REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL/CRIMINAL APPELLATE JURISDICTION

  CIVIL APPEAL NO(s). 3135­316 OF 2019  (Arising out of SLP(Civil) No(s). 15892­15893 of 2018)

LAHARI SAKHAMURI …..Appellant(s)

VERSUS

SOBHAN KODALI …..Respondent(s)

WITH

CRIMINAL APPEAL NO(s). 500   OF 2019   (Arising out of SLP(Crl.) No. 2316 of 2018)

J U D G M E N T

Rastogi, J.

Leave granted.

2. Both the appeals although arise from two separate orders

passed by the High Court of Hyderabad for the State of Telangana

and State of Andhra Pradesh dated 8th February 2018 in a Habeas

Corpus  Petition filed  at the instance  of the respondent (Sobhan

Kodali) and by the appellant (Lahari Sakhamuri) under the

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Guardians & Wards Act, 1890 primarily for the custody of the two

minor children who were born in the United States on 14th March,

2012 and 13th October, 2014 and are US citizens and holding US

passports.   For the custody of children, a tussle  was going on

between the parents who are residing in US since 2004­2005.  Their

marriage was solemnized on 14th  March 2008  in Hyderabad and

both are green card holders and not only highly educated but well

placed.  It appears that some differences cropped up which can be a

misunderstanding or failing to understand each other, various

efforts were made through conciliation and after the matter came to

this  Court through the  process  of  mediation, the orders  of this

Court indicate that lot of efforts were made for reconciliation and at

one point of time, it reached to a final stage but unfortunately could

not reach to its logical end for various reasons and factors.

3. The persons who are affected are the minor children who have

been directly impacted because of the fact that their parents have

not been able to resolve their differences.   Children are very

sensitive and due to the conflict of  their parents  if  could not be

resolved at the earliest, the minor children became the victim of

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time for which they are not at fault but indeed the sufferers.  It has

to be examined in different perspective also that rights of the child

as a progressive approach to the best interest of the child and what

is needed in the best interest of the child is the one which has to be

deciphered by us in the instant proceedings through the manifold

arguments  being  advanced from both sides  keeping in view the

principles of law on the subject but still remain a guess work.  

4. Before this Court may proceed to examine the question, there

are plentitude of judgments of this Court but still each case has to

be  decided on  its  own  facts  and circumstances.  Obviously, the

ultimate goal which has to be kept in mind is the best interest of

the child which is of utmost importance and of a paramount

consideration.

5. The brief facts of the case which manifests from the

voluminous record placed before us are that the appellant (Lahari

Sakhamuri) and respondent (Sobhan Kodali) are the parents of the

minor children.  Appellant (Lahari Sakhamuri) went to USA for her

masters in September, 2004 and thereafter started working in USA.

She is a Biomedical Engineer by profession.   Respondent (Sobhan

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Kodali) is also highly qualified and went to USA in July 2005 and is

presently a Cardiologist by profession.   Their marriage was

solemnized according to Hindu rites in Hyderabad on 14th March,

2008.  From this wedlock, son, namely, Arthin and daughter Neysa

were born on 14th March, 2012 and 13th October, 2014 and both are

US citizens and also hold US passports.  The couple  purchased

house in Pennsylvania on 29th January, 2016 in their joint names

and moved to their new home.  The son started going to a school in

September  2014  and  a  daughter in  December,  2016.  Both the

children being there in US from their birth, the social and cultural

value of US certainly was embedded in both of them.

6. This fact  cannot  be ruled out that  something  certainly  has

gone wrong in their marital relations and it went to an extent where

the appellant (Lahari Sakhamuri) took a decision to file petition for

divorce and custody of the minor children in US on 21st December,

2016 on the premise that there was a complete irretrievable

breakdown of marriage under the Divorce Code, 1980 prevalent in

US.  It may be relevant to note that along with the application filed

for  divorce  and custody of  minor  children, there is  a  prescribed

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format which has to be filled disclosing the details of any wrong, if

happened physically or abuse has been committed and the fact is

that she  was completely silent and  positive in assertion in  her

application.  Although both the parties were residing together in the

same house,  with  joint legal  custody of their  children who were

residing with them and there was no criminal/abuse history ever in

the past.

7. Irretrievable breakdown  of  marriage can be due to  marital

difficulties with no reasonable prospect of reconciliation but it

appears that in the US before such matrimonial matters are taken

up for adjudication on the judicial side, all efforts are being made

for  conciliation and mediation between the  parties  which  is  also

being actively taken  note of under Section 89 of  Code of Civil

Procedure of resolving matrimonial and custodial disputes through

the process of mediation and which is very successful and effective

in India as well.

8. It reveals from  the record that  on the  date  of filing  of the

petition for divorce and custody of minor children by the appellant

(Lahari Sakhamuri), i.e. 21st December, 2016 in US, the order came

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to be passed on the petition directing respondent (Sobhan Kodali) to

appear for conciliation conference on 20th January, 2017 and both

the parties were directed not to change the residence of the children

which would affect the  other  party’s  ability to  exercise  custodial

rights.   It  may be  appropriate to  quote the  extract  of the  order

which came to be passed on the application filed by the appellant

(Lahari Sakhamuri) which reads as under:

“ ORDER OF COURT

You, Sobhan Kodali, Defendant/Respondent, have been sued in court to obtain shared legal and primary physical custody of the children, Arthin Kodali, born March 14, 2012 and Neysa Sakhamuri Kodali, born October 13, 2014.

You are ordered to appear in person at Room 325, Lehigh County Courthouse, 455 W. Hamilton Street, Allentown, Pennsylvania, on January 20, 2017 at 2:00 p.m. , for  

XX a conciliation or mediation conference.

a pretrial conference.

a hearing before the Court.

If you fail to appear as provided by this Order, an order for custody  may be  entered against  you or the  Court  may  issue a warrant for your arrest.

You must file  with the  Court  a  verification  regarding  any criminal record or abuse history regarding you and anyone living

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in your household on or before the initial in­person contact with the Court (including, but not limited to, a conference with a conference officer or  judge or conciliation) but not  later than 30 days after service of the Complaint or Petition.

No party may make a change in the residence of any child which significantly impairs the ability of the other party to exercise custodial rights without first complying with all of the applicable provisions of 23 Pa.C.S. §5337 and Pa.R.C.P. No. 1915.17 regarding relocation.

YOU SHOULD TAKE THIS  PAPER TO YOUR LAWYER AT ONCE.   IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.   THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.   IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.

Lehigh County Bar Association

     Lawyer Referral Service

P.O. Box 1324 Allentown, PA 18105­1324 Telephone: 610­433­7094

Americans with Disabilities Act of 1990

The Court of Common Pleas of Lehigh County is required by law to comply with the Americans with Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the Court, please contact the Court Administrator’s Office at (610) 782­3014.  All arrangements must be made at least 72 hours prior to  any  hearing or  business  before the  Court.  You  must attend the scheduled conference or hearing.

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    BY THE COURT: 12/21/2016               _________________________/RR Date                                           J.”  

9. It  reveals from the record that  efforts  were going on  in  the

process of conciliation and the same were held on 21st March, 2017

and since the parties could not arrive to any consensus regarding

the custody of their children, another conference was scheduled as

agreed for 25th March, 2017.  

10. By the time parties could reach to a final consensus by the

intervention of  the trained conciliators which  indisputedly play a

very pivotal role in matrimonial matters, there was a sad demise of

the maternal grandmother of the appellant (Lahari Sakhamuri) and

in providing strength and support to the family, the appellant

travelled to India with both the minor children on 23rd March, 2017

with return tickets of 24th April, 2017 and within 20 days of coming

to Hyderabad(India) where her family reside, filed a petition in the

Family  Court,  Hyderabad on 12th  April,  2017 seeking custody of

minor children and injunction against respondent (Sobhan Kodali)

under the Guardians and Wards Act,  1890 and she was able to

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succeed in getting ex­parte interim injunction on 12th April, 2017.

