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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICITON

CRIMINAL APPEAL NO. 968 OF 2017

PRATEEK GUPTA  ….APPELLANT

versus

SHILPI GUPTA & ORS. ….RESPONDENTS

J U D G M E N T  

AMITAVA ROY, J.

1. By the impugned judgment and order dated 29.04.2016 rendered

by the High Court of Delhi, in a writ petition filed by the respondent

No.1  seeking  a  writ  in  the  nature  of  habeas  corpus,  the

appellant-father has been directed to hand over the custody of the

child,  Master  Aadvik,  aged  about  5  years  to   respondent  No.1-

mother. The appellant-father is in assailment of this determination

and seeks the remedial intervention of this Court.  By order dated

03.05.2016, the operation of the impugned verdict was stayed and

as  the  said  arrangement  was  continued  thereafter  from time  to

time, the custody of the child as on date has remained with the

appellant.   The  orders  passed  by  this  Court  though  attest  its

earnest endeavour to secure a reconciliation through interactions

with the parents and the child, the efforts having failed, the appeal

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is being disposed of on merits.  

2.  We have heard Ms. Binu Tamta, learned counsel for the appellant

and  Mr.  N.S.  Dalal,  learned  counsel  for  the  respondent  No.  1

(hereafter to be referred to as  “respondent”).

3.  A  skeletal  outline  of  the  factual  backdrop  is  essential.  The

appellant  and  the  respondent   who  married  on  20.01.2010  in

accordance with the Hindu rites at New Delhi had shifted to the

United States of America (for short, hereafter referred to as 'U.S.'),

as the appellant was already residing and gainfully employed there

prior to the nuptial alliance. In due course, the couple was blessed

with two sons, the elder being Aadvik born on 28.09.2012 and the

younger, Samath born on 10.09.2014. As adverted to hereinabove,

the  present  lis  is  with  regard  to  the  custody  of  Master  Aadvik,

stemming from an application under Article 226 of the Constitution

of  India  filed  by  the  respondent   alleging  illegal  and  unlawful

keeping of  him by the appellant  and that  too in violation of  the

orders  passed  by  the  Juvenile  and  Domestic  Relations  Court  of

Fairfax  County,  passed  on  28.05.2015 and 20.10.2015 directing

him to return the child to the Commonwealth of Virginia and to the

custody and control of the respondent.

4. The pleaded facts  reveal  that  the  child  resided with the  parents

from his birth till 07.11.2014 and thereafter from 07.11.2014 till

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06.03.2015 with the respondent-mother in the United States. This

is so, as in view of irreconcilable marital issues, as alleged by the

respondent,  particularly  due  to  the  volatile  temperament  and

regular angry outbursts of the appellant often in front of the child,

the parties separated on or about 15.11.2014.  Prior thereto, the

appellant  had  on  08.11.2014  left  for  India  leaving  behind  the

respondent  and her children in U.S.  He returned on 18.01.2015 to

the  U.S.,  but  the  parties  continued  to  live  separately,  the

respondent with her children.  The appellant however, made short

time visits in between and on one such occasion i.e. on 24.01.2015,

he took along with him Aadvik, representing that he would take him

for a short while to the Dulles Mall.  According to the respondent,

she  did  not  suspect  any  foul  play  and  permitted  the  child  to

accompany  his  father,  but  to  her  dismay  though  assured,  the

appellant did not return with the child in spite of fervent insistences

and implorations of the mother. As alleged by the respondent, the

appellant  thus separated the  child  from her  from 24.01.2015 to

07.03.2015 in a pretentious and cruel move, seemingly acting on a

nefarious  strategy  which  surfaced  when  on  07.03.2015,  the

appellant  left  U.S.  with  the  child  to  India  without  any  prior

information or permission or consent of hers.    

5. Situated thus, the respondent approached Juvenile and Domestic

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Relations Court Fairfax County, for its intervention and for that, on

15.05.2015, she filed “Emergency Motion For Return of Minor Child

and Established Temporary Custody”.

6. On the  next  date  fixed  i.e.  19.05.2015,  after  the  service  of  the

process on the appellant, his counsel made a “special appearance”

to contest the service.  On the date thereafter i.e. 28.05.2015, he

however informed the court that he was not contesting the service

upon the appellant, whereupon hearing the counsel for the parties

at length and also noticing the plea on behalf of the appellant that

he intended to return with the child in U.S. and that the delay was

because of his mother's illness, the U.S. Court passed the following

order:

“IN THE JUVENILE & DOMESTIC RELATIONS DISTRICT  COURT FOR FAIRFAX COUNTRY

SHILPI GUPTA IN re: Aadvik Gupta D.O.B. September 28, 2012

Petitioner          Case No. JJ 431468-01-00

Vs.

Prateek Gupta Respondent

ORDER This  cause  came  before  this  Court  on  the  19th May,

2015, upon the petitioner Shilpi Gupta's verified motion for return of minor child and to establish temporary custody;

It  appearing  to  the  Court  that  this  Court  has  proper jurisdiction over the parties to this action pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, more specifically 20-146.24 and 20-146.32 of the Code of

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Virginia, 1950, as amended. It further appearing to the Court that it is in the best

interest of the child, Aadvik Gupta, (hereinafter “Aadvik”) born  on  September  28,  2012,  that  he  be  immediately returned  to  the  custody  of  the  petitioner  and  to  the Commonwealth  of  Virginia  pending  any  further  order  of this Court and that good cause exists with which to require that the petitioner take immediate possession of the child by  all  means  necessary.   It  is  therefore  adjourned  and ordered as follows: 1.  Custody: The petitioner Shilpi Gupta, is hereby granted sole legal and physical custody of the minor child, Aadvik Gupta, pending further order of this Court. 2.   Return  of  the  Child:  That  the  respondent,  Prateek Gupta, is hereby ordered to immediately return Aadvik to the  Commonwealth  of  Virginia,  and  to  the  custody  and control  of  the  petitioner  or  her  agents.   Thereafter,  the respondent  shall  not  remove  the  child  from  the Commonwealth  of  Virginia  under  any  circumstances without further order of the Court. 3.   Enforcement:   That  the all  law enforcement agencies and related agencies (including but  not  limited to  Police Department(s),  Sheriff's  Department(s),  U.S.  State Department, Federal Bureau of Investigations) are hereby directed to assist and/or facilitate the transfer of Aadvik to the petitioner, if necessary, including taking the child into custody  from  anyone  who  has  possession  of  him  and placing him in the physical custody of the petitioner. 4.  Passport:   That  once  the  child  has  been  returned  to Virginia,  any  and  all  of  Aadvik's  passports  must  be immediately surrendered to the petitioner where it will be held until further order of this Court. 5.  Removal from the Commonwealth of Virginia:  That all relevant  and/or  local  law  enforcement  agencies  shall  do whatever possible to prevent the removal of Aadvik Gupta, from the Commonwealth of Virginia except at the direction of the petitioner, Shilpi Gupta.

And this cause is continued. Entered this 28 day of May, 2015.

Sd/- Judge”

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7. Thereby, the Court in U.S. being satisfied that it  had the proper

jurisdiction over the parties to the action before it and also being of

the opinion that it was in the best interest of the child, that he be

returned  to  the  custody  of  the  respondent  and  to  the

Commonwealth of Virginia pending further orders, and that being

convinced  that  good  cause  existed  to  require  that  the

respondent-mother take immediate possession of the  child by all

means necessary,  granted  sole legal and physical custody of the

child to the respondent pending further orders of  the Court. The

appellant  was  directed  to  immediately  return  the  child  to  the

Commonwealth of Virginia and to the custody and control of the

respondent or her agents with a further restraint  on him not to

remove  the  child  from the  Commonwealth of  Virginia  under  any

circumstance without the further order of the Court. Thereby, all

law enforcement and related agencies as mentioned in the order

were directed to assist and/or facilitate the transfer of the child to

the respondent, if necessary by taking the child into custody from

anyone who had his possession and by placing him in the physical

custody of the respondent.   

8.   As the records laid before this Court would divulge, the appellant

meanwhile on 26.05.2015 filed a petition for restitution of conjugal

rights  under  Section  9  of  the  Hindu  Marriage  Act,  1956  (as

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amended) and also a petition under Section 7(b) of the Guardian

and Wards Act, 1890 in the court of the Principal Judge, Family

Court,  Rohini,  Delhi  seeking  a  decree  for  restitution  of  conjugal

rights between the parties and for a declaration that he was the sole

and  permanent  guardian  of  the  child,  respectively.   Subsequent

thereto on 26.08.2015 he also instituted a suit in the High Court of

Delhi at New Delhi praying for a decree  inter alia to adjudge the

proceedings initiated by the respondent in the court in U.S. to be

false,  malicious,  vexatious,  oppressive  and  nullis  juris,  being

without jurisdiction and also to declare the order dated 28.05.2015

with  regard  to  the  return  of  the  child  to  the  custody  of  the

respondent-mother to be also null and void and not binding on him.

