LONG NOTE
DELHI HIGH COURT (DB)
Pradeep Nandrajog and Pratibha Rani, JJ.
Philip David Dexter —Petitioner
versus
State NCT of Delhi and Anr. —Respondents
WP (Crl.) 1562 of 2012 & FAO 29/2013
Decided on 2.4.2013

IMPORTANT POINT
In parental abduction cases, where a spouse is residing separately or otherwise from the opposite spouse, in a particular country and flee from the said country to her original home country alongwith the minor child born to the parties, if there is an order of a court of competent jurisdiction in the country wherein the abduction took place, the said order has to be respected.

Headnote:Guardians and Wards Act, 1890—Sections 7, 8, 10 and 11—Immigration Act, 2002—Section 11—Territorial jurisdiction of Delhi Courts—Parental abduction case—If there is an order of a court of competent jurisdiction in the country wherein the abduction took place, the said order has to be respected—Principle of comity of nations and courts—Abducting parent should not gain any unfair advantage—Appellant married writ petitioner in December 2004 in South Africa and a daughter ‘H’ has born out of that wedlock on 19.6.2006—As relationship soured between the parties, they filed application for divorce by mutual consent requiring the petitioner husband to pay monthly maintenance of Rs. 3,000 Rand to appellant wife—Couple agreed to joint custody of girl child—Divorce by mutual consent was granted on 11.10.2010 by the High Court of South Africa—It was agreed that the child would not be removed by either parent from the republic of South Africa without the written consent of other parent—Parties agreed if said issue could not be amicably resolved a, facilitator would attempt to resolve the dispute by mediation—Appellant sought permission of petitioner to take their daughter for a holiday to United Kingdom—As the petitioner did not given the consent, she filed an application in the Court requiring the child to be absent from the Republic of South Africa from 27.9.2011 to 2.10.2011—Court granted permission and directed the father to handover possession of minor child’s South African passport to the applicants attorney on record—Minor child left South Africa on 27.9.2011 with her mother and reached Heathrow Airport (London) the next day—She never went outside the Airport but took a connecting flight for Mumbai the same day and reached Mumbai on 29.9.2011—Appellant mother admitted that she had already purchased a round trip ticket on 21.9.2011 for herself and her daughter—Appellant filed a petition under the Guardian and Wards Act in Family Court at Delhi—Family Court dismissed the petition as not maintainable—Habeas corpus petition filed by petitioner father—Whether the petitioner father can be granted custody of the minor child—(Yes) —Appellant directed to go back to South Africa with her daughter.

       Held: Thus, on the facts of the instant case we concur with the view taken by the learned Judge Family Court that Courts at Delhi did not have territorial jurisdiction to entertain the petition because when the petition was filed neither Dr. Neeta Misra nor her daughter Hope were ordinarily residents of Delhi.

       With respect to the Habeas Corpus petition filed by Philip David Dexter, we would be constrained to discuss all relevant facts pertaining to the custody issue of Hope and this would mean a virtual adjudication on the merits of Dr. Neeta Misra’s claim that Courts in India should decide the issue of Hope’s custody. But it cannot be helped.

       Though, the fact has to be kept in mind, but without being blown out of proportion, that it is a case of an abducting parent approaching the Court in India.

       When the abducting parent is the mother, it is common for her to claim that the matrimonial bond has broken down, and more often than not the allegation would be ill-treatment and domestic abuse by the male spouse. There are bound to be allegations that the conduct of the male spouse was of a serious kind with grave likelihood of risk to the mental or the physical health of the child born during the wedlock. Invariably, as an excuse to abduct the child from the foreign shores, she is bound to say that she resorted to a secret operation i.e. resorted to a stratagem of contrivance; pulling wool over the eyes of her spouse and even taking the Courts of that country for a ride; too afraid to do otherwise, she was left with no option but to flee to the country where her kith and kin by birth were available to provide her with comfort and support.

       We would thus not be overtly influenced by the fact that Dr. Neeta Misra has abducted Hope and has brought her to India violating the joint custody order dated October 11, 2010 and in the teeth of the order dated September 15, 2011 of the High Court of South Africa (Western Cape High Court) as also her solemn undertaking given to the Court under an affidavit, relevant parts whereof have been noted by us in para 12 above.