It would be appropriate to quote the extract of the ex­parte

injunction order passed by the  learned Family Court,  Hyderabad

dated 12th April, 2017 which is as follows:­

“AD INTERIM INJUNCTION

IN THE COURT OF JUDGIGE ADDITIONAL FAMILY COURT :

CITY CIVIL COURT : HYDERABAD

    I.A. No. 292 OF 2017                        in              OP No.433 of 2017

BETWEEN :

Smt. Lahari Sakhamuri, W/o Sobhan Kodali, Hindu, aged 34 years, R/o Plot No. 443/A­28, Road No.86, Jubilee Hills, Hyderabad T.S … Petitioner

AND

Sobhan Kodali, S/o Dr. Jaya Ramesh Kodali, Hindu, aged about 37 years, R/o # 2C85, Bellflower Lane, Centre Valley, Lehigh County, Pennsylvania­18034, USA      … Respondent

To  Sobhan Kodali, S/o Dr. Jaya Ramesh Kodali, Hindu, aged about 37 years, R/o # 2C85, Bellflower Lane,

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Centre Valley, Lehigh County, Pennsylvania­18034, USA

UPON MOTION made unto this court by Sri K. Chaitanya, Counsel for the petitioner seeking the court to grant ad interim injunction restraining the respondent from forcibly taking away the  minor children  Arthin  Kodali and  Neysa Sakhamur  from the  custody of the  petitioner  pending  the above O.P.  

Upon hearing of the arguments of the counsel for the petitioner this court while issuing notice to respondent returnable by 26.04.2017 doth order restraining respondent from taking away minor children namely Arthin Kodali and Neysa Sakhamur from the custody of the petitioner till 26.04.2017 and that petitioner should not shift the children from the jurisdiction of this court without permission from the court,  and that  petitioner  should also  look after food, shelter and medical facilities of the children petition stood posted to 26.04.2017.

Given under my hand and the seal of the court on this the 12th day of April, 2017.

Sd/­       JUDGE, ADDL. FAMILY COURT

           CITY CIVIL COURT, HYDERABAD”

11. After few days, she also filed a FIR against respondent (Sobhan

Kodali) and his family members for offence under Section 498A IPC

i.e. on 21st  April, 2017 but after investigation, the police filed

closure report on 1st November, 2017.  The fact to be noticed here at

this stage is that the very appellant (Lahari  Sakhamuri) filed a

petition  for divorce and custody of  minor children in US on 21st

December, 2016, there was no whisper or an averment that there

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was any domestic violence or abuse either subjected upon her or

the  minor children by respondent (Sobhan  Kodali) and he  was

informed on 23rd April, 2017, twelve hours before her flight that she

would not be returning and does not have a travel date in mind.

Respondent (Sobhan Kodali) and his counsel in the US were orally

informed of the ex­parte order which was received by respondent

(Sobhan Kodali) on 29th April, 2017 through e­mail from the counsel

for appellant (Lahari Sakhamuri) in India.

12. Immediately, on receiving the oral information, on 26th  April,

2017, emergency petition for interim orders in petition for divorce

and custody filed at the instance of the appellant (Lahari

Sakhamuri)  was filed  by respondent (Sobhan Kodali).   The said

application was contested by the appellant (Lahari Sakhamuri)

through Attorney and in defence stated that she had only

temporarily relocated to India for attending her grandmother’s

funeral and providing emotional support to her  mother.   After

hearing the parties, the US Court passed order on 22nd May, 2017

for continuing the jurisdiction over the custody matter and granted

temporary physical custody of the children to respondent (Sobhan

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Kodali)  with a  further  direction  that  children be returned to the

jurisdiction of the Court in US by 2nd  June,  2017.  It  would be

appropriate to quote the extract of the order passed by US Court on

the emergency custody petition filed by respondent Sobhan Kodali

on 22nd May, 2017:­

“IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA CIVIL DIVISION

Lahari Sakhamuri ) Plaintiff ) File No.2016­FC­1641

Vs )

Sobhan Kodali ) in custody Defendant )

ORDER

AND NOW, this 22nd May, 2017 upon consideration of the Emergency Petition for Relief Requesting an Interim order of custody filed 26.04.2017, by defendant and hearing conducted on 22.05.2017 attended by the defendant / petitioner Sobhan Kodali  represented by his  legal counsel, Mark B. Dischell, Esquire and plaintiff/respondent, Lahari Sakhamuri having failed to appear for said hearing, but represented by her legal counsel, Mary J B. Eidelman Esquire;

IT IS HEREBY ORDERED that :   

1. Lehigh County, Pennsylvania, United States of America shall remain the sole home country, home state and country of the parties’ minor children, Arthin Kodali born 14.03.2012 and Neyas Sakhamuri Kodali, born 13.10.2014.

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2. This  Court shall have sole continuing jurisdiction of this custody matter which was filed by the plaintiff, Lahari Sakhamuri, on 21.12.2016.

3. Pending further order of court, father is granted temporary physical custody of the children;

4. Mother shall return the children to Lehigh County, Pennsylvania, United States of America, to the father’s custody on late than 02.06.2017.

5. Until the children’s return, father shall have telephone and video chat contact with the children each day;   

6. Upon her return  to this jurisdiction,  mother  shall  not  be permitted to travel out of the Commonwealth of Pennsylvania with the minor children without further order of court;  

7. The passports of the children shall be held in escrow by the parties’ counsel or another mutually agreeable person;

8. Should the mother  fail  to return the children to  father by 02.06.2017, mother shall pay to father $1,000 each day she does not return the children;

9. In the event  mother  does  not return the children to the father  by  02.06.2017, father  and/or  any  of  his  designees being his father, Jayaramesh Kodali; his  mother, Vijaya Bharathi; his cousin, Chaitanya Kadiyala, shall be permitted to receive the children from mother in India and bring them to Lehigh County, Pennsylvania, United States of America;

10. Until such time as mother returns to the United States, she shall be precluded from seeking child support on behalf of the children;

11. A certified copy of this order shall be sent to the America Consulate in India and shall be registered with appropriate court / jurisdiction in Hyderabad, India;

12. Within thirty (30) days of this order, mother shall pay father $10,000 as partial payment towards counsel fee incurred by father in this matter.  A final determination on the amount of counsel fees to be paid by mother to father will be made

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by the court after subsequent hearing which may be requested by either party.

BY THE COURT : Sd/­

Daniel K. McCarthy”  

13.   Thereafter, the respondent (Sobhan Kodali) moved an

application under Order 7 Rule 11 CPC in the proceedings

instituted in the Family Court, Hyderabad asserting that the Family

Court, Hyderabad has no jurisdiction to decide the application for

the custody of minor children as they are not the ordinary resident

of  Hyderabad but that came to be rejected vide order dated 15 th

September, 2017 holding that the Family Court, Hyderabad is

competent to exercise jurisdiction to examine the application filed at

the instance of the appellant (Lahari Sakhamuri) on merits.

14.   At this stage, respondent (Sobhan Kodali) preferred appeal to

the High Court under Section 19(1) of the Family Courts Act against

the order dated 15th September, 2017 passed by the learned Family

Court,  Hyderabad holding  jurisdiction to examine the application

filed by the appellant (Lahari Sakhamuri) regarding custody of the

minor children under Guardians and Wards Act, 1890.