A  decree  for  permanent  injunction  against  the  respondent,  her

agents etc. from pursuing her proceedings before the court in U.S.

was also sought for.  The orders, if any, passed in these proceedings

instituted by the appellant having a bearing on those pursued by

the respondent before the court in U.S. are however not on record

and  we  therefore  refrain  from  making  any  comment  thereon.

Suffice  is  to  state  that  the  lodging  of  the  proceedings  by  the

appellant in courts in India demonstrates in unambiguous terms,

his knowledge about the lis in the Court in U.S. and the order dated

28.08.2015, interim though, directing him to return the custody of

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the  child   immediately  to  the   respondent-mother  and  to  the

Commonwealth of Virginia, pending further orders.   

9.  Be that as it may, the court in U.S. on 20.10.2015 noticing inter

alia that the appellant had refused to return the child to the U.S.

and to the custody of the respondent in direct violation of its earlier

order  dated 28.05.2015,  ordered that  the  respondent  be  granted

sole,  legal and physical custody of the child and also declared that

no visitation be granted to the appellant.  It  was further directed

that if either party intended to relocate his or her residence, he/she

would have  to give  30 days'  advance written notice  of  any such

intended relocation and of any intended change in address to the

other  party  and  the  court.  The  proceedings  concluded  with  the

observation “This  cause  is  final”.   For   immediate   reference

the proceedings of 20.10.2015 is also extracted hereinbelow:

“IN  THE  JUVENILE  &  DOMESTIC  RELATIONS DISTRICT COURT FOR FAIRFAX COUNTY

Shilpi Gupta In re: Aadvik Gupta D.O.B. September 28, 2012

Petitioner

Case No. JJ431468-01-00/02-00

Vs.

Prateek Gupta Respondent

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CUSTODY AND VISITATION ORDER

This cause came before this Court on the 20th day of October,  2015,  upon  the  petitioner  Shilpi  Gupta’s petitions for custody and visitation of Aadvik Gupta.

It  appearing  to  the  Court  that  it  has  jurisdiction over  the  parties  and  the  subject  matter  of  the above-styled matter;

It  further  appearing  to  the  Court  that  the respondent,  Prateek  Gupta,  unilaterally  removed Aadvik Gupta to India without notice to or consent of the petitioner, and has further refused to return said child to the United States and into the custody of the petitioner  in  direct  violation  of  this  Court’s  order entered on May 28, 2015.

Having considered all of the factors of 20-124.3 of the Code of Virginia, 1950, as amended, it is hereby:

Adjudged and ordered that petitioner is granted sole legal  and  physical  custody  of  Aadvik  Gupta;  it  is further.

Adjudged and ordered that no visitation is granted to the respondent at this time; and it is further;

Adjudged and ordered that pursuant to 20-124.5 of the Code of Virginia,  1950 as amended, either party who intends to relocate his or her residence shall give thirty-days  advance  written  notice  of  any  such intended  relocation  and  of  any  intended  change  of address,  said  notice  being  given  to  both  the  other party and to this Court.

This cause is final Entered this 20th day of October, 2015.”

10.Mentionably,  before  the order dated 20.10.2015 was passed,  the

respondent in the face of  deliberate  non-compliance of  the order

dated 28.05.2015 of the court in U.S. had filed a contempt petition

before it and the copy thereof was served on the appellant asking

him to show cause.  It  is also a matter of  record that the order

dated 28.05.2015 of the court in U.S. had been published in the

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daily “The Washington Times” on 03.09.2015, whereafter the order

dated 20.10.2015 was passed in the presence of the counsel for the

appellant  after  affording the  respondent  due hearing,  whereupon

the  counsel  of  the  appellant  signed the  order  with the  following

endorsement “objected to for returning the child to mother sole legal

and  physical  custody”.   The  proceedings  of  the  order  dated

20.10.2015 would also testify that he failed to appear even after

personal service.  That the notice of the proceedings in U.S. Court

at both the stages had been served on the appellant is a minuted

fact.  It was in this eventful backdrop, that the respondent invoked

the writ jurisdiction of the High Court of Delhi seeking a writ of

habeas corpus against the appellant for the custody of the child

alleging its illegal and unlawful charge by him.

11. In reinforcement of her imputations, the respondent elaborated that

the child was an American citizen by birth, Virginia being his home

State  and  that  in  spite  of  the  order(s)  of  a  court  of  competent

jurisdiction,  the  appellant  had  illegally  detained  him.  Various

correspondences  made  by  her  with  different  authorities  seeking

their  intervention  and  assistance  as  the  last  resort  before

approaching the Writ Court were highlighted.  

12. In refutation,  it  was pleaded on behalf  of  the  appellant  that  the

petition for a writ in the nature of habeas corpus was misconceived

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in absence of any imminent danger of the life or physical or moral

well-being of the child. Referring to, amongst others the proceedings

initiated by him under the Guardian and Wards Act, 1890 which

was pending adjudication, it was asserted on his behalf that as the

same assured effective and efficacious remedy in law, the prayer in

the writ petition ought to be declined.  It was insisted as well that

as the issue of the custody of the child was involved, a summary

adjudication thereof was unmerited and that a proper trial was the

imperative.  Apart from referring to the reasons for the acrimonious

orientation of the parties, the initiatives and efforts made by him

and  his  family  members  to  fruitlessly  effect  a  resolution  of  the

differences, were underlined.  It was maintained on his behalf that

the  parties  however,  as  an  interim  arrangement  made  on

24.01.2015 had agreed to live separately with each parent keeping

one child in his/her custody and that in terms thereof Aadvik, the

minor  whose  custody  is  in  dispute,  was  given  in  charge  of  the

appellant.  Institution and pendency of the other proceedings before

the Indian Courts were also cited to oppose the relief of the writ of

habeas corpus. It was contended as well that the respondent being

a single working woman, she would not, in any view of the matter,

be capable of appropriately looking after both the children.   

13. In rejoinder, it was asserted on behalf of the respondent that the

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proceedings instituted by the appellant were all subsequent to the

one commenced by her in the court in U.S. on 15.05.2015 and in

the face of the final order(s) passed, directing return of custody of

the child to her and the Commonwealth of Virginia, the continuance

of  the  child  with  the  appellant  was  apparently  illegal  and

unauthorized, warranting the grant of writ of habeas corpus.   

14.The  High  Court,  as  the  impugned  judgment  would  evince,  after

traversing  the  recorded  facts,  amongst  others  took  note  of  the

disinclination of  the  respondent-wife  to  join  the  company  of  her

husband  in  India  because  of  his  alleged  past  conduct  and  the

trauma and torture suffered by her, a plea duly endorsed by her

father  present  in  court,  granted  the  writ  as  prayed  for.  While

rejecting the contention of the appellant that no orders ought to be

passed in the  writ  petition in view of  the  pendency of  the three

proceedings initiated by him in India,  the High Court seemed to

place a decisive  reliance on the decision of  this Court in  Surya

Vadanan vs. State of Tamil Nadu & Ors.,1 and after  subscribing

to the  principle  of  “comity  of  courts”  and the doctrines of  “most

intimate contact” and “closest concern” returned the finding, in the

prevailing factual setting, that the domestic court had much less

concern  with  the  child  as  against  the  foreign  court  which  had

1         (2015) 5 SCC 450

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passed the order prior in time. It observed further that no special or

compelling reason had been urged to ignore the principle of comity

of courts which predicated due deference to the orders passed by

the  U.S.  Court,  more  particularly  when  the  appellant  was

represented before it through his counsel and had submitted to its

jurisdiction.   It  was held that as the child remained in the U.S.

since birth upto March, 2015, it could be safely construed that he

was  accustomed  to  and  had  adapted  himself  to  the  social  and

cultural milieu different from that of India.  It was observed that no

plea had been raised on behalf  of  the appellant  that  the foreign

court  was  either  incompetent  or  incapable  of  exercising  its

jurisdiction or had not rendered a reasonable or fair decision in the

best interest of child and his best welfare.  In the textual facts, the

conclusion of the High Court was that the most intimate contact

with the parties and their children was of the court in U.S. which

did have the closest concern for their well-being.   

