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2012 Supreme(All) 1252
[2012(7) ADJ 582 (DB)]
ALLAHABAD HIGH COURT
BEFORE : SYED RAFAT ALAM, C.J. AND VIKRAM NATH, J.
POOJA MALHOTRA AND OTHERS .....Petitioner
Versus
PANKAJ MALHOTRA AND ANOTHER .....Respondent
(Special Appeal No. 523 of 2012 and First Appeal From Order No. 804 of 2012, decided on 10th May, 2012)
Counsel :
S. Shekhar,V.K. Singh, R.P. Dwivedi, H.N. Singh and Vineet Kumar Singh for the Petitioner; C.S.C., H.N. Singh and Vishal Kakkar for the Respondent.
Headnote:Guardians and Wards Act, 1890—Sections 25, 47 and 9—Citizenship Act, 1955—Sections 7-A and 7-D—Guardians of ward—Custody of Child—Determination of—Jurisdiction—Appellant No. 3 and respondent No. 1 married in 1995, and were Indian citizens at relevant time—Migrated to New Zealand and accepted its citizenship—They were blessed with three issues, two daughters 'H' and 'P' and one son 'K'—In March, 2008, to explore chances of settlement in India, the family came to India—On account of certain discard, appellant No. 3-wife returned to New Zealand in year 2011—Children are divided—Mother filed an application for custody of children before Family Court at Wellington and the same Court passed a parenting order—Respondent No. 1 decided not to send the children back to New Zealand and could retained appellant Nos. 1 and 2 only—Whether welfare and interest of two minor children would be best served if they are allowed to remain with their father in India ? Or they should be sent to New Zealand and leave it to the Courts at New Zealand to deal with the custody and parenting of minor children—Initially under the consent order husband accompanied all the three children to India—Eldest resisted to go back and allowed so—However, the other two children agreed to stay back in India—Husband sought remedy under Section 25 of the Act—Conduct of father clearly indicates that he had some ill design in his mind to retain children contrary to consent parenting order and thereafter to initiate legal proceedings in India—Nothing adverse or determined to the interest of Children in their being sent to New Zealand—Court below also rightly arrived at the conclusion that it had no jurisdiction under Section 9 of 1890 Act to entertain the petition—No reason found to hold back the minor children in India and not to let them appear before the Courts of their nation—Appellant Nos. 1 and 2 i.e., two minor children directed to be returned to New Zealand to the jurisdiction of the Court in that country—Directions issued. [Paras 44 to 71]
Result; Order Accordingly.
Hon’ble Vikram Nath, J.—After Courtship of seven years, appellant No. 3 Anupma Malhotra and respondent No. 1. Pankaj Malhotra tied their knots in December, 1995, in India. At the time of their marriage they were both Indian Citizens. On 19.11.1996 while in India they were blessed with a girl child Hena. In search of better career, the couple alongwith their daughter Hena, shifted to New Zealand on April 10, 1997. While working in New Zealand in November, 1999 they surrendered their Indian Passport and accepted the citizenship of New Zealand. While in New Zealand, they were blessed with another daughter Pooja on 3.10.2000 and a son Krish on 13.6.2006. Both Pooja and Krish were born in New Zealand, as such they were natural citizens of New Zealand by birth. Entire family of five are thus citizens of New Zealand. They have not surrendered their citizenship of New Zealand and even till date are continuing to be its citizens. The family is also registered as overseas citizens of India after the insertion of Section 7A by Act No. 32 of 2005 in the Citizenship Act, 1955. The Indian Embassy at New Zealand has also issued ‘OCI’ Card ‘as it is called’ to the entire family to continue to live and work in New Zealand.
2. In March, 2008, in order to explore chances of settlement in India, the family came to India. On 14.2.2011 the appellant No. 3 Anupma Malhotra alongwith her three children went back to New Zealand apparently on account of certain discord having arisen with her husband respondent No. 1. Today both the parents are not even willing to see each other and are not even willing to pay for the other’s coffee when they were requested by the Court to spend some time together. The children are divided. The eldest daughter Hena is with her mother whereas the two younger ones are with their father. They are all confused and lost. We were pained to see how a settled family breaks up. Both the parents are financially independent. They are well educated coming from decent families. Children are torn mentally and emotionally between the parents. They are confused.
3. While in New Zealand the mother filed an application for the custody of the children in June, 2011, before the Family Court at Wellington. On the said application notices were issued to the respondent No. 1, the husband who filed his objections. Thereafter the Family Court at Wellington on 12.8.2011, passed a Parenting Order by consent under Sections 40 (3), 48 and 55 of the Care of Children Act, 2004. The said order alongwith the terms and conditions contained therein are reproduced below :
“Applicant
Anupma Malhotra
of Wellington
NEW ZEA LAND
Respondent
Pankaj Malhotra
of Noida
INDIA
On an application made to it, the Court by consent orders that :
1. Anupma Malhotra (“Mrs Malhotra”) have the role of providing day-to-day care for
Hena Malhotra (“Hena”) born 19 November 1996
Krish Malhotra (“Krish”) born 13 June 2006
Pooja Malhotra (“Pooja”) born 3 October 2000
(“the children”)
Until the children reach the age of 16 years
While exercising the role of providing day-to-day care for children, you have exclusive responsibility for the children’s day-to-day living arrangements, subject to any conditions stated below and to any Court order.
If you are a guardian, unless your role or another guardian’s role is modified by a Court order, you must at jointly (e.g. consulting whenever practicable with an aim of reaching agreement) when making guardianship decisions for a child.
2. The children’s nationality is to remain as New Zealanders. Neither parent will seek to change their nationality.
3. The Family Court of New, Zealand will retain jurisdiction for the children whilst their primary care remains in New Zealand.
4. Pankaj Malhotra (“Mr Malhotra”) agrees that the will return the children to the care of Mrs. Malhotra in New Zealand at the end of each agreed contact period in terms of this order.
5. The children are to spend each school holiday period in India with Mr. Malho