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Simultaneously, without any loss of time, respondent (Sobhan

Kodali) also filed a writ petition seeking Writ of Habeas Corpus for

producing the minor children in the custody of the US Court taking

note of the earlier order passed dated 21st December, 2016 followed

with order dated 22nd May, 2017.  The appeal and the writ petition

were clubbed but  were decided by the  High  Court by separate

orders  dated  8th  February, 2018  holding that the  Family  Court,

Hyderabad has no  jurisdiction as the children are not ordinarily

residing within the jurisdiction of the Family Court, Hyderabad as

provided under Section 9 of the Guardians and Wards Act, 1890.

In consequence thereof,  application filed by the appellant (Lahari

Sakhamuri) stood rejected.  At the same time, in the Habeas Corpus

Petition, Order came to be passed dated 8th  February, 2018.   The

Court finally ordered as under:­

“36. In view of the above discussion and the legal position, we are of the considered opinion that it would be in the best interest of the minor children to return to the US so that they can enjoy there in the natural environment, receive the love, care and attention of their father and paternal grandparents, resume their school and be with their teachers, peers and friends.

37. Accordingly, we hereby direct the 5th  respondent to return the children to the petitioner in India within four (04) weeks from the date of receipt of a copy of this order failing which,

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the Consulate General of the US at Hyderabad shall take the custody  and handover the custody  of the children to the petitioner in India or in the US by making their comfortable journey to US.

38. The 5th respondent is also highly educated and was gainfully employed in the US for number of years.   Accordingly, we hereby grant liberty to the 5th respondent, whenever she feels to visit the children in  US, the  petitioner shall  make all arrangements i.e., travel, comfortable stay at US and other expenses till the US Court pass directions in the petitions filed by the 5th respondent or she become the gainful in any country, whichever is earlier.

39. As undertaken by the petitioner that, we direct the petitioner that he shall not insist upon costs and fine imposed by the Court of US upon the 5th respondent.

40. We also direct the petitioner that if children are in India and 5th  respondent  happens to  be in India, the  children  shall remain with 5th  respondent.   He shall give all access to 5th

respondent to chat with the children on whatsapp and video conference etc.”

15. Both the orders passed by the High Court while disposing of

the appeal filed by the respondent (Sobhan Kodali) under Section

19(1) of the Family Courts Act as well as the  Habeas Corpus

Petition  dated  8th  February,  2018 came  to  be  challenged  by the

appellant (Lahari Sakhamuri) in the present appeals.

16. In the pending proceedings, in the Court of Common Pleas of

Lehigh County, Pennsylvania Civil Division­Law, further order has

been passed on 9th March, 2018 permitting the respondent (Sobhan

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Kodali) to apply for replacement of US passports on behalf of the

minor children.  The order is reproduced as under:­

“IN THE COURT OF COMMON PLEAS OF  LEHIGH COUNTY, PENNSYLVANIA

CIVIL DIVISION – LAW

LAHARI SAKHAMURI, : Plaintiff, : NO. 2016­FC­1641

Vs. : :

SOBHAN KODALI, : IN CUSTODY Defendant, :

ORDER OF COURT

AND NOW THIS 9th  day of March, 2018, upon consideration of the  Defendant’s  Emergency Petition for Special Relief  in Custody,  it is hereby ORDERED and DECREED as follows:

1. Defendant’s Emergency Petition for Special Relief is GRANTED;

2. Defendant, Sobhan Kodali, is granted sole legal custody of the  minor children, Arthin Kodali, born March 14, 2012, and Neysa Sakhamuri Kodali,  born October 13, 2014;

3. Mother’s retention of the children in India is a “wrongful retention”  of the  children pursuant to the Child Abduction Remedies Act, codified at 23 Pa.C.S. § 5201 et. seq.

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4. Defendant, Sobhan Kodali, shall be permitted to apply for replacement U.S. Passports on behalf of the minor children, Arthin  Kodali, born  March 14, 2012, and Neysa Sakhamuri Kodali, born October 13, 2014, through application of Form DS­11 attached hereto as Exhibit “B”, and without Mother’s consent.

5. The United States Department of State, upon presentation of  a  Certified  Copy  of this  Order, shall issue replacement passports to Sobhan Kodali, Father of the minor children, even though Father previously requested the entry of the children into the Department’s  Child  Passport Issuance Alert  Program (CPIAP) and received confirmation of the entry of the children into that system on May 24, 2017, via Case Number 1536567.

BY THE COURT __________________J.”

17. Before the submissions made by the learned counsel for the

parties being canvassed, it may reveal from the orders passed by

this Court that keeping in view the personal relations of the spouse

and the utmost and paramount consideration of the welfare of the

children on a high pedestal and to find out if there is any possibility

in resolving  their  matrimonial  differences  through the process of

mediation  which indisputably plays a very pivotal role in such

matters.   The parties appeared in person on various dates and at

one stage, it was sent for mediation as it reveals from Order dated

12th  October  2018, the  Court  appointed  Mediator  used his  good

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office to find out an amiable solution which may be acceptable to

the parties and at one stage from Order dated 29th October, 2018, it

reveals that the  parties  had  reached  to  an amicable  solution in

resolving  their  on­going matrimonial  differences by sitting across

the table  with  the intervention of the  Court  appointed Mediator.

But what happened thereafter is really very unfortunate that parties

could not reach to any final conclusion and both the learned

counsel informed this Court that as the mediation could not have

been now possible, the matter may be heard and decided on merits.

18. Learned counsel for the appellant Ms. Malavika Rajkotia,

submits that repatriation to US would not be in the best interest of

the children and this Court has always held that the best interest of

the children cannot be sacrificed on the principle of comity of courts

or any other legal principle could not plead in overcoming the best

interest of the children which is of primary and paramount

consideration.   Learned counsel submits that there is a statutory

presumption in favour of the mother, under the tender years

doctrine and respondent (Sobhan Kodali) is unable to dispel from

the pleadings on record in the instant proceedings and she being a

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fit mother and the best interest of the children is with mother as the

primary caretaker and once the custody of the minor children is

with mother appellant  (Lahari Sakhamuri), it is  in the children’s

best  interest  for the court  to ensure the psychological  well­being

and the legal rights of the mother by protecting her autonomy at the

first instance, to exercise her choice of location, particularly when

she is distressed in her matrimonial home.

19.   Learned counsel further submitted that the prima facie

assumption may be rebutted in a trial but she cannot be non­suited

by not  providing her an opportunity  in establishing her parental

competence and the circumstances leading to protect herself and

the children.  Learned counsel further submitted that the appellant

(Lahari Sakhamuri) and respondent (Sobhan  Kodali) are Indian

citizens and  to  separate the  primary caregiver from the  children

under the  “best interest of child”  rule constitutes invasion of her

fundamental  right of  autonomy guaranteed to her under the law

and further submitted that in giving parental rights and privileges,

what is to be ensured is the best interest of the children that is

admittedly difficult as it is related to their life and welfare in such

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circumstances is being called by a psychologist as the “least worst

option” considering that the ideal of proximity with both parents is

not possible in a given situation.   The children and their mother

are in India and is an accessible jurisdiction for the father being

married in India and Indian law applies in a cultural context that is

well  appreciated here and respondent  (Sobhan Kodali) father has

means to come to India and meet his children in India.

20. Learned counsel for the appellant further submits that though

she has been completely silent in her proceedings instituted in the

US Court in a divorce and custody petition of the children as there

is a provision in US that one can seek divorce if there is a

irretrievable break down of marriage and prospects of conciliation is

reasonably ruled out hence there was no occasion for her to

indicate what mentally and physically  she has suffered and how

constrained it was to live due to acute mental, emotional and even

physical violence and it is not in the interest of the children that

their mother be pinned into an unhappy, abusive situation.   It is

not in the welfare of the children to be witness to their mother being

devalued.   It is also not in their interest that they, witness

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continued toxic conflict of their parents living as a family or even in

proximity of collaborative parenting.   In such cases, distance with

the spouse, with the child as the only point of contact between two

parents in their own location is the best solution.

