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Judgment
K. Mohan Ram, J.—The petitioner is the legally wedded wife of the third respondent. The petitioner is an Indian Citizen, yet she had been
living in Singapore since age 4. The petitioner had been a resident of Singapore from 1983. The marriage between the petitioner and the third
respondent took place at Sirkali, Tamil Nadu, on 24.6.2011. The third respondent is an engineering graduate. After the marriage, the third
respondent moved to Singapore and stayed with the petitioner and he got an employment at Singapore. The detenu P. Arjun was born on
14.6.2004 at Singapore. According to the petitioner, she and the third respondent did not have a smooth matrimonial life as the third respondent
was dissatisfied with his job at Singapore and hence, he obtained a skilled migrant visa to Australia in 2008. Initially, the petitioner moved to Perth,
Australia with the detenu P. Arjun in March 2010 and the detenu began his schooling at Perth. The petitioner began working as a Medical Scientist
in Clinipath Pathology. The third respondent joined them at Perth in July 2010. According to the petitioner, as the third respondent could not find a
job at Perth, he began to show his frustration on the petitioner and the child and this led to a lot of arguments with the third respondent and he
abused the petitioner on several occasions. On 21.8.2010, the third respondent pulled the detenu P. Arjun out of school without the consent of the
petitioner and he booked air tickets for him and the detenu P. Arjun to go to India. Despite her earnest requests and pleadings, the third
respondent took the detenu P. Arjun to India on 22.8.2010. After much coaxing and pleading, the third respondent brought back the detenu P.
Arjun on 20.9.2010.
It is the further case of the petitioner that on 20.9.2010, the third respondent threatened to take P. Arjun to India and in such circumstances, the
petitioner had to hide their passports. Infuriated on this, the third respondent verbally abused the petitioner and physically assaulted her in front of
her son and demanded to return the passports. Left with no other option, she called the police for help and the police gave a 24 hour Violence
Restraining Order (VRO) to the third respondent. The next day, the Magistrate''s Court at Perth granted VRO to the petitioner and her son, which
was later dismissed as the third respondent was not violent. Thereafter, the third respondent initiated proceedings in the Court at Perth for shared
parental responsibility. Based on the compromise arrived at between the petitioner and the third respondent, the Magistrate Court at Perth,
Australia passed final orders on 7.7.2011 granting shared parenting responsibility of the detenu P. Arjun and granted permanent custody of the
detenu P. Arjun allowing him to stay with the petitioner at Perth. The orders contained a detailed schedule for the detenu P. Arjun to spend time
with the third respondent. As per the Order, either parent could take the child P. Arjun outside Australia for a period upto three weeks for the
purpose of a holiday after givng the other parent 21 days written notice. The travelling parent also has to provide a written itinerary and proof of
return tickets to the other parent within 14 days of the departure and also deposit a sum of Aus $ 5000/- into the Trust account of the solicitors
ofthe non-travelling parent within 14 days of departure. The travelling parent must also provide a mobile telephone number to the other parent to
facilitate reasonable telephone communication with the child P. Arjun during overseas travel.
On 12.9.2011, the third respondent sent an email attachign the itinerary of his plan to travel to India with her son from 1.10.2011 to 8.10.2011
on a holiday. As per Clause 19 of the final order, dated 7.7.2011, the passport of the child P. Arjun was directed to be returned to the petitioner.
Hence, the third respondent sought her help in obtaining the passport from the Registry since it required the petitioner to be personally present
along with the identity proof. Honouring and respecting the consent order of the Magistrate Court and believing that the request of the third
respondent is bona fide, the petitioner extended her fullest cooperation to him and obtained and handed over the detenu P. Arjun''s passport to the
third respondent.
The third respondent took the detenu P. Arjun and flew to India on 1.10.2011. In India the third respondent and the detenu P. Arjun were
staying at the house of the third respondent''s sister Aghil and her husband Dr. Jayavardhana at Coimbatore. On 7.10.2011, the petitioner received
an email from the third respondent stating that the detenu had viral fever and eye infection and hence, their return to Australia will be postponed.
The thrid respondent also sent a medical report issued by his sister''s husband Dr. Jaya Vardhana to that effect. On 8.10.2011, the petitioner
spoke to the detenu P. Arjun to enquire about his health and at that time, the detenu sounded very nervous and disoriented and did not speak
normally. When the petitioner asked about the eye drops to treat the eye infection, the detenu was very confused as he did not suffer from any eye
problem and was not treated for the same. Thereafter, the petitioner could not contact the detenu through his mobile number and the same
continued to be switched off. The petitioner sent an email to the third respondent on 8.10.2011 asking for the return date, but there was no reply.
