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Judgment
K. Vinod Chandran, J
Marital discords are more challenging to the offspring, who are not even represented, especially when questions of custody arise. Hence the
Hon'ble Supreme Court has, oftener than ever emphasized the onerous duty cast on the Courts, exercising parens patriae jurisdiction, to keep in mind
the profound and dominant aspect of the welfare of the minor. We would have normally not entertained the Habeas Corpus petition, but for the
peculiar facts arising herein where the child born to Indian parents, is an American citizen, by virtue of his birth in that country. The parents were
residing in that country when the mother along with the child travelled to her native place and took a conscious decision not to return. The mother
settling down in her parental house, approached the local Family Court for divorce and guardianship of the minor child. The father, much later,
approached the Superior Court of California and obtained an order against the mother commanding her to produce the child illegally detained by her.
The father after two years approached this Court with this petition inter alia challenging the jurisdiction of the Family Court at Thiruvananthapuram,
wherein the applications for divorce and guardianship were filed. The father on the principle of comity of courts seeks a Writ of Habeas Corpus for
the production of the minor child from the alleged illegal custody of the mother, to facilitate repatriation to his own country subject to further orders
from the foreign Court which has issued a Writ of Habeas Corpus as available at Ext.P14.
Learned Counsel for the petitioner, father of the child, contends that the Family Court, Thiruvananthapuram does not have jurisdiction to entertain
the application filed for determination of guardianship under the Guardians and Wards Act, 1819 (for brevity 'G&W Act'). Section 9 of the G&W Act
confers jurisdiction on the District Court, now a Family Court, in respect of guardianship of a minor, having jurisdiction in the place where the minor
ordinarily resides. It cannot be said that the minor herein, an American citizen is a resident of Thiruvananthapuram. The child had been taken away
from his natural habitat and within a month of his arrival in this country, that too his first entry, the mother approached the Family Court at
Thiruvananthapuram where her parents are residing. To advance the above proposition the learned Counsel relies on 1981 (4) SCC 517 (Jeewanti
Pandey vs. Kishan Chandra Pandey). In similar circumstances, the Hon'ble Supreme Court in Lahari Sakhamuri vs. Sobhan Kodali AIR 2019 SC
2881 held that the minor children who were taken away from the foreign country by the mother cannot be said to be ordinary residents of Hyderabad
wherein the mother, after coming to India, set up her residence.
Shilpa Aggarwal vs. Aviral Mittal (2010(1) SCC 591) again was a case in which the couple on their volition set up their matrimonial home in the
foreign country from where one of the spouses stealthily brought the child back to India. The High Court as also the Supreme Court concurrently
found in favour of repatriation and custody of the child being subjected to the jurisdictional Court in the foreign country. A host of other decisions were
cited at the Bar with special emphasis on Yashitha Sahu vs. State of Rajasthan (C.A No. 127/2020 dated 20.01.2020) and Neelanjan Bhatacharya vs.
State of Karnataka (2020 SCC Online SC 928). It was argued that the respondent mother had subjected herself to the jurisdiction of the foreign Court;
nay invoked its jurisdiction insofar as the claim raised for maintenance in proportion to the income of the petitioner.
The learned Counsel for the petitioner vehemently urged that the allegation of torture as raised in the counter affidavit is unsubstantiated. No single
complaint has been lodged against the petitioner by the respondent in America, where it is asserted, punitive action of the State is immediate and
rigorous as against an erring husband. There is absolutely no material to suggest that the child was at any time put to any harm by the father. The
mother and child travelled to India on tickets purchased by the father which included return passage. The mother unilaterally stayed back in India
against the earlier conscious mutual decision of the couple to set up their permanent residence in the US; to which end the birth of the child was also
facilitated in that country. It is pointed out that the child being an American Citizen, if allowed to be brought up in India would suffer disabilities and
would not be entitled to the privileges of a naturally born Indian Citizen. The US being the land of opportunities would at any time be a better option for
the child's growth and future prospects. The welfare of the child no doubt would be served in the company of both parents, which even now the
petitioner is willing to offer. The petitioner undertakes that he would not file any application for divorce in the US and seeks repatriation of the child
along with the mother to the US, where he promises to provide them both with every facility. In the event of the mother not being agreeable,
necessarily the child has to be repatriated, is the submission.
The learned Counsel for the respondent argued on the basis of the counter affidavit. The torture inflicted on the mother and also the infant who was
not even one year old were specifically referred to. The habits of the petitioner coupled with his intemperate, impulsive behavior are not conducive to
a married life and renders impossible a happy and healthy environment, absolutely necessary for a child's growth. It is argued that in deciding on
matters of repatriation of a minor child from the lawful custody of one of the parents, the reigning consideration is the welfare of the child and not the
conflicting rights of the quarreling spouses. The child though an American Citizen has the option to continue in India till 18 and has the choice to decide
on attaining majority, as to whether he should continue as an American Citizen or fall back upon his Indian roots which in any event is undisputed. The
learned Counsel points out reports of Consular Officers of the US Consulate, to assert the safe and healthy environment provided to the child in India
in the company of his mother and maternal grandparents. The child who was brought to India within ten months of birth cannot be said to have
imbibed the culture and ethos of America nor can that be termed his natural habitat. The wife who remained unemployed in the US, by reason of the
petitioner's insistence, was helpless in the alien land, where she had no support. The respondent was completely dependent on the petitioner and his
income and she was naturally afraid to make any complaint in the foreign country. The learned Counsel would seek for dismissal of the petition
leaving the parties to agitate their cause before the Family Court, Thiruvananthapuram wherein with respect to guardianship an elaborate enquiry on
proper adducing of evidence as also interaction with the child and the parents would be carried out. It is also pointed out that though there was
appearance recorded of the petitioner in the Family Court, he remained absent after that.