21.   Learned  counsel for the  appellant submits that  due to the

harassment meted out and humiliation suffered by her and their

minor children at the hands of respondent (Sobhan Kodali)

husband, no other option was left with her other than staying away

from US. Further, the children are admitted in the best school in

Hyderabad where they are presently studying.  Learned counsel has

further submitted that in Nithya Anand Raghavan Vs. State(NCT

of Delhi) and another   1, this Court has disagreed with the

conclusions drawn in  Surya Vadanan Vs.  State of Tamil Nadu

and Others   2  laying down the “first strike” principle that weightage

should be given to the order of the foreign Court which has

jurisdiction and held that the best interest and  welfare of the

children is of paramount importance and that if handing over of the

1 2017(8) SCC 454 2 2015(5) SCC 450

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children to the foreign Court’s jurisdiction would harm their best

interest and welfare, the Court would not direct their return to the

place falling  within the jurisdiction of the foreign  Court.   That

applying the principles laid down in the said case, the two minor

children who are happily placed in the company of the appellant

and her parents, if are entrusted to the foreign court’s jurisdiction,

the same  may  not be in their best interest and  welfare of the

children.  Learned counsel submits that Indian Courts have

jurisdiction because the parties had married here and the Hindu

Marriage Act applies to Divorce and Section 26 deals with custody.

What is being pleaded by the respondent under Order 7 Rule 11

CPC is a  mixed  question of law  and facts and  hence could be

examined only during the course of the trial but not at this stage.  

22. In support of the submission, learned counsel has placed

reliance on the decision of this Court in Jasmeet Kaur Vs. Navtej

Singh   3  holding that the jurisdiction founded on  domicile is a

matter  of trial  and cannot  be  decided summarily  and submitted

that the  custody  petition filed  under  Guardians  and Wards Act,

3 2018(4) SCC 295

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1890 has been rejected by the High Court without taking note of the

given fact situation and the scope under Order 7 Rule 11 CPC.

23. Per contra, learned senior counsel for the respondent  Ms.

Meenakshi Arora, referred to the decisions of this Court in

Surinder Kaur Sandhu  Vs.  Harbax Singh Sandhu and Anr.   4;

Elizabeth Dinshaw  Vs.  Arvand M. Dinshaw and Another   5;  V.

Ravi  Chandran(Dr.)  Vs.  Union  of India  and  Others   6;  Nithya

Anand Raghavan’s case(supra) and  Surya Vadanan’s

case(supra),and taking assistance thereof, submitted that two

minor children were born in US and both of them are US citizens

and are school  goers and  they enjoyed their  schooling  (which  is

evident from the photographs filed along with the additional

documents) and removal of children from the US despite the Order

of the US Court affects their future and the same may not be in

their best interest.

24. Learned counsel further submitted that the appellant (Lahari

Sakhamuri) and respondent (Sobhan Kodali) started their

4 1984(3) SCC 698 5 1987(1) SCC 42 6 2010(1) SCC 174

24

matrimonial life in the US and been there for almost 14 years, they

are being acclimatized with that culture and in their married life,

except for duration on short visit  to India, they spent their good

time in US and removing the children from the US, in the given

circumstances, may not be in their best interest.  Learned counsel

submitted that the appellant (Lahari Sakhamuri) had herself

admitted that children  were in shared custody  with respondent

(Sobhan Kodali) and she was never subjected to domestic violence

at any given point of time and she had invoked the jurisdiction of

US Court for divorce and custody of minor children based on their

residence and, therefore, it may not be open for her to disregard

the orders of US Court, more specially the order dated 22nd May,

2017 whereby respondent (Sobhan Kodali) was granted temporary

physical custody of the children and appellant (Lahari Sakhamuri)

was directed that minor children should be returned to the

jurisdiction of US Court by 2nd June, 2017.

25. Learned counsel submitted that from the material which has

come on record, even inference cannot be drawn that there could be

any harm caused to the minor children in returning to their native

25

state, i.e. US.   Moreover, in the proceedings on behalf of the

appellant  (Lahari Sakhamuri) filed before the US Court, it is her

own admission that there was no domestic violence having

perpetrated upon her nor she was subjected to cruelty rather had

asked for shared custody of children along with respondent (Sobhan

Kodali) and in the given circumstances, her unilateral decision to

return to India cannot deprive the minor children in terms of the

love, attention, care and facilities, amenities, upbringing and

environment to which they are accustomed to while in the US.  No

doubt, it is not the decision of the minor children to remain in India

away from their father and their school and their peers.   The US

Court has the most intimate contact and closest concern to decide

on the issue of minor children which has been extensively examined

by the High Court and finding has been recorded under the

impugned judgment upholding children best interest.

26. Learned counsel submitted that best interest of children has

been sidelined while deciding to stay back in India with the minor

children  who are admittedly  US citizens and  were permanently

residing in US till 23rd March, 2017 when they were removed from

26

US in contravention of the Order dated 21st December, 2016 passed

by the US Court and forcibly separated from their father respondent

herein and the environment in US which children were

experiencing, is their natural environment and in the given

circumstances, detention of the children in India is unlawful and in

violation of Child Abduction Remedies Act of minor children

applicable in US and US Court has rightly directed the appellant

(Lahari Sakhamuri) to bring back the children to US Court by 2nd

June, 2017 and the findings which have been recorded by the High

Court are based on cogent available material on records and needs

no further interference.

27. Learned counsel further submits that the minor children are

not ordinary residents of the jurisdiction of Family Court,

Hyderabad as defined under Section 9 of the Guardians and Wards

Act, 1890 as both are natural born US citizens and came to India

only on 23rd March, 2017 and within 20 days, application came to

be  filed by the appellant  (Lahari  Sakhamuri)  on 12th  April,  2017

before the Family Court, Hyderabad for the custody of the children

with ex­parte interim injunction passed by the learned Court and

27

even  from the  pleadings,  nothing is  borne out that  how the  Ld.

Family Court, Hyderabad was having jurisdiction to entertain

application under Guardians and Wards Act, 1890 and in the given

circumstances, the application filed by the respondent (Sobhan

Kodali) under Order 7 Rule 11 CPC was arbitrarily rejected by the

Ld. Family Court and that was reviewed by the High Court on the

material available on record  and the finding  has been recorded

holding that the children are not the ordinary residents of

jurisdiction of the Family Court, Hyderabad where an application

was  filed by the appellant  (Lahari Sakhamuri) for custody of the

children and no error was committed by the High Court in rejecting

the  application filed  by the  appellant (Lahari  Sakhamuri)  under

Guardians and Wards Act, 1890 for lack of jurisdiction and merely

because  their  marriage  was  solemnized  in  Hyderabad would  not

confer a territorial jurisdiction to the Family Court, Hyderabad for

the purpose of custody of the minor children under the Guardians

and Wards Act, 1890.

28. Learned counsel further submits that both the issues in

respect of the custody of the minor children and rejection of  an

28

application due to lack of territorial jurisdiction entertained by

learned Family Court, Hyderabad has been discussed in detail

under the two separate impugned judgments by the High Court and

needs no further interference of this Court.

29. We have heard learned counsel for the parties and with their

assistance perused the record and also the plentitude of judgments

cited of this Court.  Before we proceed, it will be appropriate to take

note of what transpired between the hearing of the instant appeals.

On  26th  March, 2018, this  Court directed the appellant (Lahari

Sakhamuri) and respondent (Sobhan Kodali) to remain personally

present  on the  next  date of  hearing  which  was  9th  April, 2018.

