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2016 Supreme(Del) 1846
IN THE HIGH COURT OF DELHI AT NEW DELHI
G.S. SISTANI, SANGITA DHINGRA SEHGAL, JJ.
SHILPI GUPTA - Petitioner
Versus
UNION OF INDIA & ORS - Respondents
W.P.(CRL) 1003/2016
Decided on : 29-4-2016
Mr.Gurinder Pal Singh with Mr. Sidharth Borah, Advocates
Ms.Shiva Lakshmi, CGSC with Mr. Arindam Dey and Mr. Udit Grover, Advocates for UOI/respondent no.1.
Mr.Rahul Mehra, Standing Counsel with Mr.Amrit Singh, Advocate for the State/respondents no.2 and 3 along with Inspector Mukesh Tyagi, SHO and SI Sunny, P.S. Rani Bagh.
Mr.Vinod Khera, Advocate for respondent no.4.
Headnote:
CUSTODY - CHILD - HABEAS CORPUS - FOREIGN COURT ORDER - COMITY OF COURTS - INTEREST OF CHILD - JURISDICTION - WELFARE OF CHILD - WRIT PETITION - [SECTION 9 OF HINDU MARRIAGE ACT, 1956, SECTION 6 OF HINDU MINORITY AND GUARDIANSHIP ACT, 1956, ARTICLE 226 OF THE CONSTITUTION OF INDIA]
Fact of the Case:
The petitioner, a US citizen, married the respondent, an Indian citizen, in 2010. They had two sons, both US citizens. In 2015, the respondent took the elder son, Aadvik, to India without the petitioner's consent. The petitioner filed a petition in a US court for custody of Aadvik and obtained an order granting her sole legal and physical custody. The respondent did not comply with the order and the petitioner filed a contempt petition. The respondent then filed a petition in an Indian court for restitution of conjugal rights, a suit for declaration that the US court order was null and void, and a petition for custody of Aadvik in the family court. The petitioner filed a writ petition in the Delhi High Court seeking a writ of habeas corpus to produce Aadvik and hand over his custody to her.
Finding of the Court:
The Delhi High Court allowed the writ petition and directed the respondent to produce Aadvik in court on a specified date to enable the court to issue directions for handing over his custody to the petitioner through her father. The court held that the US court had jurisdiction over the parties and the subject matter of the custody dispute, and that the US court order was a valid and enforceable order. The court also held that the principle of comity of courts required the Indian courts to respect and enforce the US court order, and that there were no special or compelling reasons to disregard the US court order. The court further held that the welfare of the child was of paramount importance, and that it was in Aadvik's best interests to be returned to the United States and to be raised by his mother.
Issues: 1. Whether the US court had jurisdiction over the parties and the subject matter of the custody dispute? 2. Whether the US court order was a valid and enforceable order? 3. Whether the principle of comity of courts required the Indian courts to respect and enforce the US court order? 4. Whether there were any special or compelling reasons to disregard the US court order? 5. Whether the welfare of the child was of paramount importance? 6. Whether it was in Aadvik's best interests to be returned to the United States and to be raised by his mother?
Ratio Decidendi: 1. The US court had jurisdiction over the parties and the subject matter of the custody dispute because the parties were residing in the United States, both children were US citizens, and the husband and wife were working for gain in the United States. 2. The US court order was a valid and enforceable order because it was passed by a court of competent jurisdiction, the respondent was represented by counsel before the court, and the respondent did not raise any arguments that the court was incompetent or incapable or had not passed a reasonable or fair decision in the best interest of the child. 3. The principle of comity of courts required the Indian courts to respect and enforce the US court order because the US court had the most intimate contact with the parties and their children and would have the closest concern with their well-being. 4. There were no special or compelling reasons to disregard the US court order because the respondent did not raise any arguments that the US court was incompetent or incapable or had not passed a reasonable or fair decision in the best interest of the child, and because the respondent had submitted to the jurisdiction of the US court. 5. The welfare of the child was of paramount importance. 6. It was in Aadvik's best interests to be returned to the United States and to be raised by his mother because he had remained in the United States since birth upto March, 2015, and was accustomed and had adapted himself to the social and cultural milieu different from that of India.
