MRS. KANIKA GOEL versus STATE OF DELHI THROUGH S.H.O. AND ANR. on 20 July 2018

SUPREME COURT REPORTS[2018] 11 S.C.R. 546

[2018] 11 S.C.R.

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MRS. KANIKA GOEL

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STATE OF DELHI THROUGH S.H.O. AND ANR.

(Criminal Appeal No. 635-640 of 2018)

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JULY 20, 2018

[DIPAK MISRA, CJI, A. M. KHANWILKAR ANDDR. D. Y. CHANDRACHUD, JJ.]

Custody: Custody of minor girl child – Claim of – On facts,marriage of appellant-wife and respondent No.2-husband as perCSikh rites and Hindu Vedic rites in New Delhi – After three monthsthe parties performed a civil marriage in USA – Birth of girl childM – Appellant fled from US with the minor daughter and filed divorcepetition in Delhi – Respondent no. 2 filed custody proceeding in USand got a custody order – However, non-compliance by the appellantD– Writ petition by respondent no. 2 for issuance of writ of habeascorpus for production of minor daughter and direction to returnher to the jurisdiction of the court in US in compliance with theorder of the US court – Allowed by the Delhi High Court – Onappeal, held: Court must take into account the totality of the factsand circumstances whilst ensuring the best interest of the minorEchild – On facts, there is no compelling reason to direct return ofthe minor child to the US nor is her stay in the company of hermother (appellant), along with maternal grand-parents and extendedfamily at New Delhi, prejudicial to her in any manner, warrantingher return to the US – Instead of directing the biological mother toFreturn to the US along with the minor girl child, so as to appearbefore the competent court in the US, the custody of the minor girlchild M to remain with the appellant until she attains the age ofmajority or the Court of competent jurisdiction, trying the issue ofcustody of the minor child, orders to the contrary, with visitationand access rights to the biological father whenever he would visitGIndia – A fortiori, dependant on the outcome of the proceedings,before the Family Court, New Delhi, the appellant to participateand defend herself in the proceedings before the US Court – Herlitigation, travel expenses and stay in US to be borne by respondentno.2 – In view thereof, order of the High Court set aside.

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Allowing the appeals, the Court

Conclusion

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Allowing the appeals, the Court

HELD: 1.1 It is not open to contend that the custody of thefemale minor child with her biological mother would be unlawful,for there is presumption to the contrary. In such a case, the HighCourt whilst exercising jurisdiction under Article 226 for issuanceof a writ of habeas corpus need not make any further enquiry butif it is called upon to consider the prayer for return of the minorfemale child to the native country, it has the option to resort to asummary inquiry or an elaborate inquiry, as may be necessary inthe fact situation of the given case. In the instant case, the HighCourt noted that it was not inclined to undertake a detailed inquiry.The question is, having said that whether the High Court tookinto account irrelevant matters for recording its conclusion thatthe minor female child, who was in custody of her biologicalmother, should be returned to her native country. The Court musttake into account the totality of the facts and circumstances whilstensuring the best interest of the minor child. The High Court inthe instant case focused primarily on the grievances of theappellant and while rejecting those grievances, went on to grantrelief to respondent No.2 by directing return of the minor girlchild to her native country. On the totality of the facts andcircumstances, there is nothing to indicate that the native language(English) is not spoken or the child has been divorced from thesocial customs to which she has been accustomed. Similarly, theminor child had just entered pre-school in the USA before shecame to New Delhi along with her mother. In that sense, therewas no disruption of her education or being subjected to a foreignsystem of education likely to psychologically disturb her. On theother hand, the minor child M is under the due care of her motherand maternal grand-parents and other relatives since her arrivalin New Delhi. If she returns to US as per the relief claimed by therespondent No.2, she would inevitably be under the care of aNanny as the respondent No.2 will be away during the day timefor work and no one else from the family would be there at hometo look after her. Placing her under a trained Nanny may not beharmful as such but it is certainly avoidable. For, there islikelihood of the minor child being psychologically disturbed afterher separation from her mother, who is the primary care giver to A

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Aher. In other words, there is no compelling reason to direct returnof the minor child M to the US as prayed by the respondent No.2nor is her stay in the company of her mother, along with maternalgrand-parents and extended family at New Delhi, prejudicial toher in any manner, warranting her return to the US. [Para 22][580-F-H; 581-A-G]B

1.2 The issue ought not to be decided on the basis of rightsof the parties claiming custody of the minor child but the focusshould constantly remain on whether the factum of best interestof the minor child is to return to the native country or otherwise.CThe fact that the minor child will have better prospects uponreturn to his/her native country, may be a relevant aspect in asubstantive proceedings for grant of custody of the minor childbut not decisive to examine the threshold issues in a habeascorpus petition. For the purpose of habeas corpus petition, theCourt ought to focus on the obtaining circumstances of the minorDchild having been removed from the native country and taken toa place to encounter alien environment, language, custom etc.interfering with his/her overall growth and grooming and whethercontinuance there will be harmful. [Para 23] [581-G-H; 582-A-B]

1.3 The minor child M is a US citizen by birth. She hasEgrown up in her native country for over three years before shewas brought to New Delhi by her biological mother (appellant).She had joined a pre-school in USA. She had healthy bondingwith her father (respondent No.2). Her paternal grand-parentsused to visit her in the USA at some intervals. She was under theFcare of a Nanny during the day time, as her parents were working.Indeed, the work place of her father is near the home. Thebiological father of the minor child M has acquired US citizenship.Both father and mother of the minor child M were of Indian originbut domiciled in the USA after marriage. The mother is apermanent resident of the USA-Green Card holder and has alsoGapplied for US citizenship. In her affidavit filed before the DelhiHigh Court she admits that her legal status was complicated asshe has ceased to be an Indian citizen and her status of citizenshipof the USA is in limbo. [Para 24][582-C-F]

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1.4 Given the fact that the parties performed a civil marriagein USA and cohabited in the native country and gave birth tominor child M who grew up in that environment for at least threeyears, coupled with the fact that the father and minor child M areUS citizens and mother is a permanent resident of USA, theclosest contact and jurisdiction is possibly that of the CircuitCourt of Cook County, Illinois, USA. However, it may not beunderstood to have expressed any final opinion in this regard. Atthe same time, the appellant and respondent No.2 first got marriedas per Sikh rites and Hindu Vedic rites and that marriage wassolemnised in New Delhi at which point of time the appellant wasadmittedly a citizen of India. Presently, she is only a Green Cardholder (permanent resident) of the US. It is, therefore, debatablewhether the Family Court at New Delhi, where the appellant hasalready filed a petition for dissolution of marriage, has jurisdictionin that behalf including to decide on the question of custody andguardianship in respect of the minor child M. For that reason, itmay be appropriate that the said proceedings are decided withutmost promptitude in the first place before the appellant is calledupon to appear before the US Court and including to produce theminor child M before that Court. [Para 25] [582-G-H; 583-A-C]

1.5 The appellant and minor child are presently in NewDelhi and the appellant has no intention to return to hermatrimonial home in the U.S.A. The appellant has apprehensionsand serious reservations on account of her past experience inrespect of which it is not necessary to dilate in this proceedings.That is a matter to be considered by the Court of CompetentJurisdiction called upon to decide the issue of dissolution ofmarriage and/or grant of custody of the minor child, as the casemay be. For the time being, the parties must eschew frompursuing parallel proceedings in two different countries. For, thefirst marriage between the parties was performed in New Delhias per Anand Karaj Ceremony and Hindu Vedic rites and thepetition for dissolution of marriage has been filed in New Delhi.Whereas, the civil marriage ceremony took place after fourmonths in USA. It was performed to complete the formalities forfacilitating the entry of the appellant into the US and to obtain USPermanent Resident status. It is appropriate that the proceedings ABCD

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Apending in the Family Court at New Delhi are decided in the firstplace including on the question of jurisdiction of that Court.Depending on the outcome of the said proceedings, the partieswould be free to pursue such other remedies as may be permissiblein law before the Court of Competent Jurisdiction. [Para 26][583-C-G]B

1.6 It is true that both respondent No.2 and also the minorchild M are US citizens. The minor girl child has a US Passportand has travelled to India on a tenure Visa which has expired.That does not mean that she is in unlawful custody of her biologicalmother. Her custody with the appellant would nevertheless beClawful. The appellant has already instituted divorce proceedingsin the Family Court, New Delhi. The respondent No.2 has alsofiled proceedings before the Court in the US for custody of theminor girl child, directing her return to her natural environmentin the US. In such a situation, the arrangement directed by thisDCourt in the case of Nithya Anand Raghavan may be of somehelp to pass an appropriate order in the peculiar facts of thiscase, instead of directing the biological mother to return to theUS along with the minor girl child, so as to appear before thecompetent court in the US. In that, the custody of the minor girlchild M would remain with the appellant until she attains the ageEof majority or the Court of competent jurisdiction, trying the issueof custody of the minor child, orders to the contrary, with visitationand access rights to the biological father whenever he would visitIndia and in particular as delineated in the interim order. [Para27] [583-G-H; 584-A-D]F

1.7 A fortiori, dependant on the outcome of the proceedings,before the Family Court, New Delhi, the appellant may then belegally obliged to participate in the proceedings before the USCourt and must take all measures to effectively defend herself inthe said proceedings by engaging solicitors of her choice in theGUSA to espouse her cause before the Circuit Court USA. In thatevent, the respondent No.2 shall bear the cost of litigation andexpenses to be incurred by the appellant to pursue theproceedings before the US Courts, the air fares or purchase thetickets for the travel of the appellant and the minor child M to AND ANR.

