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            REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.934-936 OF 2013 (Arising out of SLP (Crl.) No. 10606-10608 of 2010)

Arathi Bandi                                               …Appellant  

VERSUS

Bandi Jagadrakshaka Rao & Ors.                …

Respondents

WITH  

CRIMINAL APPEAL NO.937 OF 2013 (Arising out of SLP (Crl.) No. 3335 of 2012)

Bandi Jagadrakshak Rao & Ors.                  …Appellants  

VERSUS

The State of Andhra Pradesh & Anr.          …

Respondents

J U D G E M E N T

SURINDER SINGH NIJJAR, J.

1. Leave granted.

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2. These  appeals  arising  out  of  Special  Leave  Petition  

(Crl.)  No. 10606-10608 of 2010 are directed against  

the judgment and final order dated 24th September,  

2010  passed  by  the  High  Court  of  Judicature  of  

Andhra  Pradesh,  Hyderabad  in  Writ  Petition  No.  

25479 of 2009 issuing a writ in the nature of Habeas  

Corpus  directing  the  petitioner  to  submit  to  the  

jurisdiction of U.S. Courts. The petitioner also assails  

the  orders  dated  3rd December,  2010  and  14th  

December, 2010 passed by the Andhra Pradesh High  

Court in W.P.M.P.                No. 31378 of 2010 in W.P.  

No.  25479  of  2010,  directing  the  petitioner  to  

produce the child along with necessary documents to  

give effect  to  the main judgment  and order  dated  

24th September,  2010.   The  appellant  has  framed  

three questions of law for the consideration of this  

Court  in  the  Special  Leave  Petition  giving  rise  to  

these appeals.  They are as under:-

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“(A) Has not the Hon’ble High Court failed to exercise  jurisdiction vested in it  under law in not considering  the welfare and well being of the minor child before  issuing the impugned directions ?

(B) Has not the Hon’ble High Court erred in holding  that when there is an order passed by foreign court, it  is not necessary to go into the facts of the case?

(C) Is not the judgment of US Court “not conclusive”  as  between the parties  and hence  unenforceable  in  India for being in violation of Section 13(c) and (d) of  the Code of Civil Procedure, 1908?”   

3. The  relevant  facts  giving  rise  to  the  aforesaid  

questions of law as narrated by the parties are as  

under:-

(a) Respondent No. 1 (hereinafter referred to as the  

“husband”) invoked the Habeas Corpus jurisdiction  

of  the  Andhra  Pradesh  High  Court  under  Article  

226 of the Constitution of India for production of  

the minor child, i.e., Master Anand Saisuday Bandi  

before the Court and permit him to take custody of  

the minor child in compliance of the orders passed  

in  Case  No.06-3-08145-9-KNT  by  the  Superior  

Court of Washington, County of King (hereinafter  

referred  to  as  “the  U.S.  Court”).   Upon  

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consideration  of  the  entire  facts  and  

circumstances, the High Court issued the following  

directions:-

“ i) The petitioner shall obtain necessary travel  tickets for the 7th respondent and the child  for their visit to the place where U.S. Court  is situated;

ii)   On  obtaining  travel  tickets,  the  petitioner  shall  intimate  the  same  to  the  7th  respondent three weeks in advance of the  date  of  departure  to  enable  her  to  make  necessary arrangements;

iii)   The petitioner shall deposit a sum of $5000  (Five  thousand  American  dollars)  in  the  name  of  the  7th respondent  for  enabling  her  to  engage an advocate in  US and to  submit to the jurisdiction of the US Court;

iv) The  petitioner  shall  make  necessary  arrangements  for  the  stay  of  the  7th  respondent  and  the  child  for  a  period  of  fifteen (15) [sic] on their landing in USA.

v)   On  petitioner  providing  travel  tickets,  depositing  the  amount  as  ordered above,  and  intimating  the  date  of  departure,  if  7th respondent  fails  to  submit  to  the  jurisdiction of the US Court along with the  child,  Master  Anand  Saisuday  Bandi,  in  obedience to the orders passed in writ  of  Habeas Corpus by the US Court, she shall  handover  the  custody  of  the  child  to  the  petitioner,  who  in  turn  shall  produce  the  child  before  the US Court  and custody of  

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the child will  abide by the decision of the  US Court since the child is a citizen of USA.”

(b) The  petitioner  (hereinafter  referred  to  either  as  

“the  petitioner”,  “the  wife”  or  “the  mother”),  

aggrieved  by  the  aforesaid  directions,  filed  the  

special  leave petitions giving rise to the present  

appeals.  

Events/ Legal Proceedings in the U.S.A.:

(c) The marriage between the parties was solemnized  

according to Hindu rights on 9th November, 2003  

in Atlanta, USA. They were both divorcees. After  

marriage, they had settled down in Seattle, USA.  

Anand  (hereinafter  referred  to  either  as  “the  

child”, “the minor child,” or “Anand”) was born on  

5th June, 2005 in USA and, therefore, is a US citizen  

by birth.  On 30th October, 2006, respondent No.1  

(hereinafter referred to as “respondent No.1”, “the  

husband”  or  “the  father”)  filed  a  petition  for  

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dissolution  of  marriage  in  Superior  Court  of  

Washington,  County  of  King  at  Seattle.  In  these  

proceedings,  an  ex  parte  order  was  issued  

restraining  the  wife  from  leaving  the  State  of  

Washington. The husband was authorised to hold  

on  to  the  passport  and  Person  of  Indian  Origin  

Card  (PIO  Card)  of  Anand.   Within  days  of  the  

husband  petitioning  for  dissolution  of  marriage,  

the  wife  on  13th November,  2006  submitted  a  

complaint  of  domestic  violence  in  which  the  

Superior  Court  of  Washington,  Kent  directed the  

husband to  move  out  of  the  matrimonial  home.  