On 19.10.2011, the petitioner''s lawyer in Australia received a fax from the third respondent''s lawyer stating that the third respondent intended to
remain in India with P. Arjun, the detenu. It was also informed that the third respondent has moved the Family Court at Coimabtore for divorce.
In such circumstances, on 21.10.2011, the petitioner sent an online complaint tothe Tamil Nadu Police at [email protected] seeking their
assistance to recover her son from the third respondent. Since no action was taken by the Police authorities, the petitioner has filed the above
H.C.P.
It is the further case of the petitioner that when she approached the Magistrate Court at Perth, she was given to understand that while the actions
of the third respondent were in breach of the Family Court order concerning children and may carry a penalty upto 12 months imprisonment, the
authorities in Australia could not help her and advised her to initiate legal proceedings in India since P. Arjun is kept in unlawful custody at
Coimbatore, India. In such circumstances, since the petitioner could not contact the third respondent and the detenu P. Arjun, the petitioner came
to India on 4.11.2011. On 5.11.2011, the petitioner received a legal notice dated 4.11.2011 through email containing several false allegations and
it is stated that the third respondent decided to stay in India along with the detenu P. Arjun, which is in violation of the consent order on shared
parenting responsibility dated 7.7.2011 passed by the Magistrate Court at Perth, Australia. It is also stated that the third respondent had initiated
divorce proceedings against the petitioner in H.M.O.P.No.1169 of 2011 on the file of the Family Court, Coimbatore.
It is the further case of the petitioner that the third respondent has violated the consent order by cutting off the telephone connection given to the
child and thus prevented the petitioner from communicating with the child. The petitioner is concerned about the health and safety of the detenu P.
Arjun. The petitioner is afraid to travel to Coimbatore because of the hostile atmosphere there and the threats, which she has been receiving from
the third respondent and his men. The petitioner has availed unpaid leave of absence from her present employment and has come down to India to
secure the custody of her son.
According to the petitioner, the detenu P. Arjun is enrolled in Year Two at Mount Pleasant Primary School at Perth, Australia; he has been
performing well at school and is active in extracurricula activities like swimming; his behavioural assessment report dated 21.10.2010 states that he
is well settled in his attitude and behaviour; his teacher also reported as early as in 2010 that he had began to apply himself to his work and accepts
help that is given to guide his work; the detenu P. Arjun is very set in his surroundings at Perth, goes to school there and had his friends there.
Therefore, it is just and proper to restore the child to the ambience that is conducive and comfortable for him. The child is of an impressionable age
and the third respondent must not uproot him from his surroundings to take advantage of his own wrongs.
The third respondent has filed a counter affidavit inter alia contending as follows:-
The entire allegatiosn and averment made in the affidavit of the petitioner have been denied as false, except that are specifically admitted by him.
The H.C.P. is not maintainable in law or on facts since the detenu is in lawful custody. The orders passed by the Magistrate Court at Perth is not
having any binding effect since India is not a signatory to the Hague convention. The third respondent at the time of marriage was working as
Senior Engineer in L & T, ECC Mumbai and the petitioner had completed Diploma in Nursing and joined as Staff Nurse in National University
Hospital, Singapore. The third respondent is an Indian Citizen, the laws in India are applicable to the custody of P. Arjun. The detenu is aged
about 7 years and is studying at Perks Matriculation Higher Secondary School, Coimbatore and is comfortable in India and is free from racist
attack as has been undergone by him in Australian School. As the petitioner is working as Lab Technician, Clinipath Pathalogy, she has no time to
spend with P. Arjun during her working days, whereas in India the detenu had his grand parents to support and invest their life in upbringing the
detenu. The Australian Courts do not have jurisdiction to entertain the custody petition of Indian Citizens as India is not signatory to Hague
convention. The allegations of threatening are inventged only for the purpose of filing this H.C.P. The petitioner did not make any attempt to visit
Coimbatore to see the child. After the marriage, initially, the petitioner and the third respondent set up their matrimonial home at Trichy and due to
repeated pestering of the petitioner, the third respondent resigned his job as Senior Engineer, L & T ECC, Mumbai and shifted to Singapore.
During 2008, the third respondent applied for permanent residence for his family with Australian Government and accommodated his family in the
month of March 2010. From March 2010 till his return to India with P. Arjun he had financially supported her. The allegations of frustration,
arguments and misunderstanding cropped up only on revelation of extra marital affairs of the petitioner with one Dr.Senthil Kumar. When the
petitioner was enquired about the extra marital relationship, she fairly admitted and sought for divorce and asked the third respondent to leave
Australia.
According to the third respondent, he and the petitioner discussed about the custody of P. Arjun and finally they sought the consent of P.