On background facts we note that the petitioner and respondent married in the year 2013, first lived as a couple at Bangalore and moved to USA in
2014. In USA the petitioner was working and the respondent a house wife; allegedly due to the petitioner being not in favour of a working wife. While
the petitioner asserts that there was no complaint lodged against him by the respondent in the USA the respondent has detailed her travails both at
Bangalore, where they resided immediately after marriage and in the USA. From 2014 the parties were in America and though they have applied for
permanent residence it has not been obtained. They remain Indian Citizens but their son by virtue of his birth on 16.02.2017, acquired citizenship of the
USA. The mother and child proceeded to India in January of 2018 and did not return. The wife initiated proceedings in India for divorce and
guardianship before the Family Court, which is challenged as lacking jurisdiction, for reason of the citizenship of the child and Section 9 of the G&W
Act.
The petitioner's first contention is that the child is not an ordinary resident of Thiruvananthapuram and hence the Family Court cannot have
jurisdiction as per Section 9. Jeewanti Pandey was a case in which the husband and wife, ordinary residents of a village in Almora had married in
Delhi and there after resided there. The husband filed a petition for divorce in Almora on the ground that both were originally residents of Village
Bagyan coming within the jurisdiction of that Court. The Hon'ble Supreme Court held that “The term 'resides' is by no means free from ambiguity
and is capable of a variety of meanings according to the circumstances in which it is made applicable and the context in which it is foundâ€(sic). To
confirm jurisdiction on the ground of residence it was held that there should be something more than a temporary stay but which is more or less
permanent. The Court at Almora was found to have no jurisdiction merely because the parties had their origin in a village within the jurisdiction of that
Court and it was held so in para 13:
It is plain in the context of clause (ii) of Section 19 of the Act, that the word “resides†must mean the actual place of residence and not a legal
or constructive residence; it certainly does not connote the place of origin. The word “resides†is a flexible one and has many shades of meaning,
but it must take its colour and content from the context in which it appears and cannot be read in isolation. It follows that it was the actual residence of
the appellant, at the commencement of the proceedings, that had to be considered for determining whether the District Judge, Almora, had jurisdiction,
or not. That being so, the High Court was clearly in error in upholding the finding of the learned District Judge that he had jurisdiction to entertain and
try the petition for annulment of marriage filed by the respondent under Section 12 of the Act. {underlining by us for emphasis}
Section 9 of the G&W Act, with respect to application for guardianship of the person of a minor, confers jurisdiction on the District Court having
jurisdiction over the place where the minor ordinarily resides. As per the declaration of the Hon'ble Supreme Court it does not connote the place of
origin or the country in which the minor has citizenship. It does not depend on the duration of the minor's residence, but more on the intention of the
person who has the child's lawful custody; which also should be compatible to the status of the parties and the overall facts and circumstances of the
case. It definitely cannot be a residence chosen by either of the spouses, to purposefully avoid or confer jurisdiction to a particular Court. Here the
wife and child came to India on January 2019 to reside with the parents of the wife, the abode of the wife even before her marriage; which can by no
stretch of reasoning or imagination be termed a mere legal or constructive residence. In February the respondent-wife filed simultaneously, separate
applications for divorce and guardianship in the Court at Thiruvananthpuram where the minor was residing at the commencement of proceedings.
Obviously the mother planned to take up permanent residence with her parents considering her unemployed status and estrangement from husband.
The intention of the wife not to return to the foreign country where she was wholly dependent on her husband, by reason inter-alia of being
unemployed; is very evident from the petition filed for divorce. The wife could have in the given circumstances only resided along with her parents. At
the time of institution of the case, the minor was ordinarily residing at Thiruvananthpuram, along with his mother and maternal grand parents and close
relatives. We do not find any reason to deny jurisdiction to the Family Court, Thiruvananthpuram on the sole reason of the child being a US citizen,
especially when the citizenship does not preclude the child from ordinarily residing with his mother, an Indian Citizen, at least till he attains majority.
Further it is an admitted fact that the mother and child have resided in the same house after coming back to India till date.
In Lahari Sakhamuri the parents who were involved in the tussle for custody of two minor children were both green card holders, highly qualified
and highly placed in America. Two children were born to them in the wedlock and they moved to a house in their joint name, in Pennsylvania where
the first child was attending school. Proximate to the birth of the second child, the wife filed for divorce on grounds of irretrievable breakdown of
marriage and there was an Order of Court directing the husband to appear for conciliation and restraining both parties from changing the residence of
the children. While such proceedings were continuing in the Court in the USA, the wife along with her children traveled to India due to a bereavement
and within twenty days of their arrival, the wife filed an application for custody in the Court at Hyderabad. On an application filed by the husband
before the Court in USA for custody of children, the wife responded that she was only temporarily residing in India; upon which that Court granted
temporary custody of the children to the husband and directed them to be returned to the US. It was on these facts and circumstances and specifically
noticing the non-disclosure of the order of the US Court before the Court in India; that the Hon'ble Supreme Court held that the children, who
themselves, and their parents, were US citizens, cannot be ordinary residents of Hyderabad. The facts are clearly distinguishable and there can be no
dictum ferreted out that, if the petition filed for guardianship is immediate to the arrival of the minor in India, then there can be no jurisdiction conferred
on the Indian Courts.
