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SUPREME COURT OF INDIA
Dipak Misra, CJI., Amitava Roy, J.
Prateek Gupta – Appellant
Versus
Shilpi Gupta & Ors. – Respondents
Criminal Appeal No. 968 of 2017
Decided On : 06-12-2017
(2017) 8 SCC 454 – Relied upon
(b) Custody of a child – Overall well being of the child has predominant imperative – Principle of comity of courts, and the doctrines of "intimate contact and closest concern" notwithstanding – There is no forum convenience in wardship jurisdiction. (Para 32, 34)
Custody of child – Of persuasive relevance only when the child is uprooted from its native country – Taken to a place where it would encounter alien environment, language, custom etc., with the portent of mutilative bearing on the process of its overall growth and grooming. (Para 33)
(2017) 8 SCC 454; (2010) 1 SCC 174 – Relied upon
(1998) 1 SCC 112; (2000) 3 SCC 14; (1951) AC 352 (PC); (1974) 1 WLR 250 (CA); (1987) 1 SCC 42; (2001) 5 SCC 247; (2011) 6 SCC 479 – Referred
(2015) 5 SCC 450; (2010)1 SCC 591; (2013) 15 SCC 790 – Distinguished
© Custody of child – Parents living separately since 2014 – Child an US citizen by birth – Coming to India at age of 2 ½ years staying in India ever since – Spending half of his life in India – His infant years of stay in US, considered too little for required integration of his with the social, physical, psychological, cultural and academic environment of US – Exposed to a natural process of grooming in the association of his elders, friends, peers and playmates – Unless continuance of the child in the country to which it has been removed, is unquestionably harmful, it ought not to be dislodged. (Para 35)
Facts of the case:
Respondent No.1 sought a writ in the nature of habeas corpus whereupon the High Court has directed the appellant-father to hand over the custody of the child, Master Aadvik, aged about 5 years to respondent No.1- mother.
Finding of the Court:
The High Court has erred in law and on facts in passing the impugned verdict.
Result: Appeal allowed.
Key Points:- The welfare of the child is the paramount consideration in custody decisions, overriding comity of courts. (!) (!) (!) - Comity of courts is a persuasive factor but not the primacy; foreign court orders are one factor among others. (!) (!) (!) - In non-convention (non-Hague) scenarios, courts may decide on merits via summary or elaborate inquiry, guided by the child’s welfare and relevant factors; pre-existing foreign orders may be weighed as one factor. (!) (!) (!) - Summary jurisdiction may order return of the child if it serves welfare and if the child has not yet rooted in the new environment; otherwise, elaborate inquiry may be required. (!) (!) (!) - The court may deprioritize or refuse return if repatriation would harm the child or if the child has formed substantial roots in the new environment. (!) (!) - Parens patriae jurisdiction allows the domestic court to decide custody based on the child’s best interests, sometimes delaying or modifying foreign orders. (!) (!) (!) - The mother’s status as natural guardian can create a presumption of lawful custody, but welfare dictates final determination. (!) (!) (!)
JUDGMENT
Amitava Roy, J.
By the impugned judgment and order dated 29.04.2016 rendered by the High Court of Delhi, in a writ petition filed by the respondent No.1 seeking a writ in the nature of habeas corpus, the appellant-father has been directed to hand over the custody of the child, Master Aadvik, aged about 5 years to respondent No.1- mother. The appellant-father is in assailment of this determination and seeks the remedial intervention of this Court. By order dated 03.05.2016, the operation of the impugned verdict was stayed and as the said arrangement was continued thereafter from time to time, the custody of the child as on date has remained with the appellant. The orders passed by this Court though attest its earnest endeavour to secure a reconciliation through interactions with the parents and the child, the efforts having failed, the appeal is being disposed of on merits.
2. We have heard Ms. Binu Tamta, learned counsel for the appellant and Mr. N.S. Dalal, learned counsel for the respondent No. 1 (hereafter to be referred to as "respondent").
3. A skeletal outline of the factual backdrop is essential. The appellant and the respondent who married on 20.01.2010 in accordance with the Hindu rites at New Delhi had shifted to the United States of America (for short, hereafter referred to as 'U.S.'), as the appellant was already residing and gainfully employed there prior to the nuptial alliance. In due course, the couple was blessed with two sons, the elder being Aadvik born on 28.09.2012 and the younger, Samath born on 10.09.2014. As adverted to hereinabove, the present lis is with regard to the custody of Master Aadvik, stemming from an application under Article 226 of the Constitution of India filed by the respondent alleging illegal and unlawful keeping of him by the appellant and that too in violation of the orders passed by the Juvenile and Domestic Relations Court of Fairfax County, passed on 28.05.2015 and 20.10.2015 directing him to return the child to the Commonwealth of Virginia and to the custody and control of the respondent.
4. The pleaded facts reveal that the child resided with the parents from his birth till 07.11.2014 and thereafter from 07.11.2014 till 06.03.2015 with the respondent-mother in the United States. This is so, as in view of irreconcilable marital issues, as alleged by the respondent, particularly due to the volatile temperament and regular angry outbursts of the appellant often in front of the child, the parties separated on or about 15.11.2014. Prior thereto, the appellant had on 08.11.2014 left for India leaving behind the respondent and her children in U.S. He returned on 18.01.2015 to the U.S., but the parties continued to live separately, the respondent with her children. The appellant however, made short time visits in between and on one such occasion i.e. on 24.01.2015, he took along with him Aadvik, representing that he would take him for a short while to the Dulles Mall. According to the respondent, she did not suspect any foul play and permitted the child to accompany his father, but to her dismay though assured, the appellant did not return with the child in spite of fervent insistences and implorations of the mother. As alleged by the respondent, the appellant thus separated the child from her from 24.01.2015 to 07.03.2015 in a pretentious and cruel move, seemingly acting on a nefarious strategy which surfaced when on 07.03.2015, the appellant left U.S. with the child to India without any prior information or permission or consent of hers.
5. Situated thus, the respondent approached Juvenile and Domestic Relations Court Fairfax County, for its intervention and for that, on 15.05.2015, she filed "Emergency Motion For Return of Minor Child and Established Temporary Custody".
6. On the next date fixed i.e. 19.05.2015, after the service of the process on the appellant, his counsel made a "special appearance" to contest the service. On the date thereafter i.e. 28.05.2015, he however inform
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