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2009(7) Supreme 362
SUPREME COURT OF INDIA
Tarun Chatterjee, R. M. Lodha and Dr. B.S. Chauhan, JJ.
Dr. V. Ravi Chandran — Petitioner
versus
Union of India & Ors. — Respondents
Writ Petition (Crl.) No. 112/2007
Decided on : 17-11-2009
Custody of a child – Child removed by a parent from one country to another – While dealing with a case of custody of a child removed by a parent from one country to another in contravention to the orders of the court where the parties had set up their matrimonial home, the court in the country to which child has been removed must first consider the question whether the court could conduct an elaborate enquiry on the question of custody or by dealing with the matter summarily order a parent to return custody of the child to the country from which the child was removed and all aspects relating to child’s welfare be investigated in a court in his own country – Should the court take a view that an elaborate enquiry is necessary, obviously the court is bound to consider the welfare and happiness of the child as the paramount consideration and go into all relevant aspects of welfare of child including stability and security, loving and understanding care and guidance and full development of the child’s character, personality and talents- While doing so, the order of a foreign court as to his custody may be given due weight; the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case- However, in a case where the court decides to exercise its jurisdiction summarily to return the child to his own country, keeping in view the jurisdiction of the Court in the native country which has the closest concern and the most intimate contact with the issues arising in the case, the court may leave the aspects relating to the welfare of the child to be investigated by the court in his own native country as that could be in the best interest of the child (Para 20)
Facts of the Case :
Petition in the instant case was filed by father praying for a writ of habeas corpus for the production of his minor son and for handing over the custody and his passport to him.Parties got married at Andhra Pradesh according to Hindu rites and a male child was born in United States of America. On disputes between parties respondent 6 approached the New York State Supreme Court for divorce and dissolution of marriage. The Court granted joint custody of the child to petitioner and respondent no. 6 and it was stipulated in the order to keep the other party informed about the whereabouts of the child. Marriage between the petitioner and respondent no.6 was dissolved by the New York State Supreme Court. Respondent no.6 brought minor A to India informing the petitioner that she would be residing with her parents in Chennai. Petitioner thereafter filed petition for modification (Custody) and Violation Petition (Custody) before the Family Court of the State of New York on which a show cause notice came to be issued to respondent no.6. On that very day, the petitioner was granted temporary sole legal and physical custody of A and respondent no. 6 was directed to immediately turn over the minor child and his passport to the petitioner . On August 28, 2009, Court passed an order requesting Director, (CBI) to trace minor A and produce him before this Court as despite efforts made by police officers and officials of different states, A and his mother – respondent no. 6 could not be traced and their whereabouts could not be found for more than two years since the notice was issued by Court. Ultimately with its earnest efforts, CBI traced A and his mother in Chennai
Findings of the Court :
In view of facts and circumstances of case and best interests of child an order was passed directing respondent 6 that she would act as per the consent order passed by the Family Court of State of New York till such time any further order was passed on the petition and that she would take the child A of her own to the United States of America within fifteen days and report to that court. In the event of respondent. 6 not taking the child A of her own to United States of America within fifteen days child A with his passport shall be restored to the custody of the petitioner to be taken to United States of America.
JUDGMENT
R.M. Lodha, J.—
Adithya is a boy of seven, born on July 1, 2002, in the United States of America. He is a foreign national. The petition before us is by the father - Dr. V . Ravi Chandran—praying for a writ of habeas corpus for the production of his minor son Adithya and for handing over the custody and his passport to him.
2. On August 28, 2009, this Court passed an order requesting Director, Central Bureau of Investigation (CBI) to trace minor Adithya and produce him before this Court. The necessity of such order arose as despite efforts made by the police officers and officials of different states, Adithya and his mother – respondent no. 6—Vijayasree Voora—could not be traced and their whereabouts could not be found for more than two years since the notice was issued by this Court. In pursuance of the order dated August 28, 2009, CBI issued look out notices on all India basis through heads of police of States, Union Territories and Metropolitan Cities and also alert notices through Deputy Director, Bureau of Immigration (Immigration), Ministry of Home Affairs, New Delhi and flashed photographs of the child Adithya and his mother Vijayasree Voora. Ultimately with its earnest efforts, CBI traced Adithya and his mother Vijayashree Voora in Chennai on October 24, 2009 and brought them to Delhi and produced the child along with his mother at the residential office of one of us (Tarun Chatterjee, J.) on October 25, 2009. On that day, the CBI authorities were directed to keep the child under their custody and produce him before the Court on October 27, 2009. Respondent no. 6 was also directed to be produced on that date. On October 27, 2009, the matter was adjourned for November 4, 2009 since respondent no.6 wanted to engage a lawyer and file a counter affidavit. On November 4, 2009, matter was adjourned to November 10, 2009 and then to November 12, 2009. The petitioner was permitted to meet the child for one hour on November 10, 2009 and November 12, 2009. In the meanwhile, respondent no. 6 has filed counter affidavit in opposition to the habeas corpus petition and petitioner has filed rejoinder affidavit to the counter affidavit filed by respondent no.6.
3. We heard Ms. Pinky Anand, learned senior counsel for the petitioner and Mr. T.L.V. Iyer, learned senior counsel for respondent no. 6. Now since minor Adithya has been produced, the only question that remains to be considered is with regard to the prayer made by the petitioner for handing over the custody of minor Adithya to him with his passport.
4. But before we do that, it is necessary to notice few material facts. Dr. V. Ravi Chandran - petitioner - is an American citizen. He and respondent no. 6 got married on December 14, 2000 at Tirupathi, Andhra Pradesh according to Hindu rites. On July 1, 2002, Adithya was born in United States of America. In the month of July 2003, respondent no. 6 approached the New York State Supreme Court for divorce and dissolution of marriage. A consent order governing the issues of custody and guardianship of minor Adithya was passed by the New York State Supreme Court on April 18, 2005. The Court granted joint custody of the child to the petitioner and respondent no. 6 and it was stipulated in the order to keep the other party informed about the whereabouts of the child. On July 28, 2005, a Separation Agreement was entered between the petitioner and respondent no.6 for distribution of marital property, spouse maintenance and child support. As regards custody of the minor son Adithya and parenting time, the petitioner and respondent no. 6 consented to the order dated April 18, 2005. On September 8, 2005, the marriage between the petitioner and respondent no.6 was dissolved by the New York State Supreme Court. Child custody order dated April 18, 2005 was incorporated in that order.
5. Upon the petition for modification of custody filed by the petitioner and the petition for enforcement filed by him and upon the petition for enforcemen
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