In the instant case both the parents are Indian Citizens and but for the fact that they were for the past three years, prior to the minor's journey to
India, residing in USA there is nothing to show that they had set up permanent residence there or had a dwelling house in their joint names. And
pertinently the wife was unemployed. We reject the contention of the petitioner that the Family Court, Thiruvananthpuram has no jurisdiction to
entertain the petition for guardianship. However that alone would not result in the claim for repatriation of the minor being declined, since on the
principle of 'Comity of Courts' it has to be examined whether the minor, being a US citizen has to be subjected only to the jurisdiction of the Courts in
that country. For this we turn to the precedents placed before us and the exposition of law made therein.
We have to first refer to a two judge Bench decision of the Supreme Court reported in (1998) 1 SCC 112 Dhanwanti Joshi v. Madhav Unde;
which elaborately considered the principle of 'Comity of Courts'. This decision was affirmed by a three Judge Bench in (2010) 1 SCC 174 Dr. V. Ravi
Chandran v. Union of India and re-affirmed by another three Judge Bench in (2017) 8 SCC 54 Nithya Anand Raghavan v. State(NCT of Delhi). In
Dhanwanti Joshi it was held, financial capacity of the father or his ability to provide education in the U.S is not the sole criterion to deny the mother's
care and company to the child. A quote from Walker v. Walker & Harrison 1981 NZ Recent Law 257 (cited by British Law Commission, Working
Paper No. 96, para 6.10) was extracted with approval, which is as below:
“Welfare is an all-encompassing word. It includes material welfare, both in the sense of adequacy of resources to provide a pleasant home and a
comfortable standard of living and in the sense of an adequacy of care to ensure that good health and due personal pride are maintained. However,
while material considerations have their place they are secondary matters . More important are the stability and the security, the loving and
understanding care and guidance, the warm and compassionate relationships, that are essential for the full development of the child’s own
character, personality and talents.†{underlining by us for emphasis}
On the principle of 'Comity of Courts' the following paragraphs from Dhanwanti Joshi were extracted by both the three Judge Benches with
approval, which we too extract:
The leading case in this behalf is the one rendered by the Privy Council in 1951, in McKee v. McKee1951 AC 352. In that case, the parties, who
were American citizens, were married in USA in 1933 and lived there till December 1946. But they had separated in December 1940. On 17-12-1941,
a decree of divorce was passed in USA and custody of the child was given to the father and later varied in favour of the mother. At that stage, the
father took away the child to Canada. In habeas corpus proceedings by the mother, though initially the decisions of lower courts went against her, the
Supreme Court of Canada gave her custody but the said Court held that the father could not have the question of custody retried in Canada once the
question was adjudicated in favour of the mother in the USA earlier. On appeal to the Privy Council, Lord Simonds held that in proceedings relating to
custody before the Canadian Court, the welfare and happiness of the infant was of paramount consideration and the order of a foreign court in USA
as to his custody can be given due weight in the circumstances of the case, but such an order of a foreign court was only one of the facts which must
be taken into consideration. It was further held that it was the duty of the Canadian Court to form an independent judgment on the merits of the matter
in regard to the welfare of the child. The order of the foreign court in US would yield to the welfare of the child. “Comity of courts demanded not
its enforcement, but its grave considerationâ€. This case arising from Canada which lays down the law for Canada and U.K. has been consistently
followed in latter cases. This view was reiterated by the House of Lords in J v. C1970 AC 668. This is the law also in USA (see 24 American
Jurisprudence, para 1001) and Australia. (See Khamis v. Khamis(1978) 4 Fam LR 410 (Full Court) (Aus).)
However, there is an apparent contradiction between the above view and the one expressed in H. (infants), Re(1966) All ER 886 and in E. (an
infant), Re(1967) 1 All ER 881 to the effect that the court in the country to which the child is removed will send back the child to the country from
which the child has been removed. This apparent conflict was explained and resolved by the Court of Appeal in 1974 in L. (minors) (wardship :
jurisdiction), Re(1974) 1 All ER 913, CA and in R. (minors) (wardship : jurisdiction), Re(1981) 2 FLR 416 (CA). It was held by the Court of Appeal in
L., Re(1974) 1 All ER 913, CA that the view in McKee v. McKee1951 AC 352 is still the correct view and that the limited question which arose in
the latter decisions was whether the court in the country to which the child was removed could conduct (a) a summary inquiry or (b) an elaborate
inquiry on the question of custody. In the case of (a) a summary inquiry, the court would return custody to the country from which the child was
removed unless such return could be shown to be harmful to the child. In the case of (b) an elaborate inquiry, the court could go into the merits as to
where the permanent welfare lay and ignore the order of the foreign court or treat the fact of removal of the child from another country as only one of
the circumstances. The crucial question as to whether the Court (in the country to which the child is removed) would exercise the summary or
elaborate procedure is to be determined according to the child’s welfare. The summary jurisdiction to return the child is invoked, for example, if
the child had been removed from its native land and removed to another country where, maybe, his native ER 913, CA language is not spoken, or the
child gets divorced from the social customs and contacts to which he has been accustomed, or if its education in his native land is interrupted and the
child is being subjected to a foreign system of education, â€" for these are all acts which could psychologically disturb the child. Again the summary
jurisdiction is exercised only if the court to which the child has been removed is moved promptly and quickly, for in that event, the Judge may well be
persuaded that it would be better for the child that those merits should be investigated in a court in his native country on the expectation that an early
decision in the native country could be in the interests of the child before the child could develop roots in the country to which he had been removed.