During pendency of  the proceedings,  respondent  (Sobhan Kodali)

was allowed to meet children possibly keeping in view the amicable

solution, if possible, to be arrived at between the parties and at one

stage by Order dated 12th October, 2018, the parties were granted

liberty to resolve their issues inter se amicably and to facilitate the

parties in arriving at an amicable solution, a senior counsel was

requested to mediate which was voluntarily accepted by the parties.

Pursuant thereto, possibilities of settlements were explored and at

29

one stage, settlement was also arrived at possibly acceptable to the

parties as it reveals from the Order dated 29th October, 2018 of this

Court.  It will be appropriate to quote the extract of the order dated

29th  October, 2018 followed by Order dated 27th  November, 2018,

which are as under:­

Order dated 29   th   October, 2018

“Both the respondent/husband and petitioner/wife are  present.  We  are extremely  happy that they have decided to forgive each other, forget the past and take their family life forward.  

Mrs. Lahri Sakhamuri/petitioner has submitted that she will withdraw all the cases filed by her in India and abroad and she does not  want to pursue any criminal proceedings.  

Since Mr. Sobhan Kodali/respondent has to go back to  United  States tomorrow  i.e. on  30.10.2018, post this matter on 14.11.2018 for formal orders, on the basis of the arrangement the parties have jointly made.  

We stay all the pending cases between  Mrs. Lahari Sakhamuri and Sobhan Kodali, both civil and criminal.  

We also restrain them from instituting any case against each other or the members of their family or filing any petition/complaint against each other or their family members, without express permission from this Court.  

30

We record our appreciation for the strenuous efforts taken by Mr. Gurukrishna Kumar, learned senior counsel, for facilitating the reconciliation.”

Order dated 27   th   November, 2018  

“Learned counsel for both sides on instructions submit that they will withdraw all the cases filed against each other either in India or in United States.  

We direct the petitioner­Mrs. Lahari Sakhamuri to  withdraw all the cases in both the jurisdictions within a period of one week from today. Let the respondent  also withdraw all the cases  filed both  in India  or in  United States  within the  same period of time.  

Learned counsel for the respondent­husband on instructions submits that within 10 days, he will arrange for the passport of the minor child­Arthin from U.S. Consulate. It is also stated that husband will take all necessary steps for resolving all issues, if any, pertaining to the immigration and Visa status of the petitioner within the same period of time.  

Once such issues are cleared, we direct the petitioner to travel to U.S. along with her husband and children within a week of obtaining such clearances.  

We record our appreciation for the strenuous efforts taken by Shri Gurukrishna Kumar, learned senior counsel for assisting the parties to arrive at an amicable settlement and for reunion.  

List on mentioning by either side.”

30. What unfolded thereafter  may not be appropriate for this

Court to take notice but the fact remains that agreement arrived at

31

between the parties could not be taken to its logical end.  It would

have been better and in the interest of the parties themselves to

amicably resolve their differences for their better future but as they

have failed to do so, the judicial process has to intervene to decide

the case on merits based on judicial precedents.

31. In the instant case, the facts on record clearly manifest that

parties were residing in US since 2004­2005 and their marriage was

solemnized in Hyderabad on 14th March, 2008.   Both the children

were born in US on 14th March, 2012 and 13th October, 2014 and

are US citizens with US passports.   Notably, the appellant (Lahari

Sakhamuri) filed application for divorce and custody of minor

children in the US Court on 21st December, 2016 and order came to

be passed by the US Court on 21st December, 2016.   Despite that

interim order, the appellant (Lahari Sakhamuri) came to India on

23rd March, 2017 and within 20 days of her arrival in India, filed an

application on 12th April, 2017 for custody of minor children in the

Family  Court,  Hyderabad concealing  her application for custody

filed in the US Court. She also did not disclose that an order came

to be passed by the US Court against her dated 22nd  May, 2017

32

after hearing the counsel for the parties.   In the given facts and

circumstances, we find no difficulty in upholding the opinion of the

High Court that the minor children were not ordinary residents of

Hyderabad(India) as envisaged under Section 9(1) of the Guardians

and Wards Act, 1890.   Resultantly, the application for custody of

minor children filed before the Family Court, Hyderabad is rightly

rejected by the High Court in exercise of power under Order 7 Rule

of CPC.  At the same time, when the orders have been passed by the

US Court, the parties cannot disregard the proceedings instituted

before the US Court filed at the instance of the appellant (Lahari

Sakhamuri) who is supposed to participate in those proceedings.     

32. The judgment relied upon by the learned counsel for the

appellant of  Jasmeet Kaur’s case(supra) may not be of any

assistance for the reason that it was a case where one of the child

was born in India which was one of the reason prevailed upon this

Court to hold that principle of comity of courts or principle of forum

convenience cannot determine the threshold bar of jurisdiction and

when paramount consideration is the best interest of the child, it

can be the subject­matter of final determination in proceedings and

33

not under Order 7 Rule 11 CPC. In our considered view, the

application for custody of minor children filed at the instance of the

appellant was rightly rejected by the High Court under the

impugned judgment, in consequence thereof, no legal proceedings

in reference to custody of the minor children remain pending  in

India.

33. The custody of minor children has been considered difficult in

adjudication by the Courts apart from raising delicate issues,

especially when the spouses are non­resident Indians(NRIs).

34. This Court in  Surinder Kaur Sandhu’s case(supra) was

concerned with the custody of a child who was British citizen by

birth whose parents had been settled in England after their

marriage.  A child was removed by the husband from the house and

was brought to India.   The wife obtained a judicial order from the

UK  Court  whereby the  husband  was  directed to  hand over the

custody of a child to her.   The said order was later confirmed by

Court of England and thereafter the wife came to India and filed a

writ petition in the High Court of Punjab and Haryana praying for

custody and production of the child which came to be dismissed

34

against which the wife appealed to this Court.  This Court keeping

in view the ‘welfare of the child’, ‘comity of courts’ and ‘jurisdiction

of the State which has most intimate contact with the issues arising

in the case’ held thus:­

“10. We may add that the spouses had set up their matrimonial home in England where the wife was working as a clerk and the husband as a bus driver. The boy is  a  British  citizen,  having  been born  in England, and he holds a British passport. It cannot be controverted that, in these circumstances, the English Court had jurisdiction to decide the question of his custody. The modern theory of Conflict of Laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum­shopping. Ordinarily, jurisdiction must follow upon functional lines. That is  to say, for  example, that in matters relating  to matrimony and custody, the law of that place must govern which has the closest concern with the well­ being of the spouses and the welfare of the offsprings of marriage. The spouses in this case had made England their home where this boy was born to them. The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing him to India, not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the peace of that home.  The  fact that the matrimonial  home of  the spouses was in England, establishes sufficient contacts or ties with that State in order to make it reasonable and just for the courts of that State to

35

assume jurisdiction to enforce obligations which were incurred therein by the spouses(See International Shoe Company  v.  State of Washington [90 L Ed 95 (1945) : 326 US 310] which was not a matrimonial case but which is regarded as the fountainhead of the subsequent developments of jurisdictional issues like the one involved in the instant case.) It is our duty and function to protect the wife against the burden of litigating in an inconvenient forum which she and her husband had left voluntarily in order to make their living in England, where they gave birth to this unfortunate boy.”

35. In Elizabeth Dinshaw’s case(supra), this Court held that it is

the duty of courts in all countries to see that a parent doing wrong

by removing children out of the country does not gain any

advantage by his or her wrongdoing and was guided by the factors

such as the longer time spent by the child in the US in which the

child was born and became US citizen and also the fact that the

child has not taken roots in India and was still not accustomed and

acclimatized  to the  conditions  and environment  obtaining in the

place of his origin in the United States of America.  This Court took

note of the fact that the child’s presence in India is the result of an

illegal act of abduction and the father who is guilty of the said act

cannot claim any advantage by stating that he has already put the

child in some school in Pune.  