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the USA and including their return journey for India, as may berequired. The respondent No.2 shall also make all suitablearrangements for the comfortable stay of the appellant and hercompanions at an independent place of her choice, at a reasonablecost. Further, the respondent No.2 shall not initiate any coercive/penal action against the appellant and if any such proceedinginitiated by him in that regard is pending, the same shall bewithdrawn and not pursued before the concerned Court anyfurther. [Para 28] [584-D-G]

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1.8 The appellant and respondent No.2 must ensure earlydisposal of the proceedings for grant of custody of the minor girlchild to the appellant, instituted and pending before the FamilyCourt, New Delhi. The impugned judgment and orders of theHigh Court is set aside and writ petition is disposed of. [Para 29,30] [584-H; 585-A-B]

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K.S. Puttaswamy & Anr. v. Union of India & Ors. (2017)10 SCC 1; Nithya Anand Raghavan v. State (NCT ofDelhi) & Anr. (2017) 8 SCC 454; Prateek Gupta v. ShilpiGupta & Ors. (2018) 2 SCC 309; Surinder KaurSandhu v. Harbax Singh Sandhu and Anr. (1984) 3 SCC698: [1984] 3 SCR 422; Aviral Mittal v. State (2009)112 DRJ 635; Shilpa Aggarwal v. Aviral Mittal andAnr. (2010) 1 SCC 591: [2009] 16 SCR 287; Dr. V.Ravi Chandran v. Union of India & Ors.(2010) 1 SCC174: [2009] 15 SCR 960 – referred to.

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Case Law Reference

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(2017) 10 SCC 1(2017) 8 SCC 454(2018) 2 SCC 309[1984] 3 SCR 422(2009) 112 DRJ 635[2009] 16 SCR 287[2009] 15 SCR 960

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ACRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 635-640 of 2018

From the Judgment and Order dated 16.11.2017, 01.12.2017 and06.12.2017 of the High Court of Delhi at New Delhi in W.P. (Crl.) No.374 of 2017 and Crl. M.A. No. 2007 of 2017.BMs. Malavika Rajkotia, Lakshmi Raman Singh, Prabhjit Jauhar,Ms. Upasana Goel, Ms. Aishwarya, S. S. Jauhar, Advs. for the appearingparties.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J. 1. These appeals take exception toCthe judgment and orders passed by the High Court of Delhi at NewDelhi dated 16[th] November, 2017, 1[st] December, 2017 and 6[th] December,2017, in Writ Petition (Criminal) No.374 of 2017 and Criminal M.A.No.2007 of 2017, whereby the writ petition filed by respondent No.2 forissuing a writ of habeas corpus for production of his minor daughter M

(assumed name), who was about 3 years of age at the time of filing ofDthe writ petition and for a direction for return of M to the jurisdiction ofthe competent Court in the United States of America in compliance withthe order dated 13[th] January, 2017 passed by the Circuit Court of CookCounty, Illinois, USA, came to be allowed. The Delhi High Court directedthe appellant to comply with the directions as M was in her custody, theEappellant being M’s mother.

2. The respondent No.2 asserted that he was born in India butpresently is a citizen of USA since 2005. He is working as the CEO of aCompany called ‘Get Set Learning’. The appellant is his wife and motherof the minor child M. She is a US Permanent Resident and a “GreenCard” holder and has also applied for US citizenship on 2[nd] December,F2016. At the relevant time, she was a certified teacher in the State ofIllinois and was employed as a Special Education Classroom Assistantin Chicago Public Schools. The respondent No.2 and the appellant gotmarried on 31[st] December, 2010 as per Sikh rites, i.e. Anand Karajceremony, and Hindu Vedic rites in New Delhi. It was clearly understoodGbetween both the parties that the appellant, after marriage, would residewith respondent No.2 in the USA. Eventually, the appellant travelled tothe USA on a Fiance Visa and got married to respondent No.2 again on19[th] March, 2011 at Cook County Court in Chicago, Illinois. Before themarriage, the parties entered into a Pre-Nuptial Agreement dated20[th] October, 2010 enforceable in accordance with the laws of the StateH

of Illinois, USA. The appellant then took employment as a teacher inChicago Public School and also secured a US Permanent Citizen GreenCard. The appellant became pregnant and gave birth to M on 15[th]February, 2014 in USA. M is thus a natural born US citizen and wasdomiciled in the State of Illinois, USA from her birth till she wasclandestinely removed by the appellant in December 2016 under theguise of undertaking a short trip to New Delhi to meet the appellant’sparents.

3. The appellant was scheduled to return to Chicago on 7[th] January,2017 but she went missing and filed a petition under Section 13(1) of theHindu Marriage Act, 1955 (for short “the 1955 Act”) being H.M.A.Case No.27 of 2017 seeking dissolution of marriage on the ground ofcruelty, along with an application under Section 26 of the 1955 Act on 7[th]January, 2017 seeking a restraint order against respondent No.2 fromtaking M away from the jurisdiction of Indian Courts. A notice wasissued thereon to respondent No.2, made returnable on 11[th] January,2017.

4. The respondent No.2, however, filed an emergency petition fortemporary sole allocation of parental responsibilities and parenting timein his favour or in the alternative, an emergency order of protection forpossession of his minor daughter M, before the Circuit Court of CookCounty, Illinois on 9[th] January, 2017. A notice of emergency motion wasserved on the appellant by e-mail, informing her of the proposed hearingon 13[th] January, 2017.

5. In the meantime, on 11[th] January, 2017 the Family Court atNew Delhi issued a fresh notice to respondent No.2 and passed an ex-parte order on the application filed by the appellant under Section 151 ofthe Code of Civil Procedure, restraining respondent No.2 from removingthe minor child from the jurisdiction of that Court until further orders.

6. The respondent No.2 on the other hand, caused to file a missingperson complaint on 13[th] January, 2017 before the SHO, Vasant Kunj(South), P.S. New Delhi, which was acknowledged by the Police Stationon 14[th] January, 2017. Besides the said complaint, respondent No.2moved the Circuit Court of Cook County, Illinois, USA on 13[th] January,2017 when an ex-parte order was passed for interim sole custody of theminor child. The said order reads thus:

“1) The child M born on 15.02.2014, in Chicago, Illinois and havingresided in Chicago solely for her entire life (specifically at 360East Randolph Street, Chicago, IL 60601) is also a US citizen.

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2) The child is a habitual resident of the state of Illinois, UnitedStates of America having never resided anywhere else. Illinois isthe home state of the child pursuant to the Uniform Child CustodyJurisdiction Enforcement Act.

3) Karan Goel is the natural father of the minor child and grantedBinterim sole custody of the minor child. Child is to be immediatelyreturned to the residence located in Cook County, Illinois, USA byRespondent.

4) The Cook County, Illinois Court having personal and subjectmatter jurisdiction over the parties and matter.

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5) All further issues regarding visitation, child support are reserveduntil further Order of Court.”

7. The appellant did not comply with the order of the Circuit Courtof Cook County, Illinois, therefore, respondent No.2 filed a writ petitionbefore the Delhi High Court on 1[st] February, 2017, to issue a writ ofDhabeas corpus and direct the appellant to produce the minor child M andcause her return to the jurisdiction of the Court in the United States, incompliance with the order dated 13[th] January, 2017 passed by the CircuitCourt of Cook County, Illinois, to enable the minor child to go back toUnited States and if the appellant failed to do so within a fixed timeEperiod, to direct the appellant to immediately hand over the custody ofthe minor child to respondent No.2 (writ petitioner) to enable him to takethe minor child to the jurisdiction of the US Court.

8. This writ petition was contested by the appellant. The HighCourt issued interim orders including regarding giving access of the minorchild to respondent No.2 in the presence of the appellant and her parents.FFinally, all the contentious issues between the parties were answered bythe High Court by a speaking judgment and order dated 16[th] November,2017, in favour of respondent No.2, after recording a finding that theparamount interest of the minor child was to return to USA, so that shecould be in her natural environment. To facilitate the parties to have aGworking arrangement and to minimize the inconvenience, the DivisionBench of the High Court issued directions in the following terms:

“139. In the light of the aforesaid, we are more than convincedthat respondent No.2 should, in the best interest of the minor childM, return to USA along with the child, so that she can be in her H

natural environment; receive the love, care and attention of herfather as well – apart from her grandparents, resume her schooland be with her teachers and peers. Pertinently, respondent No.2is able-bodied, educated, accustomed to living in Chicago, USA,was gainfully employed and had an income before she came toIndia in December 2016 and, thus, she should not have anydifficulty in finding her feet in USA. She knows the systemsprevalent in that country, and adjustment for her in thatenvironment would certainly not be an issue. Accordingly, wedirect respondent no.2 to return to USA with the minor child M.However, this direction is conditional on the conditions laid downhereinafter.