Alternatively, the said court might think of conducting an elaborate inquiry on merits and have regard to the other facts of the case and the time that
has lapsed after the removal of the child and consider if it would be in the interests of the child not to have it returned to the country from which it had
been removed. In that event, the unauthorised removal of the child from the native country would not come in the way of the court in the country to
which the child has been removed, to ignore the removal and independently consider whether the sending back of the child to its native country would
be in the paramount interests of the child. (See Rayden & Jackson, 15th Edn., 1988, pp. 1477-79; Bromley, Family law, 7th Edn., 1987.) In R. (minors)
(wardship : jurisdiction), Re(1981) 2 FLR 416 (CA) it has been firmly held that the concept of forum conveniens has no place in wardship jurisdiction.
We may here state that this Court in Elizabeth Dinshaw v. Arvand M. Dinshaw (1987) 1 SCC 42 while dealing with a child removed by the father
from USA contrary to the custody orders of the US Court directed that the child be sent back to USA to the mother not only because of the principle
of comity but also because, on facts, â€" which were independently considered â€" it was in the interests of the child to be sent back to the native
State. There the removal of the child by the father and the mother’s application in India were within six months. In that context, this Court
referred to H. (infants), Re(1966) 1 All ER 886 which case, as pointed out by us above has been explained in L. Re(1974) 1 All ER 913, CA as a
case where the Court thought it fit to exercise its summary jurisdiction in the interests of the child. Be that as it may, the general principles laid down
in McKee v. McKee1951 AC 352 and J v. C1970 AC 668 and the distinction between summary and elaborate inquiries as stated in L. (infants),
Re(1974) 1 All are today well settled in UK, Canada, Australia and the USA. The same principles apply in our country. Therefore nothing precludes
the Indian courts from considering the question on merits, having regard to the delay from 1984 â€" even assuming that the earlier orders passed in
India do not operate as constructive res judicata. {underlining by us for emhasis and future reference}
The broad principles discernible are that the concept of 'forum convenience' has no place in custody matters and even the principle of 'comity of
courts' should be subservient to the welfare of the child. Comity of courts only requires that the order made by the foreign Court be considered with
due weight when ward-ship jurisdiction is invoked. Applying the declaration of law (underlined by us in the above extract) regarding exercise of
summary jurisdiction, it has to be found that the minor here was just 10 months old when he left the US and there can arise no problem of language or
interruption of education and least of all, a change in the social customs and contacts since the child's contact in the US was confined to his parents.
He is too young to have imbibed the customs of his land of citizenship, which also is only by virtue of his birth in that country and not by reason of
nativity. The minor was not removed forcibly or stealthily, as the petitioner himself admits to have booked the tickets for their travel to India. But of
course petitioner expected them to return and had booked return passage too. The petitioner allowed considerable time to expire as we will presently
show, to approach the US Court and when he did, he made false declarations which may result in action against him for perjury.
The mother and child were to return in March and after the date of return passage the petitioner was aware of the decision of his wife to stay
back. He approached the District Attorney's office in the US in September, six months later, as a retaliatory measure to the proceedings initiated in
India by the mother. We say this specifically because we called for a copy of the proceedings before the Family Court and we see that there was
representation of the petitioner recorded on 07.07.2018 and 01.10.2018. On the first day counselling was directed and on the next date the matter was
referred for mediation. It is after the first appearance on 07.07.2018 that the petitioner approached the D.A's office with Ext. P6. The application for
Child Custody and Visitation dated 21.02.2019 enclosed with Ext.P8 was after the second day on which the petitioner appeared through Counsel
before the Family Court. The learned Counsel for the petitioner admits that a lawyer appeared on his behalf before the Family Court, but did not file a
Vakkalath since the petitioner intended to challenge the jurisdiction of the Family Court. Despite his coming to India earlier; as evident from the FIR
registered (Ext R2(h) dtd: 11.11.2019) against him for trespass into the residence of his in-laws, he approached this Court only in January 2020 with
this petition through a duly appointed Attorney. Now three years have elapsed from the entry of the child into India; who is moving into his fourth
year. In fact when the petitioner was in India in November 2019, the order of the Superior Court of California, produced as Ext.P14, with a direction
to produce the child before 15.08.2019 was available with him. The petitioner then allegedly trespassed into the house of his in-laws in search of his
son, without taking legal recourse. The child as of now is found to have developed roots in India [welfare reports of the US Consular Officers, which
we will refer to later] and imbibed its culture and ethos in a safe house in the company of his mother and maternal grand parents. There cannot be a
summary order of repatriation and in considering the welfare of the minor child the impact of deprivation of his fathers company also has to be
reckoned with due weight given to the order passed by the foreign Court.
The petitioner and the respondent were living in the US as man and wife happily, as claimed by the petitioner; agonizingly, as asserted by the
respondent. From the pleadings we cannot but notice that there are allegations of drug abuse by the petitioner and the use of cannabis (marijuana) is
proved as per the Physicians statement and the certificate issued as per Ext.R2(a). The reason stated is for the treatment of chronic headaches. The
respondent specifically avers that the petitioner is addicted to marijuana and also forced it on her. He is alleged to have smoked it in the presence of
his pregnant wife and later the infant child. None of these allegations are controverted by the petitioner by way of filing a reply in denial. The response
to the said allegation, at the time of hearing, is that use of marijuana was as a medicine for alleviating pain.