36

36. In  V. Ravi Chandran(Dr.)’s case(supra), this Court was

concerned with the custody of the child removed by a parent from

one country to another in contravention of the orders of the Court

where the parties had set up their matrimonial home.   This Court

took note of the English decisions,  namely  L(Minors)  in re   7  and

McKee Vs. McKee   8  and also noticed the decision of this Court in

Elizabeth Dinshaw’s case(supra) and  Dhanwanti Joshi  Vs.

Madhav Unde   9   keeping into consideration the fact that the child

was left with his mother in India for nearly twelve years, this Court

held that it would not exercise its jurisdiction summarily to return

the child to the US on the ground that his removal from US in 1984

was contrary to the orders of US Courts.  The relevant portion is as

under:­

”29. While dealing with a case of  custody of  a child removed by a parent from one country to another in contravention of the orders of the court  where the parties had set up their matrimonial home, the court in the country to which the child has been removed must first consider the question  whether the court could conduct an elaborate enquiry on the question of custody or by dealing with the matter summarily order

7 (1974) 1 All ER 913(CA) 8 (1951) AC  352 9 1998(1) SCC 112

37

a parent to return custody of the child to the country from  which the child was removed and all aspects relating to the child's welfare be investigated in a court in his own country. Should the court take a view that an elaborate enquiry is necessary, obviously the court is bound to consider the welfare and happiness of the child as the paramount consideration and go into all relevant aspects of welfare of the child including stability and security,  loving and understanding care and guidance and full development of the child's character, personality and talents. While doing so, the order of a foreign court as to his custody may be given due weight; the weight and persuasive effect of a foreign judgment must depend on the circumstances of each case.

30. However, in a case  where the court decides to exercise its jurisdiction summarily to return the child to his own country, keeping in view the jurisdiction of the court in the native country which has the closest concern and the most intimate contact with the issues arising  in the case,  the court  may  leave  the aspects relating to the welfare of the child to be investigated by the court in his own native country as that could be in the  best interests of the child. The indication  given in McKee v. McKee [1951 AC 352 : (1951) 1 All ER 942 (PC)] that there may be cases in which it is proper for a court in one  jurisdiction  to  make an order  directing that a child be returned to a foreign jurisdiction without investigating the merits of the dispute relating to the care of  the child on the ground that such an order is in the  best interests of the  child  has  been explained in L (Minors), In re [(1974) 1 WLR 250 : (1974) 1 All ER 913 (CA)] and the said view has been approved by this  Court in Dhanwanti  Joshi [(1998)  1 SCC 112] . Similar view taken by the Court of Appeal in H.  (Infants), In re [(1966)  1  WLR 381  (Ch & CA) : (1966) 1 All ER 886 (CA)] has been approved by this

38

Court in Elizabeth Dinshaw [(1987)  1 SCC 42 :  1987 SCC (Cri) 13].”

37. This Court once again reiterated the principles of the closest

concern, most intimate contact with the issues arising in the case,

natural habitat of the minor child, best interest of the child and

comity of Courts.   This Court eventually directed the child to be

taken to US from where he was removed to enable the parties to

establish their right in the native state of the child, i.e. US.

38. In  Surya Vadanan’s  case(supra), it  was  a case  where the

spouses were of Indian origin and later the husband became the

citizen of UK.  They got married in India and had two daughters in

UK.   The  wife also  became  a  British citizen and  had  a  British

passport.   After matrimonial dispute arose between them, the wife

returned  to India  with  her  daughters  and  filed  a  petition  under

Section 13(1)(ia) of the Hindu Marriage Act, 1955 seeking divorce in

the Family Court.  At the same time, husband filed a petition in the

High Court of Justice.  The said Court had passed an order making

the children  wards of the Court during their  minority or until

further orders of the court and the wife was directed to return the

children to the jurisdiction of the foreign court.  This Court applied

39

the principles of (i) “the first strike”, i.e the UK Court had passed

effective and substantial order declaring the children of the parties

as wards of that court,  (ii) the comity of courts and (iii) the best

interest and  welfare of the child.   It also held that the “most

intimate contact” doctrine and the “closest concern” laid down in

Surinder  Kaur  Sandhu’s  case(supra) are very  much alive  and

cannot be ignored only because their application might be

uncomfortable in certain situations.  The Court also reiterated that

the best interest and welfare of the child are of paramount

importance which shall always be kept in mind by the courts while

adjudicating the disputes.

39. This was  followed by a three Judge Bench of this  Court  in

Nithya Anand Raghavan’s case(supra) in which one of us(Justice

Khanwilkar) was a party.  In that case, the couple married on 30th

November, 2006 at Chennai and shifted to UK in early 2007.

Disputes  arose  between  the  spouse.  The  wife  had  conceived  in

December, 2008 came to New Delhi in June 2009 and stayed there

with her parents and she gave birth to a girl child in August, 2009

at Delhi.  After the husband arrived in India, the couple went back

40

to UK in March, 2010 and following certain unsavoury events, the

wife  and  the  daughter returned  to India in  August  2010.  After

exchange of legal correspondence, the wife and her daughter went

back to London in December 2011.  In July, 2014, the wife returned

to India along with her daughter and early 2015 the child became ill

and was diagnosed with cardiac disorder and due to the alleged

violent behavior of her husband filed complaint against him at the

GAW Cell,  New Delhi.   In 2016, husband filed custody/wardship

petition in UK to seek return of  the child.   He also filed habeas

corpus petition in 2017  in Delhi  High Court which was allowed.

The matter was brought before this Court by the wife.   This Court

heavily relied  upon its earlier judgment in  Dhanwanti Joshi’s

case(supra) which in turn referred to  Mckee’s case(supra) where

the Privy Council held that the order of foreign court would yield to

the welfare of the child and that the comity of courts demanded not

its enforcement, but its grave consideration.  This Court also relied

upon the judgment in  V. Ravi Chandran’s case(supra) and held

that the role of the High Court in examining the cases of custody of

a minor is on the touchstone of principle of parents patriae

41

jurisdiction, as the minor  is within the jurisdiction of the Court.

This Court further held that the High Court while dealing with the

petition for issuance of habeas corpus concerning a minor child in a

given case, may direct return of the child or decline to change the

custody of  the child keeping in mind all the attending facts and

circumstances into consideration.  It was held further by this Court

that each case must depend on the totality of the facts and

circumstances brought before it while considering the welfare of the

child  which  is  of  paramount  consideration and  the  order  of the

foreign Court must yield to the welfare of the child and the remedy

of writ of habeas corpus cannot be used for mere enforcement of the

directions given by  the foreign court  against  a person within  its

jurisdiction and convert that jurisdiction into that of an executing

court.   It was further observed that writ petitioner can take

recourse to such other remedy as may be permissible  in  law for

enforcement of the order passed by the foreign court or resort to

any proceedings as may be permissible in  law before the  Indian

Court for the custody of the child, if so advised.   This Court has

42

disapproved paragraph 56 (a) to (d) in  Surya Vadanan’s

case(supra) which reads as follows:­

“56.   However, if there is  a  pre­existing  order  of  a foreign court of competent jurisdiction and the domestic court decides to conduct an elaborate inquiry (as against a summary inquiry), it must have special reasons to do so. An elaborate inquiry should not be ordered as a matter of course. While deciding whether a summary or an elaborate inquiry should be conducted, the domestic court must take into consideration:

(a) The nature and effect of the interim or interlocutory order passed by the foreign court.

(b) The existence of special reasons for repatriating or not repatriating the child to the jurisdiction  of the foreign court.

