REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  127 OF 2020 (@ SPECIAL LEAVE PETITION (CRL) NO. 7390 OF 2019)

YASHITA SAHU                                                  ... APPELLANT(S)

VERSUS

STATE OF RAJASTHAN & ORS.                       ...RESPONDENT(S)

J U D G M E N T

Deepak Gupta, J.

Leave granted.

2. Yashita Sahu (hereinafter referred to as the wife) and

Varun Varma (hereinafter referred to as the husband), got

married on 30.05.2016 in India.   The husband was already

working in the United States of America (hereinafter referred to

as the USA).  The wife accompanied the husband to the USA on

17.07.2016.   A daughter named Kiyara Verma, was born to the

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couple on 03.05.2017.   She is a citizen of the USA.   The

relationship between the husband and the wife got strained and

they  made  various  allegations  and  counter  allegations  against

each other.  The wife applied for an Emergency Protection Order

on 25.08.2018 to the Norfolk Juvenile and Domestic Relations

District Court (hereinafter referred to as the Norfolk Court),

praying for her protection and an ex parte preliminary protection

order was passed against the husband.   Thereafter, on

29.08.2018, the wife instituted a petition in the same Court

seeking sole custody of the minor child.  She also filed a petition

praying that the husband be directed to give monetary support to

her  and  the  minor  child.  The  said  Court  passed  an order  on

26.09.2018 in terms of the agreement reached between the

parties.   This agreement is part of the order and reads as

follows:­

“Father to continue paying rent and utilities @ the marital residence for October, 2018 and November, 2018. Father will add mother to lease as an authorized occupants or leaseholder.   Father to pay mother 150/week for child support for October and November, 2018/  and 200/week for  December,  2018.  Parties to work together to reach a resolution as to who will continue occupy  the  martial residence  after  November, 2018.  Mother to look for employment consistent with her educational and professional experience. Mother and father have joint legal custody of minor child and shared physical custody of child father’s parenting time to start

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Thursday September,  27,  2018 @ noon until  Saturday September 29, 2018 @ noon.  Thereafter, the parties are to share parenting time as follows :

mother to have child every other week from Saturday @ noon until Wednesday @ noon and in alternating weeks from Saturday @ noon until  Tuesday @ noon.  Father shall  have parenting  time on Wednesday @ noon until Saturday with alternating weeks two @ noon until Saturday @ noon  (i.e.  4  days on,  3 days off  switching weeks for each parent) parents shall allow whatsapp calling with child with custodial parent at  least 5 min. per evening upon reasonable notice to other parent. Parents shall use a third neutral party to facilitate exchanging the child.   Parties shall corporate with each other & third party if noon exchange time is not feasible all parties will surrender their passports, including child’s passport, to guardian ad liten.  Mother to reside @ marital residence until December 1, 2018 wherein mother will vacate the premises or assume full responsibility of the rent and utilities thereafter.”

As per this order, amongst other things the husband was to add

the wife as an authorised lease holder in the rented premises and

he was to pay weekly support to the child @ $150 per week for

the months of October and November, 2018 and $200 per week

for the month of December, 2018.   Joint, legal custody and

shared physical custody of the child was given to the parents,

with each parent being given individual parenting time.   As per

the agreement the child was also permitted to talk to the other

parent by WhatsApp calling, after reasonable notice.   It is

important to note that it was clearly mentioned that the parties

shall  cooperate  with each other  and  try to reach an amicable

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settlement with the help of a neutral third party.  If a settlement

was  not  possible then they  were to  surrender their  passports

including the child’s passport to the guardian ad litem.  The wife

was directed to reside in the marital residence till December 1,

2018, whereafter she had to vacate the premises or assume full

responsibility of the rent and utilities.

3. It is not disputed before us that the wife, along with the

child  left the USA and came to India on 30.09.2018  i.e.  after

26.09.2018 and before 01.10.2018, which was the next date fixed

before the Norfolk Court.

4. The husband on coming to know of the fact that his wife,

along with their child had left the USA for India, filed a motion for

emergency relief before the Norfolk Court on 02.10.2019.  An ex

parte order was passed in favour of the husband whereby the

Norfolk Court granted sole legal and physical custody of the child

to the husband and directed the wife to return to the USA along

with the child.   A warrant was also issued against the wife for

violating the order dated 26.09.2018 of the Norfolk Court.