140. Respondent No.2 has raised certain issues which need to beaddressed, so that when she returns to USA, she and the minorchild do not find themselves to be in a hostile or disadvantageousenvironment. There can be no doubt that the return of respondentNo.2 with the minor child should be at the expense of the petitioner;their initial stay in Chicago, USA, should also be entirely fundedand taken care of by the petitioner by providing a separate furnishedaccommodation (with all basic amenities & facilities such as water,electricity, internet connection, etc.) for the two of them in thevicinity of the matrimonial home of the parties, wherein they havelived till December 2016. Thus, it should be the obligation of thepetitioner to provide reasonable accommodation sufficient to caterto the needs of respondent No.2 and the minor child. Sincerespondent No.2 came to India in December 2016 and would,therefore, not have retained her job, the petitioner should alsomeet all the expenses of respondent No.2 and the minor child,including the expenses towards their food, clothing and shelter, atleast for the initial period of six months, or till such time asrespondent No.2 finds a suitable job for herself. Even afterrespondent No.2 were to find a job, it should be the responsibilityof the petitioner to meet the expenses of the minor daughter M,including the expenses towards her schooling, other extra-curricularactivities, transportation, Attendant/ Nanny and the like, whicheven earlier were being borne by the petitioner. The petitionershould also arrange a vehicle, so that respondent No.2 is able tomove around to attend to her chores and responsibilities.

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141. Considering that the petitioner had initiated proceedings inUSA and the respondent No.2 has been asked to appear beforethe Court to defend those proceedings, the petitioner should alsomeet the legal expenses that respondent No.2 may incur, till thetime she is not able to find a suitable job for herself. However, ifrespondent no.2 is entitled to legal aid/assurance from the State,to the extent the legal aid is provided to her, the legal expensesmay not be borne by the petitioner.

142. The petitioner should also undertake that after the return ofthe minor child M with respondent No.2 to USA, the custody ofM shall remain with respondent No.2 and that he shall not takethe minor child out of the said custody by use of force. He shouldalso undertake that after respondent No.2 lands in Chicago, USA,the visitation and custody rights qua the parties, as may bedetermined by the competent Court in USA, shall be honoured.

143. Respondent No.2 has also expressed apprehension that thepetitioner would seek to enforce the terms of the Pre-NuptialAgreement entered into between the parties. Since the saidagreement has been entered into in India, its validity has to betested as per the Indian law. Respondent No.2 has already initiatedsuit for declaration and permanent injunction to challenge the saidPre-Nuptial Agreement dated 22.10.2010. We have perused thesaid agreement and we are of the view the petitioner should notbe permitted to enforce the terms of this agreement in USA, atleast till the said suit preferred by the respondent No.2 is decided.The petitioner should, therefore, give an undertaking to this Court,not to rely upon or enforce the said Pre-Nuptial Agreement to thedetriment of respondent No.2 in any proceedings either in USA,or in India. The undertaking shall remain in force till the decisionin the suit for declaration and injunction filed by respondent No.2challenging validity of the Pre-Nuptial Agreement. This undertakingshall, however, not come in the way of the petitioner whiledefending the said suit of the respondent No.2.

144. With the aforesaid arrangements and directions, in our view,respondent No.2 can possibly have no objection to return to USAwith M. The comfort that we have sought to provide to respondentNo.2, as aforesaid, is to enable her to have a soft landing when she reaches the shores of USA, so that the initial period of atleast six months is taken care of for her, during which period shecould find her feet and live on her own, or under an arrangementas may be determined by the competent Courts in USA duringthis period. At this stage, we are not inclined to direct that thecustody of M be given to the petitioner so that he takes her backto USA. M is a small child less than 4 years of age, and that too,is a female child. Though she may be attached to the petitioner –her father, she is bound to need her mother – respondent no.2more. In our view, once M returns to USA with her mother, i.e.respondent No.2, orders for custody or co-parenting should beobtained by the parties from the competent Courts in USA.Moreover, it would be for the Courts in USA to eventually rule onthe aspect concerning the financial obligations and responsibilitiesof the parties towards each other and towards the minor child M– for upbringing the minor child – M independent of any directionsissued by this Court in this regard.

145. The petitioner is directed to file his affidavit of undertaking interms of paras 140 to 144 above within ten days with advancecopy of the respondents. The matter be listed on 01.12.2017 forour perusal of the affidavit of undertaking, and for passing of finalorders.”

9. By this judgment and order passed by the High Court and thedirections issued, as reproduced hitherto, the substantive issues inter sethe parties were answered against the appellant to the extent indicated.In continuation of the aforementioned directions, a further order waspassed on 1[st] December, 2017 by the High Court which reads thus:

“1. In terms of the directions contained in our judgment dated16.11.2017, the petitioner Karan Goel has filed the affidavit dated20.11.2017. A perusal of the affidavit shows that the petitionerhas undertaken and consented to abide by all the conditions imposedupon him, so that respondent no.2 could return to USA with theminor child.

2. Respondent no.2 has also filed a counter-affidavit to the saidaffidavit of the petitioner. Respondent no.2 has raised the issuethat the petitioner has not particularized the amounts and facilities AB

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that the petitioner would provide in case respondent no. 2 were toreturn to USA with the minor child.

3. The petitioner is present in Court with his parents. The petitionerhas tendered in Court the details/particulars of the proposedfinancial aid in terms of our judgment. The said details/ particularsread as follows:

‘1. Upon Respondent No.2 giving a date/this Hon’ble Courtfixing a date on which she and minor child M will depart fromDelhi for Chicago, Illinois, USA, the Petitioner shall do thefollowing at least 3 [three] days prior to their departure date:-

(i) Book airline tickets on United Airlines with a non-stop flightfrom Delhi to USA for minor child M and Respondent No.2;

(ii) Provide a hotel room at The Hyatt Regency (located ~7minute walk from minor child M’s preschool) for the first seven(7) days after landing in Chicago to enable Respondent No.2to sign leases for (a) accommodation and (b) a car; and

2. The Petitioner is/ was already paying [directly out of hissalary] the following amounts for minor child M and shallcontinue to do so in compliance of the directions of this Hon’bleCourt (all amounts in US Dollars = USD):-

(i) ~$2,100/month Preschool tuition at Bright HorizonsLakeshore East where she was enrolled five days a week;and

(ii) ~$232/month for health insurance via Blue Cross BlueShield of Illinois.

3. In addition to point 2 above, the Petitioner shall pay thefollowing amounts (all amounts in US Dollars =USD) for atotal of $4,200/month to Respondent No.2 in advance for thefirst month [by transferring the said amount into a joint accountprior to Respondent No.2 and minor child M taking off fromDelhi] and thereafter by the 28th of every month for thesubsequent month [for the initial period of six months]:-

(i) $2,600/month as rent for a fully furnished apartment withhigh-speed internet, air conditioning and heating, water, garbagedisposal, and parking for a vehicle;

(ii) $400/month for Respondent No. 2’s health insurance;

(iii) $1,000/month in expenses for food, shelter, and clothingfor minor child M and Respondent No. 2; and

(iv) $200/month for a car lease and car insurance.

4. In case legal aid / assurance is not available / provided toRespondent No.2, the Petitioner shall give an additional amountof $1,500/ month to Respondent No.2 for her legal expensesfor the first six months after her and minor child M’s return toChicago, Illinois, USA’.

4. We have also separately recorded the statement of petitioneron oath, wherein he has undertaken to this Court to abide by theoffer made by him in terms of our decision. He has also undertakenthat in case of any breach of the said stipulation, respondent no.2may enforce the same before the competent Court in USA.

5. To ensure compliance of the aforesaid obligation, the petitionerhas offered that he shall deposit an amount US$ 25,000 in anescrow account, which shall be operated upon orders of thecompetent Court in Cook County, Illinois, USA. The said accountshall be operatable at the instance of respondent no.2 in case ofnon compliance of any of the condition and to the extent it becomesnecessary, under the orders of the said Court.

6. The petitioner seeks a short adjournment to produce the relevantdocuments in that regard before this Court.

7. Since the petitioner and his parents are in India, and it is submittedthat the petitioner has not met his minor daughter since March2017, it is agreed that the petitioner and his parents shall be allowedto meet the minor child M today, tomorrow and day after tomorrowat DLF Promenade Mall, Vasant Kunj, New Delhi.

8. Today’s meeting shall take place between 6:00 p.m. to 8:00p.m., and on Saturday and Sunday, the meeting shall take placefrom 11:00 a.m. to 2:00 p.m. The petitioner has desired that themeeting may take place exclusively.

9. Since respondent no.2 has apprehensions, the petitioner hasoffered to and has deposited his American Passport with the CourtMaster. The Court Master shall seal the same in Court and A

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Athereafter the same be handed over to the Deputy Registrarconcerned to be kept in safe custody. The same shall not be partedwith unless so ordered by this Court.

10. The petitioner has assured that the child shall not be takenaway unauthorisedly and shall be duly returned to respondent no.2Bat the end of the meeting on each date.

11. List on 06.12.2017 for further directions. On the next date, thechild may be brought to the Court so that the petitioner and hisparents are able to meet the child in the Children’s Room at theMediation Centre between 2:30 p.m. to 4:30 p.m.

C12. Order dasti under the signatures of the Court Master.”10. Again, on 6[th] December, 2017, another order was passed toformally dispose of the writ petition finally in the following terms:

1. “Mr. Jauhar has tendered in Court the affidavit of undertakingsworn by the petitioner along with three annexures, which are:D(i) A statement from Citibank, USA in respect of joint accountheld by the petitioner and respondent No.2;

(ii) An affidavit of Molshree A., Sharma, ESQ., a partner at thelaw firm of Mandel, Lipton, Roseborough & Sharma Ltd., basedin Chicago; andE(iii) Documents to show deposit of US$25,000 in an escrowaccount operated by the aforesaid law firm.