15.Having determined thus, the High Court directed the appellant to

produce  the  child  in  court  on  the  date  fixed  for  consequential

handing over of his custody to the respondent.   

16. In the process of impeachment of the impugned ruling of the High

Court, the learned counsel for the appellant at the threshold has

assiduously questioned the maintainability of the writ proceeding

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for  habeas  corpus.  According  to  the  learned  counsel,  in  the

attendant facts and circumstances, the custody of the child of the

appellant who is the biological father can by no means be construed

as illegal or unlawful and thus the writ proceeding is misconceived.

Further the appellant being in-charge of the child on the basis of an

agreement between the parties, which also stands corroborated by

various  SMS  and  e-mails  exchanged  between  them  during  the

period  from January,  2015  to  07.03.2015,  the  departure  of  the

appellant with the child from the U.S. to India and its custody with

him is authorized and approved in law. The learned counsel argued

as  well  that  during  the  interregnum,  after  the  appellant  had

returned to India with the child, the couple had been in touch with

each other with interactions about the well-being of the child and

thus in law and on facts, there is no cause of action whatsoever for

the  writ  of  habeas  corpus  as  prayed  for.  That  in  passing  the

impugned order, the High Court had visibly omitted to analyze the

perspectives pertinent for evaluating the interest or welfare of the

child has been underlined to urge that on that ground alone, the

assailed ruling is liable to be interfered with. The learned counsel

dismissed any binding effect of the order of the U.S. Court on the

ground  that  the  same  had  been obtained  by  the  respondent  by

resorting  to  fraud  in  withholding  the  relevant  facts  from it  and

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deliberately projecting wrongly that the safety of the child was in

danger in the custody of the appellant. The order of the court in

U.S. having thus been obtained by resorting to fraud, it is non est in

law, she urged. Even otherwise, India being not a signatory to the

Hague  Convention  of  “The  Civil  Aspects  of  International  Child

Abduction”, the order of the U.S. Court was not per se enforceable

qua the appellant and as in any view of the matter, the principle of

comity of courts was subject to the paramount interest and welfare

of the child, the High Court had fallen in error in relying on the

rendition of this Court in  Surya Vardanan1  which in any event,

was of no avail to the respondent in the singular facts of the case.

According to the learned counsel, the parties are Indian nationals

and citizens having Indian passports and they are only residents of

U.S.  on  temporary  work  visa.  It  has  been  argued  that  the

respondent  is  all  alone  in  U.S.  with  the  younger  child  on  a

temporary work visa which would expire in 2017 and her parents

and other family members are all in India. It has been pleaded as

well that when the child was brought to India by the appellant, he

was aged 2½ years, by which age he could not be considered to

have been accustomed and adapted to the lifestyle in U.S. for the

application  of  the  doctrines  of  “intimate  contact”  and  “closest

concern”  by  a  court  of  that  country.  According  to  the  learned

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counsel, the child after his return to India, has been admitted to a

reputed school and has accustomed himself to a desired congenial

family  environment,  informed  with  love  and  affection,  amongst

others of his grand-parents for which it would be extremely harsh to

extricate  him  herefrom and  lodge  him  in  an  alien  setting,  thus

adversely impacting upon the process of his overall grooming. That

the removal of the child by the appellant to India had not been in

defiance of any order of the court in U.S. and that the issue, more

particularly  with regard to  his  custody as  per  the  Indian law is

presently pending in a validly instituted proceeding here has also

been highlighted in endorsement of the challenge to the impugned

judgment  and order.  The  decisions  of  this  Court  in  Dhanwanti

Joshi vs. Madhav Unde2, Sarita Sharma vs. Sushil Sharma3 and

Surya  Vadanan1 have  been  adverted  to  in  consolidation  of  the

above arguments.

17. In his contrasting response, the learned counsel for the respondent,

while edifying the sanctified status of a mother and her revered role

qua her child in its all round development, urged with reference to

the factual background in which the child had been removed from

his native country, that his continuing custody with the appellant is

patently  illegal  and  unauthorized  besides  being  ruthless  and

2             (1998) 1 SCC 112 3             (2000) 3 SCC 14

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inconsiderate  vis-à-vis  the  respondent-mother  and  his  younger

sibling. Heavily relying on the determination of this Court in Surya

Vadanan1,  the learned counsel has insisted that the High Court

had  rightly  invoked  the  principle  of  comity  of  courts  and  the

doctrines of “intimate contact” and “closest concern” and therefore,

no interference is called for in the ultimate interest and well-being

of the child. It was urged that the orders passed by the court in U.S.

directing the return of the child to the custody of the respondent

and the Commonwealth of Virginia is perfectly legal and valid, the

same having been rendered after affording due opportunity to the

appellant  and  also  on  an  adequate  appreciation  of  the  aspects

bearing on the welfare of the child. The orders thus being binding

on the appellant, the defiance thereof is inexcusable in law and only

displays a conduct unbecoming of a father to justify retention of the

custody of the child in disobedience of the process of law. The High

Court  as  well  on  a  due  consideration  of  the  facts  and  the  law

involved had issued its writ for return of the custody of the child to

the  respondent  after  affording  a  full-fledged  hearing  to  both  the

parties  for  which  no  interference  is  warranted,  he  urged.  The

learned counsel however denied that there was ever any agreement

or understanding between the couple, under which they agreed that

each parent would have the custody of one child as represented by

18

the appellant. In the case in hand as a final order has been passed

by the court in U.S. with regard to the custody of the child in favour

of  the  respondent  after  discussing  all  relevant  aspects,  the

impugned order of the High Court being in conformance with the

letter and spirit thereof, no interference is merited, he urged. While

placing  heavy  reliance  on  the  decision  of  this  Court  in  Surya

Vadanan1 , it was also insisted that the return of the elder child to

the custody of the mother was indispensably essential also for the

proper growth and grooming of the younger child in his company

and association, sharing the common bond of love, affection and

concern.

18.The recorded facts and the contentious assertions have received our

due attention. A brief recapitulation of the state of law on the issue

at the outset is the desideratum.   

19. A three Judge Bench of this Court in Nithya Anand Raghavan

vs.  State  (NCT of  Delhi)  and  another4 did  have  the  occasion  to

exhaustively  revisit  the  legal  postulations qua the  repatriation of  a

minor child removed by one of the parents from the custody of the

other parent from a foreign country to India and its retention in the

face of an order of a competent foreign court directing its return to the

place of abode from which it had been displaced. The appeal before

4         (2017) 8 SCC 454

19

this Court arose from a decision of the High Court in a Writ Petition

filed by the father alleging that the minor daughter of the parties had

been illegally removed from his custody in United Kingdom (for short,

hereafter referred to as “UK”), thus seeking a writ of habeas corpus for

her production. By the verdict impugned, the High Court directed the

appellant-mother therein to produce the minor child and to comply

with  an earlier  order  passed by  the  High Court  of  Justice,  Family

Division, Principal Registry, United Kingdom within three weeks or in

the  alternative  to  handover  the  custody  of  the  daughter  to  the

respondent-father therein within that time. The proceeding in which

the Court in the UK had passed the order dated 08.01.2016 had been

initiated  by  the  respondent/father  after  the  appellant/mother  had

returned to India with the minor.

20. A  brief  outline  of  the  factual  details,  would  assist  better  the

comprehension of the issues addressed therein.  The parties to start

with, were Indian citizens and were married as per the Hindu rites and

customs on 30.11.2006 which was registered before the SDM Court,

Chennai, whereafter on the completion of the traditional formalities,

they shifted to U.K. in early 2007 and set up their matrimonial home

in Watford (U.K.).  Differences surfaced between them so much so that

as  alleged  by  the  wife,  she  was  subjected  to  physical  and  mental

abuse. She having conceived in and around December, 2008, left U.K.

20

for Delhi in June, 2009 to be with her parents and eventually was

blessed with a girl child, Nethra in Delhi.  The husband soon joined

the mother and the child in Delhi  whereafter,  they together left  for

U.K. in March, 2010.  Skipping over the intervening developments,

suffice it to state that the mother with the child who had meanwhile

been back on a visit to India, returned to London in December, 2011,

whereafter  the minor was admitted in a Nursery School  in U.K.  in

January,  2012.   In  December,  2012,  the  daughter  was  granted

citizenship of U.K. and subsequent thereto, the husband also acquired

the same.  Meanwhile from late 2014 till early 2015, the daughter was

taken ill and was diagnosed to be suffering from cardiac disorder for

which  she  was  required  to  undergo  periodical  medical  reviews.  As

imputed by the wife, the father however, dis-played total indifference

to  the  daughter’s  health  condition.  Finally  on  02.07.2015,  the

appellant-mother returned to India along with the daughter because of

alleged  violent  behavior  of  the  respondent  and  also  informed  the

school that the ward would not be returning to U.K. for her well-being

and safety.