5. The husband also filed a petition for issuance of a writ of

habeas corpus before the Rajasthan High Court for production of

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his  minor  child.  The  High  Court  by the impugned judgment

dated 01.07.2019 directed the wife to return to the USA along

with her minor daughter within a period of 6 weeks to enable the

jurisdictional court in USA to pass further orders in this regard

in the proceedings already pending.   The husband was directed

to make all arrangements for the stay and travel of the wife  and

the minor child and any companion.  It was further directed that

in case the  wife  was  not  willing to stay in the  house of the

husband, then the  petitioner­husband  would  make  alternative

arrangements for her stay at the place of her choice at a

reasonable cost.

6. Aggrieved by this judgment of the Rajasthan High Court,

the wife has filed the present appeal.

7. We have heard Ms. Malvika Rajkotia, learned counsel for

the appellant and Mr. Prabhjit Jauhar, learned counsel for the

respondents,  at length.  Various contentions have been raised

before us by both sides.  It has been contended by Ms. Rajkotia

that a writ of habeas corpus would not lie for the custody of the

child since she could not be said to be in illegal detention, as the

child was in the custody of the mother who is the natural

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guardian.  She also contended that the High Court erred in giving

a direction to the wife to travel to the USA.  Her next contention

is that the child is only about 2 ½ years old and moreover being a

girl­child requires the care, attention and protection of the

mother  and, therefore, it is in the interest  of the child to  be

placed in custody of the mother. With regard to the proceedings

before the Norfolk Court in the USA, it is contended that the wife

was unable to comprehend the  proceedings before the  Norfolk

Court because of lack of knowledge of English and that too

spoken in an American accent.  She also submitted that the legal

aid provided to the wife was of a lawyer who was a ‘caucasian

male’, implying that there was lack of communication between

the two.  It is also contended that the wife had raised objection to

the alleged consent order vide e­mail dated 28.09.2018.  She also

submits that the order passed by the Norfolk Court is not binding

on the parties, especially the wife and, in the larger interest of the

child the writ petition filed by the husband before the Rajasthan

High Court should have been dismissed.   It was also contended

by Ms. Rajkotia that the husband is working in the USA on the

basis of a work permit which is only valid till 2020 and the future

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of the wife and the child will be in jeopardy in case his visa/work

permit is not extended.   

8. On the other hand, Mr. Jauhar, contends that it was the

wife who approached the Court in Norfolk and, by agreement, an

order was passed giving shared parenting to both the parents.

The wife had been specifically directed neither to leave the USA

nor take the child out of the USA, but she has violated the orders

of the jurisdictional court, which jurisdiction was invoked by the

wife herself.   According to him the wife cannot be permitted to

violate the orders passed by a court in another country and then

seek protection in the Indian courts.   He also submitted that in

this modern age it is a well recognised principle of parenting that

even a father  can be  an appropriate  natural  guardian  for the

minor daughter.   Lastly, he submitted that the husband is not

interested in divorcing the wife and his intention is to live with

the child and the wife.  He also urged that the husband is willing

to make all arrangements for stay and travel for the wife and the

child, if the wife comes to the USA along with the child.

Whether a writ of habeas corpus is maintainable?

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9. It is too  late in the  day to  urge  that  a  writ  of  habeas

corpus  is not maintainable if the child is in the custody of

another parent.  The law in this regard has developed a lot over a

period of time but now it is a settled position that the court can

invoke its extraordinary writ jurisdiction for the best interest of

the child.   This has been done in  Elizabeth Dinshaw  vs.

Arvand  M.  Dinshaw & Ors.1,  Nithya  Anand  Raghavan  vs.

State (NCT of Delhi) & Anr.2  and  Lahari Sakhamuri  vs.

Sobhan Kodali3  among others. In all these cases the writ

petitions were entertained. Therefore, we reject the contention of

the appellant­wife that the writ petition before the High Court of

Rajasthan was not maintainable.   

10.  We need not refer  to all  decisions  in this regard but  it

would be apposite to refer to the following observations from the

judgment in Nithya Anand Raghavan (supra):­  

“46. The High Court while dealing with the petition for issuance of a writ of habeas corpus concerning a minor child, in a given case, may direct return of the child or decline to change the custody  of the child  keeping in mind all the attending facts and circumstances including the settled legal position referred to above. Once again, we may hasten to add that the decision of the court, in

1 (1987) 1 SCC 42 2 (2017) 8 SCC 454 3 (2019) 7 SCC 311

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each case, must depend on the totality of the facts and circumstances of the case brought before it whilst considering the welfare of the child which is of paramount consideration. The order of the foreign court must yield to the welfare of the child. Further, the remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court. Indubitably, the writ petitioner can take recourse to such other remedy as may be permissible in law for enforcement of the order passed by the foreign court or to resort to any other proceedings as may be permissible in law before the Indian Court for the custody of the child, if so advised.

