writ of habeas corpus for production of his 2 minor daughter M (assumed name), who was about 3 years of age at the time of filing of the writ petition and for a direction for return of M to the jurisdiction of the competent Court in the United States of America in compliance with the order dated 13th January, 2017 passed by the Circuit Court of Cook County, Illinois, USA, came to be allowed.= A fortiori, dependant on the outcome of the proceedings, before the Family Court at New Delhi, the appellant may then be legally obliged to participate in the proceedings before the US Court and must take all measures to effectively defend herself in the said proceedings by engaging solicitors of her choice in the USA to espouse her cause before the Circuit Court of Cook County, Illinois, USA. In that event, the respondent No.2 shall bear the cost of litigation and expenses to be incurred by the appellant to pursue the proceedings before the Courts in the native country. In addition, the respondent No.2 will bear the air fares or purchase the tickets for the travel of the appellant and the minor child M to the USA and including their return journey for India, as may be required. The respondent No.2 shall also make all suitable arrangements for the comfortable stay of the appellant and her companions at an independent place of her choice, at a reasonable cost. Further, the respondent No.2 shall not initiate any coercive/penal action against the appellant and if any such proceeding initiated by him in that regard is pending, the same shall be withdrawn and not pursued before the concerned Court any further. That will be the condition precedent to facilitate the appellant to appear before the Courts in the USA to effectively defend herself on all matters relating to the matrimonial dispute and including custody and guardianship of the minor child. The appellant and respondent No.2 must ensure early disposal of the proceedings for grant of custody of the minor girl child to the appellant, instituted and pending before the Family Court at Patiala House, New Delhi. We, accordingly, set aside the impugned judgment and orders of the High Court and dispose of the writ petition in the aforementioned terms.

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 635­640 OF 2018

Mrs. Kanika Goel       …..Appellant(s)

:Versus:

State of Delhi through S.H.O.

and Anr.               ….Respondent(s)

J U D G M E N T

A.M. Khanwilkar, J.

1. These appeals take exception to the judgment and orders

passed by the High Court of Delhi at New Delhi dated 16th

November, 2017,  1st December, 2017 and 6th December, 2017,

in Writ Petition (Criminal) No.374 of 2017 and Criminal M.A.

No.2007 of 2017, whereby the writ petition filed by respondent

No.2 for issuing a writ of habeas corpus for production of his

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minor daughter M (assumed name), who was about 3 years of

age at the time of filing of the writ petition and for a direction

for return of M to the jurisdiction of the competent Court in

the United States of America in compliance with the order

dated 13th January, 2017 passed by the Circuit Court of Cook

County, Illinois, USA, came to be allowed. The Delhi High

Court directed the appellant  to comply with the directions as

M was in her custody, the appellant being M’s mother.

2. The respondent No.2 asserted that he was born in India

but presently is a citizen of USA since 2005. He is working as

the CEO of a Company called ‘Get Set Learning’. The appellant

is his wife and mother of the minor child M. She is a US

Permanent Resident and a “Green Card” holder and has also

applied   for   US   citizenship   on   2nd  December,   2016.   At   the

relevant time, she was a certified teacher in the State of Illinois

and was employed as a Special Education Classroom Assistant

in   Chicago   Public   Schools.   The   respondent   No.2   and   the

appellant got married on 31st  December, 2010 as per Sikh

rites, i.e. Anand Karaj ceremony, and Hindu Vedic rites in New

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Delhi.  It was clearly understood between both the parties that

the appellant, after marriage, would reside with respondent

No.2 in the USA. Eventually, the appellant travelled to the USA

on a Fiance Visa and got married to respondent No.2 again on

19th  March, 2011 at Cook County Court in Chicago, Illinois.

Before the marriage, the parties entered into a Pre­Nuptial

Agreement dated 20th October, 2010 enforceable in accordance

with the laws of the State of Illinois, USA. The appellant then

took employment as a teacher in Chicago Public School and

also   secured   a   US   Permanent   Citizen   Green   Card.   The

appellant   became   pregnant   and   gave   birth   to   M   on   15th

February, 2014 in USA. M is thus a natural born US citizen

and was domiciled in the State of Illinois, USA from her birth

till   she   was   clandestinely   removed   by   the   appellant   in

December 2016 under the guise of undertaking a short trip to

New Delhi to meet the appellant’s parents.

3. The appellant was scheduled to return to Chicago on 7th

January, 2017 but she went missing and filed a petition under

Section 13(1) of the Hindu Marriage Act, 1955 (for short “the

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1955   Act”)   being   H.M.A.   Case   No.27   of   2017   seeking

dissolution of marriage on the ground of cruelty, along with an

application under Section 26 of the 1955 Act on 7th January,

2017 seeking a restraint order against respondent No.2 from

taking M away from the jurisdiction of Indian Courts. A notice

was issued thereon to respondent No.2, made returnable on

11th January, 2017.

4. The   respondent   No.2,   however,   filed   an   emergency

petition   for   temporary   sole   allocation   of   parental

responsibilities and parenting time in his  favour or in the

alternative, an emergency order of protection for possession of

his   minor   daughter   M,   before   the   Circuit   Court   of   Cook

County, Illinois on 9th January, 2017. A notice of emergency

motion was served on the appellant by e­mail, informing her of

the proposed hearing on 13th January, 2017.

5. In the meantime, on 11th January, 2017 the Family Court

at New Delhi issued a fresh notice to respondent No.2 and

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passed   an   ex­parte   order   on   the   application   filed   by   the

appellant under Section 151 of the Code of Civil Procedure,

restraining respondent No.2 from removing the minor child

from the jurisdiction of that Court until further orders.

6. The respondent No.2 on the other hand, caused to file a

missing person complaint on 13th  January, 2017 before the

SHO,   Vasant   Kunj   (South),   P.S.   New   Delhi,   which   was

acknowledged by the Police Station on 14th  January, 2017.

Besides   the   said   complaint,   respondent   No.2   moved   the

Circuit Court of Cook County, Illinois, USA on 13th January,

2017   when   an   ex­parte   order   was   passed   for   interim   sole

custody of the minor child.  The said order reads thus:

“1) The child M born on 15.02.2014, in Chicago, Illinois

and   having   resided   in   Chicago   solely   for   her   entire   life

(specifically   at   360   East   Randolph   Street,   Chicago,   IL

60601) is also a US citizen.

2) The child is a habitual resident of the state of Illinois,

United States of America having never resided anywhere

else. Illinois is the home state of the child pursuant to the

Uniform Child Custody Jurisdiction Enforcement Act.

3) Karan Goel is the natural father of the minor child

and granted interim sole custody of the minor child. Child is

to be immediately returned to the residence located in Cook

County, Illinois, USA by Respondent.

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4) The Cook County, Illinois Court having personal and

subject matter jurisdiction over the parties and matter.

5) All further issues regarding visitation, child support

are reserved until further Order of Court.”

7. The appellant did not comply with the order of the Circuit

Court of Cook County, Illinois, therefore, respondent No.2 filed

a writ petition before the Delhi High Court on 1st  February,

2017, to issue a writ of habeas corpus and direct the appellant

to produce the minor child M and cause her return to the

jurisdiction of the Court in the United States, in compliance

with the order dated 13th January, 2017 passed by the Circuit

Court of Cook County, Illinois, to enable the minor child to go

back to United States and if the appellant failed to do so

within   a   fixed   time   period,   to   direct   the   appellant   to

immediately   hand   over   the   custody   of   the   minor   child   to

respondent No.2 (writ petitioner) to enable him to take the

minor child to the jurisdiction of the US Court.

8. This writ petition was contested by the appellant. The

High Court issued interim orders including regarding giving

access of the minor child to respondent No.2 in the presence of

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the  appellant  and her parents. Finally, all the contentious

issues between the parties were answered by the High Court

by a speaking judgment and order dated 16th November, 2017,

in favour of respondent No.2, after recording a finding that the

paramount interest of the minor child was to return to USA, so

that she could be in her natural environment. To facilitate the

parties to have a working arrangement and to minimize the

inconvenience, the Division Bench of the High Court issued

directions in the following terms:

“139. In   the   light   of   the   aforesaid,   we   are   more   than

convinced that respondent No.2 should, in the best interest

of the minor child M, return to USA along with the child, so

that she can be in her natural environment; receive the love,

care and attention of her father as well – apart from her

grandparents, resume her school and be with her teachers

and   peers.   Pertinently,   respondent   No.2   is   able­bodied,

educated,   accustomed   to   living   in   Chicago,   USA,   was

gainfully employed and had an income before she came to

India in December 2016 and, thus, she should not have any

difficulty in finding her feet in USA. She knows the systems

prevalent in that country, and adjustment for her in that

environment would certainly not be an issue. Accordingly,

we direct respondent no.2 to return to USA with the minor

child   M.   However,   this   direction   is   conditional   on   the

conditions laid down hereinafter.