Anand was to remain in the custody of wife with  

limited  visitation  rights  were  granted  to  the  

husband. The wife was, however, directed to pay  

US $ 1500 for  the husband’s expenses until  the  

regular  hearing.  On 4th December,  2006,  further  

orders  were  issued  stipulating  that  the  

wife/mother  would  occupy the family  home with  

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the child. Furthermore, the father was to bear half  

of the mortgage on family home, child’s day care  

expenses and insurance costs for the child and the  

mother. The unsupervised visitation rights of the  

father were increased from 9 hours to 12 hours  

per week. Father’s attorney was required to hold  

Anand’s U.S.A. passport. On 1st March, 2007, Ms.  

Jennifer Keilin was appointed by the Superior Court  

of Washington, Kent as Guardian ad litem to make  

recommendations  regarding  the  marriage  and  

child  custody.  On  22nd June,  2007,  Parenting  

Evaluation Report was submitted to the U.S. Court.  

The wife/mother was found suitable for custody in  

view of the problems of the husband/father at the  

work  place,  alcohol  dependency  and  smoking  

addiction. It was also noted that the child Anand  

has very serious food allergies. On 9th July, 2007,  

the wife filed a motion before the Superior Court of  

Washington, Seattle for an emergency hearing on  

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her  petition  requesting  travel  to  India  for  two  

weeks. This was denied by the aforesaid court on  

10th July, 2007. On the same day, the wife moved  

the Superior Court of Washington, Kent seeking an  

emergency hearing.  This  too was denied by the  

Court. However, regular hearing was set  for 24th  

July,  2007.  On  25th July,  2007,  at  the  regular  

hearing,  the Superior  Court  of  Washington,  Kent  

passed an order permitting the wife to travel  to  

India with the child. However, at the request of the  

husband,  the  said  order  was  stayed,  until  his  

motion  of  reconsideration  could  be  adjudicated.  

On  17th August,  2007,  the  wife  filed  motion  for  

continuance of trial, permanent relocation to India  

with the child and requesting the court to order  

the  father  to  undergo  domestic  violence  

assessment.   On  4th September,  2007,  Superior  

Court of Washington, Kent passed orders granting  

request  of  the  wife  for  continuance  of  trial,  

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appointing   Ms.  Keilin  to  conduct  another  

evaluation  to  make  recommendations  regarding  

relocation.  However,  the  request  of  the  wife  to  

order  the  husband  to  go  through  a  further  

domestic violence assessment was denied. On the  

same day, i.e. 4th September, 2007, the appeal of  

the father against the order dated 25th July, 2007,  

permitting the wife to travel to India with the child,  

was allowed.

(d) The  trial  in  the  main  petition  for  dissolution  of  

marriage on the ground of irretrievable breakdown  

of  marriage commenced on 18th March,  2008 in  

the Superior  Court  of  Washington,  Kent.  On 19th  

March,  2008,  parenting  plan  was  approved  with  

primary custody of Anand given to the mother and  

limited  visitation  rights  granted  to  the  father.  

During  summer  vacations  of  two  weeks,  each  

parent  was  granted  five  consecutive  days  of  

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residential  time,  at  a  time.   Out  of  State  or  

International  travel  was  permitted  to  both  the  

parties during the residential time. The attorney of  

the husband was ordered by the Superior Court of  

Washington to prepare final orders.

4. On  20th March,  2008,  the  motion  of  the  wife  for  

relocation to India was denied. On 7th July, 2008, the  

wife filed a motion petition before the Superior Court  

of Washington, Kent requesting a clarification on final  

parenting plan to           permit 13 consecutive days  

of vacation with the child for travelling to India. On  

16th July, 2008, Superior Court of Washington denied  

her motion. In violation of the aforesaid orders, the  

wife travelled to India with Anand on 17th July, 2008.  

On 22nd August, 2008, final orders were passed in the  

petition  filed  by  the  husband  for  dissolution  of  

marriage. The order includes findings of fact and law  

entered by  the  Superior  Court  of  Washington.  The  

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Court  specifically  recorded the  reasons that  led  to  

the  denial  of  the  motion  filed  by  the  wife  for  

relocation on 20th March, 2008. On 23rd August, 2008,  

divorce  decree  entered  by  the  Superior  Court  of  

Washington as part of final orders.  

5. On the same day, i.e., 23rd August, 2008, the wife sent  

an e-mail to the husband informing him that she will  

return on 16th September, 2008 alongwith the child.  

This  E-mail  also  contained  the  confirmed  itinerary.  

Since  the  wife  did  not  return  with  the  child,  the  

husband moved an application in September, 2008  

seeking modification of  the final  parenting plan on  

the  grounds  of  violation  of  earlier  parenting  plan  

(19th March, 2008) and interference with his visitation  

rights.  On  9th December,  2008,  Superior  Court  of  

Washington, Kent modified the parenting plan. The  

husband was made custodial parent and the wife was  

granted visitation rights.                   On 12th  

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December,  2008,  Superior  Court  of  Washington,  

Seattle also issued a Writ of Habeas Corpus, directing  

the State and its officers to locate and take Anand  

into  immediate  custody  and  deliver  him  to  the  

Presiding Judge of the Superior Court of Washington,  

County  of  King.   On 11th January,  2009,  abduction  

notices were issued against the wife.      This was  

followed by a Red Corner Notice. In the meantime,  

the services of the husband were terminated by his  

employer  in  February,  2009,  due  to  the  economic  

downturn. Similarly, the wife was also affected by the  

downturn and was not able to take up a new job in  

the USA. Since the wife did not return with the child  

on 13th March, 2009, Superior Court of Washington,  

Kent  issued  bailable  warrants  against  her  for  

Custodial  Interference  in  the  First  Degree.  In  May,  

2009,  the  husband  sold  the  matrimonial  house  in  

USA.  

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Events and legal proceedings in India -     

6. On 20th November, 2009, the husband filed a Habeas  

Corpus petition in  the Andhra Pradesh High Court.  