47. In a habeas corpus petition as aforesaid, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person (private Respondent named in the writ petition)…”

11. Further, in the case of Kanika Goel vs. State of Delhi4, it

was held as follows:

“34. As expounded in the recent decisions of this Court, the issue ought not to be decided on the basis of rights of the parties claiming custody of the minor child but the focus should constantly remain on whether the factum of best interest of the minor child is to return to the native country or otherwise. The fact that the minor child will have better prospects upon return to his/her native country, may be a relevant aspect in a substantive proceedings for grant of custody of the minor child but not decisive to examine the threshold issues in a habeas corpus petition. For the purpose of habeas corpus petition, the Court ought to focus on the obtaining circumstances of the minor child having been removed from the native country and taken to a place to encounter alien environment, language, custom, etc. interfering with his/her overall growth and grooming and whether continuance there will be harmful…”

4 (2018) 9 SCC 578  

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12. In the present case since the wife brought the minor to

India in violation of the orders of the jurisdictional court in USA,

her custody of the child cannot be said to be strictly legal.

However, we agree with the learned counsel for the appellant that

the High Court could not have directed the appellant­wife to go to

the USA.  The wife is an adult and no court can force her to stay

at a place where she does not want to stay.  Custody of a child is

a different issue, but even while deciding the issue of custody of a

child, we are clearly of the view that no direction can be issued to

the adult spouse to go and live with the other strained spouse in

writ jurisdiction.   

Comity of Courts

13. In the fast shrinking world where adults marry and shift

from one jurisdiction to another there are  increasing issues of

jurisdiction as to which country’s courts will have jurisdiction.  In

many cases the jurisdiction may vest in two countries.  The issue

is important  and  needs to  be  dealt  with care  and  sensitivity.

Though the interest of the child is extremely important and is, in

fact, of paramount importance, the courts of one jurisdiction

should respect the orders of  a  court  of  competent jurisdiction

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even if it is beyond its territories.   When a child is removed by

one parent from one country to another, especially in violation of

the orders passed by a court, the country to which the child is

removed must consider the question of custody and decide

whether the court should conduct an elaborate enquiry on the

question of child’s custody or deal with the matter summarily,

ordering the  parent to return the custody  of the child to the

jurisdiction from which the child was removed, and all aspects

relating to the child’s welfare be investigated in a court in his/her

own country.  

14. Reference in this regard may be made to the judgment in

Elizabeth Dinshaw (supra) wherein this Court was dealing with

a case where the wife was an American citizen whereas the

husband was a citizen of India.  They got married in America and

a child was born to them in the year 1978.  In 1980, differences

arose between the couple and the wife filed a petition for divorce.

The jurisdictional court in America had dissolved the marriage by

a decree of divorce on 23.04.1982 and by the same decree it was

directed that the wife would have the care, custody and control of

the child till he reaches the age of 18 years. The husband was

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given visitation rights.   Taking advantage of the weekend

visitation rights, the husband picked up the child from school on

11.01.1986 and brought him to India.   The wife filed a petition

under Article 32 of the Constitution of India before this Court.

Not only was the petition entertained, but the same was allowed

and we would like to refer to certain important observations of

this Court in Para 8:

“8. 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 parties but on the sole and predominant criterion of what would best serve the interest and welfare of the minor. We have twice interviewed  Dustan in our chambers  and talked with  him.  We  found him  to  be too tender in  age  and totally immature to be able to form any independent opinion of  his  own as  to  which parent  he should stay with. The child is an American citizen. Excepting for the last few months that have elapsed since his being brought to India by the process of illegal abduction by the father,  he  has  spent the rest  of  his life in the  United States of America and he was doing well in school there. In our considered opinion it will be in the best interests and welfare of  Dustan that  he should go  back to the United States of America and continue his education there under the custody and guardianship of the mother to whom such custody and guardianship have been entrusted by a competent court in that country. We are also satisfied that the petitioner who is the mother, is full of genuine love and affection for the child and she can be safely trusted to look after him, educate him and attend in every possible way to his proper upbringing. The child has not taken root in this country and he is still accustomed and acclimatized to the conditions and environments obtaining in the place of his origin in the United States of America. The child’s presence in India is the result  of  an illegal act of abduction and the father who is guilty of the said act cannot claim any advantage by stating that  he  has  already  put the child in some

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school in Pune. The conduct of the father has not been such as to inspire confidence in us that he is a fit and suitable person to be entrusted  with the custody  and guardianship of the child for the present.”