Arjun, who wanted to live with the third respondent, and therefore, he was removed from the school and booked the tickets to India and the
petitioner came to the Airport for sending off the third respondent and the child on 22.8.2010.
It is further contended that after coming from Australia, he wanted to file a divorce petition on the ground of adultery and cruelty, but the
parents of the petitioner called him and begged to give her second chance to save the marriage. The petitioner has also called and warned the third
respondent that she would committ suicide, if the third respondent did not return back to Australia. On humanitarian grounds, the third respondent
went back to Australia on the night of 20.9.2010. There was heated arguments between the third respondent and the petitioner over the removing
of his mattress from his bedroom and the petitioner replied that since the marriage has already been broken down, they are going to live separately
but under one roof. Feeling cheated, the third respondent informed the petitioner that he will be back to India with his son. At that time, the
petitioner is said to have taken the passports and hidden them. When the third respondent asked for the return of the passports, as she refused to
return the same, there was a tussle in which, his hands struck her face. Immediately the petitioner called the Australian police and 24 hours
restrained order was passed against the petitioner from entering his house and reaching his son. Thereafter, the petitioner moved Family Court,
Australia and obtained parenting responsibility.
According to the third respondent, he was forced to submit to the jurisdiction of Australian Courts only in the interest of the welfare of the
child. According to the third respondent, he got an email from the petitioner''s paramour''s co-sister, namely, Ms. Chandramani, which reveals the
close contacts of the petitioner with Dr. Senthil Kumar, who had also sought divorce from his wife. On petition to the Family Court, Australia, the
third respondent got shared parenting responsibility with the petitioner. During his interim custody, his son P. Arjun complained about racism in his
school that his co-students used to discriminate him of being dark and they eliminate him during games and he was avoided for all their get together
and social parties and therefore, he becomes shy due to racism. His son was never comfortable with the Australian Education system. Therefore,
his son wanted a break and desired to be with his grand parents in India during his school vacation. Only, in such circumstances, he came to India
on 1.10.2011 with the consent of the petitioner.
The third respondent and his son were supposed to fly back to Australia on 9.10.2011 but as the detenu P. Arjun was afffected with viral
fever, their return had to be postponed. At that time, P. Arjun wanted to stay in India with his grandparents and since he was adamant and seeing
his welfare and he faces racism in Australian School, the third respondent decided to stay in India. The third respondent resigned his job explaining
his situation and cancelled the return tickets. He vacated the rental house and got back the advance money.
According to the third respondent, he took the decision to stay in India only on the welfare and well being of his son and now he put his son in
a reputed Matriculation School at Coimbatore. The third respondent has got employment and earning lump sum to suppor his child and is living
only for the welfare and well being of his son, whereas the petitioner is the part time lab technician and due to her luxury style of living will not be
sufficient for upbringing his child. Therefore, he has filed HMOP.NO.1169 of 2011 for divorce before the Family Court, Coimbatore, on the
grounds of cruelty and adultery. Only as a counterblast, the above H.C.P. has been filed.
According to the third respondent, the detenu is well placed in India and is psycholigically feel good and in such circumstances, if any order is
passed against his wish, it would disturb his mental condition and therefore, in the interest of child, the above H.C.P. may be dismissed. Further,
the third respondent is willing to give her divorce as she wanted and she should not disturb the third respondent and his son by filing such kind of
petitions. On the aforesaid contentions, the third respondent sought for the dismissal of the above H.C.P.
Heard both.
The learned counsel for the petitioner after narrating the factual aspects stated above submitted that the third respondent has violated Clause
13 of the consent order passed by the Magistrate Court, Perth, Australia, dated 7.7.2011. The learned counsel submitted that on 1.10.2011 the
third respondent and the detenu came to India and as per the undertaking given by the third respondent and as per the return tickets purchased by
the third respondent for him and the detenu, the third repsondent should have returned back to Australia with the detenu on 9.10.2011. But he had
failed to return to Australia with the detenu and thus he had violated the orders of the Australian Court. But on 7.10.2011, the third respondent
sent an e-mail communication to the petitioner stating that the detenu had viral fever and eye infection and hence, their return to Australia had been
postponed. On 8.10.2011 the petitioner spoke to the detenu but thereafter, she was unable to contact the child as the mobile phone had been
switched off. But on 19.10.2011, the third respondent through his lawyer had informed the petitioner''s lawyer that the third respondent has
intended to remain in India with the detenu and third respondent had also initiated divorce proceedings before the Family Court, Coimbatore.