2. The petitioner has stated that he has already depositedUS$25,000 into his attorney’s escrow account. The affidavit ofFMolshree A., Sharma affirms that the said escrow account maybe operated by respondent No.2/ Kanika Goel in the event offailure of the petitioner/ Karan Goel in meeting his obligations asper his undertaking given to this Court.

3. We are satisfied with the aforesaid arrangement made by theGpetitioner to secure the interests of respondent No.2 and the minorchild in terms of our decision dated 16.11.2017.

4. In these circumstances, we now direct respondent No.2 toreturn to USA along with the minor child M within two weeksfrom today, failing which the minor child M shall be handed overto the petitioner, to be taken to USA.H

5. We may observe that learned counsel for respondent No.2 hassought more time on the ground that respondent No.2 wishes toassail the decision dated 16.11.2017 and that the Supreme Courtshall be closed for Winter Vacation in later part of December,2017 and early part of January, 2018. However, we are not inclinedto grant any further time for the reason that it is imperative forrespondent No.2 to return to USA on or before 23.12.2017, and ifshe does not so return, her return may not be permitted by theImmigration Department of USA without further compliance beingmade by her. We cannot permit a situation to arise whererespondent No.2 is able to defeat the direction issued by this Courton account of her own acts & omissions.

6. The passport of the petitioner deposited in this Court is directedto be returned forthwith. The said passport be returned to Mr.Prabhjit Jauhar, larned counsel for the petitioner. The said passportshall be retained by Mr. Jauhar so as to enable the petitioner andhis parents to meet the child M, while they are in New Delhi,India. Mr. Jauhar shall return the passport to the petitioner only atthe time when the petitioner has to return to USA, after ensuringthat the custody of the child is with respondent No. 2.

7. The meeting between the petitioner and his parents, on the onehand, and the child, on the other hand, shall be undertaken as perthe arrangement worked out by us earlier, i.e. two hours everyworking day, and three hours at the weekends, as mutually agreedbetween the parties.

8. The petition stands disposed of in the aforesaid terms.”

11. Being aggrieved by the aforesaid judgment and orders, theappellant, being the mother of the minor child M, has approached thisCourt by way of Special Leave under Article 136 of the Constitution ofIndia. This Court issued notice on 15[th] December, 2017, when it passedthe following interim order:

“O R D E R

Issue notice.

As Dr. Abhishek Manu Singhvi and Mr. R.S. Suri, learnedsenior counsel along with Mr. Prabhjit Jauhar, learned counselhas entered appearance for the respondent No.2, no further noticeneed be issued.

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Counter affidavit be filed within two weeks. Rejoinderaffidavit, if any, be filed within a week therefrom.

Let the matter be listed on 24th January, 2018.

As an interim measure, it is directed that the arrangementsmade by the High Court for the visitation rights shall remain inBforce. The petitioner-wife shall not create any kind of impedimentin the meeting of the father with the child.

In the course of hearing, we have also been apprised by Dr.Singhvi that the Green Card issued in favour of the petitioner-wife is going to expire on 22nd December, 2017. Be that as itCmay, If, eventually, the petitioner loses in this proceeding and therespondent No.2 succeeds, the expiration of the Green Card cannotbe a ground to deny the custody of the child to the father. Needlessto say, if the petitioner wife intends to go to United States ofAmerica and gets the Green Card renewed, it is open for her toDdo so. We may also record that the husband has acceded to, asstated by the learned counsel for the respondent No.2, that heshall not implicate her in any criminal proceeding.”

In continuation of the aforementioned interim arrangement, a furtherorder was passed by this Court on 24[th] January, 2018, which reads thus:

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“O R D E R

Heard Mr. Kapil Sibal, learned senior counsel along with Ms.Malavika Rajkotia, learned counsel for the petitioner and Dr.A.M.Singhvi, learned senior counsel along with Mr. PrabhjitJauhar, learned counsel for the respondents.

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Though, we are not inclined to interfere with the interimarrangement made by the High Court yet, regard being had tosome grievances of both the parties, we intend to pass an orderclarifying the position.

Having heard learned counsel for the parties, it is directed asfollows:

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(i) Whenever respondent No.2 is available in India, he shallintimate the petitioner by E-mail and also forward a copy ofthe said E-mail to the counsel for the petitioner so that she canmake the child available for meeting with the father at H

Promenade Mall, Vasant Kunj between 5.30 P.M. to 7.30 P.M.on weekdays and 11.00 A.M. to 2.00 P.M. on holidays whenthe school is closed.

(ii) When the father will be meeting the child, they shall meetwithout any supervision.

(iii) When the father is not in India, there can be communication/interaction through Skype at about 7.30 P.M.(Indian StandardTime) or any other mode on line.

(iv) The passport of the child, which is presently with the father,shall be handed over to the mother for a period of one week sothat she can take appropriate steps to complete certainformalities for admission of the child in a school. This directionis without prejudice to the final result in the special leave petition.The passport shall be returned by Ms.Malavika Rajkotia, learnedcounsel for the petitioner to Mr.Prabhjit Jauhar, learned counselfor the respondents.

Let the matter be listed on 19.02.2018 at 2.00 P.M. for finaldisposal.”

These are the relevant interim orders, which were to operate until thefinal disposal of the appeals. On 18[th] May, 2018, a grievance was madebefore this Court about non-cooperation by the appellant, which hasbeen recorded as under:

“O R D E R

As mentioned in the first hour, the matter is taken up today.Be it noted, we have listed the matter today as it relates to theconversation right of the father with the child.

In the course of hearing, Mr. Prabhjit Jauhar, learned counselappearing for the respondent-father submitted that the directionsissued by this Court on earlier occasion relating to Skype contactare not being complied with.

Ms. Malavika Rajkotia, learned counsel appearing for theappellant submitted that there has been no deviation and in anycase, the mother does not intend to anyway affect, indict orintervene in the right to converse by Skype. Ms. Rajkotia hasassured this Court that her client has not given any occasion to A

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Araise any grievance and if any grievance is nurtured by the father,the same shall be duly addressed, so that the order of this Court isduly complied with.

We are sure, the parties shall behave like compliant litigants.”

The hearing was concluded and the interim arrangement as directed byBthis Court was to be observed by the parties until the pronouncement ofthe final judgment.

12. The appellant, being the mother of the minor child M, hasassailed the decision of the High Court for having overlooked therudimentary principles governing the issue of invoking jurisdiction to issueCa writ of habeas corpus in respect of a minor child who was in lawfulcustody of her mother. According to the appellant, the High Court hascompletely glossed over or to put it differently, misconstrued andmisapplied the principles of paramount interest of the minor girl child oftender age of about 4 years. Similarly, the High Court has glossed overDthe doctrine of choice and dignity of the mother of a minor girl childkeeping in mind the exposition in K.S. Puttaswamy & Anr. Vs. Unionof India & Ors.[1] The High Court has also failed to take into accountthat the intimate contact of the minor child would be her mother whowas her primary care giver and more so, when she was at the relevanttime in the company of her mother. The appellant, being the mother, hadEa fundamental right to look after her minor daughter which cannot bewhittled down or trivialized on the considerations which found favourwith the High Court. The welfare and paramount interest of the minorgirl child would certainly lean towards the mother, all other things beingequal. The role of the mother of a minor girl child cannot be reduced toFan appendage of the child and the mother cannot be forced to stay in anunfriendly environment where she had been victim of domestic violenceinflicted on her. This would be so when the mother was also a workingwoman whose career would be at stake in the event the directions givenby the High Court were to be complied with in letter and spirit. The HighCourt ought to have adopted a child rights based approach but the reasonsGwhich weighed with the High Court, clearly manifest that it was influencedby the values of pre-constitutional morality standard. The approach ofthe High Court, of delineating an arrangement, which it noted as thelowest prejudice option to the mother, has no place for deciding the 1 (2017) 10 SCC 1H

1 (2017) 10 SCC 1H

issue of removing the custody of a minor girl child of tender age fromher mother and giving it to her father for being taken away to her nativecountry. The High Court has misunderstood and misapplied the principleexpounded in Nithya Anand Raghavan Vs. State (NCT of Delhi) &Anr.,[2] and Prateek Gupta Vs. Shilpi Gupta & Ors.[3] The High Courthas completely overlooked the autonomy of the appellant inasmuch asthe directions given by the High Court would virtually subjugate all herrights and would compel her to stay in an unfriendly environment at thecost of her career and dignity. The arrangement directed by the HighCourt can, by no standard, be said to be a just and fair muchlesscollaborative arrangement to be worked out between the parents, withoutcompromising on the paramount interest and welfare of the minor girlchild. The High Court committed a manifest error in answering the issueof best interest of the minor girl child, inter alia on the basis of theprovisions of the Juvenile Justice Act and disregarding the crucial factthat the minor girl child was presently staying with her mother alongwith her extended family, which she would be completely deprived of iftaken away to a place within the jurisdiction of the US Court by respondentNo.2 - her father. It was also contended that in the process of reasoningout the plea taken by the appellant regarding the circumstances in whichshe fled from USA with the minor girl child due to domestic violenceinflicted on her, the said issue has been trivialized. It is contended that asthe marriage between the appellant and respondent No.2 was solemnizedin New Delhi as per Anand Karaj ceremony and Hindu Vedic rites, thefact that the appellant went to the United States to stay with her husband,would make no difference to her status and nationality, much less haveany bearing on the issue of best interest of the minor girl child.