The appellant thereafter filed a complaint on 16.12.2015 against

the respondent with the Crime Against Women Cell, New Delhi, which

issued notice to the respondent and his parents to appear before it.

According to the appellant, neither the respondent nor his parents did

21

respond to the said notice and instead as a counter-blast, he filed a

custody/wardship  petition  on 08.01.2006 before  the  High Court  of

Justice,  Family  Division,  U.K.  praying  for  the  restoration  of  his

daughter  to  the  jurisdiction  of  that  Court.  The  Court  in  U.K.  on

08.01.2016 passed an ex-parte order inter alia directing the appellant

to  return  the  daughter  to  U.K.   and  to  attend  the  hearing  of  the

proceedings.  Within a fortnight therefrom, the respondent also filed a

writ petition before the High Court of Delhi against the appellant-wife

seeking a writ of habeas corpus for production of the minor before the

Court.   By  the  impugned  Judgment  and  Order,  the  High  Court

directed the appellant to produce the daughter and comply with the

orders  passed  by  the  U.K.  Court  or  hand  over  the  minor  to  the

respondent-father within three weeks therefrom.   

Assailing  this  determination,  it  was  urged  on  behalf  of  the

appellant  inter  alia that  the  High  Court  had  wrongly  assigned

emphasis on the principle of comity of courts in complete disregard of

the paramount interest and welfare of the child, more particularly in

view of the vicious environment at her matrimonial home in U.K. in

which she (appellant) had been subjected to physical and verbal abuse

and had even placed the child at risk with his behaviour.  The fact

that India not being a signatory to the Hague Convention intended to

prevent  parents  from  abducting  children  across  the  borders,  the

22

principle of comity of courts did not merit precedence over the welfare

of the child, an aspect overlooked by the High Court, was underlined.

It was asserted that the impugned order did also disregard the parens

patriae jurisdiction of the Indian court within whose jurisdiction the

child was located as well  as the welfare of  the child in question in

mechanically applying the principle of comity of courts. That though

the  welfare  of  the  child  in  situations  of  the  like  as  well,  is  of

paramount consideration, this Court in Shilpa Aggarwal vs.  Aviral

Mittal and another5 and in Surya Vadanan1 had deviated from this

governing  precept and had directed the child and mother to return to

the jurisdiction of the foreign court by mis-interpreting the concept of

‘intimate  contact’  of  the  child  with  the  place  of  repatriation,  was

highlighted for reconsideration of the views expressed therein.  It was

urged that the decision in  Surya Vadanan1  had a chilling effect of

assigning  dominance  to  the  principle  of  comity  of  courts  over  the

welfare of a child, which mentionably undermined the perspective of

the child, thus encouraging multiplicity of proceedings

It  was  insistingly  canvassed  that  the  view  adopted  in  Surya

Vadanan1 was in direct conflict with an earlier binding decision in V.

Ravi  Chandran (Dr.) vs.  Union of  India and others6 in  which a

three-Judge Bench had categorically held that under no circumstance

5           (2010)1 SCC 591 6           (2010) 1 SCC 174

23

can the principle of welfare of the child be eroded and that a child can

seek refuge under the  parens patriae jurisdiction of the Court. While

dismissing the initiative of the respondent before the UK Court to be

one in retaliation of the appellant’s allegation of abuse and violence

and noticeably after she had filed a complaint with the Crime Against

Women Cell (CAWC), New Delhi, it was also urged that the U.K. Court

had passed ex parte order without affording any opportunity to her to

present her case. It was canvassed further that the writ petition filed

by the respondent seeking a writ of habeas corpus which is envisaged

for urgent and immediate relief was also a designed stratagem of his

bordering on the abuse of the process of the court and thus ought to

have been discouraged by the High Court. It was underlined as well

that  the  High  Court  in  passing  the  impugned  direction  had  also

overlooked that the respondent had defaulted in the discharge of his

parental  duty  towards  the  child,  who  was  suffering  from  serious

health problems, thus compromising in all respects the supervening

consideration of overall well-being of the child.

In refutation, it was maintained on behalf of the respondent that

the child was a British citizen and brought up in U.K. and as he had

acquired  its  citizenship  and  the  appellant  was  also  a  permanent

resident of U.K., they had the abiding intention to permanently settle

there along with the child and thus the U.K. Court had the closest

24

concern and intimate contact with the child as regards her welfare and

custody and thus indubitably had the jurisdiction in the matter. It was

urged on behalf of the respondent by referring amongst others to the

rendering in  Surya Vadanan1  that the child had clearly adapted to

the  social  and cultural  milieu  of  U.K.  and thus  it  was  in  its  best

interest  to  be  rehabilitated  there.   That  there  was  no  material  to

suggest  that  the  return  of  the  child  to  U.K.  would  result  in

psychological, physical or cultural harm to her or that the U.K. Court

was incompetent to take a decision in the interest and welfare of the

child,  was  underlined.  It  was  insisted  as  well  that  there  was  no

compelling reason for the High Court to ignore the principle of comity

of courts and that as acknowledged by the High Court, better medical

facilities were available in U.K. to treat the child. The steps taken by

the respondent towards the child’s boarding and travelling expenses

together  with  the  expenditure  incurrable  for  the  school  and  other

incidental  aspects  and his  undertaking  not  to  pursue any criminal

proceeding  against  the  appellant  for  kidnapping  the  child  with  the

avowed desire of reinstating his home was highlighted to demonstrate

his bona fides. That there was no delay on the part of the respondent

in filing the writ petition, which he did immediately after coming to

learn that the appellant was disinclined to return the child to U.K.,

was stressed upon as well.

25

In  this  disputatious  orientation,  this  Court  premised  its

adjudication on the necessity to comply with the direction issued by

the  foreign court  against  the  appellant  to  produce  the  minor  child

before the U.K. Court where the issue regarding wardship was pending

for  consideration  and  also  to  ascertain  as  to  which  Court  could

adjudicate the same.   

While  recalling  that  the  concept  of  forum convenience  has  no

place is wardship jurisdiction, this Court at the outset dwelt upon the

efficacy of the principle of comity of courts as applicable to India in

respect of  child custody matters and for that purpose, exhaustively

traversed the relevant decisions on the issue.  It referred to the verdict

in  Dhanwanti Joshi2,  which recorded the enunciation of  the Privy

Council  in  Mark T.  Mckee vs.  Evelyn  Mckee7,  which in  essence

underlined  the  paramountcy  of  the  consideration  of  welfare  and

happiness  of  the  infant  to  be  of  decisive  bearing  in  the  matter  of

deciding  its  custody  with  the  observation  that  comity  of  courts

demanded not its enforcement but its grave consideration.  In that

case, a decree of divorce was passed in USA and custody of the child

was given to the father and later varied in favour of the mother.  At

that stage, the father took away the child to Canada, whereafter in the

habeas  corpus  proceedings  by  the  mother,  though  initially  the

7            (1951) AC 352 (PC)

26

decisions of the lower courts went against her, the Supreme Court of

Canada gave her custody and the said Court held that the father could

not have the question of custody retried in Canada once the question

was adjudicated in favour of the mother in the U.S.A. earlier.  The

above observation was made by the Privy Council on appeal to it which

held  that  in  the  proceedings  relating  to  the  custody  before  the

Canadian  Court,  the  welfare  and  happiness  of  the  infant  was  of

paramount consideration and the order of a foreign court in USA as to

the custody can be given due weight in the circumstances of the case

but such an order of a foreign court was only one of the factors which

must be taken into consideration. The duty of the Canadian Court to

form  any  independent  judgment  on  the  merits  of  the  matter  with

regard to the welfare of the child was emphasized. It recorded as well

that this view was sustained in L (minors) (Wardship: Jurisdiction),

In. re8,  which reiterated that the limited question which arose in the

latter decisions was whether the court in the country in which the

child  was  removed  could  conduct  (a)  summary  enquiry  or  (b)  an

elaborate enquiry in the question of custody.  It was explicated that in

case of (a) a summary enquiry, the court would return custody to the

country from which the child was removed unless such return could

be shown to be harmful to the child and in case of (b) an elaborate

8              (1974) 1 WLR 250 (CA)

27

enquiry, the court could go into the merits to determine as to where

the permanent welfare lay and ignore the order of the Foreign Court or

treat the fact of removal of the child from another country as only one

of the circumstances and  the crucial question as to whether the court

(in  the  country  to  which  the  child  is  removed)  would  exercise  the

summary or elaborate procedure is to be determined according to the

child's  welfare.  It  was  indicated  that  the  summary  jurisdiction  to

return the child is invoked, for example, if the child had been removed

from its  native  land 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  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.  It was mentioned as well that

the summary jurisdiction is exercised only if the court to which the

child has been removed is moved promptly and quickly, for in that

event, the Judge may be well persuaded that it will be better for the

child  that  those  facets  be  investigated  in  the  court  in  his  native

country on the expectation that an early decision in the native country

could be in the interest of the child before it would develop roots in the

country  to  which  he  had  been  removed.  It  was  expounded  in  the

alternative,  that  the  Court  might  as  well  think  of  conducting  an

28

elaborate enquiry on merits and have regard to the other facts of the

case and the time that has elapsed after the removal of the child and

consider,  if  it  would  be  in  the  interest  of  the  child  not  to  have  it

returned from the country to which it had been removed, so much so

that  in such an eventuality,  the  unauthorized removal  of  the child

from the native country would not come in the way of the court in the

country to which the child has been removed, to ignore the removal

and independently consider whether the sending back of the child to

its native country would be in the paramount interest of the child.   