As to the nature of the relationship between the husband and wife we specifically raised a query with reference to the WhatsApp messages
between the parties printed out and produced as Ext.R2(c). The exchange is disturbing to any reasonable man and there is no rebuttal placed on
record by the petitioner. The learned Counsel for the petitioner would in fact rely on the messages to establish the concern of the father for the son;
where he queries about the bite marks on the child. We cannot accept the said argument especially noticing that the respondent clarified the marks to
be caused by mosquitoes. In the wake of admission of such messages we have to find that the allegation of torture by forcing the child and mother to
perform full splits, by stretching of legs stand confirmed. The messages indicate that the respondent refused to allow the petitioner to stretch the
minor's legs while the petitioner advocated it for the minor to have the best body. We would not refer copiously to the messages but only refer to one
such message which states “I am going to start thrashing you everyday if you come back†(sic). It is obvious by that threat that the petitioner did
not want the respondent to come back and in the event she did, the promise was physical violence.
The mother and child traveled to India on 09.01.2018 when the child was ten months' old. A return ticket was also available as is evident from
Ext.P3, the journey to commence on 01.03.2018. The respondent approached the Family Court with an application for divorce (Ext.R2(d)) and an
application for appointment of guardian (Ext.R2(e)) both dated 09.02.2018. There is also an order issued restraining the petitioner from forcibly taking
the minor child from the custody of the respondent as is evident from Ext.P5.
The petitioner approached the Santa Clara District Attorney's Office of California by Ext.P6 dated 06.09.2018, six months after the expected
arrival back of the child and mother. The claim was also that the child was abducted from his custody; which is perse false. Ext.P6 is a Child
Abduction Police Report based on which presumably the Superior Court of California took cognizance of the incident alleged. The respondent filed her
response, rather uploaded it; which is available at Ext.P7 and is dated 17.12.2018. Ext.P11 as we make out is a notice of hearing scheduled on
13.03.2019 issued to the respondent. The notice had, as its attachment the application filed by the petitioner for Child Custody and Visitation dated
21.02.2019, after one year from the date on which the child and mother left for India; on which the present order has been issued by the Superior
Court of California. The order of the Court at Ext.P11 directs the mother to return the minor child to the fathers custody in San Mateo County,
California and the surrender of all of the minor child's passports to the father. Ext.P13 indicates a hearing conducted on 05.06.2019 in the presence of
the Attorney of the petitioner alone. The writ of Habeas Corpus is produced at Ext.P14 dated 10.07.2019 directing production of the minor child
before that Court on 15.08.2019 and also to show cause why the child shall not be returned to the petitioner, the father. The petitioner, before the
Superior Court of California, did not disclose the proceedings initiated by the respondent in India.
We cannot but observe that the respondent but for filing a response as seen from Ext.P6, to the proceedings initiated by the petitioner on grounds
of abduction of the minor, has not invoked the jurisdiction of that Court. In filing the response the prayer included for maintenance in proportion to the
income of the petitioner cannot be said to be an invocation of the jurisdiction. The respondent resisted the claim of custody raised by the petitioner and
sought for maintenance from the US Court specifically disclosing her residential address in Thiruvananthapuram and conceding to supervised visitation
for the petitioner at Thiruvananthapuram. The respondent also in the mandatory declaration under Uniform Child Custody Jurisdiction and
Enforcement Act, filed along with the response, indicated the proceedings for divorce and guardianship pending in the Family Court at
Thiruvananthapuram. It also discloses a criminal case pending before the Court in India which is evident from Ext.P4 an order of restrain issued
against the petitioner by the Judicial First Class Magistrate-II Thiruvananthapuram on allegation of domestic violence raised by the respondent.
We presume that it is based on Ext.P6 Child Abduction Police Report that the Superior Court of California took cognizance. Further we also
specifically refer to Declaration of Reporty Party as available in Ext.P6. The 1st paragraph indicates that the declaration is made 'under penalty of
perjury' regarding the information provided to the D.A's Personnel. The 2nd paragraph also prohibits the petitioner from taking self-help measures to
effect the return of his child(ren) and that if he so does, the Child Abduction Unit (CAU) will immediately close the case and cease all investigations.
In this context we notice the abduction information as available in Ext.P6 which reports the wife having taken the child to India promising to return
and having refused to return. The dates on which the petitioner last saw the child and communicated with the child is stated to be on 09.01.2018
[which in that application appears as 01/09/2018; an American practice as seen from the seal affixed in Ext.P14 and the date subscribed in the
petitioner's application at Ext. P6]. This is prima facie false looking at the WhatsApp messages exchanged between the parties which as produced
herein were on 25.01.2018, 28.01.2018 and on 02.08.2018. The date on which the petitioner stated to have last seen the child and communicated with
the child as available in Ext.P6 is the date on which the wife and child boarded for India as is evident from Ext.P3 Air ticket. Further in Ext P6 after
“Abduction Information†under the head “Information about Custody†the petitioner has declared that there are no custody orders. At that
point there was an order passed by the Family Court in which proceeding a Counsel represented the petitioner on 07.07.2018. It is also relevant that
the petitioner attempted to trespass into the residence of his in-laws in search of his son which is against the declaration, he made before the DA's
office, that he would not take self-help measures to effect the return of the child. Ideally he should have approached the Indian Courts to get vacated
the restrain order against him passed by the Family Court and sought enforcement of the order passed by the Superior Court of California. The
present attempt to get repatriation is delayed by two years, at its inception itself. The mother as we noticed filed the divorce application after reaching
India, later to the abusive messages the petitioner send, through the WhatsApp and the threat leveled on 25.01.2018 which we extracted herein
before.