(c)  The repatriation of the child does not cause any moral or physical or social or cultural or psychological harm to the child, nor should it cause any legal harm to the parent with whom the child is in India. There are instances where the order of the foreign court may result in the arrest of the parent on his or her return to the foreign country. [Arathi Bandi v. Bandi Jagadrakshaka Rao, (2013)  15 SCC 790  : (2014)  5 SCC (Civ) 475] In such cases, the domestic court is also obliged to ensure the physical safety of the parent.

(d) The alacrity with which the parent  moves the foreign court concerned or the domestic court concerned, is also relevant. If the time gap is unusually large and is not reasonably explainable and the child has developed firm roots in India, the domestic court  may  be  well  advised to conduct  an elaborate inquiry.”

43

40. As regards clauses (a) to (c) of paragraph 56 above, this Court

termed the same as tending to drift  away from the exposition in

Dhanwanti Joshi’s case(supra) and  V. Ravi Chandran’s

case(supra) and with regard to clause (d), this Court disagreed with

the same, and it was finally concluded as under:­

“69.   We once again reiterate that the exposition in Dhanwanti Joshi  [Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112] is a good law and has been quoted with approval by a three­Judge Bench of this Court in V. Ravi Chandran (2) [V. Ravi Chandran (2) v. Union of India, (2010) 1 SCC 174 : (2010) 1 SCC (Civ) 44] .  We approve the view taken in Dhanwanti Joshi, inter alia, in para 33 that so far as non­ Convention countries are concerned, the law is that the court in the country to which the child is removed while considering the question must bear in mind the welfare of the child as of paramount importance and consider the order of the foreign court as only a factor to be taken into consideration. The summary jurisdiction to return the child be exercised in cases where the child had been removed from its native land and removed to another country where, may be, his native language is not spoken, or the child gets divorced from the social customs and contacts to which he has been accustomed, or if its education in his native land is interrupted and the child is being subjected to a foreign system of education, for these are all  acts  which could psychologically  disturb the child.  Again the summary jurisdiction  be exercised only if the court to which the child has been removed is moved promptly and quickly. The overriding

44

consideration must be the interests and welfare of the child.”

41. The essence of the judgment in  Nithya Anand Raghavan’s

case(supra) is that the doctrines of comity of courts, intimate

connect, orders passed by foreign courts having jurisdiction in the

matter regarding custody of the  minor child, citizenship of the

parents and the child etc. cannot override the consideration of the

best interest and the welfare of the child and that the direction to

return the child to the foreign jurisdiction must not result in any

physical, mental, psychological, or other harm to the child.

42. In Kanika Goel Vs. State of Delhi through Station House

Officer and another   10  in which one of us(Justice Khanwilkar) is a

member, the marriage of the couple was solemnized in New Delhi

and accordingly girl child was born in US in 2014.   The mother

along with the child came to India in December, 2016 with their

return ticket to  Chicago in  January  2017.   She filed a divorce

petition after coming to India in Delhi and husband filed emergency

custody petition in US Court.  Wife obtained an ex­parte order from

Family Court, Delhi restraining husband from removing the child

10 2018(9) SCC 578

45

from  India on  11th  January, 2017.  Husband obtained ex­parte

order for interim sole custody on 13th  January, 2017 from foreign

Court.  At the same time, husband filed Habeas Corpus Petition in

Delhi  High Court  which  ordered the  mother to  comply  with the

order of  UK  Court.   This  Court, after taking into consideration

totality of facts and circumstances, observed that the custody of the

minor girl child to remain  with the appellant  mother  until she

attains the age of majority or the court of competent jurisdiction,

trying the issue of custody of the minor.

43. The expression “best interest of child” which is always kept to

be of paramount consideration is indeed wide in its connotation and

it cannot remain the love and care of the primary care giver, i.e., the

mother in case of the infant or the child who is only a few years old.

The definition of “best interest of the child” is envisaged in Section

2(9)  of the Juvenile  Justice  (Care & Protection)  Act,  2015, as  to

mean  “the basis for any  decision taken regarding the child, to

ensure fulfilment of his basic rights and needs, identify, social well­

being and physical, emotional and intellectual development”.

46

44. We shall now consider as to whether the facts and

circumstances of the present case warrant summary enquiry into

the question of custody of  minor children, namely, Arthin and

Neysa (as no legal proceedings between the parties remain pending

in India) or whether an elaborate enquiry procedure will be

necessary for entrustment of custody of the two minor children to

the appellant (Lahari Sakhamuri) until they are produced before the

US Court.

45. Indisputedly, the appellant (Lahari Sakhamuri) and

respondent (Sobhan Kodali) both were residing in US since 2004­

2005 and are well educated as the appellant (Lahari Sakhamuri) did

Biomedical  Engineering and the respondent  (Sobhan Kodali) is  a

Cardiologist by profession.  Their marriage was solemnized on 14th

March, 2008 and two  loving children namely,  Arthin and Neysa,

were born from this wedlock in US on 14th March, 2012 and 13th

October 2014.  Both have started going to school.  They purchased

a house in their joint name and  moved to the new house in

January, 2016.   Something must have been gone wrong between

them which compelled the appellant (Lahari Sakhamuri) in filing a

47

divorce and custody petition of the minor children in the Court of

Common Pleas  of  Lehigh County,  Pennsylvania  Civil  Division on

21st  December, 2016, seeking divorce, equitable distribution of

marital property, primary physical and shared legal custody of the

minor children.   In the divorce petition, the appellant (Lahari

Sakhamuri) made a specific averment about the permanent

residence in US for both the parties and securing children’s custody

and also admitted that both the minor children were residing in US.

It was also admitted that both the children were in joint custody of

the appellant (Lahari Sakhamuri) and respondent (Sobhan Kodali)

and they resided at 2085, Bellflower Lane, Canter Valley,

Pennsylvania 18034.

46. It was her own admission in the declaration form annexed to

the application that no mode of domestic violence or abuse was ever

subjected upon her or upon the minor children by the respondent

(Sobhan Kodali).  The respondent (Sobhan Kodali) had purchased to

and fro tickets of the appellant (Lahari Sakhamuri) and of minor

children as also of his mother in law who was staying together in

their matrimonial home, US with return tickets of 24th April, 2017

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but after coming to India on  23rd  March,  2017,  because  of the

alleged death of her maternal grandmother, the appellant (Lahari

Sakhamuri) refused to return back and was advised to file a

Guardianship Petition before the Family Court, Hyderabad on 12th

April,  2017 and  took the  ex­parte  order  concealing the  material

facts from the Family Court that such a petition is pending in US

filed at her instance and there was an order passed on 21st

December, 2016 restraining both the parties not to change

residence of the children which would affect the other parties ability

to exercise custodial rights.

47. It is not in dispute that both the minor children, from the very

inception of their  birth, till removal from the US on 23rd  March,

2017 were living with their parents in US.  This fact was admitted

by the appellant (Lahari Sakhamuri) also in the guardianship

petition filed before the Family Court, Hyderabad and also in the

divorce and custody petition filed by her in  US  and only after

hearing learned counsel for the parties, order was passed by the US

Court on 22nd  May, 2017 on the emergency custody petition

granting temporary physical  custody of the children with further

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direction to the appellant (Lahari Sakhamuri) to return along with

the children to the jurisdiction of US Court on 2nd June, 2017.  In

case she was aggrieved by the order dated 22nd May, 2017 passed

by the US Court after affording an opportunity of hearing which she

contested through her Attorney, all the courses were available to

her to assail the order of the Court.   Since the appellant (Lahari

Sakhamuri) failed in returning the children to the jurisdiction of the

US Court despite order dated 22nd May, 2017, there was no option

left with the respondent (Sobhan Kodali) but to file a Habeas

Corpus Petition and pray that the children be repatriated back to

US in compliance of the order of the US Court.   