The learned counsel submitted that the aforesaid facts make it clear that even at the time when the third respondent left Australia to India with
the detenu he had made up his mind not to return back to Australia and thus he had played fraud upon the petitioner as well as on the Australian
Court by violating the Australian Court''s order. The learned counsel submitted though it is stated in the counter affidavit that the third respondent is
presently employed, but the details of the present employment, income etc. have not been furnished. The third respondent, according to the
petitioner, is not employed and is not having any income of his own to take care of the detenu. The learned counsel submitted that whereas the
petitioner is gainfully employed at Perth and she can take better care of the detenu than the third respondent and the child is only aged about seven
years and throughout the detenu had been with the petitioner and she had taken proper care of the detenu. The learned counsel submitted that
there is absolutely no truth in the allegations made by the third respondent that the petitioner had illicit intimacy with one Dr.Senthil Kumar and the
fact that the third respondent had returned back from India to Australia on an earlier occasion and had joined with the petitioner itself will show
that there was no truth in the allegation.
The learned counsel submitted that there is absolutely no truth in the allegation made in the counter affidavit filed by the third respondent that
the detenu P. Arjun was racially discriminated at Australia, since he happens to be an Indian. The said allegation is only a pure imagination of the
third respondent. The learned counsel submitted that his school reports and extracurricular activities of the detenu P. Arjun, which are enclosed in
the typed set of papers makes it clear that Arjun was very much comfortable in his school and he was good at studies as well as extracurricular
activities.
The learned counsel submitted that a perusal of the student achievement report of the detenu P. Arjun furnished by the Mount Pleasant Primary
School shows that his learning for achievement was satisfactory and his achievement in extracurricular activities was also satisfactory. The learned
counsel submitted that the said report shows that the detenu cooperated productively and built positive relationship with others. The said report
also states that the detenu showed confidence in making positive changes and decisions. Therefore, according to the learned counsel, the
contention that the detenu was racially discriminated at Australia is a total falsehood. If really, the detenu had been racially discriminated at
Australia, he could not have faired satisfactorily at School both in his studies and extracurricular activities. It was the petitioner, who had put the
child into school and he was also admitted to swimming course. The learned counsel submitted that the report of Blue Gum dated 2.10.210 shows
that the detenu P. Arjun had made new friends. Therefore, the learned counsel submitted that taking into consideration of the tender age of the
detenu and the fact that the petitioner is gainfully employed at Australia whereas the third respondent is currently unemployed and has to solely
depend upon his parents for his livelihood and of the detenu and in the interest and welfare of the child, the custody of the child has to be handed
over to the petitioner and permit her to take the child to Australia. The third respondent has to work out his remedies before the Australian Court
or in the proceedings said to have been initiated by him at the courts at Coimbatore. Unless and until, the third respondent obtains an order in his
favour from a competent court either at Australia or in India, the third respondent is not entitled to have the custody of the detenu. When the third
respondent is admittedly a violator of law and has no respect to rule of law he is not entitled to have the custodyof the detenu.
In support of his contentions, the learned counsel based reliance on the following decisions:-
a. Dr. V. Ravi Chandran vs. Union of India and others (W.P.(Crl.) NO.112 of 2007).
b. Ruchi Majoo Vs. Sanjeev Majoo,
Countering the said submissions, the learned counsel for the third respondent made the following submissions:-
Learned counsel submitted that when admittedly the petitioner, the third respondent and the detenu-P. Arjun are Indian citizens and Hindus, the
Australian Laws are not applicable to them and therefore, the order passed by the Magistrate''s Court at Perth, Australia, cannot be enforced in
India; in the decisions cited by the learned counsel for the petitioner, the parties were not Indian citizens and therefore, the said decisions are not
applicable to the facts of this case; the third respondent has filed HMOP No.1169 of 2011 before the Family Court, Coimbatore, seeking divorce
on the ground of adultery and cruelty and he has also filed GWOP No.225 of 2012 before the same Court and both the petitions are pending and
therefore, the custody of the detenu including his interim custody can be decided only by the Family Court, Coimbatore, after elaborate enquiry.
Learned counsel for the third respondent further submitted that the child is happy here with the third respondent and grandparents; the
grandparents of the detenu, namely, R. Baskaran and Smt. B. Prema, have filed an affidavit before this Court stating that the grand father is a
retired Engineer in BHEL, Trichy and now engaged as Consultant in ABS Services, Trichy, as Service Engineer and the grandmother is a
housewife and both are willing to dedicate their life for upbringing of the child; they have also stated in the affidavit that the child is affectionate
towards them and their bonding may not be snatched.