13. On the other hand, the respondent No.2 would submit that theHigh Court analysed all the relevant aspects of the matter keeping inmind the legal principles expounded in the recent decisions of this Courtand recorded its satisfaction about the best interest of the minor girlchild coupled with the necessity of the minor girl child to be producedbefore the Circuit Court of Cook County, Illinois, USA, which had intimatecontact with the minor girl child, inasmuch as the minor girl child wasborn and was domiciled within the jurisdiction of that Court before shewas clandestinely removed by the appellant to India. It is contended thatsince both the father as well as the minor girl child are US citizens and 2 (2017) 8 SCC 454

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Athe mother is a permanent resident of US and domiciled in that country,only the Courts of that country will have jurisdiction to decide thematrimonial issues between the parties, including custody of the minorgirl child and her guardianship. Further, at the tender age of about 3years, the minor girl child had hardly spent any time in India so as tosuggest that she has gained consciousness in India and thus it would beBin the best interest of the child to be taken away to the US. It is contendedby respondent No.2 that the High Court has analysed all the relevantfacts before recording the finding that the welfare and best interest ofthe minor girl child would be served by returning to United States. Asthat finding is based on tangible material on record as adverted to by theCHigh Court, this Court should be loath to overturn the same and, moreso, when the High Court has issued directions to balance the equitiesand also facilitate return of the minor child to be produced before theCourt of competent jurisdiction. The directions so issued are no differentthan the directions given by this Court in Nithya Anand Raghavan’s

case, (supra). It is contended by respondent No.2 that this Court mayDprimarily examine the directions issued by the High Court and ifnecessary, issue further directions to safeguard the interest of theappellant, but in no case should the plea taken by the appellant, that theminor girl child should not return to US, be accepted. It is contended that the sole consideration in a proceeding such as this, must be to ascertainEthe welfare of the minor girl child and not to adjudicate upon the rights ofthe father or the mother. While doing so, the Court may take into accountall such aspects to ascertain as to whether any harm would be caused tothe minor child or for that matter, has been caused in the past during herstay in US. From the order passed by the US Court, it is evident that thecustody of the minor girl child with the appellant had become unlawfulFand for which reason, this Court in exercise of its jurisdiction for issuanceof a writ of habeas corpus, must direct the appellant to give the custodyof the minor girl child to her father. It is contended that the argumentregarding health or personal matters raised by the appellant are onlyarguments of causing prejudice and should have no bearing for answeringGthe matters in issue, particularly in the context of the equitable directionspassed by the High Court. The Court must keep in mind that the minorgirl child is presently staying in India without a valid Visa after her Visaobtained for travelling to India expired. The respondent No.2 would submitthat no interference with the directions issued by the High Court iswarranted in the fact situation of the present case.H

14. We have heard Ms. Malavika Rajkotia, learned counselappearing for the appellant and Ms. Meenakshi Arora, learned seniorcounsel appearing for the respondent No.2.

15. We shall first advert to the analysis made by the High Court inrespect of the contentious issues. That can be discerned from paragraph102 onwards of the impugned judgment. The High Court was consciousof the fact that it must first examine the issue regarding the welfare andbest interest of the minor child. It noted that the minor girl child wasabout 3 years when the writ petition for habeas corpus was preferred on1[st] February, 2017. It then noted that the respondent No.2 – father of theminor girl child had acquired citizenship of the USA in 2005 and holds anAmerican Passport. He is living in the USA since 1994 and is thusdomiciled in the USA. He had acquired a Bachelors’ degree in Economicsand obtained MBA qualification from the University of Chicago. Hewas an Education Software Entrepreneur. The appellant wife is thebiological mother of the minor child M, who has acquired permanentresident status of the USA i.e. Green Card and had also applied forAmerican citizenship on 2[nd] December, 2016. The respondent No.2 andappellant were classmates during their schooling and revived theircontacts in 2000. Eventually, they decided to get married and thereafterreside in USA where the respondent No.2 had his work place and home.The marriage was solemnized in New Delhi in India on 31[st] October,2010 as per Anand Karaj ceremony, and Hindu Vedic rites in the presenceof the elders of both the families. After the appellant arrived in USA,they performed civil marriage before the competent Court in USA on19[th] March, 2011.

16. The High Court adverted to the accomplishment of theappellant in her education and occupation. The High Court noted thatthe couple started their matrimonial life in the United States and lived asa couple in that country. They made the United States their home andtheir entire married life, except the duration during which they were onshort visits to India, had been spent in the USA. They gave birth to a girlchild M in USA on 15[th] February, 2014 at North Western MemorialHospital, Chicago, Illinois, USA. The minor child M is a US citizen bybirth and grew up there until she was clandestinely removed by theappellant to India on 25[th] December, 2016. The minor child had, in fact,started attending pre-school in Chicago and had a full time schedule atschool from August, 2016. Thus, the mental development of M while ABC

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Ashe was in USA till the end of 2016, had taken place to such an extentthat she was very well aware and conscious of her surroundings. Shewas perceiving and absorbing from her surroundings and communicatednot only with her parents, but also with her other relatives, her peers atthe pre-school, her instructors, teachers and other care givers. TheAmerican way of life and systems were already in the process of beingBlearnt and experienced by M when she came to India in December,2016. The environment which M was experiencing during her growthwas the natural environment of Chicago, USA. Both her parents werelooking after her proper upbringing. The Court also noted that the paternalgrandparents of the minor child M were visiting and interacting with her.CThe Court then adverted to the decisions in Surinder Kaur Sandhu Vs.Harbax Singh Sandhu and Anr.[4], Aviral Mittal Vs. State[5], ShilpaAggarwal Vs. Aviral Mittal and Anr.[6], Dr. V. Ravi Chandran Vs.Union of India & Ors.[7], and Nithya Anand Raghavan (supra), toopine that the Court in the US seemed to be the most appropriate Court to decide the issue of custody of M, considering that it had intimateDcontact with the parties and the child. It went on to observe that it wasneither inclined nor in a position to undertake a detailed enquiry intoaspects of custody, visitation and co-parenting of the minor child in thefacts and circumstances of the case, considering all the events unfoldedin, circumstances developed in and evidences were located in the USA.EAfter having said this, it examined the compelling reasons disclosed bythe appellant to dissuade the Court from issuing directions for return ofM to her native country and the environment where she was born andbeing brought up. That analysis has been done in paragraph 114 onwards.The High Court considered the grievances of the appellant in paragraphs114 to 117 in the following words:F“114. The allegations of respondent no.2 against the petitionerand his mother are that the petitioner’s mother follows a stricteco-friendly lifestyle and imposes the same on the couple, whicheven caused chronic backache to the respondent since she wasforced to sleep on a hard eco-friendly mattress. She claim that allGher day to day affairs were influenced by the lifestyle of her motherin law, such as not using plastic products, non stick cookware, 4 (1984) 3 SCC 6985 (2009) 112 DRJ 6356 (2010) 1 SCC 591H7 (2010) 1 SCC 174

4 (1984) 3 SCC 6985 (2009) 112 DRJ 6356 (2010) 1 SCC 591H7 (2010) 1 SCC 174

personal care products etc. The respondent had no voice in thematter. The petitioner took minimal interest in household affairs,while his mother interfered in the lives of the parties by trackingtheir schedules. The petitioner and his mother did not respect therespondents privacy and the plan of the parties to bear a childwere disclosed to the petitioner’s mother in advance. She evenimposed lifestyle changes upon the respondent. The petitioner’smother also did not permit the respondent to maintain a secularhousehold. She was not permitted to celebrate both Sikh and Hindufestivals and the petitioner insisted that they celebrate only Sikhfestivals. Respondent no.2 states that she was diagnosed with agrave’s disease in October 2014. The petitioner and his motherinsisted that the respondent undergoes surgery rather than takingmedication, since medication would have made it difficult for herto conceive in future. She claims that the petitioner even threatenedher with divorce in case she prioritised her own health at the costof expanding their family. The respondent makes several otherallegations against the petitioner and his mother complaining ofcruelty and indifference on their part towards her.

115. The above allegations per se do not suggest any graveundesirable conduct or deviant behavior on the part of the petitioner,or his mother qua the child M – even if they were to be assumedto be true for the time being. The allegations even remotely, notsuch as to suggest that the minor child M may be exposed to anyadversity, harm, undesirable influence, or danger if she were tobe allowed to meet them or spend time with them in USA. Thereis nothing to suggest that the petitioner – father of M, or hergrandmother would leave a bad and undesirable influence on M.These allegations are not such as to persuade this Court not tosend the child M back to her country of origin and initial upbringing.On the contrary, the petitioner appears to be an educated personwho is gainfully managing his business, and the photographs onrecord show healthy bonding between M and her father. He alsoappears to have actively participated in the upbringing of M – ifthe averments made by him in his petition are to be believed. Infact, respondent no.2 had also expressed her willingness to let Minteract with the petitioner and to allow him visitation rights, whichwould not have been the case if she considered him to be a bad AB

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influence on, or a potential threat to her daughter. The fact thatthe petitioner’s mother is a pediatrician, in fact, is a reassuringfact that M would be taken good care of medically in her tenderyears. The photographs filed by the petitioner along with thepetition show M to be having a healthy and normal upbringingwhile she was in USA. She is seen enjoying the love, care andcompany of her parents and others – including children of herage. There is no reason why she should be allowed to be uprootedfrom the environment in which she was naturally growing up, andto be retained in an environment where she would not have thelove, care and attention of her father and paternal grandparents,apart from her peers, teachers, school and other care givers whowere, till recently, with her.

