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

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.