48. It is true that this Court has to keep in mind the best interest

of the child as the paramount consideration.   The observations of

the US Court clearly show that principle of welfare of the children

has been taken into consideration by the US Court in passing of the

order as it reiterates that both the parties are necessary for proper

upbringing of the children and the ultimate decision of custody and

guardianship of the two minor children will  be taken by  the US

which has  the  exclusive jurisdiction  to take the  decision as the

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children happened to  be  the US citizens and  further  order  been

passed on the respondent’s emergency petition with special release

in custody on 9th March, 2018 permitting the respondent (Sobhan

Kodali) to apply for US passports on behalf of the minor children

without appellant (Lahari Sakhamuri) being mother’s consent.  The

appellant (Lahari Sakhamuri) cannot disregard the proceedings

instituted at her instance before the US Court and she  must

participate in those proceedings by engaging solicitors of her choice

to espouse her cause.

49. The  crucial factors  which  have to  be  kept in  mind  by the

Courts for gauging the welfare of the children equally for the

parent’s can  be inter  alia,  delineated, such  as (1)  maturity  and

judgment; (2) mental stability; (3) ability to provide access to

schools; (4) moral character; (5) ability to provide continuing

involvement in the community; (6) financial sufficiency and last but

not the least  the factors  involving relationship with the child, as

opposed to characteristics of the parent as an individual.

50. While dealing with the younger tender year doctrine,  Janusz

Korczar  a famous Polish­Jewish educator & children’s author

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observed “children cannot wait too long and they are not people of

tomorrow, but are people of today.   They have a right to be taken

seriously,  and  to  be treated with  tenderness  and respect.  They

should be allowed to grow into whoever they are meant to be ­ the

unknown person inside each of them is our hope for the future.”

Child rights  may  be limited  but they should  not  be ignored  or

eliminated since children are in fact persons wherein all

fundamental rights  are guaranteed to  them keeping  in mind the

best interest of the child and the various other factors which play a

pivotal role in taking decision to which reference has been made

taking note of the parental autonomy which courts do not easily

discard.   

51. The  doctrines  of comity  of courts, intimate  connect,  orders

passed by foreign courts having jurisdiction in the matter regarding

custody of the minor child, citizenship of the parents and the child

etc., cannot override the consideration of the best interest and the

welfare of the child and that the direction to return the child to the

foreign jurisdiction must not result in any physical, mental,

psychological, or other harm to the child.   Taking a holistic

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consideration of the entire case, we are satisfied that all the criteria

such as comity of courts, orders of foreign court having jurisdiction

over the matter regarding custody of the children, citizenship of the

spouse and the children, intimate connect, and above all, welfare

and best interest of the  minor children  weigh in favour of the

respondent (Sobhan Kodali) and that has been looked into by the

High Court  in the impugned  judgment  in detail.  That needs no

interference under Article 136 of the Constitution of India.

52. Before we conclude, we would like to observe that it is much

required to express our deep concern on the issue.   Divorce and

custody battles can become quagmire and it is heart wrenching to

see that the innocent child is the ultimate sufferer who gets caught

up in the legal and psychological battle between the parents.   The

eventful agreement about custody may often be a reflection of the

parents’ interests, rather than  the  child’s.  The  issue  in a  child

custody dispute is what will become of the child, but ordinarily the

child is  not  a true  participant in the  process.  While the  best­

interests principle requires that the primary focus be on the

interests  of the  child, the  child  ordinarily  does  not  define those

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interests  himself  or  does  he have  representation  in  the  ordinary

sense.

53. The child’s  psychological  balance  is  deeply  affected  through

the marital disruption and adjustment for changes is affected by

the way parents continue positive relationships with their children.

To focus on the child rights in case of parental conflict is a proactive

step towards looking into this special situation demanding a

specific articulation of child rights.   

54. The judicial resolution of a custody dispute may permanently

affect or even end the parties’ legal relationship but the social and

psychological relationship will usually continue and it seems

appropriate that a negotiated resolution between the parents is

preferable from the child’s perspective for several reasons.  A child’s

future relationship with each of his parents may be better

maintained and his existing relationship is less damaged by a

negotiated settlement than by one imposed by a court after

adversarial proceedings.

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55. In the present case, there is every possibility that the parties

may reconcile and start over their relationship afresh, at least for

the sake of happiness of their own off­spring if for no other reason.

The parties are indeed mature and sensible enough to understand

that the ordinary wear and tear of married life has to be put up in

within the larger interests of their own happiness and of the

healthy, normal growth and development of their offspring, whom

destiny has entrusted to their joint parental care.   Spouses must

come over the temperamental disharmony which usually exists in

every marriage, rather than magnifying  it  with  impulsive  desires

and passions.   Parents are not only caretakers, but they are

instrumental in the development of their child’s social, emotional,

cognitive  and physical  well­being and work harmoniously  to give

their children a happy home to which they are justly entitled to.  We

hope and trust that the parties will forget and forgive their

differences and join hands together in providing the congenial

atmosphere which may be good not for themselves but also for the

development of their minor children.           

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56. In our view, the best interest of the children being of

paramount importance will be served if they return to US and enjoy

their  natural environment  with love, care and  attention  of their

parents including grandparents and to resume their school and be

with their teachers and peers.

57. We accordingly direct the appellant (Lahari Sakhamuri) to

return to  US  along  with  both the children,  namely,  Arthin  and

Neysa, within a period of six weeks from today.   We further direct

respondent (Sobhan Kodali) to make all arrangements of stay and

travel expenses(including air tickets) of the appellant (Lahari

Sakhamuri) and both the children as well as her companion, if any,

in their own house or if she is not willing to stay for any personal

reasons, make all arrangements for stay at the place of her choice

at reasonable cost.   In case the appellant (Lahari Sakhamuri)

reports that she is not inclined to travel to US along with the minor

children, or do not show any interest to accompany the children,

the respondent (Sobhan Kodali) shall deposit a sum of Rs. 15 lakhs

in the bank account of the appellant (Lahari Sakhamuri) and proof

of  deposit shall  be  placed in the  Registry of the  High  Court of

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Andhra Pradesh who shall thereupon call upon the Consulate

General of the US at Hyderabad to take the custody of the minor

children, namely, Arthin and Neysa, along with their passports and

other travel documents from the appellant (Lahari Sakhamuri) and

hand over the same to the respondent (Sobhan  Kodali) with a

condition for taking the custody of the minor children (Arthin and

Neysa) for being taken to US and hand over to the jurisdictional

Court in US until further orders are passed in the pending

proceedings by the US Court.   The appellant  (Lahari Sakhamuri)

will be at liberty to utilize the money deposited by the respondent

(Sobhan Kodali) in connection with her visit to US, if so desired, in

future and the respondent (Sobhan Kodali) shall not take any

coercive steps against her  which in any  manner  may result in

adverse consequences.

58. It is further made clear that the observations which has been

made by us are only for the limited purpose of engaging in

summary inquiry for consideration in the petition of Habeas Corpus

and will be of no assistance to either party in the custody

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proceedings pending in the US Court which indeed will be decided

on its own merits.  

59. While parting, we express our word of gratitude for the sincere

efforts put in by  Mr. Gurukrishna  Kumar, Senior Advocate, in

persuading the parties to arrive at an amicable settlement.

60. Consequently, Civil Appeals arising out of SLP(Civil) Nos.

15892­15893 of 2018 are dismissed.  No costs.

61. The Criminal Appeal arising out of SLP(Crl.) No. 2316 of 2018

stands disposed of in the above terms.

62. Pending application(s), if any, stand disposed of.

………………………….…J.  (A.M. KHANWILKAR)

…………………………….J.  (AJAY RASTOGI)

NEW DELHI March 15, 2019

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