       We do not burden ourselves with extensive case law cited by learned counsel for the parties for the reason learned counsel agreed that in parental abduction cases, where a spouse is residing separately or otherwise from the opposite spouse, in a particular country, and flees from the said country to her original home country along with the minor child born to the parties, and the issue of custody arises in the Court within territorial jurisdiction whereof the spouse and the minor child ordinarily reside, post abduction, the legal principles to be kept in mind are that irrespective of whether the country of the Court concerned is or is not a signatory to the ‘Hague Convention on the Civil Aspects of International Child Abduction 1980’ (popularly known as the Hague Convention), principles embodied in the Convention must be kept in mind. This would mean that if there is an order of a Court of competent jurisdiction in the country wherein the abduction took place, the said order has to be respected. The disadvantage to the other spouse has also to be kept in view. One has to keep in mind the injury caused to the mind of the child who is uprooted all of a sudden from a familiar surrounding; the psychological damage caused to the child due to sudden removal from a familiar environment to an unfamiliar environment. Injustice caused to the opposite spouse. The welfare principle i.e. the risk of harm while returning the child to the foreign shores; the welfare and interest of the child.

       The bond between a mother and her child has always been held, especially in India, standing on a higher pedestal vis-à-vis the bond between a father and his child. From times immemorial, the Indian ethos gives the highest place in the life of a child to the mother, followed by the teacher and at third place comes the father.

       But, this is only a starting point of discussion, or to put in legal language : The onus cast is against the father.

       But, there are no easy solutions for the reason an organized civil society and an orderly world order require : (i) It being the object of every law to deter either parent from taking law into in their own hands; and (ii) respecting the principle of comity of nations and Courts.

       It has to be kept in mind that the principles of status quo ante require a Court to restore parties to the same position in which they were before one party, acting illegally and unlawfully, changed the status quo. He who violates the law and does an act to change the7 should not be permitted to gain an unfair advantage. These principles of civil law, when transposed to the family dispute of parental abduction would mean that the object of the law and hence the legal debate would be : (i) To deter either parent from taking the law into his/her own hand; (ii) Restore the child as soon as possible to the home country; (iii) Status quo ante to be restored; (iv) Abducting parent should not gain any unfair advantage.

       And the aforesaid three, to a considerable extent, shift the onus which is cast against the father on the weight of the mother-child bond; if the abduction is by the mother. The reason being that unilateral action should not be permitted to pre-empt anybody’s claim and that even the left behind parent has a legitimate interest in the future welfare of the child : without the existence of such a person the removal can never be wrongful. Restoring a child to the familiar surroundings is seen as likely to be a good thing in its own right and hence the assumption that the best interest of the child would be served by a prompt return to the country where the child is habitually resident. And this explains a catena of authorities where the thumb rule of a year lapsing after the abduction and the other spouse seeking return of the child is treated as defeating the equities and the presumptions in favour of the spouse aggrieved. The reason is : Children are malleable and easily adjustable. They adapt to changed environments very quickly and thus the very principle that a child should be taken back promptly to familiar surroundings operates in the converse i.e. the child not to be removed in the surroundings with which the child has become familiar over the one year. Of course, all these assumptions may be rebutted.

       Children, especially of a tender age, and by that we mean children who have not entered their teens, do not always know what is best for them though they may have acute perception of what is going on around them. They may profess to have authentic views about the right and the proper way to resolve matters, but the same would be hazy.

       When we speak about a child’s interest we understand the same to be comprising of two distinct parts. Part I : Maintaining family ties. Part II : Ensuring the child’s development within a sound environment and least not such as would harm the development of the child. It is the second which is inherent in the rule requiring a prompt return of the abducted child, unless there is a grave risk that the child’s return would expose the child to a physical or a psychological harm or otherwise place the child in an intolerable situation and its converse that if one year elapses from the date of the abduction when the aggrieved spouse moved for return of the child, the Courts should be reluctant to return the child.