Since there was no representation from the wife, the  

writ petition was admitted. Upon completion of the  

proceedings, which according to the husband, were  

deliberately  delayed  by  the  wife,  the  High  Court  

delivered the impugned judgment           on 24th  

September,  2010.  A  few  days  thereafter,  the  

husband  filed  W.P.M.P.  No.31378  of  2010  on  29th  

September,  2010,  seeking  inter  alia custody  of  

Anand for producing him before the US Consulate in  

Hyderabad; a direction to the         Registrar (Judicial)  

of the Andhra Pradesh High Court to return his own  

Indian  Passport;  and  a  direction  to  the  wife  for  

providing her “current name”, “xerox copies of her  

current passport”,  “visa papers” and “PIO Card” of  

Anand to the husband. On 3rd December, 2010, the  

High Court directed the wife to be present along with  

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Anand before it on the next date of hearing, i.e., 10 th  

December, 2010. She was also directed to produce  

her  passport  and visa  papers  and the PIO Card of  

Anand, so as to enable the husband to comply with  

the  directions  of  the  High  Court  issued  in  Writ  

Petition  No.  25479  of  2009  dated  24th September,  

2010. It seems that on 10th December, 2010, another  

Advocate,  who  replaced  the  earlier  counsel,  

appeared for the wife and sought some more time to  

comply with the order dated 3rd December, 2010.  On  

14th December,  2010,  the  wife  came  to  the  High  

Court, albeit without Anand and served the copy of  

her Review Petition against the judgment dated 24th  

September, 2010 to the petitioner/husband.  On 18th  

December, 2010, the present appeal was preferred  

before this  Court,  by the wife.   Meanwhile on 22nd  

December, 2010, neither the wife nor Anand came to  

the  High  Court  and  a  death  in  the  family  at  

Vijayawada was reported by her as the reason for the  

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absence.   Again on 28th December,  2010,  the wife  

and  Anand  absented  themselves  from  the  High  

Court.  The High Court, however, issued directions on  

the  same  date  to  the  Commissioner  of  Police,  

Hyderabad City to produce Anand before the Court  

on  17th January  2011.   On 18th January,  2011,  the  

police                                           could not locate   

either  wife  or  Anand.   Upon  this,  the  High  Court  

granted  a  week’s  time  to  the  police  to  produce  

Anand.  On 25th January, 2011, since the police could  

not  locate  Anand,  the  High  Court  issued  a  non-

bailable warrant against wife and directed the matter  

to be listed on 8th February, 2011.  Meanwhile, this  

Court on 31st January, 2011, issued notice in the Civil  

Appeal filed by the wife and order dated 25th January,  

2011 was stayed. The Review Petition pending before  

the High Court appears to have been withdrawn by  

the  petitioner  after  the  notice  was  issued  by  this  

court in the present Civil Appeal.

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7. We have heard the learned counsel for the parties at  

length.

8. Mr. Pallav Shishodia, learned senior counsel appearing  

for the wife has submitted that both the mother and  

the child  have been in  India  since July,  2008.  The  

mother has been looking after Anand single handedly  

without any help from the father. She has got a well  

paid job with IBM at Bangalore. Anand now lives in a  

joint family and is happy. He enjoys the company of  

his  cousins.  He  is  now  8  years  of  age  and  has  

developed roots in India. He has emphasised that the  

High  Court  has  not  considered  the  welfare  of  the  

child  in  passing  the  impugned  judgment.  He  has  

submitted,  by  making  exhaustive  reference  to  the  

Parenting Evaluation Report, that it would be for the  

welfare  of  the  child  to  remain  with  the  mother  in  

India.  Learned  senior  counsel  submitted  that  this  

Court would have to consider the benefits that would  

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accrue to Anand if he is permitted to remain with her  

in  India  as  opposed  to  the  undesirability  of  

compelling her to handover his custody to the father.  

Learned senior  counsel  submits  that  the  Parenting  

Evaluation Report clearly notices that the father was  

subjected  to  Urinalysis  Testing  for  alcohol.  The  

mother had objected to her husband’s use of alcohol.  

The  husband  frequently  drank  alcohol  during  the  

evening.  At  the  same  time,  he  tried  to  hide  his  

alcohol  dependency  from  his  parents  who  were  

staying with him. The wife had also narrated before  

Ms. Jennifer Keilin who gave the Parenting Evaluation  

Report  that  the  husband  drank  while  watching  

television,  consuming  half  a  bottle  of  rum  every  

evening.  His  drinking had increased while she was  

visiting India in April  and May, 2004. She had also  

claimed that the husband sometimes had difficulty in  

waking  up  in  the  morning  and  after  drinking  he  

suffered  occasional  hangovers.  Mr.  Shishodia  also  

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pointed  out  that  the  husband  is  also  addicted  to  

cigarette  smoking.  He  also  has  a  history  of  

employment problems. This apart, the husband had  

also  admitted  before  the  evaluator  about  his  past  

drug  use.  Referring  to  the  Parenting  Evaluation  

Report,  Mr.  Shishodia  pointed  out  the  numerous  

other difficulties which were being faced by both the  

parties whilst they were married. On the basis of the  

aforesaid, he submitted that the High Court erred in  

law  by  not  taking  into  consideration  the  relevant  

factors  whilst  passing  the  impugned  judgment.  At  

this stage, he relied on the judgment of this Court in  

Smt.  Surinder  Kaur  Sandhu  Vs. Harbax  Singh  

Sandhu & Anr.  1  . He submitted that the High Court  

has totally ignored the relevant facts for determining  

what would be in the best interest of the child. He  

also pointed out to the conclusion in the Parenting  

Evaluation Report which is as under:

1 (1984) 3 SCC 698

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“In my opinion, Anand should reside primarily with Ms.  Bandi. He should have regular, limited visitation with  Mr.  Rao,  increasing  at  regular  intervals.  These  intervals should be based on Mr. Rao completing and  maintaining  certain  criteria  as  well  as  on  Anand’s  development needs. Mr. Rao should engage in specific  services, including alcohol treatment and a parenting  class, and both parents should participate in co-parent  counseling.”