116. From the allegations made by respondent No.2, it appearsthat she may have had issues of living with and adjusting with thepetitioner and his parents – particularly the mother-in-law.However, there is absolutely nothing placed on record to evenremotely suggest that so far as the petitioner is concerned, hisconduct qua M and his presence with M, or for that matter, eventhe grandparents, could be said to be detrimental to or harmful forM. It certainly cannot be said that if M were to be returned to herplace of origin where she spent the initial three years of her life –considering that those three years constitute more than 3/4th ofher entire existence on this planet till date, would be detrimentalto her interest in any manner whatsoever.

117. The parties started their married life in USA, and as clearlyappears from their conduct, their mutual commitment was to spendtheir married life and to raise their children in USA. There isabsolutely nothing to suggest that the parties mutually ever agreedto or intended to shift from their place of residence to a place inIndia, though respondent no.2 may have unilaterally so desired. Insuch a situation, in our view, respondent No.2 cannot breach hermaternal commitment without any valid justification and remainin return to India with M – who is an American citizen and would,obviously, be attached to her father and grandparents; her home;her Nanny; her teachers & instructors and her peers and friends,all of whom are in USA.”

17. After having said this, the High Court considered the argument of the appellant that she was the primary care giver qua M but disregardedthe same by observing that that alone cannot be made the basis to rejectthe prayer for return of the minor girl child to her native country, andmore so, when the minor girl child deserves love, affection and care ofher father as well. The Court found that nothing prevents the appellantfrom returning to the USA if she so desires. Further, the fact that theminor girl child would make new friends and have new care givers andteachers in India at a new school, cannot be the basis to deny her thelove and affection of her biological father or parenting of grandparentswhich was equally important for the grooming and upbringing of thechild. The Court then went on to notice that the expression “best interestof child” is wide in its connotation and cannot be limited only to love andcare of the primary care giver i.e. the mother. It then adverted to theprovisions of the Juvenile Justice (Care and Protection of Children) Act,2015, while making it clear that it was conscious of the fact that the saidAct may not strictly apply to the case on hand for examining the issue ofbest interest of the child. In paragraphs 124 to 126 of the impugnedjudgment, it went on to observe thus:

“124. Thus, all decisions regarding the child should be based onprimary consideration that they are in the best interest of the childand to help the child to develop to full potential. When involvementof one of the parents is not shown to be detrimental to the interestof the child, it goes without saying that to develop full potential ofthe child, it is essential that the child should receive the love, careand attention of both his/ her parents, and not just one of them,who may have decided on the basis of his/ her differences withthe other parent, to re-locate in a different country. Developmentof full potential of the child requires participation of both theparents. The child, who does not receive the love, care and attentionof both the parents, is bound to suffer from psychological andemotional trauma, particularly if the child is small and of tenderage. The law also recognizes the fact that the primary responsibilityof care, nutrition and protection of the child falls primarily on thebiological family. The “biological family” certainly cannot meanonly one of the two parents, even if that parent happens to be theprimary care giver.

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united with his family at the earliest, and to be restored to thesame socio-economic and cultural status that he was in, beforebeing removed from that environment, unless such restoration orrepatriation is not in his best interest. The present is not a casewhere respondent No.2 fled from USA or decided to stay back inIndia on account of any such conduct of the petitioner which couldbe said to have been detrimental to her own interest, or the interestof the minor child M. The decision of respondent No.2 to stayback in India is entirely personal to her, and her alone. It is notbased on consideration of the best welfare of the minor child M.In fact, the best interest of the child M has been sidelined byrespondent no.2 while deciding to stay back in India with M.

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126. Pertinently, respondent No.2 in her statement in response tothe missing person report made by the petitioner on 14.01.2017vide DD No.20B dated 14.01.2017 at PS – Vasant Kunj (South),New Delhi, inter alia, stated that ‘the parties came to New Delhi,India with their daughter M on 20.12.2016. She further statedthat during this time, I realized that I do not want to continue withhis suppressed marriage and file for divorce and custody petitionagainst K G in the Hon’ble Court Sh. Arun Kumar Arya, PrincipleJudge, Family Courts, Patiala House, New Delhi via HMA No.27/17……’. Thus, it appears from the statement of respondent No.2that the realization that she did not want to continue in her marriagedawned upon her only when she came to India, and it is not thatwhen she left the shores of USA in December 2016, she left witha clear decision in her mind that she would not return to USA forany specific and justifiable reason.”

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18. Reference was then made to the provisions of the Conventionon the Rights of the Child adopted by the General Assembly of the UnitedNations dated 20[th] November, 1989, which was ratified by theGovernment of India on 11[th] December, 1992, and the resolution by theGovernment of India issued by the Ministry of Human ResourceGDevelopment vide Resolution No.6-15/98 C.W., dated 9[th] February, 2004framing the “National Charter for Children, 2003” and the Court observedin paragraph 138 as follows:

“138. Thus, best welfare of the child, normally, would lie in livingwith both his/ her parents in a happy, loving and caring environment,where the parents contribute to the upbringing of the child in all H

spheres of life, and the child receives emotional, social, physicaland material support - to name a few. In a vitiated marriage,unfortunately, there is bound to be impairment of some of theinputs which are, ideally, essential for the best interest of the child.Then the challenge posed before the Court would be to determineand arrive at an arrangement, which offers the best possible solutionin the facts and circumstances of a given case, to achieve thebest interest of the child.”

19. On a perusal of the impugned judgment, it is noticed that theHigh Court has taken note of all the relevant decisions including thelatest three-Judge Bench decision of this Court in Nithya AnandRaghavan’s case, (supra), which has had occasion to exhaustivelyanalyse the earlier decisions on the subject matter under consideration.The exposition in the earlier decisions has been again restated and re-affirmed in the subsequent decision of this Court in Prateek Gupta Vs.Shilpi Gupta & Ors., (supra). Let us, therefore, revisit these twodecisions. In paragraph 40 of the Nithya Anand Raghavan’s case,(supra), this Court observed thus:

“40. The Court has noted that India is not yet a signatory to theHague Convention of 1980 on “Civil Aspects of International ChildAbduction”. As regards the non-Convention countries, thelaw is that the court in the country to which the child hasbeen removed must consider the question on meritsbearing the welfare of the child as of paramount importanceand reckon the order of the foreign court as only a factor tobe taken into consideration, unless the court thinks it fit toexercise summary jurisdiction in the interests of the childand its prompt return is for its welfare. In exercise of summaryjurisdiction, 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 not gainedroots here and further that it will be in the child’s welfare to returnto his native state because of the difference in language spokenor social customs and contacts to which he/she has beenaccustomed or such other tangible reasons. In such a case thecourt need not resort to an elaborate inquiry into the merits of theparamount welfare of the child but leave that inquiry to the foreign AB

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court by directing return of the child. Be it noted that in exceptionalcases the court can still refuse to issue direction to return thechild to the native state and more particularly in spite of a pre-existing order of the foreign court in that behalf, if it is satisfiedthat the child’s return may expose him to a grave risk of harm.This means that the courts in India, within whose jurisdiction theminor has been brought must “ordinarily” consider the questionon merits, bearing in mind the welfare of the child as of paramountimportance whilst reckoning the pre-existing order of the foreigncourt if any as only one of the factors and not get fixated therewith.In either situation—be it a summary inquiry or an elaborateinquiry—the welfare of the child is of paramount consideration.Thus, while examining the issue the courts in India are freeto decline the relief of return of the child brought within itsjurisdiction, if it is satisfied that the child is now settled inits new environment or if it would expose the child tophysical or psychological harm or otherwise place the childin an intolerable position or if the child is quite mature andobjects to its return. We are in respectful agreement with theaforementioned exposition.”

Again in paragraph 42, the Court observed thus:

“42. The consistent view of this Court is that if the child has beenbrought within India, the courts in India may conduct: (a) summaryinquiry; or (b) an elaborate inquiry on the question of custody. Inthe case of a summary inquiry, the court may deem it fit toorder return of the child to the country from where he/shewas removed unless such return is shown to be harmful tothe child. In other words, even in the matter of a summary inquiry,it is open to the court to decline the relief of return of the child tothe country from where he/she was removed irrespective of apre-existing order of return of the child by a foreign court. In anelaborate inquiry, the court is obliged to examine the merits as towhere the paramount interests and welfare of the child lay andreckon the fact of a pre-existing order of the foreign court forreturn of the child as only one of the circumstances. In eithercase, the crucial question to be considered by the court (inthe country to which the child is removed) is to answer the AND ANR. [A. M. KHANWILKAR, J.]

Issues

AND ANR. [A. M. KHANWILKAR, J.]

issue according to the child’s welfare. That has to be donebearing in mind the totality of facts and circumstances ofeach case independently. Even on close scrutiny of theseveral decisions pressed before us, we do not find anycontra view in this behalf. To put it differently, the principle ofcomity of courts cannot be given primacy or more weightage fordeciding the matter of custody or for return of the child to thenative State.”