140. Respondent No.2 has raised certain issues which need

to be addressed, so that when she returns to USA, she and

8

the minor child do not find themselves to be in a hostile or

disadvantageous environment. There can be no doubt that

the return of respondent No.2 with the minor child should be

at the expense of the petitioner; their initial stay in Chicago,

USA, should also be entirely funded and taken care of by the

petitioner by providing a separate furnished accommodation

(with   all   basic   amenities   &   facilities   such   as   water,

electricity, internet connection, etc.) for the two of them in

the vicinity of the matrimonial home of the parties, wherein

they have lived till December 2016. Thus, it should be the

obligation   of   the   petitioner   to   provide   reasonable

accommodation sufficient to cater to the needs of respondent

No.2 and the minor child.  Since respondent No.2 came to

India   in   December   2016   and   would,   therefore,   not   have

retained   her   job,   the   petitioner   should   also   meet   all   the

expenses of respondent No.2 and the minor child, including

the expenses towards their food, clothing and shelter, at

least for the initial period of six months, or till such time as

respondent No.2 finds a suitable job for herself. Even after

respondent   No.2   were   to   find   a   job,   it   should   be   the

responsibility of the petitioner to meet the expenses of the

minor   daughter   M,   including   the   expenses   towards   her

schooling,   other   extra­curricular   activities,   transportation,

Attendant/   Nanny   and   the   like,   which   even   earlier   were

being borne by the petitioner. The petitioner  should also

arrange a vehicle, so that respondent No.2 is able to move

around to attend to her chores and responsibilities.

141. Considering   that   the   petitioner   had   initiated

proceedings in USA and the respondent No.2 has been asked

to appear before the Court to defend those proceedings, the

petitioner   should   also   meet   the   legal   expenses   that

respondent No.2 may incur, till the time she is not able to

find a suitable job for herself. However, if respondent no.2 is

entitled to legal aid/assurance from the State, to the extent

the legal aid is provided to her, the legal expenses may not

be borne by the petitioner.

9

142.  The petitioner should also undertake that  after the

return of the minor child M with respondent No.2 to USA,

the custody of M shall remain with respondent No.2 and that

he shall not take the minor child out of the said custody by

use of force. He should also undertake that after respondent

No.2 lands in Chicago, USA, the visitation and custody rights

qua the parties, as may be determined by the competent

Court in USA, shall be honoured.

143.  Respondent   No.2   has   also   expressed   apprehension

that the petitioner would seek to enforce the terms of the

Pre­Nuptial   Agreement   entered   into   between   the   parties.

Since the said agreement has been entered into in India, its

validity has to be tested as per the Indian law. Respondent

No.2   has   already   initiated   suit   for   declaration   and

permanent   injunction   to   challenge   the   said   Pre­Nuptial

Agreement   dated   22.10.2010.   We   have   perused   the   said

agreement and we are of the view the petitioner should not

be permitted to enforce the terms of this agreement in USA,

at least till the said suit preferred by the respondent No.2 is

decided.   The   petitioner   should,   therefore,   give   an

undertaking to this Court, not to rely upon or enforce the

said Pre­Nuptial Agreement to the detriment of respondent

No.2  in any proceedings  either  in USA,  or in  India. The

undertaking shall remain in force till the decision in the suit

for   declaration   and   injunction   filed   by   respondent   No.2

challenging   validity   of   the   Pre­Nuptial   Agreement.   This

undertaking   shall,   however,   not   come   in   the   way   of   the

petitioner while defending the said suit of the respondent

No.2.

144.  With the aforesaid arrangements and directions, in our

view,   respondent   No.2   can  possibly   have   no   objection   to

return to USA with M. The comfort that we have sought to

provide to respondent No.2, as aforesaid, is to enable her to

have a soft landing when she reaches the shores of USA, so

that the initial period of at least six months is taken care of

for her, during which period she could find her feet and live

on her own, or under an arrangement as may be determined

10

by the competent Courts in USA during this period. At this

stage, we are not inclined to direct that the custody of M be

given to the petitioner so that he takes her back to USA. M is

a small child less than 4 years of age, and that too, is a

female child. Though she may be attached to the petitioner –

her father, she is bound to need her mother – respondent

no.2 more. In our view, once M returns to USA with her

mother,   i.e.   respondent   No.2,   orders   for   custody   or   coparenting

should   be   obtained   by   the   parties   from   the

competent   Courts  in USA.  Moreover,  it   would  be  for  the

Courts in USA to eventually rule on the aspect concerning

the financial obligations and responsibilities of the parties

towards each other and towards the minor child M – for

upbringing   the   minor   child   –   M   independent   of   any

directions issued by this Court in this regard.

145.  The   petitioner   is   directed   to   file   his   affidavit   of

undertaking in terms of paras 140 to 144 above within ten

days with advance copy of the respondents. The matter be

listed   on   01.12.2017   for   our   perusal   of   the   affidavit   of

undertaking, and for passing of final orders.”

9. By this judgment and order passed by the High Court

and   the   directions   issued,   as   reproduced   hitherto,   the

substantive issues inter se the parties were answered against

the appellant to the extent indicated. In continuation of the

aforementioned directions, a further order was passed on 1st

December, 2017 by the High Court which reads thus:

11

“1.  In terms of the directions contained in our judgment

dated 16.11.2017, the petitioner Karan Goel has filed the

affidavit dated 20.11.2017. A perusal of the affidavit shows

that the petitioner has undertaken and consented to abide

by all the conditions imposed upon him, so that respondent

no.2 could return to USA with the minor child.

2.  Respondent no.2 has also filed a counter­affidavit to

the   said   affidavit   of   the   petitioner.   Respondent   no.2   has

raised the issue that the petitioner has not particularized the

amounts and facilities that the petitioner would provide in

case respondent no.2 were to return to USA with the minor

child.

3.  The petitioner is present in Court with his parents.

The petitioner has tendered in Court the details/particulars

of the proposed financial aid in terms of our judgment. The

said details/ particulars read as follows:

‘1.  Upon   Respondent   No.2   giving   a   date/this

Hon’ble Court fixing a date on which she and minor

child M will depart from Delhi for Chicago, Illinois,

USA, the Petitioner shall do the following at least 3

[three] days prior to their departure date:­

(i) Book airline tickets on United Airlines with a

non­stop flight from Delhi to USA for minor child M

and Respondent No.2;

(ii) Provide   a   hotel   room   at   The   Hyatt   Regency

(located   ~7   minute   walk   from   minor   child   M’s

preschool) for the first seven (7) days after landing in

Chicago to enable Respondent No.2 to sign leases for

(a) accommodation and (b) a car; and

2.   The Petitioner is/ was already paying [directly

out of his salary] the following amounts for minor child

M and shall continue to do so in compliance of the

directions of this Hon’ble Court (all amounts in US

Dollars = USD):­

12

(i) ~$2,100/month   Preschool   tuition   at   Bright

Horizons Lakeshore East where she was enrolled five

days a week; and

(ii) ~$232/month   for   health   insurance   via   Blue

Cross Blue Shield of Illinois.

3.   In addition to point 2 above, the Petitioner shall

pay the following amounts (all amounts in US Dollars

=USD) for a total of $4,200/month to Respondent No.2

in advance for the first month [by transferring the said

amount into a joint account prior to Respondent No.2

and   minor   child   M   taking   off   from   Delhi]   and

thereafter   by   the   28th   of   every   month   for   the

subsequent   month   [for   the   initial   period   of   six

months]:­

(i)   $2,600/month   as   rent   for   a   fully   furnished

apartment with high­speed internet, air conditioning

and heating, water, garbage disposal, and parking for

a vehicle;

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

insurance;

(iii) $1,000/month in expenses for food, shelter, and

clothing for minor child M and Respondent No. 2; and

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

4.   In case legal aid / assurance is not available /

provided to Respondent No.2, the Petitioner shall give

an additional amount of $1,500/ month to Respondent

No.2 for her legal expenses for the first six months

after   her   and   minor   child   M’s   return   to   Chicago,

Illinois, USA’.

4.   We   have   also   separately   recorded   the   statement   of

petitioner on oath, wherein he has undertaken to this Court

to abide by the offer made by him in terms of our decision.

He has also undertaken that in case of any breach of the

said   stipulation,   respondent   no.2   may   enforce   the   same

before the competent Court in USA.

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5.   To ensure compliance of the aforesaid obligation, the

petitioner has offered that he shall deposit an amount US$

25,000 in an escrow account, which shall be operated upon

orders of the competent Court in Cook County, Illinois, USA.

The   said   account   shall   be   operatable   at   the   instance   of

respondent no.2 in case of non compliance of any of the

condition and to the extent it becomes necessary, under the

orders of the said Court.

6.  The petitioner seeks a short adjournment to produce

the relevant documents in that regard before this Court.