9. Learned  senior  counsel  further  submitted  that  the  

High Court has totally misconstrued the principle of  

Comity  of  Courts, as  applicable  in  private  

international law matters. The High Court has erred  

in  holding  that  it  was  not  necessary  to  hold  an  

elaborate enquiry in the facts and circumstances of  

this  case.  He  submitted  that  the  High  Court  has  

misconstrued the principles of law laid down by this  

Court in V. Ravi Chandran  (Dr.) (2) Vs. Union of  

India & Ors.  2  .  He submitted that the observations  

made by this Court in the case of Shilpa Aggarwal  

(Ms.) Vs.  Aviral  Mittal  &  Anr.3 would  not  be  

applicable  in  the  facts  and  circumstances  of  this  2 (2010) 1 SCC 174 3 (2010) 1 SCC 591

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case. In fact, the matter is squarely covered by the  

judgment  of  this  Court  in  Dhanwanti  Joshi Vs.  

Madhav Unde  4  .   Learned senior counsel also relied  

on  the  judgment  in  Sarita  Sharma Vs. Sushil  

Sharma5 and  Ruchi  Majoo Vs.  Sanjeev Majoo  6  .  

Learned counsel pointed out that the High Court has  

totally ignored some very important issues as to why  

it would not be in the interest of Anand to be sent  

back to USA to live with the father.  He also pointed  

out that the husband has lost his job in the USA and  

has been living in India for the past three years. He  

has  also  sold  the  family  house  in  USA.  Therefore,  

Anand  would  have  no  family  atmosphere  if  he  is  

taken back to the USA. He pointed out that initially  

the custody of Anand had been given to the mother  

on the basis of the recommendations made in the  

parenting plan. However, subsequently, orders have  

4 (1998) 1 SCC 112 5 (2000) 3 SCC 14 6 (2011) 6 SCC 479

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been  passed  granting  custody  to  the  respondent-

husband. It is these orders which are sought to be  

enforced in the USA Courts which had led to the filing  

of the Habeas Corpus petition in the Andhra Pradesh  

High Court. He submitted that the mother had been  

compelled  to  leave  the  USA  due  to  the  irrational  

behaviour  of  the  husband.  Learned  senior  counsel  

also pointed out even at the time of the marriage,  

the plan was actually to settle in India. Subsequently,  

however, the husband declined to return to India. He  

also pointed out that the removal of Anand from USA  

was neither thoughtless nor malicious. The wife had  

to return to India due to the serious ailment and old  

age of her parents. She is now looking after them in  

India. Therefore, it cannot be concluded that the wife  

is trying to alienate the child from the husband.

10. Mr.  Patwalia,  learned  senior  counsel,  for  the  

respondent-husband  submitted  that  the  wife  has  

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come to India in violation of the parenting plan. It is  

submitted that she participated in the proceedings in  

USA, where some orders were passed in her favour  

while the others were against her.  

11. He submits that all  efforts of the wife are simply to  

alienate  the  child  from the  father.  He  emphasises  

that  the  petitioner  and  respondent  No.1  were  

married in USA. At the time of marriage, they were  

both  divorcees.  They  had  settled  in  Seattle,  USA.  

Anand was born in USA and is, therefore, a US citizen  

by  birth.  Due  to  irreconcilable  differences,  the  

husband was constrained to initiate proceedings in  

the USA Court for dissolution of marriage. During the  

pendency of the proceedings in the USA Court, the  

wife had shown a consistent propensity to disobey  

the orders of the Court. At the same time, she filed a  

number of motions in the pending proceedings with  

regard to domestic violence; independent occupation  

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of  the  matrimonial  home,  at  the  same  time  

demanding  that  the  husband  bears  half  of  the  

mortgage of the family home and other expenses for  

her as well as the child. Although both the parents  

were allowed five days residential time with the child  

during the two weeks summer vacation, the effort of  

the wife was always to remove him from the country  

of  his  birth.  Her  motion  for  permanent  location  to  

India  was  ultimately  denied  on  16th July  2008.  In  

defiance of the said order, she travelled to India with  

Anand on 17th July, 2008. The learned senior counsel  

submits  that  the  facts  which  have  been  narrated  

above would clearly indicate that the petitioner has  

little or no regard for the orders of the Court.    

12. Mr. Patwalia further submitted that the conduct of the  

petitioner  in  the  courts  in  this  country  follows  the  

same pattern. In fact, the counsel for the petitioner  

has admitted before the High Court the fact of US  

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Court passing order for the custody of the child and  

that it has not permitted the petitioner to remove the  

child out of Washington. It was further admitted that  

in  spite  of  the  aforesaid  direction,  the  child  was  

removed from the jurisdiction of the Courts in which  

he  was  born.  The  fact  of  issuance  of  the  Writ  of  

Habeas Corpus by the United States Superior Court  

for production of the child was also admitted. Before  

the High Court, a submission was made on behalf of  

the petitioner-wife for grant of some time to submit  

to the jurisdiction of the US Court and to enable her  

to obtain necessary orders from the aforesaid court.  

Relying  on  the  aforesaid  submissions  of  the  

petitioner, the High Court had issued the directions  

reproduced earlier in this judgment. After obtaining  

such  orders,  the  wife  disappeared  again  from the  

scene. Consequently, the respondent-husband had to  

file a miscellaneous application seeking directions to  

the petitioner to handover the custody of the child  

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for producing before the US Consulate in Hyderabad.  

On 3rd December, 2010, the High Court directed the  

petitioner  to  be  present  before  the  Court  on  10th  

December,  2010  along  with  the  child,  so  that  the  

husband could comply with the directions issued by  

the  Court  on  24th September,  2010.       On  14th  

December, 2010, the wife appeared in Court but did  

not produce the child, as directed. It was submitted  

before the Court that she had filed a review petition  

which ought to be taken up for hearing and sought  

one week’s time for production of the child. Upon this  

assurance, the Court again directed that the child be  

produced on 22nd December, 2010. According to Mr.  

Patwalia,  she was  all  along misleading  the  Andhra  

Pradesh High Court, whilst preparing to file the SLP  

against  the  impugned  judgment.  The  SLP  was  

actually  filed  on  18th December,  2010,  challenging  

three orders viz. orders dated 24th September, 2010  

passed  in  W.P.No.25479  of  2009  and  subsequent  

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orders dated 3rd December, 2010                and 14 th  

December,  2010  passed  in  W.P.M.P.  No.31378  of  

2010 in the aforesaid writ petition.