       Having understood what would be the interest of the child to be kept in mind, we need to lodge a caveat. The law requires that the best interest of the child shall be a primary consideration. “The law does not require that the interest of the child shall be the primary consideration.” The law also does not require that “the best interest of the child shall be a paramount consideration.” Thus, the distinction between a primary consideration”, the “primary consideration”; and “the paramount consideration” has to be kept in mind.

       It is clear that where the couple, as in the instant case, have submitted to the jurisdiction of the home country where they resided when the matrimonial bond was intact, the burden of proof would lie on the spouse who opposes the return of the minor child and it is for the said spouse to produce evidence to substantiate the exception. Of course, the standard of proof would be of the ordinary balance of probabilities. Secondly, the inquiry has to be quick and fast, preferably summary in nature, a long drawn out inquiry being the exception, for the reason law presumes that the best interest of the child would be served by restoring the child to the familiar environment i.e. the place where the child was residing before being plucked away from the familiar environment. Thus the need to send back the child as early as possible. Thirdly, with respect to evidence relied upon by the spouse who opposes the return, the risk to the child must be established not only as real but also grave. Fourthly, the real risk, which has to be grave, may relate to a physical or a psychological harm to the child. Fifthly, since the Court is looking to the future, the situation in which the child will find herself on return has to be kept in mind; and this would embrace such measures protective of the child against the risk, if the Court decides that the child must return.

       Dr. Neeta Misra and Philip David Dexter obtained divorce by mutual consent on October 11, 2010. On consent terms they agreed to Hope’s joint custody. As per Dr. Neeta Misra, Philip David Dexter started disobeying the consent order when he did not pay the monthly agreed maintenance of 3000 Rand. But she has taken recourse to remedy in the home country. Attachment warrants were obtained and the amount was recovered. As per Dr. Neeta Misra, when she went to Hope’s school to pick her up on September 08, 2011 she heard Hope tell her friend Stella that she must not ask her boyfriend to suck on his sex organ and on quizzing Hope as to where she heard of this, was horrified to learn that Hope had seen her father and his girlfriend perform oral sex. As per Dr. Neeta Misra, returning Hope to the Republic of South Africa would expose her to said psychological harm inasmuch as Philip David Dexter has a right to Hope’s custody every Wednesday evening and night followed by every alternative Friday evening, the night thereof, the whole of Saturday including night thereof till Sunday 04:00 PM. As per Dr. Neeta Misra, Philip David Dexter sends Hope to the house of his half sister who has a drug addict daughter and when Hope is in Philip David Dexter’s house he permits her to sleep in a room with an adolescent half brother of Hope. Dr. Neeta Misra claims the real risk of a physical harm i.e. Hope being physically abused by her half brother.

       Admittedly, Dr. Neeta Misra had sought intervention from Astrid Martalas, the agreed facilitator, when she sent an e-mail to him on September 09, 2011. Dr. Neeta Misra had required Astrid Martalas to refer, what Hope allegedly told Dr. Neeta Misra on September 08, 2011, to one Rob Sandenbergh, a child therapist, for the reason, if what Hope told was true, it indeed was a serious matter. Admittedly, Astrid Martalas not only referred the issue to Rob Sandenbergh but also ensured that a Clinical Psychologist named Juana Horn and an Educational Psychologist named Kate Scott were associated. Admittedly, all three i.e. Rob Sandenbergh, Juana Horn and Kate Scott looked into the issue. They had sittings with Hope and submitted an interim opinion in October 2011, which did not rule out the possibility of Hope saying imaginary things about her father. We highlight that the interim report is not conclusive for the reason on September 27, 2011, Dr. Neeta Misra fled; Hope in tow from the Republic of South Africa and thereby prevented the matter from being taken to its logical conclusion.

       The scattered material which Dr. Neeta Misra relies upon to discharge the onus cast upon her to establish a real risk of grave harm to Hope is thus not only ex-facie insufficient but more than that, and which is of importance, is that the best evidence of whatever happened in the Republic of South Africa is available in the Republic of South Africa. The best evidence would be Rob Sandenbergh, Juana Horn and Kate Scott giving expert evidence on the issue.