7.  Since the petitioner and his parents are in India, and

it is submitted that the petitioner has not met his minor

daughter since March 2017, it is agreed that the petitioner

and his parents shall be allowed to meet the minor child M

today, tomorrow and day after tomorrow at DLF Promenade

Mall, Vasant Kunj, New Delhi.

8.  Today’s meeting shall take place between 6:00 p.m. to

8:00 p.m., and on Saturday and Sunday, the meeting shall

take place from 11:00 a.m. to 2:00 p.m. The petitioner has

desired that the meeting may take place exclusively.

9.  Since   respondent   no.2   has   apprehensions,   the

petitioner has offered to and has deposited his American

Passport with the Court Master. The Court Master shall seal

the same in Court and thereafter the same be handed over to

the Deputy Registrar concerned to be kept in safe custody.

The same shall not be parted with unless so ordered by this

Court.

10. The petitioner has assured that the child shall not be

taken away unauthorisedly and shall be duly returned to

respondent no.2 at the end of the meeting on each date.

11.  List on 06.12.2017 for further directions. On the next

date, the child may be brought to the Court so that the

petitioner and his parents are able to meet the child in the

Children’s Room at the Mediation Centre between 2:30 p.m.

to 4:30 p.m.

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12. Order dasti under the signatures of the Court Master.”

10.  Again, on 6th December, 2017, another order was passed

to formally dispose of the writ petition finally in the following

terms:

1. “Mr.   Jauhar  has   tendered   in   Court   the   affidavit   of

undertaking   sworn   by   the   petitioner   along   with   three

annexures, which are:

(i) A statement from Citibank, USA in respect of joint

account held by the petitioner and respondent No.2;

(ii) An affidavit of Molshree A., Sharma, ESQ., a partner at

the law firm of Mandel, Lipton, Roseborough & Sharma Ltd.,

based in Chicago; and

(iii) Documents   to   show   deposit   of   US$25,000   in   an

escrow account operated by the aforesaid law firm.

2. The petitioner has stated that he has already deposited

US$25,000 into his attorney’s escrow account. The affidavit

of Molshree A., Sharma affirms that the said escrow account

may be operated by respondent No.2/ Kanika Goel in the

event of failure of the petitioner/ Karan Goel in meeting his

obligations as per his undertaking given to this Court.

3. We are satisfied with the aforesaid arrangement made

by the petitioner to secure the interests of respondent No.2

and   the   minor   child   in   terms   of   our   decision   dated

16.11.2017.

4. In   these   circumstances,   we   now   direct   respondent

No.2 to return to USA along with the minor child M within

two weeks from today, failing which the minor child M shall

be handed over to the petitioner, to be taken to USA.

5. We may observe that learned counsel for respondent

No.2 has sought more time on the ground that respondent

No.2 wishes to assail the decision dated 16.11.2017 and that

the Supreme Court shall be closed for Winter Vacation in

later part of December, 2017 and early part of January,

2018. However, we are not inclined to grant any further time

15

for the reason that it is imperative for respondent No.2 to

return to USA on or before 23.12.2017, and if she does not

so   return,   her   return   may   not   be   permitted   by   the

Immigration Department of USA without further compliance

being made by her. We cannot permit a situation to arise

where respondent No.2 is able to defeat the direction issued

by this Court on account of her own acts & omissions.

6. The passport of the petitioner deposited in this Court

is directed to be returned forthwith. The said passport be

returned   to   Mr.   Prabhjit   Jauhar,   larned   counsel   for   the

petitioner. The said passport shall be retained by Mr. Jauhar

so as to enable the petitioner and his parents to meet the

child M, while they are in New Delhi, India. Mr. Jauhar shall

return the passport to the petitioner only at the time when

the petitioner has to return to USA, after ensuring that the

custody of the child is with respondent No.2.

7. The meeting between the petitioner and his parents,

on the one hand, and the child, on the other hand, shall be

undertaken   as   per   the   arrangement   worked   out   by   us

earlier, i.e. two hours every working day, and three hours at

the weekends, as mutually agreed between the parties.

8. The   petition   stands   disposed   of   in   the   aforesaid

terms.”

11. Being aggrieved by the aforesaid judgment and orders,

the appellant, being the mother of the minor child M, has

approached this Court by way of Special Leave under Article

136 of the Constitution of India. This Court issued notice on

15th  December, 2017, when it passed the following interim

order:

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“O R D E R

Issue notice.

As   Dr.   Abhishek   Manu   Singhvi   and   Mr.   R.S.   Suri,

learned   senior   counsel   along   with   Mr.   Prabhjit   Jauhar,

learned counsel has entered appearance for the respondent

No.2, no further notice need be issued.

Counter affidavit be filed within two weeks. Rejoinder

affidavit, if any, be filed within a week therefrom.

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

As   an   interim   measure,   it   is   directed   that   the

arrangements   made   by   the   High   Court   for   the   visitation

rights shall remain in force. The petitioner­wife shall not

create any kind of impediment in the meeting of the father

with the child.

In the course of hearing, we have also been apprised

by Dr. Singhvi that the Green Card issued in favour of the

petitioner­wife is going to expire on 22nd December, 2017.

Be that as it may, If, eventually, the petitioner loses in this

proceeding and the respondent No.2 succeeds, the expiration

of the Green Card cannot be a ground to deny the custody of

the child to the father. Needless to say, if the petitioner wife

intends to go to United States of America and gets the Green

Card renewed, it is open for her to do so. We may also record

that the husband has acceded to, as stated by the learned

counsel for the respondent No.2, that he shall not implicate

her in any criminal proceeding.”

In continuation of the aforementioned interim arrangement, a

further order was passed by this Court on 24th January, 2018,

which reads thus:

“O R D E R

Heard Mr. Kapil Sibal, learned senior counsel along

with   Ms.   Malavika   Rajkotia,   learned   counsel   for   the

petitioner and Dr. A.M.Singhvi, learned senior counsel along

with   Mr.   Prabhjit   Jauhar,   learned   counsel   for   the

respondents.

Though,   we   are   not   inclined   to   interfere   with   the

interim arrangement made by the High Court yet, regard

17

being had to some grievances of both the parties, we intend

to pass an order clarifying the position.

Having   heard   learned   counsel   for   the   parties,   it   is

directed as follows:

(i) Whenever respondent No.2 is available in India, he

shall   intimate   the   petitioner   by   E­mail   and   also

forward a copy of the said E­mail to the counsel for the

petitioner so that she can make the child available for

meeting with the father at Promenade Mall, Vasant

Kunj between 5.30 P.M. to 7.30 P.M. on weekdays and

11.00 A.M. to 2.00 P.M. on holidays when the school is

closed.

(ii) When the father will be meeting the child, they

shall meet without any supervision.

(iii)   When   the   father   is   not   in   India,   there   can   be

communication/interaction   through   Skype   at   about

7.30 P.M.(Indian Standard Time) or any other mode on

line.

(iv) The passport of the child, which is presently with

the father, shall be handed over to the mother for a

period of one week so that she can take appropriate

steps to complete certain formalities for admission of

the   child   in   a   school.   This   direction   is   without

prejudice   to   the   final   result   in   the   special   leave

petition.   The   passport   shall   be   returned   by

Ms.Malavika   Rajkotia,   learned   counsel   for   the

petitioner to Mr.Prabhjit Jauhar, learned counsel for

the respondents.

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

final disposal.”

These are the relevant interim orders, which were to operate

until the final disposal of the appeals. On 18th May, 2018, a

grievance was made before this Court about non­cooperation

by the appellant, which has been recorded as under:

18

“O R D E R

As mentioned in the first hour, the matter is taken up

today. Be it noted, we have listed the matter today as it

relates to the conversation right of the father with the child.

In the course of hearing, Mr. Prabhjit Jauhar, learned

counsel appearing for the respondent­father submitted that

the   directions   issued   by   this   Court   on   earlier   occasion

relating to Skype contact are not being complied with.

Ms. Malavika Rajkotia, learned counsel appearing for

the appellant submitted that there has been no deviation

and in any case, the mother does not intend to anyway

affect, indict or intervene in the right to converse by Skype.

Ms. Rajkotia has assured this Court that her client has not

given   any   occasion   to   raise   any   grievance   and   if   any

grievance is nurtured by the father, the same shall be duly

addressed, so that the order of this Court is duly complied

with.

We are sure, the parties shall behave like compliant

litigants.”

The hearing was concluded and the interim arrangement as

directed by this Court was to be observed by the parties until

the pronouncement of the final judgment.

