1. Dispute over custody of a minor child removed from a foreign jurisdiction to India — Writ of habeas corpus for production of the child. (Para 2 , 5 )
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2017 Supreme(SC) 616
SUPREME COURT OF INDIA
Dipak Misra, A.M. Khanwilkar, Mohan M. Shantanagoudar, JJ.
Nithya Anand Raghavan ….Appellant
Versus
State of NCT of Delhi & Anr. ....Respondents
CRIMINAL APPEAL NO.972 OF 2017 (Arising out of SLP (Crl.) No.5751 of 2016)
Decided On : 03-07-2017
Advocates Appeared:
For Petitioner(s) Ms. Malavika Rajkotia, Adv., Ms. Arpita Rai, Adv., Mr. Ranjay N., Adv., Mr. Vaibhav Vats, Adv., Ms. Saumya Maheshwari, Adv., Ms. Tenya Prasad, Adv., Ms. Udita Singh, Adv., Mr. Lakshmi Raman Singh, AOR
For Respondent(s): Mr. B. Krishna Prasad, AOR, Mr. S. S. Jauhar, AOR
For Petitioner(s) Ms. Malavika Rajkotia, Adv., Ms. Arpita Rai, Adv., Mr. Ranjay N., Adv., Mr. Vaibhav Vats, Adv., Ms. Saumya Maheshwari, Adv., Ms. Tenya Prasad, Adv., Ms. Udita Singh, Adv., Mr. Lakshmi Raman Singh, AOR
For Respondent(s): Mr. B. Krishna Prasad, AOR, Mr. S. S. Jauhar, AOR
IMPORTANT POINTS
Concept of forum convenience is not applicable in wardship jurisdiction.
In custody matters comity of court, i.e., pre-existing order of the foreign Court is only one of the factors. Welfare of the child is of paramount importance.
Remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person. Jurisdiction of present court cannot be converted into that of an executing court.
In custody matters court has to consider all aspects in totality.
Headnote:(a) Administration of justice – Jurisdiction of court – Parens patriae jurisdiction – Custody matters – Concept of forum convenience – Not applicable in wardship jurisdiction. (Para 24)
(b) Administration of justice – Custody matters – Comity of court – Pre-existing order of the foreign Court – Only one of the factors – Welfare of the child is of paramount importance – Summary or elaborate enquiry – Courts in India can decline relief of return of child – Comity of courts cannot be given primacy over welfare of the child. (Para 24, 26)
(1998) 1 SCC 112; (2000) 3 SCC 14 – Relied upon
© Constitution of India – Article 226 – Writ of habeas corpus – Child removed from custody of one person – Unlawfulness or illegality of present custody needs determination – Question of handing over custody to previous person also has to be determined – Remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person – Jurisdiction of present court cannot be converted into that of an executing court. (Para 28, 29)
Kanu Sanyal; Sayed Saleemuddin; (1987) 1 SCC 42 – Relied upon
(2004) Delhi Law Time 823 – Cited with approval
(d) Constitution of India – Article 226 – Writ of habeas corpus – Minor girl in custody of biological mother – Custody presumed to be lawful – Change of custody including to that of the father can be made only in exceptional cases – Father can resort to a substantive prescribed remedy for getting custody of the child – But not under petition for writ of habeas corpus. (Para 30)
(e) Constitution of India – Article 226 – Writ of habeas corpus – Foreign court not returning a finding that custody of the mother is unlawful – Directing her to return the girl to UK being a citizen of that country – Merely by reason of such an order passed by a foreign court, custody of the minor would not become unlawful per se – High Court may examine the question of returning the child keeping in mind her best interests – Instantly, child born in India – Indian citizen by birth – Acquiring UK citizenship later – Spent equal time in both countries till six years of age – Living and studying in India for one year – Having extended family here – Ordinarily, the custody of a “girl” child who is around seven years of age, must ideally be with her mother – Child suffering from cardiac disorder needing periodical medical reviews and proper care and attention – That can be given only by her mother – However, appellant mother must not disregard orders of the UK court – She may participate in the proceedings through her solicitor – First strike principle – Not significant instantly – Respondent 2 given visitation rights – Directions given. (Para 31, 32, 33, 44, 45)
(2000) 3 SCC 14; (2010) 1 SCC 174; (1998) 1 SCC 112 – Relied upon
(2010) 1 SCC 591; (2013) 15 SCC 790; (2015) 5 SCC 450 – Distinguished
(1984) 3 SCC 698; (1970) AIR (Ker) 1; (1989) AIR (P&H) 103; (1965) H. No.2428 : (1966) 1 AII ER 886; (2011) AIR SC 1952; 572 US (2014) : 134 S.Ct. 1224 (2014) – Referred
(f) Constitution of India – Article 226 – Writ of habeas corpus – Summary jurisdiction – Applicability – Child had been removed from its native land to another country where language is different, social customs are different, interrupts its education etc – For exercise of summary jurisdiction the court to which the child has been removed must be moved promptly and quickly. (Para 43)
Facts of the case:
Father of the minor daughter Nethra filed a writ petition in High court of Delhi for issuance of a writ of habeas corpus for production of the minor daughter allegedly illegally removed by the mother-appellant on 2nd July, 2015 from the custody of the father-respondent no.2 (writ petitioner) from the United Kingdom (UK).
The High Court inter alia directed the mother to produce her daughter Nethra and to comply with the order dated 08.01.2016 passed by the High Court of Justice, Family Division, Principal Registry, United Kingdom (UK), within 3 (three) weeks from the date of the impugned order or in the alternative to handover the custody of the daughter to the father within 3 (three) weeks from the date of the order.