13. Mr. Patwalia points out that, in fact, the conduct of the  

petitioner  is  noticed  in  the  order  dated  28th  

December, 2010. The High Court noticed that in spite  

of  the directions having been given,  the petitioner  

has not produced the child in the Court. She had also  

not produced necessary papers relating to the child.  

On  14th December,  2010,  she  had  undertaken  to  

produce the child on 22nd December, 2010. On 22nd  

December, 2010, the counsel for the petitioner had  

submitted  that  her  maternal  uncle  had  died  and,  

therefore,  she had left  for  Vijayawada.  But  on 28th  

December, 2010, it was brought to the notice of the  

court that her maternal  uncle had already died on  

16th December, 2010. It was then represented before  

the  High  Court  that  the  petitioner  was  staying  at  

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Vijayawada  because  the  child  was  unwell  and  

admitted in hospital. The High Court noticed that the  

petitioner appears to have made a false statement  

on the last date of hearing. Therefore, the directions  

were  issued  to  the  Commissioner  of  Police,  

Hyderabad to produce the child before the Court  on  

17th January,  2011  at  4.00  p.m.  On  18th January,  

2011,  the  Court  was  informed  by  the  Assistant  

Government Pleader that in spite of best efforts by  

the  police,  the  child  could  not  be  traced  and  she  

sought further time to locate and produce the child in  

Court.  Since the petitioner was failing to assist the  

authorities  in  locating  the  child,  non-bailable  

warrants were issued for her. The matter was posted  

for further proceedings on 8th February, 2011. In the  

meantime, this Court  on 31st January, 2011 issued  

notice  in  the  SLP  and  stayed  the  

operation of the impugned orders.  

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14. Learned  senior  counsel  further  submitted  that  the  

petitioner  is  able to  defy the orders issued by the  

Court of Competent Jurisdiction in USA as India is not  

a  signatory  to  the  Hague  Convention  of  1980  on  

“Civil Aspects of International Child Abduction”. The  

aforesaid Convention fully recognizes the concept of  

doctrine of Comity of Courts in private international  

law. He submits that taking note of the undesirable  

effect  of  not  being  the  signatory  to  the  aforesaid  

convention,  the  then  Chairman  of  the  Law  

Commission of India recommended that India should  

keep  pace  and  change  according  to  the  changing  

needs of the society. The Commission recommended  

that the Government may consider that India should  

become a signatory to the Hague Convention of 1980  

which will,  in turn,  bring the prospect of achieving  

the return to India of children who have their homes  

in  India.   [See  Law  Commission  of  India  Report  

No.218  entitled  “Need  to  accede  to  the  Hague  

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Convention on the Civil Aspects of International Child  

Abduction (1980)”].  Mr. Patwalia also submits that  

the impugned order/judgment of the Andhra Pradesh  

High Court is in consonance with the law as declared  

by this Court in numerous judgments. In support of  

his submission, the learned senior counsel relies on  

the  same  judgments  which  were  cited  by  Mr.  

Shishodia.

15. Mr.  Patwalia  also  pointed  out  that  not  only  the  

petitioner  had  made  false  statements  before  the  

Court but she had denied the husband any contact  

with the child. From 6th April, 2010, the husband was  

entitled  to  see  the  child  for  2½  hours.  From  3rd  

October, 2010, the period was increased to 4 hours.  

Mr. Patwalia further submitted that the petitioner has  

also filed a complaint in the Court of XIII Additional  

Chief  Metropolitan  Magistrate,  Hyderabad  against  

her  husband,  both  his  parents  and  his  brother,  

alleging commission of offences under Sections 498-

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A,  506  of  IPC;  and  Sections  4  &  6  of  the  Dowry  

Prohibition  Act,  1961.  The  respondent  and  his  

parents had filed Criminal Petition no. 6711 of 2009  

under section 482 of Cr.P.C., before the High Court of  

Andhra  Pradesh  seeking  quashing  of  the  criminal  

complaint. In the said proceedings, the High Court,  

vide order                      dated 23rd December 2011,  

partly allowed the said criminal petition and directed  

that the respondent husband and other co-accused  

should not be prosecuted for offences said to have  

taken  place  in  USA  without  necessary  permission  

from  the  Central  Government.  However,  the  

proceedings emanating from the said complaint were  

not  quashed  because  the  High  Court  was  of  the  

opinion that there is sufficient prima facie material in  

the complaint in the context of offences alleged to  

have  been  committed  in  India.  The  said  order  is  

under challenge before us, in Criminal Appeal arising  

from S.L.P. (Criminal) No. 3385 of 2012.

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16. In this context, Mr. Patwalia submits that the aforesaid  

complaint  is  merely a counter  blast  to  the divorce  

and  child  custody  proceedings  initiated  by  the  

husband against the wife.

17. We have anxiously considered the submissions made  

by  the  learned  senior  counsel  for  the  parties  and  

minutely perused the material on record.  

18. From the  facts  narrated  above,  it  becomes  evident  

that  the wife  has reached India in  defiance of  the  

orders passed by the Courts of competent jurisdiction  

in  U.S.  It  is  apparent  that  the appellant  has  scant  

regard for the orders passed by the Andhra Pradesh  

High Court also. Keeping in view the aforesaid facts  

and circumstances, the Andhra Pradesh High Court  

issued the directions which have been reproduced in  

the  earlier  part  of  the  judgment.   Although  the  

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learned  counsel  for  the  parties  have  relied  on  a  

number of judgments of this Court in support of their  

respective submissions, in our opinion, the matter is  

squarely covered by the ratio of law in the case of V.  

Ravichandran (supra).

19. In  the  aforesaid  judgment,  this  Court  considered  a  

similar factual situation.  The petitioner, who was of  

Indian origin,  was a citizen of the United States of  

America.  He  married  respondent  No.  6  on  14th  

December,  2000  at  Tirupathi  in  India.  On  1st July,  

2002, child Aditya was born while they were in USA.  

