child in the middle of a loyalty contest, which cannotpossibly won by any parent; E(2) It makes the child to assess the reality, thereby requiring toblame either parent who is supposedly deprived of positive traits.

The intent of the court should be to circumvent such ill effects.

109. The minor daughter has a remarkable high IQ. She has beenidentified to be a gifted child. In such circumstances, both the minorFchildren were admitted in a special school meant for children with suchremarkably high IQ in the USA. Such schools in the USA are specializedin providing education to the gifted children which, ultimately, helps inthe overall development of such children. The special education ultimatelyenhances the potential of such children. Both the children in the presentcase have better prospects of getting refined education that may ultimatelyGenhance their potential they already possess and are already accustomedto and comfortable with.

110. Both the minor children, in the case on hand, have alreadybeen enrolled in the school in the USA. Therefore, if the minor childrenare repatriated to the USA, they will not be subjected entirely to anyH

foreign system of education. It is the fundamental right of the petitioner-mother to have the company of her children and not to be deprived ofthe same without a reasonable cause.

FACTS SUPPORTING THE STAY OF THE PETITIONERIN THE USA:

111. The petitioner is a resident of the USA and has acquiredH1B visa via sponsorship and has a good job at Ranstad, USA. Thepetitioner is earning handsome salary and has the resources to providefor a comfortable life to her children in the USA. The petitioner iscomfortably settled in the USA and is accustomed to different kind oflifestyle, culture, society, etc.

112. We take notice of the fact that the petitioner worked veryhard to secure admission in the Cleveland State University and completedher studies with the GPA of more than 3, while taking care of her children.This is indicative of the fact that she is a hard working woman andwould be in a position to take good care of her minor children inaccordance with the shared parenting plan.

113. It would be too much for this Court to tell the petitioner thatshe may periodically visit India to meet her children but the childrenshould not be asked to go back to the USA with their father, i.e. therespondent no.2.

114. In the overall view of the matter, we have reached to theconclusion that the respondent no.2, at the earliest, should be directed togo back to the USA with both the minor children and abide by the sharedparenting plan as ordered by the Court at Ohio. Although, the sharedparenting plan as ordered by the Court at Ohio stood terminated at theinstance of the petitioner-mother, yet the same can be revived onceagain by the authorities by going before the concerned court at Ohio. Itis for the parties to take the necessary steps in this regard. The respondentno.2 shall immediately apply for the visa on the strength of this order. Ifthe respondent no.2 is in a position to obtain a job in the USA on thestrength of a work permit or any other document, then it is well andgood. However, we are sure of one thing that it will be in the interest andwelfare of both the children to go back to the USA for the purpose oftheir education, etc. The allegations levelled by the respondent no.2 thatthe petitioner suffers from some mental illness appears to be absolutelywild and reckless. Even otherwise this issue is a highly disputed questionof fact.

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A115. We would therefore hold that in the case at bar the dominantconsideration to which all other considerations must remain subordinatemust be the welfare of the child. This is not to say that the question ofcustody will be determined by weighing the economic circumstances ofthe contending parties. The matter will not be determined solely on thebasis of the physical comfort and material advantages that may beBavailable in the home of one contender or the other. The welfare of thechild must be decided on a consideration of these and all other relevantfactors, including the general psychological, spiritual and emotional welfareof the child. It must be the aim of the Court, when resolving disputesbetween the rival claimants for the custody of a child, to choose theCcourse which will best provide for the healthy growth, development andeducation of the child so that he or she will be equipped to face theproblems of life as a mature adult.

FINAL CONCLUSION:

116. We allow this writ petition with the following directions :D(1) The respondent no.2-father shall, within one week from today,apply to the authority concerned for visa to travel to the USAwith the two minor children.

(2) The concerned authority may keep the observations made byEthis Court in the present judgment in mind and, in the larger interestof the two minor children, consider grant of visa to the respondentno.2-father. Once the visa is granted, the respondent no.2 shall,within one week thereafter, proceed to travel to the USA.

(3) Once the two minor children reach the USA, thereafter, it willFbe open for the petitioner-mother to take care of her children.(4) We leave it open to the respondent no.2-father to chalk out hisown plan.

(5) If the respondent no.2 wants to stay back in the USA, it isalways open for him to do so in accordance with the law of theGcountry. If the respondent no.2 decides to come back to India,then in such circumstances, the petitioner-mother shall make boththe minor children speak to their father on-line at least once everyweek.

(6) In any event, if the visa is declined to the respondent no.2,Hthen in such circumstances, the petitioner-mother shall travel to

India and pick up her two minor children and go back to the USA.In such an eventuality, the respondent no.2 and his family membersare directed to fully cooperate and not create any impediment ofany nature. If it comes to the notice of this Court that therespondent no.2 or any of his family members have created anyimpediment for the petitioner-mother, then the same shall beviewed as the contempt of this Court’s order. In addition, it will beopen to the petitioner-mother to contact the jurisdictionalCommissioner/ Superintendent of Police, who shall thereafterensure that the custody of the children is immediately/ forthwithhanded over to the petitioner-mother and submit compliance reportin that regard to this Court. In case of any impediment despite theperemptory direction, the petitioner-mother may apply forappropriate directions from this Court, if so advised.

(7) We leave it open for the parties to go back to the Court atOhio and revive the shared parenting plan as was arrived at videorder dated 12th May 2021.

117. Before we close this matter, we would like to convey to theparties that their two minor children are watching them very closely.Showing the children that their parents can respect each other and resolvethe conflict respectfully will give them a good foundation for the conflictthat may, God forbid, arise in their own lives. The parties should try to dotheir best to remain relaxed and focused. It is critical to maintainboundaries between the adult problems and children. It is of utmostinterest to protect the innocence of children and allow them to remainchildren. They must not be burdened by any adult problem. Minor childrendo not have the coping skills or the intellectual ability to understand anyissues like the financial constraints, adult relationship issues or theirparents unhappiness.

118. We find the observations made by the Delhi High Court, inthe case of K.G. v. State of Delhi and another, dated 16.11.2017 in WritPetition (Criminal) No. 374/2017 and Criminal Miscellaneous ApplicationNo. 2007/2017, quite commendable, that the best welfare of the child,normally, would lie in living with both his/her parents in a happy, lovingand caring environment, where the parents contribute to the upbringingof the child in all spheres of life, and the child receives emotional, social,physical and material support – to name a few. In a disturbed marriage, A

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Aunfortunately, there is bound to be impairment of some of the inputswhich are, ideally, essential for the best interest of the child.

119. There will be no order as to costs.

120. The Registry shall notify this matter once again after a periodof four weeks to report compliance of our directions.B

Divya Pandey

(Assisted by : Roopanshi Virang, LCRA)

Writ petition allowed.

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