12. The appellant, being the mother of the minor child M,

has   assailed   the   decision   of   the   High   Court   for   having

overlooked the rudimentary principles governing the issue of

invoking   jurisdiction   to   issue   a   writ   of   habeas   corpus   in

respect of a minor child who was in lawful custody of her

mother.   According   to   the   appellant,   the   High   Court   has

19

completely glossed over or to put it differently, misconstrued

and misapplied the principles of paramount interest of the

minor girl child of tender age of about 4 years. Similarly, the

High Court has glossed over the doctrine of choice and dignity

of   the   mother   of   a   minor   girl   child   keeping   in   mind   the

exposition in K.S. Puttaswamy & Anr. Vs. Union of India &

Ors.1

The High Court has also failed to take into account that

the intimate contact of the minor child would be her mother

who was her primary care giver and more so, when she was at

the   relevant   time   in   the   company   of   her   mother.     The

appellant, being the mother, had a fundamental right to look

after her minor daughter which cannot be whittled down or

trivialized on the considerations which found favour with the

High Court. The welfare and paramount interest of the minor

girl child would certainly lean towards the mother, all other

things being equal. The role of the mother of a minor girl child

cannot   be   reduced   to   an   appendage   of   the   child   and   the

mother cannot be forced to stay in an unfriendly environment

1 (2017) 10 SCC 1

20

where she had been victim of domestic violence inflicted on

her. This would be so when the mother was also a working

woman   whose   career   would   be   at   stake   in   the   event   the

directions given by the High Court were to be complied with in

letter and spirit. The High Court ought to have adopted a child

rights based approach but the reasons which weighed with the

High Court, clearly manifest that it was influenced by the

values of pre­constitutional morality standard. The approach

of the High Court, of delineating an arrangement, which it

noted as the lowest prejudice option to the mother,   has no

place for deciding the issue of removing the custody of a minor

girl child of tender age from her mother and giving it to her

father for being taken away to her native country.  The High

Court   has   misunderstood   and   misapplied   the   principle

expounded in  Nithya  Anand  Raghavan  Vs.  State  (NCT  of

Delhi)  &  Anr.,

2

and    Prateek  Gupta  Vs.  Shilpi  Gupta &

Ors.3

The High Court has completely overlooked the autonomy

of the appellant inasmuch as the directions given by the High

2 (2017) 8 SCC 454

3 (2018) 2 SCC 309

21

Court   would   virtually   subjugate   all   her   rights   and   would

compel her to stay in an unfriendly environment at the cost of

her career and dignity. The arrangement directed by the High

Court  can, by no  standard, be said to  be a  just and  fair

muchless collaborative arrangement to be worked out between

the parents, without compromising on the paramount interest

and welfare of the minor girl child. The High Court committed

a manifest error in answering the issue of best interest of the

minor girl child, inter alia on the basis of the provisions of the

Juvenile Justice Act and disregarding the crucial fact that the

minor girl child was presently staying with her mother along

with   her   extended   family,   which   she   would   be   completely

deprived of if taken away to a place within the jurisdiction of

the US Court by respondent No.2 ­ her father.   It was also

contended that in the process of reasoning out the plea taken

by the appellant regarding the circumstances in which she fled

from USA with the minor girl child due to domestic violence

inflicted   on   her,   the   said   issue   has   been   trivialized.   It   is

contended that as the marriage between the appellant and

22

respondent No.2 was solemnized in New Delhi as per Anand

Karaj   ceremony   and   Hindu   Vedic   rites,   the   fact   that   the

appellant went to the United States to stay with her husband,

would make no difference to her status and nationality, much

less have any bearing on the issue of   best interest   of the

minor girl child.

13.  On the other hand, the respondent No.2 would submit

that the High Court analysed all the relevant aspects of the

matter keeping in mind the legal principles expounded in the

recent decisions of this Court and recorded its satisfaction

about the best interest  of the minor girl child coupled with the

necessity of the minor girl child to be produced before the

Circuit   Court   of   Cook   County,   Illinois,   USA,   which   had

intimate contact with the minor girl child,  inasmuch as the

minor   girl   child   was   born   and   was   domiciled   within   the

jurisdiction   of   that   Court   before   she   was   clandestinely

removed by the appellant to India. It is contended that since

both the father as well as the minor girl child are US citizens

and the mother is a permanent resident of US and domiciled

23

in that country, only the Courts of that country will have

jurisdiction   to   decide   the   matrimonial   issues   between   the

parties,   including   custody   of   the   minor   girl   child   and   her

guardianship.  Further, at the tender age of about 3 years, the

minor girl child had hardly spent any time in India so as to

suggest that she has gained consciousness in India and thus

it would be in the  best interest of the child to be taken away

to the US. It is contended by respondent No.2 that the High

Court has analysed all the relevant facts before recording the

finding that the welfare and best interest of the minor girl

child would be served by returning to United States. As that

finding is based on  tangible material on record as adverted to

by the High Court, this Court should be loath to overturn the

same and, more so, when the High Court has issued directions

to balance the equities and also facilitate return of the minor

child   to   be   produced   before   the   Court   of   competent

jurisdiction. The directions so issued are no different than the

directions given by this Court in Nithya Anand Raghavan’s

case, (supra).   It is contended by respondent No.2 that this

24

Court may primarily examine the directions issued by the High

Court and if necessary, issue further directions to safeguard

the interest of the appellant, but in no case should the plea

taken by the appellant, that the minor girl child should not

return   to   US,   be   accepted.   It   is   contended   that   the   sole

consideration   in   a   proceeding   such   as   this,   must   be   to

ascertain   the   welfare   of   the   minor   girl   child   and   not   to

adjudicate upon the rights of the father or the mother. While

doing so, the Court may take into account all such aspects to

ascertain as to whether any harm would be caused to the

minor child or for that matter, has been caused in the past

during her stay in US.   From the order passed by the US

Court, it is evident that the custody of the minor girl child with

the appellant had become unlawful and for which reason, this

Court in exercise of its jurisdiction for issuance of a writ of

habeas corpus, must direct the appellant to give the custody of

the minor girl child to her father. It is contended that the

argument regarding health or personal matters raised by the

appellant are only arguments of causing prejudice and should

25

have   no   bearing   for   answering   the   matters   in   issue,

particularly in the context of the equitable directions passed

by the High Court.   The Court must keep in mind that the

minor girl child is presently staying in India without a valid

Visa after her Visa obtained for travelling to India expired.  The

respondent No.2 would submit that no interference with the

directions issued by the High Court is warranted in the fact

situation of the present case.

14. We have heard Ms. Malavika Rajkotia, learned counsel

appearing for the appellant and Ms. Meenakshi Arora, learned

senior counsel appearing for the respondent No.2.

15. We shall first advert to the analysis made by the High

Court   in   respect   of   the   contentious   issues.   That   can   be

discerned   from   paragraph   102   onwards   of   the   impugned

judgment. The High Court was conscious of the fact that it

must first examine the issue regarding the welfare and best

interest  of the minor child. It noted that the minor girl child

was about 3 years when the writ petition for habeas corpus

26

was preferred on 1st  February, 2017. It then noted that the

respondent No.2 – father of the minor girl child had acquired

citizenship   of   the   USA   in   2005   and   holds   an   American

Passport.   He is living in the USA since 1994 and is thus

domiciled in the USA. He had acquired a Bachelors’ degree in

Economics and obtained MBA qualification from the University

of Chicago.  He was an Education Software Entrepreneur. The

appellant wife is the biological mother of the minor child M,

who has acquired permanent resident status of the USA i.e.

Green Card and had also applied for American citizenship on

2

nd December, 2016. The respondent No.2 and appellant were

classmates during their schooling and revived their contacts in

2000. Eventually, they decided to get married and thereafter

reside in USA where the respondent No.2 had his work place

and home.   The marriage was solemnized in New Delhi in

India on 31st October, 2010 as per Anand Karaj ceremony, and

Hindu Vedic rites in the presence of the elders of both the

families. After the appellant arrived in USA, they performed

27

civil   marriage   before   the   competent   Court   in   USA   on   19th

March, 2011.