In  V. Ravi Chandran  (Dr.) (2)   vs.   Union of India (UOI) and

Ors.5 it was held 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 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 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 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 interest of the child….”

5 (2010) 1 SCC 174

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15. In Nithya Anand Raghavan (supra), this Court took the

following view:­

“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 pre­existing 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 pre­existing 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.”

Thereafter, another bench of this Court in  Lahari Sakhamuri

(supra), while interpreting the judgment in  Nithya  Anand

Raghavan (supra) held as follows :­

“41…the doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding custody of the minor child, citizenship of the  parents  and  the child etc., cannot  override the consideration of the best interest and the welfare of the child and the direction to return the child to the foreign

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jurisdiction must not result in any physical, mental, psychological, or other harm to the child.”

16. We are of the considered view that the doctrine of comity

of courts is a very healthy doctrine. If courts in different

jurisdictions do not respect the orders passed by each other it

will lead to contradictory orders being passed in different

jurisdictions.   No hard and fast guidelines can be laid down in

this regard and each case has to be decided on its own facts.  We

may however  again reiterate that the  welfare  of the  child  will

always remain the paramount consideration.

Welfare of the child – the paramount consideration

17. It is well settled law by a catena of judgments that while

deciding matters of custody of a child, primary and paramount

consideration is welfare of the child.   If welfare of the child so

demands then technical objections cannot come in the way.

However, while deciding the welfare of the child it is not the view

of one spouse alone which has to be taken into consideration.

The courts should decide the issue of custody only on the basis

of what is in the best interest of the child.

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18. The child is the victim in custody battles.  In this fight of

egos and increasing acrimonious battles and litigations between

two spouses, our experience shows that more often than not, the

parents who otherwise love their child, present a picture as if the

other spouse is a villain and he or she alone is entitled to the

custody of the child. The court must therefore be very vary of

what is said by each of the spouses.

19. A  child, especially  a child  of tender years requires the

love, affection, company, protection of both parents.  This is not

only the requirement of the child but  is  his/her basic human

right.  Just because the parents are at war with each other, does

not mean that the child should be denied the care, affection, love

or protection of any one of the two parents.   A child is not an

inanimate  object  which can be tossed  from one parent to the

other.   Every separation, every re­union may have a traumatic

and psychosomatic impact  on  the  child.  Therefore, it is to  be

ensured that the court weighs each and every circumstance very

carefully before deciding how and in what manner the custody of

the child should be shared between both the parents.  Even if the

custody is given to one parent the other parent must have

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sufficient visitation rights to ensure that the child keeps in touch

with the other  parent and  does  not lose social, physical and

psychological contact with any one of the two parents.  It is only

in extreme circumstances that one parent should be denied

contact with the child.  Reasons must be assigned if one parent is

to be denied any visitation rights or contact with the child.

Courts  dealing  with the custody  matters  must  while  deciding

issues of custody clearly define the nature, manner and specifics

of the visitation rights.

20. The  concept  of visitation rights is  not fully  developed in

India.  Most courts while granting custody to one spouse do not

pass any orders granting visitation rights to the other spouse.  As

observed earlier, a child has a human right to have the love and

affection of both the parents and courts must pass orders

ensuring that the child is not totally deprived of the love,

affection and company of one of her/his parents. 21. Normally, if the parents are living in the same town or area,

the spouse who has not been granted custody is given visitation

rights over weekends only.   In case the spouses are living at a

distance from each other, it may not be feasible or in the interest

of the child to create impediments in the education of the child

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by frequent breaks and, in such cases the visitation rights must

be given over long weekends, breaks, and holidays.  In cases like

the present one where the parents are in two different continents

effort should be made to give maximum visitation rights to the

parent who is denied custody. 22. In addition  to  ‘Visitation Rights’, ‘Contact rights’  are  also

important for development of the child specially in cases where

both parents live in different states or countries.  The concept of

contact rights in the modern age would be contact by telephone,

e­mail or in fact, we feel the best system of contact, if available

between the parties should be video calling.  With the increasing

availability  of internet,  video  calling is  now very  common and

courts dealing with the issue of custody of children must ensure

that the parent who is denied custody of the child should be able

to talk  to her/his  child as often as possible.  Unless there are

special circumstances to take a different view, the parent who is

denied custody of the child should  have the right to talk to

his/her child for 5­10 minutes everyday. This will help in

maintaining and improving the bond between the child and the

parent who is denied custody.  If  that bond is maintained the

child will have no difficulty in moving from one home to another

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during vacations or holidays.  The purpose of this is, if we cannot

provide one happy home with two parents to the child then let

the child have the benefit of two happy homes with one parent

each.