He further submitted that as laid down by the Apex Court in the decision reported in Sarita Sharma Vs. Sushil Sharma, an elaborate enquiry
can be directed to be conducted to decide the question to whom the custody of the child should be granted by taking into consideration the
welfare of the child. He further submitted that the mere violation of the order passed by the Magistrate''s Court at Perth, Australia, by the third
respondent itself will not entitle the petitioner to get the custody of the child; the totality of the facts and circumstances of this case, the welfare of
the child and the conduct of the petitioner and the third respondent should be taken into consideration. He further submitted that Document Nos.5,
9 and 10, namely, Medical Bill, dated 31.07.2008, the Police Complaint, dated 27.09.2010 lodged by the petitioner''s mother and the E-mail,
dated 04.10.2010, sent by the co-sister of the paramour of the petitioner will clearly establish that the petitioner had illegal intimacy with one
Dr.Senthil Kumar; in the light of such conduct of the petitioner, it is not desirable to handover the custody of the child to the petitioner. He further
submitted that the detenu has been admitted at Perks Matriculation Higher Secondary School, Coimbatore, and he has very well settled down in
the new environment and therefore the rights of the child should not be disturbed.
We have considered the aforesaid submissions made by the learned counsel on either side and perused the materials available on record.
Before going into the merits of the contentions put forth by the learned counsel on either side, it will be better to understand the law laid down
by the Apex Court in various decisions in respect of the duty of a Court exercising its Parens Patraie jurisdiction.
In the decision of the Apex Court rendered in the case of Ruchi Majoo v. Sanjev Majoo, in Civil Appeal No.4435 of 2011, dated
13.05.2011, reported in Ruchi Majoo Vs. Sanjeev Majoo, , it is observed as follows:-
Recognition of decrees and orders passed by foreign courts remains an eternal dilemma in as much as whenever called upon to do so, Courts
in this country are bound to determine the validity of such decrees and orders keeping in view the provisions of Section 13 of the Code of Criminal
Procedure 1908 as amended by the Amendment Act of 1999 and 2002. The duty of a Court exercising its Parens Patraie jurisdiction as in cases
involving custody of minor children is all the more onerous. Welfare of the minor in such cases being the paramount consideration; the court has to
approach the issue regarding the validity and enforcement of a foreign decree or order carefully. Simply because a foreign court has taken a
particular view on any aspect concerning the welfare of the minor is not enough for the courts in this country to shut out an independent
consideration of the matter. Objectivity and not abject surrender is the mantra in such cases. That does not, however, mean that the order passed
by a foreign court is not even a factor to be kept in view. But it is one thing to consider the foreign judgment to be conclusive and another to treat it
as a factor or consideration that would go into the making of a final decision. Judicial pronouncements on the subject are not on virgin ground. A
long line of decisions of the court has settled the approach to be adopted in such matters. The plentitude of pronouncements also leaves cleavage in
the opinions on certain aspects that need to be settled authoritatively in an appropriate case.
In the very same decision, after referring to several other decisions of the Apex Court, in paragraph 35, it is laid down as follows:-
35....A High Court may, therefore, invoke its extra ordinary jurisdiction to determine the validity of the detention, in cases that fall within its
jurisdiction and may also issue orders as to custody of the minor depending upon how the court views the rival claims, if any, to such custody. The
Court may also direct repatriation of the minor child for the country from where he/she may have been removed by a parent or other person; as
was directed by this Court in Ravi Chandran''s & Shilpa Agarwal''s cases (supra) or refuse to do so as was the position in Sarita Sharma''s case
(supra). What is important is that so long as the alleged detenue is within the jurisdiction of the High Court no question of its competence to pass
appropriate orders arises. The writ court''s jurisdiction to make appropriate orders regarding custody arises no sooner it is found that the alleged
detenue is within its territorial jurisdiction.
In the very same decision, the Apex Court, after referring to the decision of the Apex Court reported in (1987) 1 SCC 42 (Elizabeth Dinshaw v.
Arvand M.Dinshaw), has pointed out that in that case while dealing with a child removed by the father from USA contrary to the custody of the
US Court directed that the child should be sent back to the USA to the mother not only because of the principle of comity but also because, on
facts, - which were independently considered - it was in the intersts of the child to be sent back to the native State. In that case, the removal of the
child by the father and the mother''s application in India were within six months and therefore the Apex Court thought it fit to exercise its summary
jurisdiction in the interest of the child. Further, in the said decision, the Apex Court, after taking note off the following facts, viz., that the child was
not removed from America violating any order of the American Court; the minor was living in India and pursuing his studies in a reputed school in
Delhi for nearly three years; the father had contracted a second marriage and he did not appear to be keen for having actual custody of the minor,
rejected the plea of the father to repatriate the child back to the USA, but gave visitation rights to the father till the disposal of the Guardian OP
filed by the mother. Further, it is pertinent to point out that the said decision was rendered in a case arising out of an Interlocutory Application
passed by the Additional District Court at Delhi in a petition filed under Guardians and Wards Act granting interim custody of the minor to the
mother.