Finding of the Court:
Impugned judgment is not sustainable.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Welfare of child versus principle of comity of courts — Validity of foreign court orders in non-convention countries — Impact of domestic violence allegations. (Para 4 , 8 , 9 , 10 , 11 , 12 , 13 , 14 , 16 , 17 , 18 , 19 , 20 , 21 )
3. Welfare of the child is the paramount consideration, overriding the principle of comity of courts and the first strike rule in non-convention countries. (Para 24 , 25 , 26 , 32 , 38 , 39 , 40 , 41 , 42 )
4. In non-convention countries, the court must prioritize the child's welfare over foreign court orders, treating such orders only as one factor in the decision. (Para 24 , 26 , 40 , 43 )
5. Appeal allowed — High Court order set aside — Child to remain with mother — Visitation rights granted to father — Mother to participate in foreign proceedings. (Para 44 , 45 , 46 )
6. How does the principle of comity of courts operate in child custody matters for non-convention countries?
The court must consider the question on merits with the child's welfare as the paramount importance. The order of a foreign court is treated only as one factor to be considered, not as a binding mandate that overrides the child's best interests. (Para 24 , 26 , 40 , 43 )
7. When can a court exercise summary jurisdiction to return a child to a foreign state?
Summary jurisdiction is exercised if the proceeding was filed promptly after removal, the child has not developed roots in the new country, and return is in the child's welfare due to language, social customs, or education. (Para 24 , 26 , 43 )
8. Does a foreign court order for the return of a child render the custody of the biological mother unlawful for a habeas corpus petition?
No. Custody of a minor with the biological mother is presumed lawful. A foreign court's direction to return the child does not per se make the mother's custody unlawful for the purposes of a writ of habeas corpus. (Para 30 , 31 )
9. Is the first strike principle decisive in determining child custody?
No. The first strike principle, which considers which party first approached the court, is not a decisive factor. The overarching duty of the court is to consider the best interests and welfare of the child, which outweighs the sequence of filing proceedings. (Para 39 , 40 )
JUDGMENT
A.M.KHANWILKAR, J.
Leave granted.
2. This appeal arises from the final judgment and order (for short “the Impugned Judgment”) passed by the High Court of Delhi dated 8th July, 2016 in a writ petition for issuance of a writ of habeas corpus for production of the minor daughter Nethra, allegedly illegally removed by the mother-appellant on 2nd July, 2015 from the custody of the father-respondent no.2 (writ petitioner) from the United Kingdom (UK), being Writ Petition (Criminal) No. 247 of 2016.
3. The High Court inter alia directed the mother to produce her daughter Nethra and to comply with the order dated 08.01.2016 passed by the High Court of Justice, Family Division, Principal Registry, United Kingdom (UK), within 3 (three) weeks from the date of the impugned order or in the alternative to handover the custody of the daughter to the father within 3 (three) weeks from the date of the order.
4. The appellant has assailed the aforesaid order inter alia on the ground that in the present scenario, the paramount interests and welfare of the daughter, Nethra, who is presently over seven years of age, is to remain in custody of her mother, especially because she suffers from a cardiac disorder and that she would face immense physical and psychological harm if repatriated to the custody of the father in England in light of the alleged physical, verbal and mental abuse meted out by him. The appellant has also contended that the UK Court does not have intimate contact with Nethra merely because she has acquired the citizenship of the UK in December, 2012. The daughter has her deep roots in India as she was born here in Delhi and has retained her Indian citizenship. She has been schooling here for the past 12 (twelve) months and has spent equal time in both the countries out of her first six years. Further, Nethra has her grandparents, family and relatives here in India, unlike in the UK where she lived in a nuclear family of the three (father, mother and herself) with no extended family and friends. Thus, it is the Indian Courts which have the intimate contact with the minor and including the jurisdiction to decide the matter in issue. Furthermore, the respondent no.2 did not initiate any action for initial six months even after knowing that the appellant was unwilling to return along with her daughter and until he was slapped with a notice regarding complaint filed by the appellant before the Women Cell at Delhi in December 2015, relating to violence inflicted by him. As a counter blast to that notice the respondent no.2 rushed to the UK Court and then filed writ petition in the Delhi High Court to pressurize the appellant to withdraw the allegations regarding violence inflicted by him.
5. To be able to fully appreciate and analyse the issues raised before this Court, it would be expedient to first set out the factual milieu from which the present case arises:
a. The appellant has a Masters’ degree in communication and had worked in India prior to her marriage. Respondent no.2 had gone to the United Kingdom as a student in 2003 and was working there since 2005. Admittedly, both appellant and respondent no.2 were Indian citizens when they contracted marriage.
b. On 30.11.2006, the appellant and respondent no.2 were married in Chennai according to Hindu rites and customs and was registered before SDM Court Chennai the under the Hindu Marriage Act. Their traditional marriage ceremony was performed in Chennai on 22.01.2007. After marriage, the parties shifted to the UK in early 2007 and began living in respondent no.2’s home in Watford (UK).
c. After marriage, disputes and differences arose between the parties. The appellant contends that these disputes were often violent and that she was physically, mentally and psychologically abused, a claim strenuously denied by respondent no.2.
d. The appellant eventually got a job with an advertising agency in London in 2008, earning close to 25,000 pounds (GBP) per annum.
e. Having conceiv