This  Court  recalled  its  mandate  in  Elizabeth  Dinshaw  vs.

Arvand M.  Dinshaw & Anr.9,    directing  the  father  of  the  child

therein, who had removed it from USA contrary to the custody orders

of U.S. Court, to repatriate it to USA to the mother not only because of

the  principle  of  comity  but  also  because  on  facts,  which  on

independent consideration merited such restoration of the child to its

native State, in its interest.  The following observations in Dhanwanti

Joshi2   qua the state of law vis-a-vis the countries who are not the

signatories of the Hague Convention are of formidable significance and

as noticed in Nithya Anand Raghavan4 , are extracted hereinbelow:  

“33.  So  far  as  non-Convention  countries  are concerned, or where the removal related to a period before adopting the Convention, the law is that the court in the country to which the child is removed

9          (1987) 1 SCC 42

29

will  consider  the  question  on  merits  bearing  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 as stated in McKee v. McKee   unless  the  Court  thinks  it  fit  to  exercise summary jurisdiction in the interests of the child and its prompt return is for its welfare, as explained in Re [L. (Minors) (Wardship : Jurisdiction). As recently as 1996-1997, it has been held in P. (A minor) (Child Abduction: Non-Convention Country), Re: by Ward , L.J. [1996 Current Law Year Book, pp. 165-166] that in deciding whether to order the return of a child who has  been  abducted  from  his  or  her  country  of habitual  residence—which  was  not  a  party  to  the Hague  Convention,  1980—the  courts'  overriding consideration must be the child's welfare. There is no need for the Judge to attempt to apply the provisions of Article 13 of the Convention by ordering the child's return unless a grave risk of harm was established. See  also  A.  (A  Minor)  (Abduction:  Non-Convention Country)  [Re,   The  Times,  3-7-1997 by  Ward,  L.J. (CA)  (quoted in Current  Law,  August  1997,  p.  13]. This  answers  the  contention relating  to  removal  of the child from USA.”  

Here again the court in the country to which the child is removed

was required to consider the question on merits bearing on its welfare

as of paramount significance and take note of the order of the foreign

court as only a factor to be taken into consideration as propounded in

Mckee7,  unless  the  court  thought  it  fit  to  exercise  the  summary

jurisdiction of the child and its prompt return to its native country for

its  welfare.  In  elaboration  of  the  above  exposition,  this  Court  in

Nithya Anand Raghavan4 propounded thus:

“40.  The  Court  has  noted  that  India  is  not  yet  a signatory to the Hague Convention of  1980 on “Civil Aspects of International Child Abduction”. As regards

30

the non-Convention countries, the law is that the court in the country to which the child has been removed must  consider  the  question  on  merits  bearing  the welfare of the child as of paramount importance and reckon the order of the foreign court as only a factor to be taken into consideration, unless the court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is  for  its welfare.  In exercise  of  summary  jurisdiction,  the  court  must  be satisfied  and  of  the  opinion  that  the  proceeding instituted  before  it  was  in  close  proximity  and  filed promptly  after  the  child  was  removed  from  his/her native  state  and  brought  within  its  territorial jurisdiction, the child has not gained roots here and further that it will be in the child's welfare to return to his native state because of the difference in language spoken  or  social  customs  and  contacts  to  which he/she  has been accustomed or  such other  tangible reasons. In such a case the court need not resort to an elaborate  inquiry  into  the  merits  of  the  paramount welfare of the child but leave that inquiry to the foreign court by directing return of the child. Be it noted that in exceptional cases the court can still refuse to issue direction to  return the  child  to  the  native  state  and more particularly in spite of a pre-existing order of the foreign court in that behalf,  if  it  is satisfied that the child's return may expose him to a grave risk of harm. This  means  that  the  courts  in  India,  within  whose jurisdiction  the  minor  has  been  brought  must “ordinarily” consider the question on merits, bearing in mind  the  welfare  of  the  child  as  of  paramount importance whilst reckoning the pre-existing order of the foreign court if any as only one of the factors and not get fixated therewith.  In either situation—be it  a summary inquiry or an elaborate inquiry—the welfare of the child is of paramount consideration. Thus, while examining  the  issue  the  courts  in  India  are  free  to decline the relief of return of the child brought within its jurisdiction,  if  it is satisfied that the child is now settled in its new environment or if it would expose the child  to  physical  or  psychological  harm or  otherwise place the child in an intolerable position or if the child is quite  mature and objects  to its  return.  We are in

31

respectful  agreement  with  the  aforementioned exposition.”

The above excerpt would in no uncertain terms underscore the

predication  that  the  courts  in  India,  within  whose  jurisdiction  the

minor has been brought “ordinarily” while examining the question on

merits, would bear in mind the welfare of the child as of paramount

and predominant importance while noting the preexisting order of the

foreign court,  if  any, as only one of the factors and not get fixated

therewith and that in either situation,  be it  a summary enquiry or

elaborate  enquiry,  the  welfare  of  the  child  is  of  preeminent  and

preponderant  consideration,  so  much  so  that  in  undertaking  this

exercise, the courts in India are free to decline the relief of repatriation

of the child brought within its jurisdiction, if it is satisfied that it had

settled in its new environment or that it would be exposed thereby to

physical  harm  or  otherwise,  if  it  is  placed  in  an  intolerable  or

unbearable situation or environment or if the child in a given case, if

matured, objects to its return.   

Sustenance of this view was sought to be drawn from the verdict

of another three-Judge Bench of this Court in V. Ravichandran6,  as

expressed in paragraphs 27 to 30 in the following terms:

“27. … However, in view of the fact that the child had lived with his mother in India for nearly twelve years, this Court held that it would not exercise a summary jurisdiction to return  the  child  to  the  United  States  of  America  on  the

32

ground that its removal from USA in 1984 was contrary to the orders of US courts. It was also held that whenever a question arises before a court pertaining to the custody of a minor  child,  the  matter  is  to  be  decided  not  on considerations of the legal rights of the parties but on the sole and predominant criterion of what would best serve the interest of the minor.”

(emphasis supplied)

Again in paras 29 and 30, the three-Judge Bench observed thus: (SCC pp. 195-96)

“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  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

33

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  [L.  (Minors)  (Wardship  : Jurisdiction), (1974) 1 WLR 250 (CA)] and the said view has been approved by this Court in Dhanwanti Joshi [Dhanwanti Joshi.  Similar  view taken  by  the  Court  of  Appeal  in  H. (Infants) (1966) 1 WLR 381 has been approved by this Court in Elizabeth Dinshaw.”

(emphasis supplied)

The  quintessence  of  the  legal  exposition  on  the  issue  was

succinctly synopsised in the following terms:   

“42. The consistent view of this Court is that if the child has been brought within India, the courts in India may conduct: (a) summary inquiry; or (b) an elaborate inquiry on the question of  custody. In the case of  a summary inquiry, the court may deem it fit to order return of the child  to  the  country  from where  he/she  was  removed unless such return is shown to be harmful to the child. In other words, even in the matter of a summary inquiry, it is open to the court to decline the relief of return of the child  to  the  country  from where  he/she  was  removed irrespective of a pre-existing order of return of the child by a foreign court. In an elaborate inquiry, the court is obliged to examine the merits as to where the paramount interests and welfare of the child lay and reckon the fact of a pre-existing order of the foreign court for return of the  child  as  only  one  of  the  circumstances.  In  either case, the crucial question to be considered by the court (in  the  country  to  which  the  child  is  removed)  is  to answer the issue according to the child's welfare. That has to be done bearing in mind the totality of facts and circumstances of each case independently. Even on close scrutiny of the several decisions pressed before us, we do not  find  any  contra  view  in  this  behalf.  To  put  it differently,  the  principle  of  comity  of  courts  cannot be given primacy or more weightage for deciding the matter of custody or for return of the child to the native State.”