In the decision reported in (2010) 1 SCC 174 (V. Ravichandran (Dr.) (2) v. Union of India) a Full Bench of the Apex Court, in paragraph 29
and 30, has laid down as follows:-
While dealing with a case of custody of a child removed by a parent from one country to another in contravention to the orders of the court
where the parties had set up their matrimonial home, the court in the country to which child has been removed must first consider the question
whether the court could conduct an elaborate enquiry on the question of custody or by dealing with the matter summarily order a parent to return
custody of the child to the country from which the child was removed and all aspects relating to child''s welfare be investigated in a court in his own
country. Should the court take a view that an elaborate enquiry is necessary, obviously the court is bound to consider the welfare and happiness of
the child as the paramount consideration and go into all relevant aspects of welfare of child including stability and security, loving and understanding
care and guidance and full development of the child''s character, personality and talents. While doing so, the order of a foreign court as to his
custody may be given due weight; the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case.
However, in a case where the court decides to exercise its jurisdiction summarily to return the child to his own country, keeping in view the
jurisdiction of the Court in the native country which has the closest concern and the most intimate contact with the issues arising in the case, the
court may leave the aspects relating to the welfare of the child to be investigated by the court in his own native country as that could be in the best
interest of the child. The indication given in McKee v. McKee (1951 AC 352 : (1951) 1 All ER 942 PC) that there may be cases in which it is
proper for a court in one jurisdiction to make an order directing that a child be returned to a foreign jurisdiction without investigating the merits of
the dispute relating to the care of the child on the ground that such an order is in the best interest of the child has been explained in L (minors), In
(1974) 1 WLR 250 : (1974) 1 All ER 913 (CA) and the said view has been approved by this Court in Dhanwanti Joshi Vs. Madhav Unde, .
Similar view taken by the Court of Appeal in H. (Infants), in (1966) 1 WLR 381 (Ch&CA) : (1966) 1 All ER 886 (CA) has been approved by
this Court in Elizabeth Dinshaw v. Arvand M.Dinshaw (1987) 1 SCC 42 : 1987 SCC (Cri) 13.
In the decision reported in Sarita Sharma Vs. Sushil Sharma, relied upon by the learned counsel for the respondent, the Apex Court, has
referred to the following passage in the decision reported in Dhanwanti Joshi Vs. Madhav Unde, :-
As of today, about 45 countries are parties to this Convention. India is not yet a signatory. Under the Convention, any child below 16 years who
had been ""wrongfully'' removed or retained in another contracting State, could be returned back to the country from which the child had been
removed, by application to a central authority.
So far as non-Convention countries are concerned, or where the removal related to a period before adopting the Convention, the law is that the
court In the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance
and consider the order of the foreign court as only a factor to be taken into consideration as stated in McKee v. McKee (1951) AC 352 : (1951)
1 All ER 942 (PC) unless the Court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its welfare.
as explained in (1974) 1 All ER 913 (CA). As recently as 1996-97, it has been held In P ( A minor) (Child Abduction: Non-Convention
Country), in (1996) 3 FCR 233 (CA), by Ward, LJ. [1996 Current Law Year Book, pp. 165-166] that in deciding whether to order the return of
a child who has been abductad from his or her country of habitual residence - which was not a party to the Hague Convention, 1380, - the courts''
overriding consideration must be the child''s welfare. There is no need for the Judge to attempt to apply the provisitions of Article 13 of the
Convention by ordering the child''s return unless a grave risk of harm was established. See also A (A minor) (Abduction: Non-Convention
Country) [Re, The times 3- 7-97 by Ward. LJ. (CA) (quoted in Current Law, August 1997, p. 13]. This answers the contention relating to
removal of the child from U.S.A.
After considering the aforesaid passage, the Apex Court, taking into consideration the facts and circumstances of the case, has held that the
decree passed by the American Court, though a relevant factor, cannot override the consideration of welfare of the minor child. Thus it is clear that
so far as the non-convention countries are concerned, the law is that the Court in the country to which the child is removed will consider the
question on merits bearing the welfare of the child as of paramount importance and consider the order of the foreign court as only a factor to be
taken into consideration unless the Court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its
welfare.
In the light of the aforesaid legal principles, the facts of the case on hand has to be considered.