       Further, Dr. Neeta Misra has no explanation as to why she did not move the Court in the Republic of South Africa to vary the joint custody order. And we must confess that the system in place in the Republic of South Africa on future custody issues, in the form of an agreed facilitator being appointed to find a solution firstly by mediation and lastly be a directive for which he has to obtain assistance of Child Psychologist is far better than what we have in India, in the form of Court adjudications. What we intend to say is that Dr. Neeta Misra had a better forum available for resolution of the issue in the Republic of South Africa.

       In our opinion Dr. Neeta Misra, for the moment, has no evidence to prima facie justify risk of grave danger which Hope would be facing on return to the Republic of South Africa. By her act of contrivance, Dr. Neeta Misra has prevented the three experts : Rob Sandenbergh, Juana Horn and Kate Scott to interact further with Hope and identify the truth. Having aborted the inquiry by the three, she cannot claim the benefit of any scattered evidence which she projects.

       Learned counsel Ms. Malavika Rajkotia had repeatedly requested us to have a chamber hearing with Hope. We declined to do so for the reason Hope is aged 6 years and 9 months as of today. She is far away from the age of adolescence. She may have an acute perception of what is going on around her and may have her own views about the right and proper way to resolve matters concerning her, but in our opinion she would not know what is best for her. Besides, the possibility of her being tutored by her mother was looming large in the realm.

       We have kept in mind the entire family situation, the factual, emotional, psychological and other material placed before us. We have to strike a fair balance between the competing interests of Hope : to return her to her familiar surroundings in the Republic of South Africa as also the alleged grave risk which she may be exposed to if required to be returned. Finding evidence of the latter being scanty, further finding Dr. Neeta Misra to have prevented a fair inquiry by the three experts after having sittings with Hope, noting further the walls created by Dr. Neeta Misra which prevented Philip David Dexter to seek redressal within one year of Hope’s parental abduction, respecting the comity of Courts, we find case made out in favour of Philip David Dexter in WP(Crl.) No.1562/2012.

       But a preventive measure has to be put in place. When Dr. Neeta Misra returns to the Republic of South Africa and takes recourse to legal remedies there, a warrant of her arrest having been obtained by Philip David Dexter for having violated undertaking submitted by her to the Court in the Republic of South Africa when she filed the application seeking permission to take Hope for a holiday to United Kingdom, she should be protected lest she is handicapped in taking recourse to her judicial remedies.

       We allow WP (Crl.) No.1562/2012 and issue a direction to Dr. Neeta Misra to produce Hope before the Registrar General of this Court on April 30, 2013. Hope’s custody would be handed over by the Registrar General of this Court to Philip David Dexter. This direction would not be carried out if within two weeks from today Dr. Neeta Misra files an affidavit containing an undertaking that she would return to the Republic of South Africa with Hope, and along with the said affidavit she would furnish proof of having purchased return tickets to fly back to Republic of South Africa for not only herself but even Hope. In said eventuality the passports deposited by Dr. Neeta Misra pursuant to the order dated January 21, 2013 passed in WP (Cri.) No. 1562/2012 shall be returned to her. Failing which the passports of Hope shall be handed over to Philip Davit Dexter.

       Noting gross suppression of facts by Dr. Neeta Misra and acts of contrivance, one would have been constrained to impose heavy costs on her, but we refrain from so doing because we are of the opinion that she has been led into the desert of folly by wrong legal advice given to her by her counsel in India who have chosen to suppress relevant information which Dr. Neeta Misra must have provided them while drafting pleadings on behalf of Dr. Neeta Misra. We give her the benefit of doubt. Therefore, there shall be no order as to costs. The application stands disposed of as infructuous since directions regarding passports have already been issued herein above while deciding WP(Crl.) No.1562/2012 and as regards access to Hope we direct that till mandamus issued in the writ petition is complied with, Philip David Dexter would continue to have the benefit of the consent order dated November 05, 2012. Crl.M.A.No.1908/2013 The application is dismissed as infructuous since directions have been passed while deciding the writ petition pertaining to Hope’s passport.