Lahari Sakhamuri as we noticed is on distinguishable facts. However, the dictum is applicable on the facts herein too. It was held “The
doctrines of comity of courts, intimate connect, orders by foreign courts having jurisdiction in the matter regarding custody of the minor child,
citizenship of the parents and the child etc., cannot override the consideration of the best interest and the welfare of the child and that the direction to
return the child must not result in any physical, mental, psychological or other harm to the child.†(sic.para 51) Shilpa Agarwal dealt with a 3 ½ year
old girl child, a British citizen born in England, of Indian parents. Both parents had the status of permanent residents of UK, even prior to birth of the
child. The mother came to India with the child on a return ticket and canceled the return ticket thus refusing to go back to England with the child. It is
the vehement submission of the learned counsel for the petitioner that the facts are similar and even a 3 ½ year old was directed to be send back to
the jurisdiction of the Court in UK which had declared the child to be a ward of that Court. But for the fact that the mother in this case also came to
India on a return ticket and did not go back to the country of birth of the child; we do not find any further identity on facts. The Hon'ble Supreme
Court apart from noticing that both the husband and wife had set up their matrimonial home in the foreign country, stressed on the fact of both the
parents working for gain and also having acquired permanent resident status in the UK. One other compelling circumstance to rule in favour of
repatriation was that immediately on the wife refusing to return by return ticket dated 09.11.2008; the father approached the High Court in UK
wherein by order dated 25.11.2008, the child was made a ward of that Court with further direction issued to the mother to return the child to UK for
further proceedings. Extracting the order in its entirety, it was observed that but for insisting the return of the child to its jurisdiction, the UK Court had
not intended to separate the child from the mother until a final decision was taken. It was also held the ultimate decision with regard to the custody of
the child “has to be left to the English Courts having regard to the nationality of the child and the fact that both the parents had worked for gain in
the UK and had also acquired permanent resident status in the UK' (sic- para33). We find that apart from the child having citizenship of the foreign
country there are no compelling circumstances which would persuade us in the instant case to adopt the measure of repatriation. The respondent-wife,
here was not employed in the USA and the petitioner-father had delayed the application before that Court by six months.
The decision in Yashitha Sahu also turns on distinguishable facts, according to us. There the marriage was solemnized in India in 2016 and the
wife accompanied the husband to USA where he was working and a daughter was born to them in 2017 who, by birth, acquired citizenship of USA.
The similarity with the instant case ends there. When the marital relationship got strained the wife applied to the Domestic Relations District Court
seeking protection, which was granted ex parte. Later the wife instituted a petition before the same court for custody of the minor girl. In terms of the
agreement between parties, the Court passed an order on 26.09.2018 providing for residence of the mother and child in the matrimonial home itself,
maintenance for both, as also joint and shared physical custody with individual parenting time at specified times and days. Within four days of the
order issued on the basis of the agreement of parties, violating the said order, the child was brought back to India by the mother, before the next
posting date. The child again was an infant of one year when she was brought to India, which factor alone was stated to be in favour of the mother. It
was the mother who approached the jurisdictional Court in USA and obtained a consent order from that Court. The mothers act of taking the child to
India, in that context was held to be a clear act of violation with impunity. It was in that circumstances the Hon'ble Supreme Court, directed
repatriation of the child to UK, with the mother or without her. The operative portion took care of both situations with provision for protection of the
mother and child individually and together in either of the circumstances; as per the specific undertaking made by the father on affidavit.
Neelanjan Bhatacharya again is on distinct facts. Therein the couple were residing and working (both) in USA when a child was born to them in
2016. In 2019, the wife returned to India and informed her intention to stay back with the child. Immediately there after the husband came to India to
explore the possibility of an amicable solution. Having failed, he went back to the US and applied for custody of the child as also for divorce. Based on
the temporary custody granted by the Superior Court of New Jersey the husband moved a Habeas Corpus petition on 10.07.2019 before the Supreme
Court under Article 32 and later withdrew the same to approach the High Court of Karnataka. The High Court allowed the petition on certain
conditions, two of which, regarding certification; from the country from which the repatriation is to be made, ie: India and the locality in the US where
the husband ordinarily resides, of being pandemic free, was challenged before the Supreme Court. The wife did not appear before the Supreme Court
upon which an Amicus Curiae was appointed. The Amicus informed the Court of the disinclination of the wife to contest the proceedings. But still the
Hon'ble Supreme Court considering the welfare of the child to be the paramount consideration in such matters examined the facts threadbare. It was
held so in paragraph 15:
“The respondent arrived in India with the child in March 2019. The appellant filed for custody and for return of the minor child before the Superior
Court of New Jersey, Hudson County, Chancery Division-Family Part on 16 April 2019, which awarded him temporary custody on 21 May 2019. On
10 July 2019, the appellant filed a petition under Article 32 of the Constitution seeking a writ of a habeas corpus before this Court. This Court granted
the appellant liberty to move the appropriate forum. Thereafter, the appellant filed a habeas corpus petition before the High Court of Karnataka on 13
August 2019. The above sequence of events makes it evident that the appellant has acted promptly to secure the custody of the child. In such an
event, this Court is only required to conduct a summary inquiry to ascertain whether there is any harm if the child returns to the US, where he was
born and has been brought up. The Court is required to engage in an elaborate inquiry on the merits of the case only if a considerable time has passed
since the child has been removed and if the child has developed roots in India. In either event, the primary consideration of this Court is to ascertain
the welfare of the child.â€
In addition to the above, the husband convinced the Court of having ardently carried out his parenting responsibilities. On the unilateral decision of the
wife to stay back in India with the child, the husband had immediately approached the Court in the foreign country as also in India for obtaining
custody of the child. The child had been in India only for a short period and it was observed that the mother did not contest the proceedings. The
Court, on these facts held, a summary enquiry would suffice in that case; which we find to be impossible in the instant case for reason of gross delay
on the part of the petitioner which we already noticed. The facts in the instant case warrant a more elaborate enquiry by us, though not in the nature
of a trial; keeping in mind the predominant aspect of welfare of the child.