In this case, it is not in dispute that the parties are Indian citizens and therefore the Laws of Australia are not applicable to them. Admittedly,
the marriage between the petitioner and the third respondent have been soleminised as per Hindu Rites and Rituals on 24.06.2001 at Sirkali. There
is no dispute that the petitioner, though an Indian Citizen, had been the resident of Singapore from 1983. After staying together in India, the
petitioner and the third respondent had moved over to Singapore and the detenu-P. Arjun was born on 14.06.2004 at Singapore. The petitioner,
the third respondent and the Child-P. Arjun were living together at Singapore till the petitioner and her son-P. Arjun moved to Perth, Australia, in
March 2010. In Australia, P. Arjun, commenced his year one schooling at Perth and the petitioner started working as a Medical Scientist in
Clinipath Pathology and the third respondent joined them at Perth in July 2010. On 01.10.2011, the third respondent along with his son, the
detenu, left Perth, Australia, to India and thereafter the third respondent and the detenu had not returned back to Australia. Thus it is seen that the
detenu-P. Arjun had been living from the date of his birth, namely, 14.06.2004 to March 2010 at Singapore and thereafter at Perth, Australia, till
01.10.2011. Only for the past seven months, the detenu is living in India and that too only because of the fact that he had been brought to India by
the third respondent by taking advantage of the permission granted to him in the order passed by the Magistrate''s Court at Perth, Australia. Even
as per the said order, he can keep the child only for twenty-one days and in this case, the third respondent had undertaken to return back to
Australia by 09.10.2011, but contrary to that, he had, in violation of the Australian Court''s order, failed to return to Australia but had expressed
his intention to settled down in India along with the detenu and has filed petitions seeking divorce from the petitioner and for Guardianship.
A perusal of the student achievement report of the detenu P. Arjun furnished by the Mount Pleasant Primary School shows that his learning for
achievement was satisfactory and his achievement in extracurricular activities was also satisfactory. The said report shows that the detenu
cooperated productively and built positive relationship with others. The said report also states that the detenu showed confidence in making
positive changes and decisions. Therefore, the contention that the detenu was racially discriminated at Australia is a total falsehood. If really, the
detenu had been racially discriminated at Australia, he could not have faired satisfactorily at School both in his studies and extracurricular activities.
It was the petitioner, who had put the child into school and he was also admitted to swimming course. The report of Blue Gum dated 2.10.210
shows that the detenu P. Arjun had made new friends.
Thus it is seen that the child-P. Arjun is well settled at Australia and he is accustomed to the environment at School as well as at home. It is a
fact that the child was althrough living with the petitioner / mother and the child has been separated from the petitioner only from 01.10.2011 and
that too by the act of the third respondent in removing the child from Australia.
Though in the counter affidavit the third respondent has stated as if he was forced to submit to the jurisdiction of the Australian Court, but it is
seen from the order, dated 07.07.2011 passed by the Magistrate''s Court at Perth, that it was the third respondent who had filed the application
on 23.09.2010 before the Magistrate''s Court and therefore the contention that the third respondent was forced to submit to the jurisdiction of the
Australian Court cannot be coutenanced and the order, dated 07.07.2011, is a consent order. Only believing that the third respondent will abide
by the conditions imposed by the said order, the petitioner had handed over the passport of the child to enable the third respondent to take the
child to India on a vacation, but the third respondent has betrayed her faith and has also violated the Court''s order.
As stated above, the detenu-P. Arjun had well settled both at school and at home at Australia and that the allegation that the child was racially
discriminated by the other students in the school is falsified by the aforesaid reports of the school. We are of the considered view that the said
allegation of racial discrimination against the detenu has been invented for the purpose of this case. Admittedly the third respondent had resigned
his job at Australia and though in the counter affidavit he has stated that he got employment here and earning a lumpsum and he can support his
child, it has not been stated with details the nature of employment, the company where he is employed, his monthly salary, etc., There is absolutely
no evidence placed before this Court to prove where the third respondent is currently employed. Whereas it is admitted by the third respondent
that the petitioner is employed at Perth as Medical Scientist in Clinipath Pathology. The petitioner has taken leave of absence on loss of pay only
for the purpose of filing the above Habeas Corpus Petition and getting custody of the child.
Pursuant to the interim orders passed by this Court the petitioner had been staying / visiting Coimbatore and exercising her visitation rights as
per the interim orders. Therefore, it cannot be heard to be contended by the third respondent that the petitioner has no interest in seeing the child.
Admittedly the father of the third respondent has retired from service and is said to be employed in a private concern at Trichy. The third
respondent, at present, is dependant upon his parents for his and his son''s support. Though the parents of the third respondent have filed an
affidavit undertaking to take proper care of the detenu-P. Arjun the care of the grandparents cannot be compared with the care of a mother.