It will be apposite to also advert to paragraphs 46 & 47 of the reporteddecision, which read thus:

“46. The High Court while dealing with the petition for issuanceof a writ of habeas corpus concerning a minor child, in a givencase, may direct return of the child or decline to change the custodyof the child keeping in mind all the attending facts andcircumstances including the settled legal position referred to above.Once again, we may hasten to add that the decision of thecourt, in each case, must depend on the totality of the factsand circumstances of the case brought before it whilstconsidering the welfare of the child which is of paramountconsideration. The order of the foreign court must yield tothe welfare of the child. Further, the remedy of writ of habeascorpus cannot be used for mere enforcement of thedirections given by the foreign court against a person withinits jurisdiction and convert that jurisdiction into that of anexecuting court. Indubitably, the writ petitioner can take recourseto such other remedy as may be permissible in law for enforcementof the order passed by the foreign court or to resort to any otherproceedings as may be permissible in law before the Indian Courtfor the custody of the child, if so advised.

47. In a habeas corpus petition as aforesaid, the High Courtmust examine at the threshold whether the minor is in lawfulor unlawful custody of another person (private respondentnamed in the writ petition). For considering that issue, in acase such as the present one, it is enough to note that theprivate respondent was none other than the natural guardianof the minor being her biological mother. Once that fact is AB

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Aascertained, it can be presumed that the custody of theminor with his/her mother is lawful. In such a case, only inexceptionable situation, the custody of the minor (girl child)may be ordered to be taken away from her mother for beinggiven to any other person including the husband (father ofthe child), in exercise of writ jurisdiction. Instead, the otherBparent can be asked to resort to a substantive prescribed remedyfor getting custody of the child.”

Again in paragraph 50, the Court expounded as under:

C“50. The High Court in such a situation may then examine whetherthe return of the minor to his/her native state would be in theinterests of the minor or would be harmful. While doing so, theHigh Court would be well within its jurisdiction if satisfied,that having regard to the totality of the facts andcircumstances, it would be in the interests and welfare ofDthe minor child to decline return of the child to the countryfrom where he/she had been removed; then such an ordermust be passed without being fixated with the factum of anorder of the foreign court directing return of the child withinthe stipulated time, since the order of the foreign courtEmust yield to the welfare of the child. For answering thisissue, there can be no straitjacket formulae or mathematicalexactitude. Nor can the fact that the other parent had alreadyapproached the foreign court or was successful in getting an orderfrom the foreign court for production of the child, be a decisivefactor. Similarly, the parent having custody of the minor has notFresorted to any substantive proceeding for custody of the child,cannot whittle down the overarching principle of the best interestsand welfare of the child to be considered by the Court. That oughtto be the paramount consideration.”

GIn paragraphs 67 and 69, the Court propounded thus:

“67. The facts in all the four cases primarily relied upon byRespondent 2, in our opinion, necessitated the Court to issuedirection to return the child to the native state. That does notmean that in deserving cases the courts in India are denuded from H

MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O.AND ANR. [A. M. KHANWILKAR, J.]

declining the relief to return the child to the native state merelybecause of a pre-existing order of the foreign court of competentjurisdiction. That, however, will have to be considered on case tocase basis — be it in a summary inquiry or an elaborate inquiry.We do not wish to dilate on other reported judgments, as it wouldresult in repetition of similar position and only burden this judgment.

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69. …………… The summary jurisdiction to return the childbe exercised in cases where the child had been removedfrom its native land and removed to another country where,may be, his native language is not spoken, or the child getsdivorced from the social customs and contacts to which hehas been accustomed, or if its education in his native landis interrupted and the child is being subjected to a foreignsystem of education, for these are all acts which couldpsychologically disturb the child. Again the summaryjurisdiction be exercised only if the court to which the child hasbeen removed is moved promptly and quickly. The overridingconsideration must be the interests and welfare of the child.”

20. At this stage, we deem it apposite to reproduce paragraphs 70and 71 of the reported judgment, which may have some bearing on thefinal order to be passed in this case. The same read thus:

“70. Needless to observe that after the minor child (Nethra) attainsthe age of majority, she would be free to exercise her choice to goto the UK and stay with her father. But until she attains majority,she should remain in the custody of her mother unless the court ofcompetent jurisdiction trying the issue of custody of the child ordersto the contrary. However, the father must be given visitation rights,whenever he visits India. He can do so by giving notice of at leasttwo weeks in advance intimating in writing to the appellant and ifsuch request is received, the appellant must positively respond inwriting to grant visitation rights to Respondent 2 Mr AnandRaghavan (father) for two hours per day twice a week at thementioned venue in Delhi or as may be agreed by the appellant,where the appellant or her representatives are necessarily presentat or near the venue. Respondent 2 shall not be entitled to, nor AB

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make any attempt to take the child (Nethra) out from the saidvenue. The appellant shall take all such steps to comply with thevisitation rights of Respondent 2, in its letter and spirit. Besides,the appellant will permit Respondent 2 Mr Anand Raghavan tointeract with Nethra on telephone/mobile or video conferencing,on school holidays between 5 p.m. to 7.30 p.m. IST.

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71. As mentioned earlier, the appellant cannot disregard theproceedings instituted before the UK Court. She must participatein those proceedings by engaging solicitors of her choice to espouseher cause before the High Court of Justice. For that, Respondent2 Anand Raghavan will bear the costs of litigation and expensesCto be incurred by the appellant. If the appellant is required toappear in the said proceeding in person and for which she isrequired to visit the UK, Respondent 2 Anand Raghavan will bearthe air fares or purchase the tickets for the travel of appellant andNethra to the UK and including for their return journey to India asDmay be required. In addition, Respondent 2 Anand Raghavan willmake all arrangements for the comfortable stay of the appellantand her companions at an independent place of her choice atreasonable costs. In the event, the appellant is required to appearin the proceedings before the High Court of Justice in the UK,Respondent 2 shall not initiate any coercive process against herEwhich may result in penal consequences for the appellant and ifany such proceeding is already pending, he must take steps tofirst withdraw the same and/or undertake before the courtconcerned not to pursue it any further. That will be conditionprecedent to pave way for the appellant to appear before theFcourt concerned in the UK.”

21. In the subsequent judgment of two Judges of this Court inPrateek Gupta (supra), after analysing all the earlier decisions, inparagraphs 49 to 51 the Court noted thus:

“49. The gravamen of the judicial enunciation on the issueGof repatriation of a child removed from its native country isclearly founded on the predominant imperative of its overallwell-being, the principle of comity of courts, and thedoctrines of “intimate contact and closest concern”notwithstanding. Though the principle of comity of courts and H

the aforementioned doctrines qua a foreign court from the territoryof which a child is removed are factors which deserve notice indeciding the issue of custody and repatriation of the child, it is nolonger res integra that the ever-overriding determinant would bethe welfare and interest of the child. In other words, the invocationof these principles/doctrines has to be judged on the touchstoneof myriad attendant facts and circumstances of each case, theultimate live concern being the welfare of the child, other factorsbeing acknowledgeably subservient thereto. Though in theprocess of adjudication of the issue of repatriation, a courtcan elect to adopt a summary enquiry and order immediaterestoration of the child to its native country, if the applicant/parent is prompt and alert in his/her initiative and theexisting circumstances ex facie justify such course again inthe overwhelming exigency of the welfare of the child, sucha course could be approvable in law, if an effortlessdiscernment of the relevant factors testify irreversible,adverse and prejudicial impact on its physical, mental,psychological, social, cultural existence, thus exposing itto visible, continuing and irreparable detrimental andnihilistic attenuations. On the other hand, if the applicant/parentis slack and there is a considerable time lag between the removalof the child from the native country and the steps taken for itsrepatriation thereto, the court would prefer an elaborate enquiryinto all relevant aspects bearing on the child, as meanwhile withthe passage of time, it expectedly had grown roots in the countryand its characteristic milieu, thus casting its influence on theprocess of its grooming in its fold.

50. The doctrines of ‘intimate contact’ and ‘closest concern’are of persuasive relevance, only when the child is uprootedfrom its native country and taken to a place to encounteralien environment, language, custom, etc. with the portentof mutilative bearing on the process of its overall growthand grooming.

51. It has been consistently held that there is no forum conveniencein wardship jurisdiction and the peremptory mandate that underlinesthe adjudicative mission is the obligation to secure the unreserved ABCDE

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Awelfare of the child as the paramount consideration.”

Again, in paragraph 53 of the judgment, the Court observed thus:

“53. .... The issue with regard to the repatriation of a child,Bas the precedential explications would authenticate has tobe addressed not on a consideration of legal rights of theparties but on the sole and preponderant criterion of thewelfare of the minor. As aforementioned, immediaterestoration of the child is called for only on an unmistakablediscernment of the possibility of immediate and irremediableCharm to it and not otherwise. As it is, a child of tender years,with malleable and impressionable mind and delicate andvulnerable physique would suffer serious set-back ifsubjected to frequent and unnecessary translocation in itsformative years. It is thus imperative that unless, theDcontinuance of the child in the country to which it has beenremoved, is unquestionably harmful, when judged on thetouchstone of overall perspectives, perceptions andpracticabilities, it ought not to be dislodged and extricatedfrom the environment and setting to which it had gotadjusted for its well-being.”