Final Decision: The Delhi High Court allowed the writ petition and directed the respondent to produce Aadvik in court on a specified date to enable the court to issue directions for handing over his custody to the petitioner through her father.
G.S.SISTANI, J.
1. Present petition has been filed by the petitioner under Article 226 of the Constitution of India seeking an appropriate writ in the nature of habeas corpus thereby directing respondents no.1 to 5 to produce her elder son, Master Aadvik, and hand over his custody to the petitioner. Since Master Aadvik is alleged to have been illegally detained by respondent no.4 (husband of the petitioner), a direction is also sought to the respondent authorities to take appropriate action against respondent no.4.
2. Notice in this petition was issued on 29.3.2016. Pleadings are complete in this matter. With the consent of the counsel for the parties, present writ petition is set down for final hearing and disposal.
3. The necessary facts, to be noticed for disposal of this writ petition, are that on 20.1.2010 marriage between the petitioner and respondent no.4 was solemnized in accordance with Hindu rites and ceremonies at New Delhi. After the marriage, the petitioner and her husband (respondent no.4 herein) moved to the United States of America as respondent no.4 was already residing in America and was gainfully employed there much prior to the marriage and he wished to finally migrate and settle in the said country. The parties were blessed with two sons. The elder son, being Aadvik was born on 28.9.2012, and the younger son, being Samath, was born on 10.9.2014. The present petition relates to Master Aadvik.
4. It is the case of the petitioner that from 25.1.2015 till 6.3.2015 Master Aadvik resided at 13622 C, Legacy Circle, Herndon, Virginia 20171. Even prior to that i.e. from 15.11.2014 till 24.1.2015, Master Aadvik resided with the petitioner at 13533, Davinci Lane, Herndon, Virginia, 20171, and from 7.11.2014 till 15.11.2014 he resided with the petitioner at 13622 C, Legacy Circle Herndon, Virginia 20171. From 1.7.2014 till 7.11.2014 and even prior to it from 12.10.2013 till 30.6.2014 Master Aadvik resided with the parties in Virginia at 13622 C, Legacy Circle Herndon, Virginia, 20171, and 2141, Raven Tower Ct, Herndon, Virginia 20170, respectively. From 28.9.2012 till 12.10.2013 Master Aadvik resided with the parties at Hackensack, NJ 07601, United States of America. It is in the month of September, 2014, the petitioner gave birth to his younger child, Master Samath, from Respondent No.4.
5. Mr.Gurinder Pal Singh, learned counsel for the petitioner, submits that respondent no.4 was abusive towards the petitioner after their marriage. Counsel further submits that sometime around March, 2013, the petitioner and respondent no.4 started having grave marital issues due to respondent’s no.4 volatile temperament and regular angry outbursts, often in front of Master Aadvik. The parties separated on or about 15.11.2014. It is further submitted that on 8.11.2014 respondent no.4 left for India leaving behind the petitioner and both the children. However, with a mala fide intention he took away with him the passport and Social Security Card of Master Aadvik, which fact came to the notice of the petitioner much later.
6. Learned counsel for the petitioner contends that on 18.1.2015 respondent no.4 returned to the United States and continued to live in his old house, while the petitioner was living with both her children in a separate house, where she had moved sometime in and around 14.11.2014. Respondent no.4 paid a short visit to the house of petitioner, where she was living with both the children, on the pretext of his desire to meet the children. The petitioner did not sense any trouble and allowed him to meet the children. On 24.1.2015 respondent no.4 paid another visit on the same pretext and took away Master Aadvik saying that he wanted to take him for a short while to the Dulles Mall. It is further contended that both the children were in the care and custody of the petitioner and all along it was the petitioner who was their primary caretaker. Counsel contends that the petitioner, without sensing any trouble and witho