21. Thus the state of law as approved in Nithya Anand Raghavan4

34

is that if a child is brought from a foreign country, being its native

country to India, the court in India may conduct (a) summary enquiry,

or (b) an elaborate enquiry on the question of custody, if called for.  In

the case of a summary enquiry, the court may deem it fit to order the

return  of  the  child  to  the  country  from  where  he/she  has  been

removed  unless  such  return  is  shown to  be  harmful  to  the  child.

Axiomatically thus, even in case of a summary enquiry, it is open to

the court to decline the relief of return of the child to the country from

where he/she has been removed irrespective of a pre-existing order of

return  of  a  child  by  a  foreign  court,  in  case  it  transpires  that  its

repatriation  would  be  harmful  to  it.   On  the  other  hand,  in  an

elaborate enquiry, the court is obligated to examine the merits as to

where the paramount interest and welfare of the child lay and take

note of the pre-existing order of the foreign court for the return of the

child as only one of the circumstances.  As a corollary, in both the

eventualities whether the enquiry is summary or elaborate, the court

would be guided by the pre-dominant consideration of welfare of the

child assuredly on an overall consideration on all attendant facts and

circumstances.  In other words, the principle of comity of courts is not

to be accorded a yielding primacy or dominance over the welfare and

well-being  of  the  child  which  unmistakeably  is  of  paramount  and

decisive bearing.  

35

22. This Court in Nithya Anand Raghavan4  also had to examine as

to whether a writ of habeas corpus was available to the father qua the

child which was in the custody of the mother, more particularly in the

face of ex-parte order of the court in U.K. against her and directing her

for its return to its native country by declaring it to remain as a ward

of that court during its minority or until further orders.  This Court

noted  that  this  order  had  remained  not  only  unchallenged  by  the

appellant mother but also no application had been made by her before

the foreign court for its modification.  This Court however was firstly of

the view that this order per se did not declare the custody of the minor

with the appellant mother to be unlawful  or that till  it  returned to

England, its custody with the mother had become or would be treated

as unlawful  inter alia for the purposes of  considering a petition for

issuance of writ of Hebeas Corpus.  In this regard, the decision of this

Court, amongst others in  Syed Saleemuddin vs. Dr. Rukhsana &

Ors.10,   was  adverted  to,  wherein  it  had  been proclaimed that  the

principal duty of the court moved for the issuance of writ of habeas

corpus  in  relation  to  the  custody  of  a  minor  child  is  to  ascertain

whether such custody is unlawful or illegal and whether the welfare of

the child requires, that his present custody should be changed and

the child  ought to be handed over to the  care and custody of  any

10            (2001) 5 SCC 247

36

person.   It  was  once  again  emphasized  that  while  doing  so,  the

paramount consideration must be, the welfare of the child.  

The observation in  Elizabeth Dinshaw9  that in such matters,

the custody must be decided not by reference to the legal rights of the

parties but on the sole and predominant criterion as to what would

best  serve  the  interest  and  welfare  of  the  minor  and  that  to  that

extent, the High Court would exercise its  parens patriae jurisdiction,

as the minor is within its jurisdiction was reminisced. In the facts of

the case also, noting the supervening fact that the appellant was the

biological mother and natural guardian of the minor child, the remedy

of writ of habeas corpus invoked for enforcement of the directions of

the foreign court was declined, however leaving the respondent/father

to take recourse to such other remedy as would be available in law for

the enforcement of the order passed by the foreign court for securing

the  custody  of  the  child.  It  was  held  that  the  appellant  being  the

biological  mother  and  natural  guardian  of  the  child,  it  could  be

presumed that its custody with her was lawful.  

23. This  Court  in  Nithya Anand Raghavan4   next  turned to  the

contextual facts to record that the parents of the child were of  Indian

origin and that the minor was an Indian citizen by birth as she was

born in Delhi and that she had not given up her Indian citizenship

though she was granted UK citizenship subsequent thereto. That the

37

child was admitted to a primary school in UK in September 2013 and

that she had studied there in July 2015 was noted. It was mentioned

as well that till she accompanied  her mother on 02.07.2015 to India,

no proceeding of any kind had been filed in the UK Court, either in

relation to any matrimonial  dispute between the parents or for her

custody. In India, the child had been living with her grand-parents

and other family members and relations unlike in U.K.,  where she

lived in a nuclear family of three with no other relatives.  That she had

been studying in India for last over one year and had spent equal time

in both the countries up to the first six years of her life was taken note

of as well.  This Court also expressed that the child would be more

comfortable and secured to live with her mother here in India, who

can provide her with motherly love, care, guidance and the required

upbringing  for  her  desired  grooming  of  personality,  character  and

faculties.  That  being  a  girl  child,  the  custody,  company  and

guardianship of the mother was of utmost significance was felt. It was

also recorded that being a girl child of the age of about seven years,

she  ought to be ideally in the company of her mother in absence of

circumstances that such association would be harmful to her.  That

there was no restraint order passed by any court or authority in U.K.

before the child had travelled with her mother to India was accounted

for as well. This Court noticed most importantly, that the child was

38

suffering from cardiac disorder,  which warranted periodical medical

reviews  and  appropriate  care  and  attention,  which  it  felt  could  be

provided only by the mother as the respondent/father being employed

would not be in a position to extend complete and full attention to his

daughter.  That  the  appellant/mother  had  neither  any  intention  to

return to UK nor according to her if the child returns to UK, she would

be able to secure the desired access to her to the child to provide care

and attention was noted in express terms. On an evaluation of the

overall facts and circumstances, this Court thus was of the unhesitant

opinion that it would be in the interest of the child to remain in the

custody of her mother and that her return to UK would prove harmful

to her.  While  concluding thus,  it  was stated that  this  arrangement

notwithstanding  the  appellant/mother  ought  to  participate  in  the

proceedings before the UK Court so long as it had the jurisdiction to

adjudicate the matter before it. It was observed as well that, as the

scrutiny involved with regard to the custody had arisen from a writ

petition filed by the respondent/father for issuance of writ of a habeas

corpus and not to decide the issue of grant or otherwise of the custody

of the minor, all relevant aspects would have to be considered on their

own merit in case a substantive proceeding for custody is made before

any court of competent jurisdiction, including in India, independent of

any observation made in the judgment.

39

To  complete  the  narrative,  the  analysis  of  the  other  relevant

pronouncements  rendered  on  the  issue  would  be  adverted  to  in

seriatim.  In  V.  Ravi  Chandran6,  a  writ  of  habeas  corpus  for

production of  minor son from the custody of his mother was sought

for by his father.  The child was born in US and was an American

citizen and was about eight years of age when he was removed by the

mother from U.S., in spite of her consent order on the issue of custody

and guardianship of the minor passed by the competent U.S. Court.

The minor was given in the joint custody to the parents and a restraint

order was operating against  the mother when it  was removed from

USA to India. Prior to his removal, the minor had spent few years in

U.S..  All  these factors weighed against the mother as is discernible

from  the  decision,  whereupon  this  Court  elected  to  exercise  the

summary  jurisdiction  in  the  interest  of  the  child,  whereupon  the

mother was directed to return the child to USA within a stipulated

time.

24. In Shilpa Aggarwal5, the minor girl child involved was born in

England having British citizenship and was only 3½ years of age at

the  relevant  time.  The  parents  had  also  acquired  the  status  of

permanent residents of  U.K.  In the facts  and circumstances of  the

case, this Court expressed its satisfaction that in the interest of the

minor child, it would be proper to return her to U.K. by applying the

40

principle of comity of courts. The Court was also of the opinion that

the  issue  regarding  custody of  the  child  should  be  decided by  the

foreign  court  from  whose  jurisdiction  the  child  was  removed  and

brought to India. A summary enquiry was resorted to in the facts of

the case.

25. In Arathi Bandi vs. Bandi Jagadrakshaka Rao and others11

the minor involved was a male child who was born in USA and had

acquired  the  citizenship  of  that  country  by  birth.  The  child  was

removed from USA by the mother in spite of a restraint order and a

red corner notice operating against her had been issued by a court of

competent jurisdiction in USA. This Court therefore held that the facts

involved were identical to those in  V. Ravi Chandran6  and further

noticed that the mother of the child also had expressed her intention

to return to USA and live with her husband though the latter was not

prepared to cohabit with her.