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22. After these decisions, it is not open to contend that the custodyof the female minor child with her biological mother would be unlawful,for there is presumption to the contrary. In such a case, the High Courtwhilst exercising jurisdiction under Article 226 for issuance of a writ ofFhabeas corpus need not make any further enquiry but if it is calledupon to consider the prayer for return of the minor female child to thenative country, it has the option to resort to a summary inquiry or anelaborate inquiry, as may be necessary in the fact situation of the givencase. In the present case, the High Court noted that it was not inclinedGto undertake a detailed inquiry. The question is, having said that whetherthe High Court took into account irrelevant matters for recording itsconclusion that the minor female child, who was in custody of herbiological mother, should be returned to her native country. As observedin Nithya Anand Raghavan’s case (supra), the Court must take intoaccount the totality of the facts and circumstances whilst ensuring theH

best interest of the minor child. In Prateek Gupta’s case (supra), theCourt noted that the adjudicative mission is the obligation to secure theunreserved welfare of the child as the paramount consideration. Further,the doctrine of “intimate and closest concern” are of persuasive relevance,only when the child is uprooted from its native country and taken to aplace to encounter alien environment, language, custom etc. with theportent of mutilative bearing on the process of its overall growth andgrooming. The High Court in the present case focused primarily on thegrievances of the appellant and while rejecting those grievances, wenton to grant relief to respondent No.2 by directing return of the minor girlchild to her native country. On the totality of the facts and circumstancesof the present case, in our opinion, there is nothing to indicate that thenative language (English) is not spoken or the child has been divorcedfrom the social customs to which she has been accustomed. Similarly,the minor child had just entered pre-school in the USA before she cameto New Delhi along with her mother. In that sense, there was no disruptionof her education or being subjected to a foreign system of educationlikely to psychologically disturb her. On the other hand, the minor childM is under the due care of her mother and maternal grand-parents andother relatives since her arrival in New Delhi. If she returns to US asper the relief claimed by the respondent No.2, she would inevitably beunder the care of a Nanny as the respondent No.2 will be away duringthe day time for work and no one else from the family would be there athome to look after her. Placing her under a trained Nanny may not beharmful as such but it is certainly avoidable. For, there is likelihood of theminor child being psychologically disturbed after her separation fromher mother, who is the primary care giver to her. In other words, there isno compelling reason to direct return of the minor child M to the US asprayed by the respondent No.2 nor is her stay in the company of hermother, along with maternal grand-parents and extended family at NewDelhi, prejudicial to her in any manner, warranting her return to the US.

23. As expounded in the recent decisions of this Court, the issueought not to be decided on the basis of rights of the parties claimingcustody of the minor child but the focus should constantly remain onwhether the factum of best interest of the minor child is to return to thenative country or otherwise. The fact that the minor child will have betterprospects upon return to his/her native country, may be a relevant aspectin a substantive proceedings for grant of custody of the minor child but ABC

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Anot decisive to examine the threshold issues in a habeas corpus petition.For the purpose of habeas corpus petition, the Court ought to focus onthe obtaining circumstances of the minor child having been removedfrom the native country and taken to a place to encounter alienenvironment, language, custom etc. interfering with his/her overall growthand grooming and whether continuance there will be harmful. This hasBbeen the consistent view of this Court as restated in the recent three-Judge Bench decision in Nithya Anand Raghavan (supra), and thetwo-Judge Bench decision in Prateek Gupta (supra). It is unnecessaryto multiply other decisions on the same aspect.

24. In the present case, the minor child M is a US citizen by birth.CShe has grown up in her native country for over three years before shewas brought to New Delhi by her biological mother (appellant) inDecember 2016. She had joined a pre-school in the USA. She had healthybonding with her father (respondent No.2). Her paternal grand-parentsused to visit her in the USA at some intervals. She was under the care ofDa Nanny during the day time, as her parents were working. Indeed, thework place of her father is near the home. The biological father(respondent No.2) of the minor child M has acquired US citizenship.Both father and mother of the minor child M were of Indian origin butdomiciled in the USA after marriage. The mother (appellant) is apermanent resident of the USA-Green Card holder and has also appliedEfor US citizenship. In her affidavit filed before the Delhi High Courtdated 30[th] November, 2017, she admits that her legal status wascomplicated as she has ceased to be an Indian citizen and her status ofcitizenship of the USA is in limbo.

25. Be that as it may, the father filed a writ petition before theFDelhi High Court for issuance of a writ of Habeas Corpus for productionof the minor child and for directions for her return to USA without anyloss of time. Given the fact that the parties performed a civil marriageon 19[th] March, 2011 in the USA and cohabited in the native country andgave birth to minor child M who grew up in that environment for at leastGthree years, coupled with the fact that the father and minor child M areUS citizens and mother is a permanent resident of USA, the closestcontact and jurisdiction is possibly that of the Circuit Court of CookCounty, Illinois, USA. However, we may not be understood to haveexpressed any final opinion in this regard. At the same time, it isindisputable that the appellant and respondent No.2 first got married onH

31[st] October, 2010 as per Sikh rites, i.e. Anand Karaj ceremony, andHindu Vedic rites and that marriage was solemnised in New Delhi atwhich point of time the appellant was admittedly a citizen of India.Presently, she is only a Green Card holder (permanent resident) of theUS. It is, therefore, debatable whether the Family Court at New Delhi,where the appellant has already filed a petition for dissolution of marriage,has jurisdiction in that behalf including to decide on the question of custodyand guardianship in respect of the minor child M. For that reason, it maybe appropriate that the said proceedings are decided with utmostpromptitude in the first place before the appellant is called upon to appearbefore the US Court and including to produce the minor child M beforethat Court.

26. It is not disputed that the appellant and minor child are presentlyin New Delhi and the appellant has no intention to return to hermatrimonial home in the U.S.A. The appellant has apprehensions andserious reservations on account of her past experience in respect ofwhich we do not think it necessary to dilate in this proceedings. That isa matter to be considered by the Court of Competent Jurisdiction calledupon to decide the issue of dissolution of marriage and/or grant of custodyof the minor child, as the case may be. For the time being, we mayobserve that the parties must eschew from pursuing parallel proceedingsin two different countries. For, the first marriage between the partieswas performed in New Delhi as per Anand Karaj Ceremony and HinduVedic rites on 31[st] October, 2010 and the petition for dissolution ofmarriage has been filed in New Delhi. Whereas, the civil marriageceremony on 19[th] March, 2011 at Circuit Court of Cook County, Illinois,USA, was performed to complete the formalities for facilitating the entryof the appellant into the US and to obtain US Permanent Resident status.It is appropriate that the proceedings pending in the Family Court atNew Delhi are decided in the first place including on the question ofjurisdiction of that Court. Depending on the outcome of the saidproceedings, the parties will be free to pursue such other remedies asmay be permissible in law before the Court of Competent Jurisdiction.

27. As aforesaid, it is true that both respondent No.2 and also theminor child M are US citizens. The minor girl child has a US Passportand has travelled to India on a tenure Visa which has expired. That doesnot mean that she is in unlawful custody of her biological mother. Hercustody with the appellant would nevertheless be lawful. The appellant AB

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Ahas already instituted divorce proceedings in the Family Court at PatialaHouse, New Delhi. The respondent No.2 has also filed proceedingsbefore the Court in the US for custody of the minor girl child, directingher return to her natural environment in the US. In such a situation, thearrangement directed by this Court in the case of Nithya AnandRaghavan (supra), as exposited in paragraphs 70-71, may be of someBhelp to pass an appropriate order in the peculiar facts of this case, insteadof directing the biological mother to return to the US along with theminor girl child, so as to appear before the competent court in the US.In that, the custody of the minor girl child M would remain with theappellant until she attains the age of majority or the Court of competentCjurisdiction, trying the issue of custody of the minor child, orders to thecontrary, with visitation and access rights to the biological father wheneverhe would visit India and in particular as delineated in the interim orderpassed by us reproduced in paragraph 11 (eleven) above.

28. A fortiori, dependant on the outcome of the proceedings, beforeDthe Family Court at New Delhi, the appellant may then be legally obligedto participate in the proceedings before the US Court and must take allmeasures to effectively defend herself in the said proceedings by engagingsolicitors of her choice in the USA to espouse her cause before theCircuit Court of Cook County, Illinois, USA. In that event, the respondentNo.2 shall bear the cost of litigation and expenses to be incurred by theEappellant to pursue the proceedings before the Courts in the nativecountry. In addition, the respondent No.2 will bear the air fares or purchasethe tickets for the travel of the appellant and the minor child M to theUSA and including their return journey for India, as may be required.The respondent No.2 shall also make all suitable arrangements for theFcomfortable stay of the appellant and her companions at an independentplace of her choice, at a reasonable cost. Further, the respondent No.2shall not initiate any coercive/penal action against the appellant and ifany such proceeding initiated by him in that regard is pending, the sameshall be withdrawn and not pursued before the concerned Court anyfurther. That will be the condition precedent to facilitate the appellant toGappear before the Courts in the USA to effectively defend herself on allmatters relating to the matrimonial dispute and including custody andguardianship of the minor child.

29. The appellant and respondent No.2 must ensure early disposal

of the proceedings for grant of custody of the minor girl child to theappellant, instituted and pending before the Family Court at Patiala House,New Delhi. All contentions available to the parties in that regard willhave to be answered by the Family Court on its own merits and inaccordance with law.

30. We, accordingly, set aside the impugned judgment and ordersof the High Court and dispose of the writ petition in the aforementionedterms. The appeals are allowed with no order as to costs.

Nidhi Jain

Appeals allowed.

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