16. The High Court adverted to the accomplishment of the

appellant in her education and occupation. The High Court

noted that the couple started their matrimonial life in the

United States and lived as a couple in that country. They

made the United States their home and their entire married

life, except the duration during which they were on short visits

to India, had been spent in the USA.  They gave birth to a girl

child  M in  USA  on  15th  February,  2014 at  North Western

Memorial Hospital, Chicago, Illinois, USA. The minor child M

is a US citizen by birth and grew up there until she was

clandestinely   removed   by   the   appellant   to   India   on   25th

December,   2016.   The   minor   child   had,   in   fact,   started

attending pre­school in Chicago and had a full time schedule

at school from August, 2016. Thus, the mental development of

M while she was in USA till the end of 2016, had taken place

to such an extent that she was very well aware and conscious

of her surroundings. She was perceiving and absorbing from

28

her   surroundings   and   communicated   not   only   with   her

parents, but also with her other relatives, her peers at the preschool,

her instructors, teachers and other care givers. The

American way of life and systems were already in the process

of being learnt and experienced by M when she came to India

in   December,   2016.   The   environment   which   M   was

experiencing during her growth was the natural environment

of   Chicago,   USA.   Both   her   parents   were   looking   after   her

proper upbringing. The Court also noted that the paternal

grandparents   of   the   minor   child   M   were   visiting   and

interacting with her. The Court then adverted to the decisions

in Surinder Kaur Sandhu Vs. Harbax Singh Sandhu and

Anr.4

, Aviral Mittal Vs. State5

, Shilpa Aggarwal Vs. Aviral

Mittal and Anr.6

, Dr. V. Ravi Chandran Vs. Union of India

& Ors.7

, and Nithya Anand Raghavan (supra), to opine that

the Court in the US seemed to be the most appropriate Court

to decide the issue of custody of M, considering that it had

4  (1984) 3 SCC 698

5  (2009) 112 DRJ 635

6  (2010) 1 SCC 591

7   (2010) 1 SCC 174

29

intimate contact with the parties and the child. It went on to

observe   that   it   was   neither   inclined     nor   in   a   position   to

undertake a detailed enquiry into aspects of custody, visitation

and   co­parenting   of   the   minor   child   in   the   facts   and

circumstances of the case, considering all the events unfolded

in, circumstances developed in and evidences were located in

the USA. After having said this, it examined the compelling

reasons disclosed by the appellant to dissuade the Court from

issuing directions for return of M to her native country and the

environment where she was born and being brought up. That

analysis has been done in paragraph 114 onwards. The High

Court   considered   the   grievances   of   the   appellant   in

paragraphs 114 to 117 in the following words:

“114.   The   allegations   of   respondent   no.2   against   the

petitioner and his mother are that the petitioner’s mother

follows a strict eco­friendly lifestyle and imposes the same on

the   couple,   which   even   caused   chronic   backache   to   the

respondent since she was forced to sleep on a hard ecofriendly

mattress. She claim that all her day to day affairs

were influenced by the lifestyle of her mother in law, such as

not   using  plastic  products,   non  stick   cookware,   personal

care   products   etc.   The   respondent   had   no   voice   in   the

matter. The petitioner took minimal interest in household

affairs, while his mother interfered in the lives of the parties

30

by tracking their schedules. The petitioner and his mother

did not respect the respondents privacy and the plan of the

parties   to   bear   a   child   were   disclosed   to   the   petitioner’s

mother in advance. She even imposed lifestyle changes upon

the respondent. The petitioner’s mother also did not permit

the respondent to maintain a secular household. She was

not permitted to celebrate both Sikh and Hindu festivals and

the petitioner insisted that they celebrate only Sikh festivals.

Respondent   no.2   states   that   she   was   diagnosed   with   a

grave’s   disease   in   October   2014.   The   petitioner   and   his

mother   insisted   that   the   respondent   undergoes   surgery

rather than taking medication, since medication would have

made it difficult for her to conceive in future. She claims that

the petitioner even threatened her with divorce in case she

prioritised her own health at the cost of expanding their

family.   The   respondent   makes   several   other   allegations

against the petitioner and his mother complaining of cruelty

and indifference on their part towards her.

115. The above allegations per se do not suggest any grave

undesirable conduct or deviant behavior on the part of the

petitioner, or his mother qua the child M – even if they were

to be assumed to be true for the time being. The allegations

even remotely, not such as to suggest that the minor child M

may   be   exposed   to   any   adversity,   harm,   undesirable

influence, or danger if she were to be allowed to meet them

or spend time with them in USA. There is nothing to suggest

that the petitioner – father of M, or her grandmother would

leave   a   bad   and   undesirable   influence   on   M.   These

allegations are not such as to persuade this Court not to

send the child M back to her country of origin and initial

upbringing. On the contrary, the petitioner appears to be an

educated person who is gainfully managing his business,

and   the   photographs   on   record   show   healthy   bonding

between M and her father. He also appears to have actively

participated in the upbringing of M – if the averments made

by him in his petition are to be believed. In fact, respondent

no.2 had also expressed her willingness to let M interact

with the petitioner and to allow him visitation rights, which

31

would not have been the case if she considered him to be a

bad influence on, or a potential threat to her daughter. The

fact that the petitioner’s mother is a pediatrician, in fact, is a

reassuring fact that M would be taken good care of medically

in her tender years. The photographs filed by the petitioner

along with the petition show M to be having a healthy and

normal   upbringing   while   she   was   in   USA.   She   is   seen

enjoying  the  love, care and company  of her  parents and

others – including children of her age. There is no reason

why   she   should   be   allowed   to   be   uprooted   from   the

environment in which she was naturally growing up, and to

be retained in an environment where she would not have the

love,   care   and   attention   of   her   father   and   paternal

grandparents, apart from her peers, teachers, school and

other care givers who were, till recently, with her.

116.   From   the   allegations   made   by   respondent   No.2,   it

appears that she may have had issues of living with and

adjusting with the petitioner and his parents – particularly

the   mother­in­law.   However,   there   is   absolutely   nothing

placed on record to even remotely suggest that so far as the

petitioner is concerned, his conduct qua M and his presence

with M, or for that matter, even the grandparents, could be

said   to   be   detrimental   to   or   harmful   for   M.   It   certainly

cannot be said that if M were to be returned to her place of

origin where she spent the initial three years of her life –

considering   that   those   three   years   constitute   more   than

3/4th of her entire existence on this planet till date, would

be detrimental to her interest in any manner whatsoever.

117. The parties started their married life in USA, and as

clearly   appears   from   their   conduct,   their   mutual

commitment was to spend their married life and to raise

their children in USA. There is absolutely nothing to suggest

that the parties mutually ever agreed to or intended to shift

from their place of residence to a place in India, though

respondent no.2 may have unilaterally so desired. In such a

situation, in our view, respondent No.2 cannot breach her

maternal   commitment   without   any   valid   justification   and

32

remain in return to India with M – who is an American

citizen and would, obviously, be attached to her father and

grandparents;   her   home;   her   Nanny;   her   teachers   &

instructors and her peers and friends, all of whom are in

USA.”

17. After having said this, the High Court considered the

argument of the appellant that she was the primary care giver

qua M but disregarded the same by observing that that alone

cannot be made the basis to reject the prayer for return of the

minor girl child to her native country, and more so, when the

minor girl child deserves love, affection and care of her father

as well. The Court found that nothing prevents the appellant

from returning to the USA if she so desires. Further, the fact

that the minor girl child would make new friends and have

new care givers and teachers in India at a new school, cannot

be the basis to deny her the love and affection of her biological

father   or   parenting   of   grandparents   which   was   equally

important for the grooming and upbringing of the child.  The

Court then went on to notice that the expression “best interest

of child” is wide in its connotation and cannot be limited only

to love and care of the primary care giver i.e. the mother. It

33

then adverted to the provisions of the Juvenile Justice (Care

and Protection of Children) Act, 2015, while making it clear

that it was conscious of the fact that the said Act may not

strictly apply to the case on hand for examining the issue of

best interest of the child. In paragraphs 124 to 126 of the

impugned judgment, it went on to observe thus:

“124. Thus, all decisions regarding the child should be based

on primary consideration that they are in the best interest of

the child and to help the child to develop to full potential.

When involvement of one of the parents is not shown to be

detrimental to the interest of the child, it goes without saying

that to develop full potential of the child, it is essential that

the child should receive the love, care and attention of both

his/ her parents, and not just one of them, who may have

decided on the basis of his/ her differences with the other

parent, to re­locate in a different country. Development of

full potential of the child requires participation of both the

parents. The child, who does not receive the love, care and

attention   of   both   the   parents,   is   bound   to   suffer   from

psychological and emotional trauma, particularly if the child

is small and of tender age. The law also recognizes the fact

that   the   primary   responsibility   of   care,   nutrition   and

protection of the child falls primarily on the biological family.

The “biological family” certainly cannot mean only one of the

two parents, even if that parent happens to be the primary

care giver.

125. The JJ Act encourages restoration of the child to be reunited

with his family at the earliest, and to be restored to

the same socio­economic and cultural status that he was in,

before being removed from that environment, unless such

34

restoration or repatriation is not in his best interest. The

present is not a case where respondent No.2 fled from USA

or decided to stay back in India on account of any such

conduct of the petitioner which could be said to have been

detrimental to her own interest, or the interest of the minor

child M. The decision of respondent No.2 to stay back in

India is entirely personal to her, and her alone. It is not

based on consideration of the best welfare of the minor child

M. In fact, the best interest of the child M has been sidelined

by respondent no.2 while deciding to stay back in India with

M.