26. In  Surya Vadanan1, the two minor girls aged 10 years 6 years

respectively  were  British  citizens  by  birth.  Following  intense

matrimonial discords, the mother had left UK and had come to India

with her two daughters. She also instituted a proceeding in the Family

Court at Coimbatore seeking dissolution of marriage. The husband,

finding the wife to be unrelenting and disinclined to return to U.K.

11       (2013) 15 SCC 790

41

with her daughters,  petitioned the High Court of Justice in U.K. for

making the children as the wards of the Court, which passed an order

granting the prayer and required the mother to return the children to

its jurisdiction. This order was passed even before any formal order

could be passed on the petition filed by the wife seeking divorce. This

order  was  followed  by  another  order  of  the  U.K.  Court  giving

peremptory direction to the wife to produce the two daughters before

the U.K. Court and was supplemented by a penal notice to her. It was

thereafter that the husband moved the Madras High Court for a writ of

habeas corpus on the ground that the wife had illegal custody of the

two  daughters.   On  the  following  considerations  as  extracted

hereinbelow, relief as prayed for by the husband was granted:

“56.  However,  if  there  is  a  pre-existing  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

42

the order of the foreign court may result in the arrest of the parent on his or her return to the foreign  country.  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.”

27. Vis-à-vis  the  renditions  in  V.  Ravi  Chandran6,  Shilpa

Aggarwal5  and  Arathi  Bandi11,  this  Court  in  Nithya  Anand

Raghavan4  distinguished  the  facts  involved  therein  from the  one

under its scrutiny. While underlining that the considerations which

impelled  the  court  to  adopt  its  summary  approach/jurisdiction  in

directing the return of the child to its native country, did not in any

way discount or  undermine the predominant criterion of welfare and

interest of the child even to outweigh neuter or offset the principle of

comity of courts, it disapproved the primacy sought to be accorded to

the  order  of  the  foreign court  on the  issue of  custody of  minor  in

Surya Vadanan1   though negated earlier in  Dhanwanti Joshi2  and

reiterated  that  whether  it  was  a  case  of  summary  enquiry  or  an

elaborate enquiry, the paramount consideration was the interest and

welfare of the child so much so that the preexisting order of a foreign

court could be taken note of only as one of the factors. The alacrity or

43

the  expedition  with  which  the  applicant/parent  moves  the  foreign

court or the domestic court concerned, for custody as a relevant factor

was also not accepted to be of any definitive bearing. This notion of

“first  strike  principle”  was  not  subscribed  to  and  further  the

extrapolation of that principle to the courts in India as predicated in

Surya Vadanan1  was also held to be in-apposite by adverting  inter

alia to Section 14 of the Guardians and Wards Act, 1890 and Section

10 of the Civil Procedure Code.

28.  The  following  passage  from Nithya  Anand  Raghavan4

discarding the invocation of “first strike” principle as a definitive factor

in furtherance of the applicability of the principle of comity of courts is

quoted as hereunder:

“66.  The invocation of  first  strike principle as a decisive factor, in our opinion, would undermine and whittle down the wholesome principle of  the duty of  the court  having jurisdiction to consider the best interests and welfare of the child, which is of paramount importance. If the Court is convinced in that regard, the fact that there is already an order passed by a foreign court in existence may not be so significant as it must yield to the welfare of the child. That is only one of the factors to be taken into consideration. The interests  and welfare  of  the child  are  of  paramount consideration. The principle of comity of courts as observed in Dhanwanti  Joshi  case  in  relation to  non-Convention countries  is  that  the  court  in  the  country  to  which  the child  is  removed  will  consider  the  question  on  merits bearing  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.  While considering that aspect, the court may reckon the fact that the child was abducted from his or her country of habitual residence but the court's overriding consideration must be the child's welfare.”

44

In  conclusion,  qua  the  decisions  relied  upon  by  the

respondent-father,  the  facts  contained  therein  were  held   to  be

distinguishable and it was observed that though  the factual backdrop

as obtained therein necessitated the court to issue direction to return

the child to the native State, it did not follow that in deserving cases,

the Courts in India were denuded of their powers to decline the relief

to  relocate  the  child  to  the  native  State  merely  because  of  a

pre-existing order of foreign court of competent jurisdiction.  The law

laid  down in  Dhanwanti  Joshi2  and  approved  by  a  three  Judge

Bench of this Court in  V. Ravi Chandran6  was enounced to be the

good law, thus reiterating that so far as non-convention countries are

concerned,  the court  in the country in which the child is  removed

while  examining  the  issue  of  its  repatriation  to  its  native  country,

would essentially bear in mind that the welfare of  the child was of

paramount importance and that the existing order of foreign court was

only a factor to be taken note of.  It was reiterated that the summary

jurisdiction to return the child could be exercised in cases where the

child had been removed from his native land to another country where

his native language is not spoken or the child gets divorced from social

customs and contacts to which he is accustomed or if his education in

his  native  land is interrupted and the  child  is  subjected to foreign

45

system of education, thus adversely impacting upon his psychological

state and overall process of growth. Though a prompt and expeditious

move on the part of the applicant parent for the repatriation of the

child in a court in the country to which it had been removed may be a

relevant factor, the overwhelming   and determinative consideration

unfailingly has to be in the interest and welfare of the child.  It was

observed that in the facts of the case, the minor child after attaining

majority would be free to exercise her choice to go to U.K and stay

with her father but till that eventuality, she should stay in the custody

of mother unless the court of competent jurisdiction trying the issue of

custody of the child did order to the contrary.  Visitation right to the

respondent-father however was granted and directions were issued so

as  to  facilitate  the  participation  of  the  appellant-  mother  in  the

pending proceedings before the U.K. Court, inter alia by requiring the

respondent-husband  to  bear  the  necessary  costs  to  meet  the

expenditure  towards  all  relevant  aspects  related  thereto.  The

impugned  judgment  of  the  High  Court  issuing  the  writ  of  habeas

corpus in favour of the respondent-husband was thus set aside.

29. The dialectics  and determinations in Nithya Anand Raghavan4

have been alluded to in pervasive  details as the adjudication therein

by  a  Bench  of  larger  coram  has  forensically  analyzed  all  the

comprehensible  facets  of  the  issue,  to  which  we  deferentially

46

subscribe.    

30. The decisions cited at the Bar and heretofore, traversed present

fact  situations  with  fringe  variations,  the  common  and  core  issue

being  the  justifiability  or  otherwise  factually  and/or  legally,  of  the

relocation of a child removed from its native country to India on the

basis of the principle of comity of courts and doctrines of “intimate

contact”  and “closest concern”.

31. The following observations in Ruchi Majoo vs. Sanjeev Majoo12

bearing on the parens patriae jurisdiction of Indian courts in cases

involving custody of minor children  are apt as  well:

“Recognition of decrees and orders passed by foreign courts  remains  an  eternal  dilemma  inasmuch  as whenever  called upon to do so, courts in this country are bound to determine the validity of  such decrees and orders keeping in view the provisions of Section 13 of the Code of Civil Procedure, 1908, as amended  by the Amendment Acts of 1999 and 2002.  The duty of a court  exercising its  parens patriae  jurisdiction as in cases involving custody  of  minor children is all  the more  onerous.   Welfare  of  the  minor  in  such  cases being the paramount consideration; the court has to approach  the  issue  regarding  the  validity  and enforcement  of  a  foreign  decree  or  order   carefully. Simply because a foreign court has taken a particular view  on  any  aspect   concerning  the  welfare  of  the minor is not enough for the courts in this country to shut out an independent consideration of the matter. Objectivity  and not abject surrender is the mantra in such cases.  That does not, however,  mean that the order passed by a foreign court is not even a factory to be kept in view.  But it is one  thing to consider the foreign judgment   to  be  conclusive   and another  to

12          (2011) 6 SCC 479

47

treat it as a factor or consideration  that would go into the making of a final decision.”  