Now we come to the decision of a three Judge Bench in Nithya Anand Raghavan. The child therein was six years old who had spend equal time
of her life in the US and in India. She was born in Delhi and had retained her Indian citizenship. The child was living in India with her maternal
grandparents and relatives as distinguished from her residence in UK, in a nuclear family; in the company of only her father and mother. It was
emphasized that the respondent-father did not initiate any action for the initial six months after having knowledge that his wife and child were not
returning to UK. The husband and wife were both Indian citizens at the time of marriage and had shifted to UK after an year from marriage. There
were allegations of physical and mental abuse raised by the wife which were disputed by the husband. For child birth the wife came to India and
returned to UK. Due to marital discords the mother and child had frequently returned to India but again rejoined the father in UK. The child was
admitted to a nursery school and then a primary school in UK. On consent of both parties an application was filed in UK for citizenship of the
daughter which was granted in December, 2012. The child developed some cardiac problems, upon which the mother along with the child came back
to India, for reason also of the neglect of the father and his alleged violent behaviour. The mother filed a complaint before the Women's Cell in New
Delhi and as a counter-blast the father filed custody/wardship petition in UK; in which an ex parte order for return of the child was issued. On
23.01.2016 the husband approached the jurisdictional High Court with a Habeas Corpus petition and obtained a direction to the mother to return the
child to UK at the expense of the father, who had undertaken before the UK Court to bear such expenses for transport and for stay of the mother and
child in UK. The High Court allowed the petition on the ground of the UK Court being better suited to appreciate the social and cultural milieu in
which the child was brought up, due to its intimate contact with that environment, the principle of 'Comity of Courts' the 'first strike principle' and so on
and so forth. The learned Judges of the Hon'ble Supreme Court extracted from Dhanwanti Joshi, to find that India is not a signatory to the Hague
Convention of 1980 on “Civil Aspects of International Child Abductionâ€. In non-convention Countries it was held, '...the principle of Comity of
Courts cannot be given primacy or more weightage for deciding matters of custody or for return of the child to the native state.'(sic-para 42) We
extract herewith paragraph 69:
We once again reiterate that the exposition in Dhanwanti Joshi is a good law and has been quoted with approval by a three-Judge Bench of this
Court in V. Ravi Chandran (2). We approve the view taken in Dhanwanti Joshi, inter alia, in para 33 that so far as non-Convention countries are
concerned, the law is that the court in the country to which the child is removed while considering the question must bear in mind 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. The summary jurisdiction
to return the child be exercised in cases where the child had been removed from its native land and removed to another country where, may be, his
native language is not spoken, or the child gets divorced from the social customs and contacts to which he has been accustomed, or if its education in
his native land is interrupted and the child is being subjected to a foreign system of education, for these are all acts which could psychologically disturb
the child. Again the summary jurisdiction be exercised only if the court to which the child has been removed is moved promptly and quickly. The
overriding consideration must be the interests and welfare of the child. Finding that the minor child on attaining majority, would be free to exercise her
choice as to citizenship, it was held that the child till then, should remain in the custody of the mother, unless the Court of competent jurisdiction trying
the issue of custody of the child orders to the contrary. The Court was also pleased to grant visitation right to the father. It was also directed that the
wife should participate in the proceedings before the foreign Court by engaging solicitors of her choice and also travel to that country if required with
the respondent husband bearing all the expenses of litigation, travel and stay in the foreign country.
What we discern from the above precedents is that, the principle of 'Comity of Courts' should be subservient to the welfare of the child. In a given
situation, even if the child is illegally removed from his/her natural habitat, the Courts in that Country, to which the child has been removed; especially
if it is a non-Convention (Hague Convention of 1980) country, are obliged to first and foremost keep in mind the welfare of the child. Due
consideration and weightage should be given to the orders passed by the foreign Court. There is no imprimatur that on production of an order of the
foreign Court, the child should immediately be repatriated by the Courts in the country to which he/she is removed and is presently residing. Though
the 'first strike' principle [ie: who among the spouses first filed for custody] has been disapproved in Nithya Anand Raghavan; the alacrity with which
the spouse, denied of custody of the minor,approached a Court of competent jurisdiction, was held to be a very significant aspect in ordering
repatriation. The removal of the child from the environment to which it is acclimatized, resultant exposure to alien language, culture and system of
education as juxtaposed with the possibility of the child having developed roots in the country to which she/he has been removed also assumes
importance in deciding the aspect of custody. With these principles in mind we once again, at the risk of repetition, look at the instant case and the
facts arising herein.
The petitioner and respondent were married in 2013 and while continuing in Bangalore; in the year 2014 they moved to the US. The respondent is
a Post Graduate in Medical Psychology who was working in a Dental College at Bangalore, as Lecturer, prior to her marriage [Ext.R2(e)], which
employment she quit, allegedly at the insistence of the petitioner. The respondent in her counter affidavit had stated that even from the initial years the
marriage ran into rough whether and there was contemplation of divorce. There are allegations made about the behavioural patterns of the
respondent. The respondent also claims that twice she had suffered miscarriages, one an MTP and a child was born in her third pregnancy. Her
pregnancy is said to have been assisted by her mother who traveled to US, who also is alleged to have been subjected to violence by the petitioner.