Subsequently,  a dispute arose between the parties  

regarding  custody  of  Aditya,  and  the  parties  had  

obtained consent order dated 18th June,  2007 from  

the  court  of  competent  jurisdiction  in  USA  under  

which  both  the  parents  were  to  have  alternate  

custody  of  the  child  on  weekly  basis.  However,  

respondent  No.  6,  in  violation  of  the  said  court's  

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orders, removed the child to India on 28th June, 2007  

for  staying  with  her  parents  in  Chennai.  The  

petitioner in turn moved the USA Court on 8th August,  

2007 for modification of custody order and for taking  

action against respondent No. 6 for violation of court  

order. On that very day, the petitioner was granted  

temporary  sole  legal  and  physical  custody  of  the  

minor  child  and respondent  No.  6  was  directed  to  

immediately  turn  over  the  minor  child  and  his  

passport  to  the  petitioner.  The  order  could  not  

however be implemented in USA because of illegal  

removal of child by respondent No. 6 to India. The  

petitioner  thereafter  filed  habeas  corpus  petition  

under Article 32 of the Constitution in the Supreme  

Court  for  production  of  the  minor  child  and  for  

handing over his custody to the petitioner along with  

the child's passport. Despite orders of the Supreme  

Court, the State Police could not produce the child for  

two years, but CBI, on the directions of the Supreme  

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Court, was able to trace and produce the child within  

two months. The Court considered what would be an  

appropriate  order  in  the  facts  and  circumstances,  

keeping in  mind the interests  of  the child  and the  

orders of the courts of the United States of America.  

The Supreme Court while passing orders in this case  

also  took  into  consideration  several  concessions  

which the petitioner husband made so that the wife  

could return to USA and present her claim, if  any,  

over the child in the Courts in USA.  

20. This Court partly allowed the writ petition with certain  

observations which are very relevant in the decision  

in the present case.  We may notice the observations  

made  in  different  paragraphs  of  the  judgment.  In  

Paragraph  25,  the  Court  noticed  the  observation  

made by a Three Judge Bench of this Court in the  

case  of  Smt.  Surinder  Kaur  Sandhu  (supra),  

particular notice was taken of the observations made  

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in  Paragraph  10  of  the  judgment,  which  are  as  

under:-

“10. In  B's Settlement,  In re,  B. v.  B. the Chancery  Division was concerned with an application for custody  by the father of an infant who had been made a ward  of  court.  The father  was a Belgian national  and the  mother a British national who took Belgian nationality  on marriage to him. The infant was born in Belgium.  The mother was granted a divorce by a judgment of  the court in Belgium, but the judgment was reversed  and  the  father  became  entitled  to  custody  by  the  common law of Belgium. The mother, who had gone to  live  in  England,  visited  Belgium  and  was  by  arrangement given the custody of the infant for some  days. She took him to England and did not return him.  The infant had been living with the mother in England  for  nearly  two  years.  The  father  began  divorce  proceedings in Belgium, and the court appointed him  guardian.  Pending  the  proceedings,  the  court  gave  him the custody and ordered the mother to return the  infant within twenty-four hours of service of the order  on her. She did not return the infant. The correctional  court  in  Brussels  fined  her  for  disobedience  and  sentenced her to imprisonment should the fine be not  paid.  The  correctional  court  also  confirmed  the  custody order.”

21. In our opinion, these observations leave no manner of  

doubt that no relief could be granted to the appellant  

in  the  present  proceedings  given  her  conduct  in  

removing Anand from U.S.A. in defiance of the orders  

of the Court of competent jurisdiction. The Court has  

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specifically approved the modern theory of Conflict  

of  Laws, which prefers the jurisdiction of the State  

which has the most intimate contact with the issues  

arising  in  the  case.   The  Court  also  holds  that  

Jurisdiction  is  not  attracted  “by  the operation  or  

creation of fortuitous circumstances”. The Court adds  

a caution that to allow the assumption of jurisdiction  

by  another  State  in  such  circumstances  will  only  

result in encouraging forum-shopping.  The aforesaid  

observations  are  fully  applicable  in  the  facts  and  

circumstances of this case.  

22. Again  in Mrs.  Elizabeth  Dinshaw Vs. Arvand  M.  

Dinshaw & Anr.  7  , this Court reiterated the principle  

that it was 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.                            In  Re  

7 (1987) 1 SCC 42

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H. (Infants)8,  the  Court  of  Appeal  in  England had  

also  observed  that  the  sudden  and  unauthorized  

removal of children from one country to another is  

far too frequent nowadays.  Therefore, it is the duty  

of  all  courts  in  all  countries  to  do  all  they  can  to  

ensure  that  the  wrongdoer  does  not  gain  an  

advantage by his  wrongdoing.   These observations  

were also approved specifically by the Court in the  

case of  Mrs. Elizabeth Dinshaw (supra).   In the  

case of  V. Ravichandran (supra), in Paragraph 29  

and 30, this Court has concluded as follows:-

“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  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  

8 (1966) 1 W.L.R. 381 (Ch & CA) ; (1966) 1 All ER 886

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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 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 and the said  view has been approved by this  Court in Dhanwanti  Joshi. Similar view taken by the Court of Appeal in H.  (Infants),  In  re  has  been  approved  by  this  Court  in  Elizabeth Dinshaw.”

23. In  our  opinion,  the  Andhra  Pradesh  High  Court  has  

decided  to  exercise  jurisdiction  summarily  and  

directed  the  appellant  to  return  the  child  to  the  

U.S.A.   This  course  is  absolutely  permissible  as  is  

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apparent from the observations made by this Court  

in  Paragraph  30  of  the  aforesaid  judgment.   This  

Court  also  rejected  the  objection  raised  by  

respondent  No. 6 in the Counter Affidavit that the  

American court, which passed the order/decree has  

no jurisdiction and being inconsistent in Indian Laws  

can not be executed in India.  It was observed that  

despite  the  fact  that  the  respondent  had  been  

staying in India for more than 2 years, she has not  

pursued any legal proceeding for the sole custody of  

the minor child or for the declaration that the orders  

passed  by  the  American  courts  concerning  the  

custody of minor child are null and void and without  

jurisdiction.    Similar  are  the  facts  in  the  present  

case.  The wife has not pursued any legal proceeding  

for  seeking  custody  of  Anand.  She  has  also  not  

sought a declaration that the orders passed by the  

American Courts are null  and void and are without  

jurisdiction.  Therefore, in our opinion, the High Court  

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of  Andhra  Pradesh  can  not  be  said  to  have acted  

erroneously.                                   In  V.  