32. The  gravamen  of  the  judicial  enunciation  on  the  issue  of

repatriation  of  a  child  removed  from  its  native  country  is  clearly

founded on the predominant imperative of its overall well-being, the

principle of comity of courts, and the doctrines of “intimate contact

and closest concern” notwithstanding. Though the principle of comity

of courts and the aforementioned doctrines qua a foreign court from

the territory of  which a child is  removed are factors which deserve

notice in deciding the issue of custody and repatriation of the child, it

is no longer res integra that the ever overriding determinant would be

the welfare and interest of the child. In other words, the invocation of

these  principles/doctrines  has  to  be  judged  on  the  touchstone  of

myriad attendant facts and circumstances of each case, the ultimate

live  concern  being  the  welfare  of  the  child,  other  factors  being

acknowledgeably  subservient  thereto.  Though  in  the  process  of

adjudication of the issue of repatriation, a court can elect to adopt a

summary enquiry and order immediate restoration of the child to its

native country, if the applicant/parent is prompt and alert in his/her

initiative and the existing circumstances  ex facie justify such course

again in the overwhelming exigency of the welfare of the child, such a

course could be approvable in law, if an effortless discernment of the

relevant factors testify irreversible, adverse and prejudicial impact on

48

its  physical,  mental,  psychological,  social,  cultural  existence,  thus

exposing  it  to  visible,  continuing  and  irreparable  detrimental  and

nihilistic attentuations.  On the other hand, if the applicant/parent is

slack and there is a considerable time lag between the removal of the

child from the native country and the steps taken for its repatriation

thereto, the court would prefer an elaborate enquiry into all relevant

aspects bearing on the child, as meanwhile with the passage of time, it

expectedly  had  grown  roots  in  the  country  and  its  characteristic

milieu, thus casting its influence on the process of its grooming in its

fold.  

33. The doctrines of “intimate contact” and “closest concern” are of

persuasive relevance, only when the child is uprooted from its native

country  and  taken  to  a  place  to  encounter  alien  environment,

language, custom etc., with the portent of mutilative bearing on the

process of its overall growth and grooming.

34. It has been consistently held that there is no forum convenience

in wardship jurisdiction and the peremptory mandate that underlines

the  adjudicative  mission is  the  obligation to secure  the  unreserved

welfare of the child as the paramount consideration.

35. Reverting  to  the  present  facts,  the  materials  as  available,  do

substantiate lingering dissensions between the parties. They are living

separately  since  2014  with  one  child  each  in  their  company  and

49

charge. The children are US citizens by birth. Noticeably,  the child

Aadvik, who is the subject matter of the lis and custody was barely 2½

years old when he came over to India and had stayed here since then.

Today, he is a little over 5 years old. In other words, he has spent half

of his life at this age, in India. Considering his infant years of stay in

US, we construe it to be too little for the required integration of his

with  the  social,  physical,  psychological,  cultural  and  academic

environment of  US to get totally  upturned by his transition to this

country, so much so that unless he is immediately repatriated, his

inherent potentials  and faculties would suffer  an immeasurable  set

back. The respondent-mother also is not favourably disposed to return

to India, she being a working lady in US and is also disinclined to

restore her matrimonial home. The younger son is with her. There is

no convincing material on record that the continuation of the child in

the  company  and  custody  of  the  appellant  in  India  would  be

irreparably prejudicial to him. The e-mails exchanged by the parties as

have been placed on records do suggest that they had been in touch

since the child was brought to India and even after  the first  order

dated 28.05.2015 was passed by the court in US. In the said e-mails,

they have fondly and keenly referred to both the sons staying in each

other’s company, expressing concern about their illness and general

well-being as well. As has been claimed by the appellant, the child is

50

growing  in  a  congenial  environment  in  the  loving  company  of  his

grand-parents and other relatives. He has been admitted to a reputed

school and contrary to the nuclear family environment in US, he is

exposed to a natural  process of  grooming in the association of  his

elders,  friends,  peers  and  playmates,  which  is  irrefutably

indispensable for comprehensive and conducive development  of  his

mental  and  physical  faculties.  The  issue   with  regard  to  the

repatriation  of  a  child,  as   the   precedential  explications   would

authenticate   has to be addressed not  on a  consideration of  legal

rights of the parties but on the sole and preponderant  criterion of

the welfare of the minor.  As  aforementioned, immediate restoration of

the child  is  called for  only on an unmistakable discernment of  the

possibility  of  immediate  and  irremediable  harm   to  it   and  not

otherwise.  As  it  is,  a  child  of  tender  years,   with  malleable   and

impressionable  mind and delicate  and vulnerable physique  would

suffer  serious set-back  if  subjected to frequent  and unnecessary

translocation in its formative years.  It is thus imperative that  unless,

the  continuance  of  the  child  in  the  country  to  which  it  has  been

removed, is unquestionably harmful, when judged on the touchstone

of overall perspectives, perceptions and practicabilities, it ought not to

be dislodged and  extricated  from the environment and setting  to

which  it had got adjusted  for its  well-being.  

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36. Noticeably, a proceeding  by the appellant seeking custody of the

child under the Guardian and Wards Act, 1890 has been instituted,

which is pending in the court of the Principal Judge, Family Court,

Rohini, Delhi. This we mention, as the present adjudication pertains

to a challenge to the determination made in a writ petition for habeas

corpus and not one to decide on the entitlement in law for the custody

of the child.

37. In  Nithya  Anand  Raghavan4  as  well,  this  Court  while

maintaining  the  custody  of  the  child  in  favour  of  the  mother  in

preference  to  the  applicant-father  had  required  the  mother  to

participate in the proceeding before the foreign court initiated by the

respondent-father  therein.  It  was  observed  that  the  custody  of  the

child  would  remain  with  the  respondent-mother  till  it  attained

majority, leaving it at liberty then to choose its parent to reside with.

The arrangement approved by this Court was also made subject to the

decision with regard to its custody, if made by a competent Court.  

38. In the overwhelming facts and circumstances, we see no reason

to take a different view or course. In view of order dated 03.05.2016 of

this  Court,  the  child  has  remained  in  the  custody  of  the

appellant-father. To reiterate, no material has been brought on record,

persuasive  and  convincing  enough,  to  take  a  view  that  immediate

restoration of the custody of the child to the respondent-mother in the

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native country is obligatorily called for in its interest and welfare. The

High Court, as the impugned judgment and order would demonstrate,

did not at all apply itself to examine the facts and circumstances and

the other materials on record bearing on the issue of welfare of the

child which are unmistakably of paramount significance and instead

seems to have been impelled by the principle of comity of courts and

the  doctrines  of  “intimate  contact”  and  “closest  concern”  de  hors

thereto.  The  appellant  being  the  biological  father  of  Aadvik,  his

custody of the child can by no means in law be construed as illegal or

unlawful drawing the invocation of a superior Court’s jurisdiction to

issue a writ in the nature of habeas corpus.   We are, in the textual

facts  and on an in-depth analysis  of  the  attendant  circumstances,

thus of the view that the dislodgment of the child as directed by the

impugned decision would be harmful to it. Having regard to the nature

of the proceedings before the  US Court, the intervening developments

thereafter  and most importantly the prevailing state of affairs, we are

of the opinion that the child, till he attains majority, ought to continue

in the custody, charge and care  of the appellant, subject to any order

to the contrary, if passed by a court of competent jurisdiction in an

appropriate proceeding deciding the issue of its custody in accordance

with law.  The High Court thus, in our estimate, erred in law and on

facts in passing the impugned verdict.

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39. The impugned judgment and order is thus set aside. We however

direct that the parties would participate in the pending proceedings

relating to the custody of the child, if the same is pursued and the

court below, before which the same is pending, would decide the same

in accordance with law expeditiously without being influenced in any

way, by the observations and findings recorded in this determination.  

40. The appeal is thus allowed.

…...................................CJI. [DIPAK MISRA ]

….....................................J [AMITAVA ROY ]

NEW DELHI; DECEMBER 6, 2017.

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ITEM NO.1501               COURT NO.5               SECTION II-C                S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Criminal Appeal  No(s).  968/2017 PRATEEK GUPTA                                      Appellant(s)                                 VERSUS SHILPI GUPTA  & ORS.                               Respondent(s) Date : 06-12-2017 This appeal was called on for Judgment today.   For Appellant(s) Mr. Braj Nath Patel, Adv.  

Ms. Sweta, Adv. Ms. Romila, Adv.  

                   Ms. Binu Tamta, AOR                     For Respondent(s) Mr. N. S. Dalal, Adv.  

Mr. D. P. Singh, Adv.                      Mr. R. C. Kaushik, AOR                      

Hon'ble  Mr.  Justice  Amitava  Roy  pronounced  the  reportable Judgment of the Bench comprising Hon'ble The Chief Justice of India and His Lordship.   

The appeal is allowed.   Pending Interlocutory Applications, if any, stand disposed of.

(JAYANT KUMAR ARORA)                              (RENU DIWAN)    COURT MASTER                                ASSISTANT REGISTRAR

(Signed reportable Judgment is placed on the file)