The respondent admits that she along with her child traveled to India in January 2018 on a round ticket, the fare for which was paid from the debit
card of the petitioner. Obviously the petitioner too was aware of the travel itinerary since the round ticket is produced as Ext.P3. The return flight was
on 01.03.2018, departing from Dubai at 8.45 am and arriving in San Francisco at 12.45 pm. Hence by the 2nd of March the petitioner was aware of
the fact that the respondent along with the child is intending to stay back in India. The petitioner approached the District Attorney's Office of the
County in the US only after six months, in September, claiming that the child was abducted, after receiving notice of the petitions filed before the
Family Court; presumably as a counter-blast to the order passed by the Family Court.
As to what transpired in India, after arrival of the respondent and child, we had referred to the continued contact over WhatsApp, evidenced by
the messages produced by the respondent as Ext.R2(C). The messages reveal that all was not well with the marriage, thus seriously putting to peril
the contention of the petitioner that they had a happy life in the US, as a couple. The messages also reveal that the petitioner was a stickler insofar as
the baby turning out with the best body and was enforcing his will even on the infant. There was also a threat leveled at the respondent that if she
comes back to the US, she is going to be exposed to physical violence. That specific threat was leveled on 25.01.2018, after which, on 09.02.2018, the
respondent filed for divorce and custody of the minor child. The petitioner is also restrained by an ex parte order issued by the Magistrates Court,
wherein proceedings were initiated alleging domestic violence. In violation of that order the petitioner is alleged to have committed an act of trespass
on 15.11.2019; in search of his son, based on which incident Ext.R2(b) FIR was registered.
On what transpired in the U.S., the petitioner, being aware of the respondent having decided to stay back in India with the child, did nothing to get
back the child or attempt to resolve the apparent marital discords. The petitioner was also aware of the order passed against him under the Protection
of Women from Domestic Violence Act, 2005, a copy of which is produced as Ext.P4. The respondent also has produced Ext.P5 order passed by the
Family Court restraining the petitioner from taking away the child from the custody of the mother. It was much later, on 06.09.2018 that a claim of
abduction of the child was raised before the District Attorney's Office as evidenced from Ext.P6, six months after the petitioner had knowledge of the
child being retained in India. By this time, the Family Court had passed an order affirming the temporary custody on the mother and restraining the
father from taking away the child. The 'first-strike' principle definitely is not applicable as found in Nithya Anand Raghavan, but the delay of six
months in approaching the foreign Court and two years to move this Court, stands against the petitioner.
The order produced at Ext.P14 of the Superior Court of California was dated 10.07.2019. The petitioner came to India after that, as is evidenced
in Ext.R2(h) FIR. He did not approach the Indian Courts seeking repatriation or even vacation of the orders passed against him, but resorted to self-
help measures to get back the child, which is prohibited by the declaration made in the proceedings initiated before the foreign Court; which invites
abrupt action of closure of proceedings in that jurisdiction. The child was an infant of ten months, when he left U.S. for India. It cannot be said that
the child had imbibed the culture and ethos of his land of birth. The welfare of the child is not inextricably connected to the social milieu in the US to
find the Superior Court of California to have intimate contact with the circumstances in which the child was brought up. The child was in a nuclear
family in the company of his father and mother. As of now, three years have elapsed after his coming to India and the infant has developed into a
child with close intimacy and awareness of his surroundings, his peers and elders. The child is now with his mother, maternal grant parents and also
has close links with the children of his mother's sister. The child's welfare require that he be continued in the existing surroundings and environment,
which was found to be perfectly conducive to his growth, in the Welfare Report prepared by the Personnel of the US Consulate in Chennai, as
evidenced from Ext.R2(i).
The visits of the Consular staff with the consent of the mother were on 19.12.2018 and 12.06.2019, to ensure the welfare of the minor child, an
American citizen. The young boy, as per the reports, speaks Malayalam and recognizes each of his family members. The child calls his mother
'Chitta', which in the vernacular Malayalam is a reference to 'mother's sister'. This is taken as a direct consequence of his close association with his
cousins, his maternal aunt's children, who address his mother as 'Chitta'. We are convinced that the facts eminently require the child to be retained in
India, with the company of his mother and does not require a repatriation as of now. If the proceedings in the foreign Court are pending, necessarily
the respondent shall, through Solicitors of her choice, appraise the foreign Court, of the fact situation and also produce our judgment before that Court.
The expenses of such participation would be met by the petitioner. As has been directed in Nithya Anand Raghavan the expenses of the travel and
stay of the mother and child in the foreign country will be met by the petitioner; only if the foreign Court requires their presence after being apprised of
the entire facts. As for visitation rights to the father, we leave it to be agitated before the Family Court, Thiruvananthapuram. The petitioner will do
well to enter appearance before the Family Court, wherein an enquiry has to be held to look at the rival contentions and arrive at a finding on custody
of the minor child; keeping in mind that in deciding custody of minors the aspect of the welfare of the child is predominant, paramount and foremost.
We dismiss the writ petition leaving the parties to suffer their respective costs. We make it clear that the proceedings for divorce and custody before
the Family Court at Thiruvanthapuram would not be governed by the observations made by us here; which adjudication has to proceed on the
independent evidence adduced in that Court.