2018 Supreme(SC) 723

SUPREME COURT OF INDIA
Dipak Misra, CJI., A.M. Khanwilkar, D.Y. Chandrachud, JJ.
Mrs. Kanika Goel – Appellant(s)
Versus
State of Delhi through S.H.O. and Anr. – Respondent(s)
CRIMINAL APPEAL NOS. 635-640 OF 2018
Decided On : 20-07-2018

IMPORTANT POINTS
In habeas corpus petition, Court ought to focus on 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.
Presumption of lawfulness of mother’s custody of girl child of tender age.
Doctrine of "intimate and closest concern".
When marriage was ceremonised in India and Civil marriage in US was only for purpose of obtaining permanent resident status, proceedings in Indian court should first be concluded and the parties should appear before the US court.

Headnote:(a) Constitution of India – Article 226 – Writ of habeas corpus – Husband an India born US citizen – Wife green card holder – Their girl child a US citizen by birth – Mother bringing the child to India – Father obtaining order from US court for return of the child to USA – Child, 3 years of age at relevant time just entered pre-school in USA – In India admitted in a school – Presumption of lawfulness of mother’s custody of girl child of tender age – High Court directing return of the child to USA – Language of child’s native country, English, spoken in present school and home – No disruption of education – Presently under care of mother and other family members – On return, would be under care of a Nanny and no family member – In habeas corpus petition, Court ought to focus on 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 – Held, no compelling reason to direct return of the minor child M to the US nor is her stay in company of her mother and other family members prejudicial to her in any manner, warranting her return to the US – Doctrine of "intimate and closest concern" not applicable. (Para 22, 23)

       (2017) 8 SCC 454; (2018) 2 SCC 309; (1984) 3 SCC 698; (2010) 1 SCC 591; (2010) 1 SCC 174 – Relied upon

       (2017) 10 SCC 1; (2009) 112 DRJ 635 – Referred

       (b) Administration of justice – Matrimonial disputes – Wife filing application for dissolution of marriage in Delhi court – Husband obtaining orders from a US court for return of his female girl child – US court also requiring appearance of the wife, a Green Card holder – Marriage of the couple ceremonised in Delhi – Civil marriage in US only for facilitating the entry of the appellant into the US and to obtain US Permanent Resident status – Parties must eschew from pursuing parallel proceedings in two different countries – Would be appropriate that proceedings in Family Court at New Delhi are decided in the first place – Parties will then be free to pursue other permissible remedies w before the Court of Competent Jurisdiction – Custody of the minor girl child directed to remain with the appellant-mother until she attains the age of majority or the Court of competent jurisdiction orders to the contrary – Visitation and access rights to the biological father as directed in interim order to remain in force – Depending on outcome of the proceedings before the Family Court at New Delhi, appellant-wife may then be legally obliged to participate in the proceedings before the US Court at the cost of respondent-husband – No coercive/penal action by respondent-husband. (Para 26, 27, 28)

       Facts of the case:

       Respondent No.2 was born in India but presently is a citizen of USA since 2005. 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 Delhi. 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 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.

       The appellant was scheduled to return to Chicago on 7th January, 2017 but she went missing and filed a petition seeking dissolution of marriage on the ground of cruelty, along with an application seeking a restraint order against respondent No.2 from taking M away from the jurisdiction of Indian Courts.

       The respondent No.2 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 e-mail, informing her of the proposed hearing on 13th January, 2017.

       In the meantime, on 11th January, 2017 the Family Court at New Delhi issued a fresh notice to respondent No.2 and passed an ex-parte order restraining respondent No.2 from removing the minor child from the jurisdiction of that Court until further orders.

       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 ex-parte order was passed for interim sole custody of the minor child.

       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.

       Finally, all the contentious issues between the parties were answered by the High Court 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.

       Finding of the Court:

       Impugned judgment is not sustainable.

       Result: Appeals allowed.