2021 Supreme(Bom) 43

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.S. Shinde, Manish Pitale, JJ.
Delna Khambatta – Petitioner
Versus
State of Maharashtra, Through the Public Prosecutor and ors. – Respondents
Writ Petition No.681 of 2020
Decided On : 24-03-2021

Point of Law: Guardian and Ward – Custody of Child/Minor daughter – Welfare of the child - Jurisdiction - If child has been brought within India, Courts in India may conduct: (a) summary inquiry; or (b) an elaborate inquiry on the question of custody. In case of a where he/she was removed unless such return is shown to be harmful to the child summary inquiry, Court may deem it fit to order return of the child to the country from. In other words, even in matter of a summary inquiry, it is open to Court to decline relief of return of child to the country from where he/she was removed irrespective of a pre-existing order of return of child by a foreign Court. In an elaborate inquiry, Court is obliged to examine merits as to where paramount interests and welfare of child lay and reckon fact of a pre- existing order of foreign Court for return of child as only one of circumstances. In either case, crucial question to be considered by Court (in country to which child is removed) is to answer issue according to child’s welfare. That has to be done bearing in mind totality of facts and circumstances of each case independently. Even on close scrutiny of several decisions pressed before us, we do not find any contra view in this behalf. To put it differently, the principle of comity of courts cannot be given primacy or more weightage for deciding the matter of custody or for return of the child to the native state.

Headnote:

Parsi Marriage and Divorce Act, 1936 – Custody of children - Parental rights and visitation rights - Seeking a writ of habeas corpus for a direction to her husband, Respondent No. 3, to produce their daughters before this Court, with a further direction to hand over custody of daughters to her - Petitioner claims that Respondent No. 3 illegally took away daughters from shared custody as granted by a competent court in United States of America, thereby rendering their custody with Respondent No.3 as illegal and in defiance of order of competent Court - Respondent No.3 has opposed such claims - Both sides rely upon various judgments of Supreme Court of India in support of their respective stands.

Finding of the court: it becomes clear that contentions raised on behalf of Petitioner against Respondent No.3 on the basis of his defiance towards orders passed by Court at Vermont, U.S.A., pale into insignificance. It is also relevant that even though Respondent No. 3 was party to the consent order regarding shared custody passed by the Court at Vermont, U.S.A., he had indeed raised objection as regards jurisdiction of the said Court at the outset. Even if his objection was rejected and orders were passed by the Court at Vermont, U.S.A., only for that reason this Court cannot ignore as to what would be in the best interest of the children i.e. daughters herein - Courts in India are free to decline relief of return of child brought within its jurisdiction, if the child is quite mature and objects to its return - Even though Petitioner is mother of children in present case, that alone cannot be a factor for passing an order in her favour - Daughters have been in India now for better part of three years and one of the daughters would soon be attaining the age of majority - It would be in best interest of daughters of Petitioner and Respondent No. 3, that prayers made on behalf of Petitioner in this Writ Petition are not granted - In light of discussion in foregoing paragraphs, court are unable to persuade ourselves to hold that daughters are in improper or illegal custody of respondent no.3. There can be no doubt about the fact that this opinion, which we have expressed, cannot have any effect on right that the Petitioner of the daughters may assert as regards custody in appropriate proceedings, which would have to be decided in accordance with law - Petitioner shall have visitation rights to meet and associate with her daughters. To facilitate this, Respondent No. 3 is directed to ensure that when Petitioner desires to visit India to meet daughters, he shall extend full co-operation for the same, including arranging for stay of the Petitioner in India for at least a period of two weeks during her visit and facilitating her meeting with daughters, so that association between mother and daughters continues unabated.

Result: Writ Petition dismissed