126.   Pertinently,   respondent   No.2   in   her   statement   in

response to the missing person report made by the petitioner

on 14.01.2017 vide DD No.20B dated 14.01.2017 at PS –

Vasant Kunj (South), New Delhi, inter alia, stated that ‘the

parties came to New Delhi, India with their daughter M on

20.12.2016.   She   further   stated   that   during   this   time,   I

realized that I do not want to continue with his suppressed

marriage and file for divorce and custody petition against K

G   in   the   Hon’ble   Court   Sh.   Arun   Kumar   Arya,   Principle

Judge, Family Courts, Patiala House, New Delhi via HMA

No.27/17……’.   Thus,   it   appears   from   the   statement   of

respondent No.2 that the realization that she did not want to

continue in her marriage dawned upon her only when she

came to India, and it is not that when she left the shores of

USA in December 2016, she left with a clear decision in her

mind that she would not return to USA for any specific and

justifiable reason.”

18. Reference   was   then   made   to   the   provisions   of   the

Convention on the Rights of the Child adopted by the General

Assembly of the United Nations dated 20th  November, 1989,

which   was   ratified   by   the   Government   of   India   on   11th

35

December, 1992, and the resolution by the Government of

India issued by the Ministry of Human Resource Development

vide Resolution No.6­15/98 C.W., dated 9th  February, 2004

framing the  “National Charter for Children,  2003” and the

Court observed in paragraph 138  as follows:

“138. Thus, best welfare of the child, normally, would lie in

living with both his/ her parents in a happy, loving and

caring   environment,   where   the   parents   contribute   to   the

upbringing of the child in all spheres of life, and the child

receives emotional, social, physical and material support ­ to

name a few. In a vitiated marriage, unfortunately, there is

bound to be impairment of some of the inputs which are,

ideally, essential for the best interest of the child. Then the

challenge posed before the Court would be to determine and

arrive   at   an   arrangement,   which   offers   the   best   possible

solution in the facts and circumstances of a given case, to

achieve the best interest of the child.”

19. On a perusal of the impugned judgment, it is noticed that

the High Court has taken note of all the relevant decisions

including the latest three­Judge Bench decision of this Court

in Nithya Anand Raghavan’s case, (supra), which has had

occasion to exhaustively analyse the earlier decisions on the

subject   matter   under   consideration.   The   exposition   in   the

36

earlier decisions has been again restated and re­affirmed in

the subsequent decision of this Court in Prateek Gupta Vs.

Shilpi Gupta & Ors., (supra).  Let us, therefore, revisit these

two   decisions.     In   paragraph   40   of   the  Nithya   Anand

Raghavan’s case, (supra), this Court observed thus:

“40. The Court has noted that India is not yet a signatory to

the   Hague   Convention   of   1980   on   “Civil   Aspects   of

International   Child   Abduction”.  As   regards   the   nonConvention

countries,  the   law   is  that  the  court   in  the

country   to   which   the   child   has   been   removed   must

consider  the  question  on  merits  bearing  the  welfare  of

the   child   as   of  paramount   importance   and   reckon   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 exercise

of summary jurisdiction, the court must be satisfied and of

the opinion that the proceeding instituted before it was in

close   proximity   and   filed   promptly   after   the   child   was

removed from his/her native state and brought within its

territorial jurisdiction, the child has not gained roots here

and further that it will be in the child’s welfare to return to

his native state because of the difference in language spoken

or social customs and contacts to which he/she has been

accustomed or such other tangible reasons. In such a case

the court need not resort to an elaborate inquiry into the

merits of the paramount welfare of the child but leave that

inquiry to the foreign court by directing return of the child.

Be   it   noted   that  in   exceptional   cases  the   court   can   still

refuse to issue direction to return the child to the native

state and more particularly in spite of a pre­existing order of

the foreign court in that behalf, if it is satisfied that the

child’s return may expose him to a grave risk of harm. This

means that the courts in India, within whose jurisdiction the

minor   has   been   brought   must   “ordinarily”   consider   the

37

question on merits, bearing in mind the welfare of the child

as   of   paramount   importance   whilst   reckoning   the   preexisting

order of the foreign court if any as only one of the

factors and not get fixated therewith. In either situation—be

it a summary inquiry or an elaborate inquiry—the welfare of

the   child   is   of   paramount   consideration.  Thus,   while

examining   the   issue   the   courts   in   India   are   free   to

decline the relief of return of the child brought within its

jurisdiction, if it is satisfied that the child is now settled

in its new environment or if it would expose the child to

physical   or   psychological  harm   or   otherwise   place   the

child   in  an   intolerable  position  or   if  the  child   is  quite

mature   and   objects   to   its   return.  We  are in  respectful

agreement with the aforementioned exposition.”

(emphasis supplied)

Again in paragraph 42, the Court observed thus:

“42. The consistent view of this Court is that if the child has

been brought within India, the courts in India may conduct:

(a)   summary   inquiry;   or   (b)   an   elaborate   inquiry   on   the

question of custody. In the case of a summary inquiry, the

court may deem it fit to order return of the child to the

country   from   where   he/she   was   removed   unless   such

return   is   shown   to   be   harmful   to   the   child.  In   other

words, even in the matter of a summary inquiry, it is open to

the court to decline the relief of return of the child to the

country from where he/she was removed irrespective of a

pre­existing order of return of the child by a foreign court. In

an elaborate inquiry, the court is obliged to examine the

merits as to where the paramount interests and welfare of

the child lay and reckon the fact of a pre­existing order of

the foreign court for return of the child as only one of the

circumstances. In either case, the crucial question to be

considered   by   the   court   (in   the   country   to   which   the

child is removed) is to answer the issue according to the

child’s welfare. That has to be done bearing in mind the

totality   of   facts   and   circumstances   of   each   case

independently.   Even   on   close   scrutiny   of   the   several

decisions  pressed  before  us,  we  do  not  find  any  contra

view   in  this  behalf.  To put it differently, the principle of

comity of courts cannot be given primacy or more weightage

38

for deciding the matter of custody or for return of the child to

the native State.”

(emphasis supplied)

It will be apposite to also advert to paragraphs 46 & 47 of the

reported decision, which read thus:

“46.  The   High   Court   while   dealing   with   the   petition   for

issuance  of   a  writ   of   habeas  corpus   concerning  a   minor

child, in a given case, may direct return of the child or

decline to change the custody of the child keeping in mind

all   the   attending   facts   and   circumstances   including   the

settled legal position referred to above. Once again, we may

hasten   to   add   that   the   decision   of   the   court,   in   each

case,   must   depend   on   the   totality   of   the   facts   and

circumstances   of   the   case   brought   before   it   whilst

considering   the   welfare   of   the   child   which   is   of

paramount consideration. The order of the foreign court

must   yield   to   the   welfare   of   the   child.   Further,   the

remedy of writ of habeas corpus cannot be used for mere

enforcement of the directions given by the foreign court

against a person within its jurisdiction and convert that

jurisdiction into that of an executing court. Indubitably,

the writ petitioner can take recourse to such other remedy as

may   be   permissible   in   law   for   enforcement   of   the   order

passed   by   the   foreign   court   or   to   resort   to   any   other

proceedings as may be permissible in law before the Indian

Court for the custody of the child, if so advised.

47. In   a  habeas   corpus  petition   as   aforesaid,   the  High

Court must examine at the threshold whether the minor

is   in   lawful   or   unlawful   custody   of   another   person

(private   respondent   named   in   the   writ   petition).   For

considering that issue, in a case such as the present one,

it   is   enough   to   note   that   the   private   respondent   was

none other than the natural guardian of the minor being

her  biological  mother.  Once  that   fact   is  ascertained,   it

can   be   presumed   that   the   custody   of   the  minor   with

his/her   mother   is   lawful.   In   such   a   case,   only   in

39

exceptionable   situation,   the   custody   of   the  minor   (girl

child) may be ordered to be taken away from her mother

for   being   given   to   any   other   person   including   the

husband   (father   of   the   child),   in   exercise   of   writ

jurisdiction.  Instead,   the   other   parent   can   be   asked   to

resort to a substantive prescribed remedy for getting custody

of the child.”

(emphasis supplied)

Again in paragraph 50, the Court expounded as under:

“50. The High Court in such a situation may then examine

whether   the   return   of   the   minor   to   his/her   native   state

would be in the interests of the minor or would be harmful.

While doing so, the High Court would be well within its

jurisdiction if satisfied, that having regard to the totality

of   the   facts   and   circumstances,   it   would   be   in   the

interests and welfare of the minor child to decline return

of the child to the country from where he/she had been

removed;   then   such   an   order  must   be   passed   without

being fixated with the factum of an order of the foreign

court directing return of the child within the stipulated

time, since the order of the foreign court must yield to

the welfare of the child. For answering this issue, there

can   be   no   straitjacket   formulae   or   mathematical

exactitude.  Nor   can   the   fact   that   the   other   parent   had

already approached the foreign court or was successful in

getting an order from the foreign court for production of the

child,   be   a   decisive   factor.   Similarly,   the   parent   having

custody of the minor has not resorted to any substantive

proceeding for custody of the child, cannot whittle down the

overarching principle of the best interests and welfare of the

child to be considered by the Court. That ought to be the

paramount consideration.”