Ravichandran’s  case  (supra),  this  court  again  

observed in Paragraph 35 as follows:-

“35. The facts and circumstances noticed above leave  no manner of doubt that merely because the child has  been brought to India by Respondent 6, the custody  issue concerning minor child Adithya does not deserve  to be gone into by the courts in India and it would be  in accord with principles of comity as well as on facts  to  return  the  child  back  to  the  United  States  of  America from where he has been removed and enable  the parties to establish the case before the courts in  the native State of the child i.e. the United States of  America  for  modification  of  the  existing  custody  orders.  There  is  nothing  on record  which  may even  remotely suggest that it would be harmful for the child  to be returned to his native country.”

24. These  observations  are  squarely  applicable  in  the  

facts  and circumstances  of  the  present  case.   Mr.  

Shishodia  has,  however,  placed  strong  reliance  on  

the judgment of this Court in Ruchi Majoo (supra).  

The  aforesaid  judgment  would  not  be  of  any  

assistance  to  the  appellant  in  the  facts  and  

circumstances of the present case.  In that case, the  

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respondent and wife had been living in America, the  

child  was  born  in  America  and  was,  therefore,  an  

American Citizen.  The wife on account of husband’s  

addiction  to  pornographic  films,  internet  sex  and  

adulterous  behavior  during  the  couple's  stay in  

America took a decision to take the child to Delhi and  

the husband consented to it.  The parties had agreed  

that the wife will stay with the minor child in India  

and make the best arrangements for his schooling.  

Subsequently, however, the husband objected to the  

wife staying in India.   On the other hand, the wife  

had no intentions of returning to the country in the  

foreseeable  future  especially  after  she  has  had  a  

very  traumatic  period  on  account  of  matrimonial  

discord with the respondent husband. The wife had  

taken  out  proceedings  under  Section  9  of  the  

Guardian  and Wards  Act,  1890 seeking  custody of  

the minor child.  Shortly after the presentation of the  

main petition, an application under Section 12 of the  

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Guardian and Wards Act read with Section 151 of the  

Code  of  Civil  Procedure,  1908  was  filed  by  the  

wife/mother  of  the  child  praying  for  an  ex-parte  

interim  order  restraining  the  respondent  from  

removing  the  minor  from  her  custody  and  for  an  

order granting interim custody of the minor to the  

Appellant.  On the other hand, the husband had filed  

a case against the appellant alleging that she had  

abducted the minor child.  On his application, a Red  

Corner Notice was issued against the wife.  In the  

meantime, the Additional District Court at Delhi had  

granted  interim custody  to  the  appellant  by  order  

dated 4th April, 2009.  This order was challenged by  

the husband under Article 227 of the Constitution of  

India before the High Court of Delhi.  The Delhi High  

Court accepted the petition,  set aside the order of  

the  District  Court  and  dismissed  the  custody  case  

filed by the mother primarily on the ground that the  

Court  at  Delhi  had no  jurisdiction  to  entertain  the  

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claim  as  the  minor  was  not  ordinarily  residing  at  

Delhi.   The  High  Court  also  held  that  all  issues  

relating  to  the  custody  of  child  ought  to  be  

adjudicated  by  the  Courts  in  America  not  only  

because that Court had already passed an order to  

that effect in favour of the father, but also because  

all the three parties namely, the parents of the minor  

and the minor himself  were American citizens. The  

High  Court  then  buttressed  its  decision  on  the  

principle of comity of courts and certain observations  

made  by  this  Court  in  the  earlier  decisions  relied  

upon by the husband.  It was in these circumstances  

that the appeal filed by the wife/mother against the  

order  of  the  High  Court  was  allowed.   This  Court  

specifically took note of the following circumstances:-

“34. The appellant’s case is that although the couple  and their son had initially planned to return to USA,  that  decision  taken  with  the  mutual  consent  of  the  parties  was  changed  to  allow the  appellant  to  stay  back  in  India  and  to  explore  career  options  here.  Master Kush was also according to that decision of his  parents, to stay back and be admitted to a school in  

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Delhi. The decision on both counts, was free from any  duress whatsoever, and had the effect of shifting the  “ordinary residence” of the appellant and her son Kush  from the place they were living in America to Delhi.  Not only this the respondent father of the minor, had  upon his  return  to  America  sent  e-mails,  reiterating  the  decision  and  offering  his  full  support  to  the  appellant.  This  is,  according  to  the  appellant,  clear  from the text of the e-mails exchanged between the  parties  and  which  are  self-explanatory  as  to  the  context in which they are sent.”

25. This Court accepted the submission of the appellant  

that  on  the  consent  of  the  parties,  the  ordinary  

residence  of  the  minor  had  shifted  to  India.   In  

coming  to  the  aforesaid  conclusions,  the  Court  

examined  the  e-mails  exchanged  between  the  

parties,  which  totally  demolished  the  respondent’s  

defence that his consent for shifting the residence of  

the minor was obtained by coercion.  In Paragraph 45  

of the judgment, it is observed as follows:-

“45. It  is  difficult  to appreciate how the respondent  could in  the light  of  the above communications  still  argue  that  the  decision  to  allow  the  appellant  and  Master Kush to stay back in India was taken under any  coercion or duress. It is also difficult to appreciate how  the respondent could change his mind so soon after  the  above  e-mails  and  rush  to  a  court  in  US  for  

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custody of the minor accusing the appellant of illegal  abduction, a charge which is belied by his letter dated  19-7-2008 and the e-mails extracted above. The fact  remains  that  Kush  was  ordinarily  residing  with  the  appellant,  his  mother  and  has  been  admitted  to  a  school, where he has been studying for the past nearly  three years.  The unilateral  reversal  of a decision by  one  of  the  two  parents  could  not  change  the  fact  situation as to the minor being an ordinary resident of  Delhi, when the decision was taken jointly by both the  parents.”