It is contended by the learned counsel for the third respondent that since the petitioner is employed even during holidays the child will be lonely
at Blue Gum Out-off School Care Centre. But it is admitted that even while the petitioner and the third respondent were living together at Australia,
the child was put in Blue Gum Out-off School Care Centre. It is not uncommon or something extraordinary for parents both of whom are
employed to put their child in a Day Care centre even in India. Therefore, the said contention has no merit.
It has to be pointed out that after return from her job, the petitioner / mother will take proper care of the child but if the child is at India in the
custody of the third respondent, the detenu who is only aged about seven, will be deprived of the motherly care of the petitioner. At a tender age,
the care of the mother is of utmost importance. At least for the time being till the Guardianship issue is finally decided in the Guardianship Original
Petition filed by the third respondent by the Family Court, Coimbatore, the custody of the child-P. Arjun should be with the mother / the petitioner
herein.
The learned counsel for the third respondent contended that the petitioner was having illicit intimacy with one Dr.Senthil Kumar and the third
respondent has filed a divorce petition before the Family Court, Coimbatore, seeking divorce on the ground of adultery and mental cruelty and
therefore, considering the conduct of the petitioner, the petitioner is not entitled to the custody of the child. But a perusal of the petition filed in
HMOP No.1169 of 2011 shows that the petition has been filed u/s 13(1)(i-a) of the Hindu Marriage Act, 1955, i.e., the petition has been filed
only on the ground of mental cruelty and not on the ground of adultery. But in the petition there are some averments to the effect as if the petitioner
had told the third respondent that she had been having an affair with Dr.Senthil Kumar and she wanted to divorce the third respondent and live
along with the said Senthil Kumar. Merely on the basis of the said averments in the Divorce Petition and the averments contained in the counter
affidavit filed in the above Habeas Corpus Petition, which are yet to be proved, this Court cannot come to the conclusion that the petitioner''s
conduct is not good and this Court cannot on the basis of the aforesaid unsubstantiated allegations deny custody of the detenu to the petitioner. For
the aforesaid reasons, we are of the considered view that the custody of the detenu�P.Arjun with the third respondent is in violation of the order
of the Magistrate''s Court at Perth, Australia, and as such it is prima facie illegal. Taking that aspect into consideration along with the aforesaid facts
and circumstances and the welfare of the minor / detenu, the detenu, P. Arjun, is directed to be set at liberty and the custody of the detenu is
handed over to the mother / the petitioner herein (Jayanthi, D/o.Jayaraman). The third respondent is hereby directed to handover the passport of
the detenu-P. Arjun to the petitioner immediately. The petitioner is permitted to take the child to Australia subject to the condition that the
petitioner shall file an affidavit undertaking that she will abide by the orders that may be passed by the Family Court, Coimbatore, in GWOP
No.225 of 2012 and the petitioner shall file the said undertaking affidavit today itself.
After pronouncement of the judgment, the third respondent submitted that he had not brought with him the passport of the detenu-P.Arun and
the same is available with him at his residence at Coimbatore. Hence the third respondent is hereby directed to handover the passport of the
detenu- P. Arjun on or before 11.05.2012 to the second respondent, namely, The Assistant Commissioner of Police, Law and Order, East Sub-
Division, Coimbatore City, without fail and the second respondent in turn shall handover the same without any delay to the petitioner.
Learned counsel for the petitioner submitted that as per the directions of this Court, dated 10.02.2012, the petitioner had deposited her
passport with the Registry of this Court and hence submitted that the same may be directed to be returned to the petitioner to enable her to travel
to Australia.
In view of the aforesaid submission, the Registry is hereby directed to return the passport of the petitioner (Jayanthi, D/o. Jayaraman) to the
petitioner today itself.
At this juncture, the learned counsel for the third respondent submitted that the third respondent may be given visitation rights as long as the
child-P.Arjun is in India. Learned counsel for the petitioner, on instructions, submitted that the petitioner is likely to leave India within ten days from
today and during that period, the petitioner has no objection for the third respondent to visit the child and be with the child for two hours a day.
In view of the aforesaid submissions, the third respondent is permitted to be with the child- P.Arjun for two hours and the two hours period
can be chosen by him, between 10.00 am and 06.00 pm, after prior consultation with the petitioner and the third respondent shall meet the Child at
the office of the petitioner''s counsel (No.7, II Floor, Hussain House, Kondi Chetty Street, Chennai # 600 001, Ph.:044 25392464), except on
Sundays.
As directed above, the petitioner has also filed an affidavit undertaking to abide by the ultimate order that may be passed by the Family Court,
Coimbatore, in GWOP No.225 of 2012.