(emphasis supplied)

In paragraphs 67 and 69, the Court propounded thus:

40

“67. The facts in all the four cases primarily relied upon by

Respondent   2,   in   our   opinion,   necessitated   the   Court   to

issue direction to return the child to the native state. That

does not mean that in deserving cases the courts in India are

denuded from declining the relief to return the child to the

native state merely because of a pre­existing order of the

foreign court of competent jurisdiction. That, however, will

have to be considered on case to case basis — be it in a

summary inquiry or an elaborate inquiry. We do not wish to

dilate on other reported judgments, as it would result in

repetition of similar position and only burden this judgment.

xxx xxx xxx

69.  ……………  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.”

(emphasis supplied)

20. At   this   stage,   we   deem   it   apposite   to   reproduce

paragraphs 70 and 71 of the reported judgment, which may

have some bearing on the final order to be passed in this case.

The same read thus:

“70. Needless to observe that after the minor child (Nethra)

attains the age of majority, she would be free to exercise her

41

choice to go to the UK and stay with her father. But until she

attains majority, she should remain in the custody of her

mother unless the court of competent jurisdiction trying the

issue of custody of the child orders to the contrary. However,

the father must be given visitation rights, whenever he visits

India. He can do so by giving notice of at least two weeks in

advance intimating in writing to the appellant and if such

request is received, the appellant must positively respond in

writing to grant visitation rights to Respondent 2 Mr Anand

Raghavan (father) for two hours per day twice a week at the

mentioned   venue   in   Delhi   or   as   may   be   agreed   by   the

appellant,  where  the  appellant  or  her  representatives  are

necessarily present at or near the venue. Respondent 2 shall

not be entitled to, nor make any attempt to take the child

(Nethra) out from the said venue. The appellant shall take all

such steps to comply with the visitation rights of Respondent

2, in its letter and spirit. Besides, the appellant will permit

Respondent 2 Mr Anand Raghavan to interact with Nethra

on   telephone/mobile   or   video   conferencing,   on   school

holidays between 5 p.m. to 7.30 p.m. IST.

71. As mentioned earlier, the appellant cannot disregard the

proceedings   instituted   before   the   UK   Court.   She   must

participate in those proceedings by engaging solicitors of her

choice to espouse her cause before the High Court of Justice.

For that, Respondent 2 Anand Raghavan will bear the costs

of litigation and expenses to be incurred by the appellant. If

the appellant is required to appear in the said proceeding in

person   and   for   which   she   is   required   to   visit   the   UK,

Respondent 2 Anand Raghavan will bear the air fares or

purchase the tickets for the travel of appellant and Nethra to

the UK and including for their return journey to India as

may be required. In addition, Respondent 2 Anand Raghavan

will make all arrangements for the comfortable stay of the

appellant and her companions at an independent place of

her choice at reasonable costs. In the event, the appellant is

required to appear in the proceedings before the High Court

of Justice in the UK, Respondent 2 shall not initiate any

coercive   process   against   her   which   may   result   in   penal

consequences for the appellant and if any such proceeding is

already pending, he must take steps to first withdraw the

same and/or undertake before the court concerned not to

pursue it any further. That will be condition precedent to

42

pave   way   for   the   appellant   to   appear   before   the   court

concerned in the UK.”

21. In the subsequent judgment of two Judges of this Court

in  Prateek   Gupta  (supra),   after   analysing   all   the   earlier

decisions, in paragraphs 49 to 51 the Court noted thus:

“49. The   gravamen   of   the   judicial   enunciation   on   the

issue of repatriation of a child removed from its native

country   is   clearly   founded   on   the   predominant

imperative   of   its   overall   well­being,   the   principle   of

comity of courts, and the doctrines of “intimate contact

and   closest   concern”   notwithstanding.  Though   the

principle   of   comity   of   courts   and   the   aforementioned

doctrines qua a foreign court from the territory of which a

child is removed are factors which deserve notice in deciding

the issue of custody and repatriation of the child, it is no

longer res integra that the ever­overriding determinant would

be the welfare and interest of the child. In other words, the

invocation of these principles/doctrines has to be judged on

the touchstone of myriad attendant facts and circumstances

of each case, the ultimate live concern being the welfare of

the child, other factors being acknowledgeably subservient

thereto.  Though   in   the   process   of   adjudication   of   the

issue   of   repatriation,   a   court   can   elect   to   adopt   a

summary enquiry and order immediate restoration of the

child   to   its   native   country,   if   the   applicant/parent   is

prompt  and  alert   in  his/her   initiative  and  the  existing

circumstances ex facie  justify such  course again in the

overwhelming exigency of the welfare of the child, such

a   course   could   be   approvable   in   law,   if   an   effortless

discernment  of  the  relevant   factors  testify   irreversible,

adverse  and  prejudicial   impact  on   its  physical,  mental,

psychological, social, cultural existence, thus exposing it

to   visible,   continuing   and   irreparable   detrimental   and

nihilistic   attenuations.  On   the   other   hand,   if   the

applicant/parent is slack and there is a considerable time

lag between the removal of the child from the native country

43

and the steps taken for its repatriation thereto, the court

would prefer an elaborate enquiry into all relevant aspects

bearing on the child, as meanwhile with the passage of time,

it   expectedly   had   grown   roots   in   the   country   and   its

characteristic   milieu,   thus   casting   its   influence   on   the

process of its grooming in its fold.

50. The   doctrines   of   ‘intimate   contact’   and   ‘closest

concern’ are of persuasive relevance, only when the child

is uprooted from its native country and taken to a place

to encounter alien environment, language, custom, etc.

with the portent of mutilative bearing on the process of

its overall growth and grooming.

51.  It has been consistently held that there is no forum

convenience   in   wardship   jurisdiction   and   the   peremptory

mandate   that   underlines   the   adjudicative   mission   is   the

obligation to secure the unreserved welfare of the child as

the paramount consideration.”

(emphasis supplied)

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

thus:

“53.  ….  The   issue  with   regard   to   the   repatriation   of   a

child,   as   the   precedential   explications   would

authenticate has to be addressed not on a consideration

of   legal   rights   of   the   parties   but   on   the   sole   and

preponderant   criterion  of   the  welfare  of   the  minor.  As

aforementioned,   immediate   restoration   of   the   child   is

called   for  only  on  an  unmistakable  discernment  of  the

possibility of immediate and irremediable harm to it and

not   otherwise.   As   it   is,   a   child   of   tender   years,   with

malleable   and   impressionable   mind   and   delicate   and

vulnerable   physique   would   suffer   serious   set­back   if

subjected  to   frequent  and  unnecessary  translocation   in

its formative years. It is thus imperative that unless, the

continuance of the child in the country to which it has

been  removed,   is  unquestionably  harmful,  when   judged

44

on   the   touchstone   of   overall   perspectives,   perceptions

and   practicabilities,   it   ought   not   to   be   dislodged   and

extricated from the environment and setting to which it

had got adjusted for its well­being.”

(emphasis supplied)

22. After these decisions, it is not open to contend that the

custody of the female minor child with her biological mother

would be unlawful, for there is presumption to the contrary. In

such   a   case,   the   High   Court   whilst   exercising   jurisdiction

under Article 226 for issuance of a writ of habeas corpus need

not   make   any   further   enquiry   but   if   it   is   called   upon   to

consider the prayer for return of the minor female child to the

native   country,   it   has   the   option   to   resort   to   a   summary

inquiry or an elaborate inquiry, as may be necessary in the

fact situation of the given case.  In the present case, the High

Court noted that it was not inclined to undertake a detailed

inquiry. The question is, having said that whether the High

Court took into account irrelevant matters for recording its

conclusion that the minor female child, who was in custody of

her   biological   mother,   should   be   returned   to   her   native

country.   As   observed   in  Nithya   Anand   Raghavan’s   case

45

(supra), the Court must take into account the totality of the

facts and circumstances whilst ensuring the best interest of

the minor child. In Prateek Gupta’s case  (supra), the Court

noted that the adjudicative mission is the obligation to secure

the   unreserved   welfare   of   the   child   as   the   paramount

consideration. Further, the doctrine of “intimate and closest

concern” are of persuasive relevance, only when the child is

uprooted   from   its   native   country   and   taken   to   a   place   to

encounter alien environment, language, custom etc. with the

portent of mutilative   bearing on the process of its overall

growth and grooming. The High Court in the present case

focused primarily on the grievances of the appellant and while

rejecting   those   grievances,   went   on   to   grant   relief   to

respondent No.2 by directing return of the minor girl child to

her   native   country.  On   the   totality   of   the   facts   and

circumstances of the present case, in our opinion, there is

nothing to indicate that the native language (English) is not

spoken or the child has been divorced from the social customs

to which she has been accustomed. Similarly, the minor child

46

had just entered pre­school in the USA before she came to

New Delhi along with her mother. In that sense, there was no

disruption of her education or being subjected to a foreign

system of education likely to psychologically disturb her. On

the other hand, the minor child M is under the due care of her

mother and maternal grand­parents and other relatives since

her arrival in New Delhi. If she returns to US as per the relief

claimed   by   the   respondent   No.2,   she   would   inevitably   be

under the care of a Nanny as the respondent No.2 will be away

during the day time for work and no one else from the family

would be there at home to look after her. Placing her under a

trained Nanny may not be harmful as such but it is certainly

avoidable. For, there is likelihood of the minor child being

psychologically   disturbed   after   her   separation   from   her

mother, who is the primary care giver to her. In other words,

there is no compelling reason to direct return of the minor

child M to the US as prayed by the respondent No.2 nor is her

stay   in   the   company   of   her   mother,   along   with   maternal

47

grand­parents and extended family  at New Delhi, prejudicial

to her in any manner, warranting her return to the US.