26. The  Court  on  facts  rejected  the  contention  of  the  

husband in that case that the minor child has been  

removed from the jurisdiction of the American Courts  

in contravention of the orders passed by them.  In  

Paragraph 64, the Court observed as follows:-

“64. Secondly, the respondent’s case that the minor  was  removed  from  the  jurisdiction  of  the  American  courts in contravention of the orders passed by them,  is not factually correct. Unlike V. Ravi Chandran case,  where the minor was removed in violation of an order  passed  by  the  American  court  there  were  no  proceedings  between  the  parties  in  any  court  in  America  before  they  came to  India  with  the  minor.  Such proceedings were instituted by the respondent  only after he had agreed to leave the appellant and  the minor behind in India, for the former to explore  career  options  and  the  latter  to  get  admitted  to  a  school.  The  charge of  abduction  contrary  to  a  valid  order granting custody is, therefore, untenable.”

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27. These observations clearly are of no assistance to the  

appellant  herein.   She  had  participated  in  the  

proceedings in America for two years prior to fleeing  

to India in the defiance of the orders passed by the  

Court of competent jurisdiction restraining her from  

taking the child to India for a period of more than 5  

days.  The appellant, therefore, can not be allowed to  

take advantage of  her  own wrong.   Therefore,  the  

present case would be squarely covered by the ratio  

of law in the case of V. Ravichandran (supra).  

28. The Courts have taken cognizance of growing practice  

of  children  being  removed  from  one  country  to  

another  just  to  put  pressure/influence  the  legal  

proceedings that are usually pending in these cases  

in relation to irretrievable breakdown of marriage. In  

the case of Re H. (Infants) (supra), Willmer, L.J., as  

long as 1961, observed as follows :     

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“…….The  sudden  and  unauthorized  removal  of  children  from  one  country  to  another  is  far  too  frequent nowadays, and, as it seems to me, it is the  duty of all courts in all countries to do all they can to  ensure  that  the  wrongdoer  does  not  gain  an  advantage by his wrongdoing.”   

29. Further,  in  V.  Ravichandran’s case  (supra),  even  

though the Court had directed that the child will be  

taken back to America,  this  Court  took assurances  

from  the  husband  that  he  would  bear  all  the  

travelling expenses and make suitable arrangements  

for respondent No.6 in the U.S.A.  He had also given  

an  undertaking  that  he  would  take  out  necessary  

application for the removal of the Red Corner Notice  

so  that  the  wife  was  not  arrested  on  arrival  in  

America.

30. After  the  arguments  in  this  matter  had  been  

concluded,  we  interviewed  at  length  the  husband  

and wife. The wife was prepared to go back to the  

USA  and  live  with  her  husband.  However,  the  

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husband was not prepared to cohabit with the wife.  

Sadly,  therefore,  there  was  no  chance  of  

reconciliation between the parties.  We are conscious  

of the fact that the child has now been residing in  

India since 17th July, 2008.  He is now 8 years of age.  

In spite of the manner in which the child has been  

brought to India, it is quite evident that he has been  

studying at one of the best English medium schools.  

When we interviewed the child, it appeared that he  

had  been  thoroughly  brain  washed  against  the  

father.   We,  therefore,  permitted  the  father  to  be  

alone  with  the  child  for  about  three  hours  in  the  

chamber of Nijjar, J. and after the meeting the child  

seemed  to  be  not  wholly  averse  to  meeting  the  

father  again.  All  said  and  done,  in  such  

circumstances, the Court is left with making a very  

unpleasant  decision.   Either  way,  certain  collateral  

damage  being  caused  to  the  child  can  not  be  

avoided.   The  facts  narrated  above  would  clearly  

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indicate that the mother is singularly responsible for  

removal  of  the  child  from  the  jurisdiction  of  U.S.  

Courts.  In view of the above, we are constrained to  

pass the following order:-

31. The  directions  issued  by  the  High  Court  in  the  

impugned  order  are  upheld  with  the  following  

additions and modifications:-

Direction  No.(iv)  of  the  High  Court  shall  be  substituted by the following :

“(iv)  The  petitioner  shall  make  necessary  arrangements for the stay of the respondent No.7  and  the  child  in  suitable  accommodation  in  a  locality  according  to  her  status  prior  to  the  dissolution  of  marriage  for  a  period  of  three  months on their landing in USA.”

Direction  No.(vi)  –  Prior  to  making  any  travel  arrangements for  the 7th respondent and Anand,  the petitioner shall move the Court of Competent  Jurisdiction in USA for withdrawal of the bailable  

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warrants  issued  against  the  respondent  No.7  to  enable her to attend the custody proceedings in  the US Courts.  

Direction  No.(viii)  –  Upon  the  bailable  warrants  having  been  withdrawn,  the  petitioner  shall  personally escort respondent No.7 and Anand from  India to the USA.   

32. With  these  observations,  the  judgment  of  the  High  

Court is upheld and the Criminal Appeals No.934-936  

of 2013 @ SLP(Crl.) Nos. 10606-10608 of 2010 are  

hereby dismissed.  

33. Before  parting  with  this  order,  we  may  also  notice  

here that the respondent (husband) filed a Criminal  

Appeal No. 937 of 2013 @ SLP(Crl.)No.3335 of 2012,  

challenging the order dated 23rd December, 2011 of  

the High Court of Andhra Pradesh. As noticed earlier,  

the  aforesaid  order  was  passed  in  the  criminal  

petition  filed  by  the  respondent  husband,  seeking  

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quashing  of  the  criminal  complaint  filed  by  the  

appellant/wife against the respondent himself and his  

parents  under  Sections  498-A,  506  of  IPC  and  

Sections 4 & 6 of the Dowry Prohibition Act,  1961.  

Since no arguments were advanced in the aforesaid  

matter,  let  this  appeal  be  listed  for  arguments  

separately.

……………………………..J. [Surinder Singh Nijjar]

New Delhi       ………………………………J. July 16, 2013 [Pinaki Chandra Ghose]

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