23. As expounded in the recent decisions of this Court, the

issue ought not to be decided on the basis of rights of the

parties   claiming   custody   of   the   minor   child   but   the   focus

should   constantly   remain   on   whether   the   factum   of   best

interest  of the minor child is to return to the native country or

otherwise.   The   fact   that   the   minor   child   will   have   better

prospects upon return to his/her   native country, may be a

relevant   aspect   in   a     substantive   proceedings   for   grant   of

custody of the minor child but not decisive to examine the

threshold issues in a habeas corpus petition.  For the purpose

of habeas corpus petition, the Court ought to focus on the

obtaining   circumstances   of   the   minor   child   having   been

removed   from   the   native   country   and   taken   to   a   place   to

encounter alien environment, language, custom etc. interfering

with   his/her   overall   growth   and   grooming   and   whether

continuance   there   will   be   harmful.     This   has   been   the

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consistent view of this Court as restated in the recent threeJudge

Bench decision in  Nithya  Anand  Raghavan  (supra),

and the two­Judge Bench decision in Prateek Gupta (supra).

It is unnecessary to multiply other decisions  on the  same

aspect.

24. In the present case, the minor child M is a US citizen by

birth. She has grown up in her native country for over three

years before she was brought to New Delhi by her biological

mother (appellant) in December 2016. She had joined a preschool

in the USA. She had healthy bonding with her father

(respondent No.2). Her paternal grand­parents used to visit

her in the USA at some intervals. She was under the care of a

Nanny  during  the day time, as her  parents  were  working.

Indeed, the work place of her father is near the home. The

biological father (respondent No.2) of the minor child M has

acquired US citizenship. Both father and mother of the minor

child M were of Indian origin but domiciled in the USA after

marriage. The mother (appellant) is a permanent resident of

49

the   USA­Green   Card   holder   and   has   also   applied   for   US

citizenship. In her affidavit filed before the Delhi High Court

dated 30th November, 2017, she admits that her legal status

was complicated as she has ceased to be an Indian citizen and

her status of citizenship of the USA is in limbo.

25. Be that as it may, the father filed a writ petition before

the Delhi High Court for issuance of a writ of Habeas Corpus

for production of the minor child and for directions for her

return to USA without any loss of time. Given the fact that the

parties performed a civil marriage on 19th March, 2011 in the

USA and cohabited in the native country and gave birth to

minor child M who grew up in that environment for at least

three years, coupled with the fact that the father and minor

child M are US citizens and mother is a permanent resident of

USA, the closest contact and jurisdiction is possibly that of the

Circuit Court of Cook County, Illinois, USA. However, we may

not be understood to have expressed any final opinion in this

regard. At the same time, it is indisputable that the appellant

50

and respondent No.2  first got married on 31st October, 2010

as per Sikh rites, i.e. Anand Karaj ceremony, and Hindu Vedic

rites and that marriage was solemnised in New Delhi at which

point of time the appellant was admittedly a citizen of India.

Presently,   she   is   only   a   Green   Card   holder   (permanent

resident) of the US. It is, therefore, debatable whether the

Family Court at New Delhi, where the appellant has already

filed a petition for dissolution of marriage, has jurisdiction in

that behalf including to decide on the question of custody and

guardianship in respect of the minor child M. For that reason,

it may be appropriate that the said proceedings are decided

with utmost promptitude in the first place before the appellant

is called upon to appear before the US Court and including to

produce the minor child M before that Court.

26. It is not disputed that the appellant and minor child are

presently in New Delhi and the appellant has no intention to

return to her matrimonial home in the U.S.A. The appellant

has apprehensions and serious reservations on account of her

past   experience   in   respect   of   which   we   do   not   think   it

51

necessary to dilate in this proceedings. That is a matter to be

considered by the Court of Competent Jurisdiction called upon

to decide the issue of dissolution of marriage and/or grant of

custody of the minor child, as the case may be. For the time

being, we may observe that the parties must eschew from

pursuing parallel proceedings in two different countries.  For,

the first marriage between the parties was performed in New

Delhi as per Anand Karaj Ceremony and Hindu Vedic rites on

31st October, 2010 and the petition for dissolution of marriage

has   been   filed   in   New   Delhi.   Whereas,   the   civil   marriage

ceremony   on   19th  March,   2011   at   Circuit   Court   of   Cook

County,   Illinois,   USA,   was   performed   to   complete   the

formalities for facilitating the entry of the appellant into the US

and to obtain US Permanent Resident status.  It is appropriate

that the proceedings pending in the Family Court at New Delhi

are decided in the first place including on the question of

jurisdiction of that Court. Depending on the outcome of the

said proceedings, the parties will be free to pursue such other

52

remedies as may be permissible in law before the Court of

Competent Jurisdiction.

27. As aforesaid, it is true that both respondent No.2 and

also the minor child M are US citizens. The minor girl child

has a US Passport and has travelled to India on a tenure Visa

which has expired. That does not mean that she is in unlawful

custody   of   her   biological   mother.     Her   custody   with   the

appellant   would   nevertheless   be   lawful.   The   appellant   has

already instituted divorce proceedings in the Family Court at

Patiala House, New Delhi. The respondent No.2 has also filed

proceedings before the Court in the US for custody of the

minor   girl   child,   directing   her   return   to   her   natural

environment in the US. In such a situation, the arrangement

directed   by   this   Court   in   the   case   of  Nithya   Anand

Raghavan (supra), as exposited in paragraphs 70­71, may be

of some help to pass an appropriate order in the peculiar facts

of this case, instead of directing the biological mother to return

to the US along with the minor girl child, so as to appear

53

before the competent court in the US.  In that, the custody of

the minor girl child M would remain with the appellant until

she attains the age of majority or the Court of competent

jurisdiction, trying the issue of custody of the minor child,

orders to the contrary, with visitation and access rights to the

biological   father   whenever   he   would   visit   India   and   in

particular as delineated in the interim order passed by us

reproduced in paragraph 11 (eleven) above.

28. A fortiori, dependant on the outcome of the proceedings,

before the Family Court at New Delhi, the appellant may then

be legally obliged to participate in the proceedings before the

US Court and must take all measures to effectively defend

herself in the said proceedings by engaging solicitors of her

choice in the USA to espouse her cause before the Circuit

Court   of   Cook   County,   Illinois,   USA.   In   that   event,   the

respondent No.2 shall bear the cost of litigation and expenses

to be incurred by the appellant to pursue the proceedings

before   the   Courts   in   the   native   country.   In   addition,   the

respondent No.2 will bear the air fares or purchase the tickets

54

for the travel of the appellant and the minor child M to the

USA and including their return journey for India, as may be

required. The respondent No.2 shall also make all suitable

arrangements for the comfortable stay of the appellant and her

companions   at   an   independent   place   of   her   choice,   at   a

reasonable   cost.   Further,   the   respondent   No.2   shall   not

initiate any coercive/penal action against the appellant and if

any   such   proceeding   initiated   by   him   in   that   regard   is

pending, the same shall be withdrawn and not pursued before

the concerned Court any further. That will be the condition

precedent   to   facilitate   the   appellant   to   appear   before   the

Courts in the USA to effectively defend herself on all matters

relating to the matrimonial dispute and including custody and

guardianship of the minor child. 

       

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

disposal of the proceedings for grant of custody of the minor

girl child to the appellant, instituted and pending before the

Family  Court  at Patiala  House,  New  Delhi.  All  contentions

available to the parties in that regard will have to be answered

55

by the Family Court on its own merits and in accordance with

law.

30. We, accordingly, set aside the impugned judgment and

orders of the High Court and dispose of the writ petition in the

aforementioned terms. The appeals are allowed with no order

as to costs.

.………………………….CJI.

(Dipak Misra)

…………………………..….J.

(A.M. Khanwilkar)

…………………………..….J.

(Dr. D.Y. Chandrachud)

New Delhi;

July 20, 2018.