23. As far as the present case is concerned, keeping in view

what we have held above, we are not going into various

allegations and counter allegations made by both the spouses.

However, we record the statement of the husband that he has no

intention of divorcing his wife.  We can only hope that the couple

can either by themselves or through mediation settle their

disputes which would not only be in their own interest but also

in the interest of Kiyara.  Having said so, since at this stage the

dispute between them remains unresolved we shall list out the

factors and weigh them in a proper manner to see what is best in

the interest of the child:­

24. Age of the child – the child is less than 3 years old.  She

is a girl and, therefore, there can be no manner of doubt that she

probably requires her mother more than her father.   This is a

factor in favour of the wife.

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25. Nationality of the child ­ The child is a citizen of USA by

birth.   Her father was already working in the USA when he got

married.   We are told that the mother had visited the USA once

before marriage and when she got married it was done with the

knowledge that she may have to settle down there.  The child was

born in a hospital in the USA and the mother did not come back

to India for delivery which indicates that at that time the parents

wanted the child to be a citizen of USA.   Since the child  is a

citizen of  USA by birth and holds a passport  of that  country,

while deciding the issue of custody we have to take this factor

into consideration.

26. Proceedings in the Norfolk Court  ­ It is the wife who

approached the court of competent jurisdiction, i.e. Norfolk

Juvenile and Domestic Relations District Court, in the USA.  She

first applied for an emergency order and also instituted a petition

seeking sole legal and physical custody of the child.   After the

husband put in  appearance on  the  basis  of the  agreement,  a

consent order was passed which directed both the parties to live

in the matrimonial home till 01.12.2018.  It further directed that

if the matter could not be settled by that date then the wife would

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make her  own arrangements for residence etc.  Provision was

also made for shared parenting.  The wife in total violation of the

said order brought the child back to India.

27. We are not in agreement with  the contention raised on

behalf of the wife that she could not understand the order of

the Norfolk Court.   This is not the first time that the wife had

approached the court.  The wife is educated.  She was working

in Walmart in the USA.   She had contacted an NGO and on

09.09.2017 had sent an e­mail to  Parsipanny  Police

Department against her husband.   On 03.05.2018, the

husband obtained an emergency protection order against the

wife.   Thereafter, the wife along with the minor daughter

returned to India on 16.05.2018 and went back to the USA on

16.07.2018.  The complaint filed by the husband is said to have

been dismissed on 26.07.2018.  On 25.08.2018 the wife called

the Police as according to her she was scared for her safety and

that of her minor daughter.  According to her she applied for an

emergency protective order on 25.08.2018 which was passed in

her favour.  The wife also instituted a petition seeking sole legal

and physical custody of the minor child before the Norfolk

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Court on 29.08.2018.   On 26.09.2018 the consent order was

passed.   It would also be pertinent to mention that even

according to the wife she had been sending e­mails to the

Indian Embassy in Washington for help.  The wife also applied

for Supplemental Nutrition Assistance Program which,

according to her is a nutrition programme to help low income

Americans to put food on the table.   

28. The wife is aware of her rights. She has been taking the

help of the Police, Magistrate, the Domestic Court and Federal

Programmes, when the need arose.  She was also working with

Walmart and we are unable to accept her contention that

because of  lack of translator she could not understand what

was happening.   We are also unable to agree with the

contention now raised that  her counsel  coerced her to enter

into the agreement. In any event if she has any grievance with

regard to the manner in which the settlement was arrived at,

the  proper  course  was to raise the issue  before the  Norfolk

Court.  No Indian Court can sit in appeal over the orders of the

Norfolk Court.  We are clearly of the view that the plea she has

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set up is only to justify her patent violation of the orders of the

Norfolk Court.

29. Obviously, the child who is less than three years old cannot

be heard in the matter but keeping in view the facilities of

education, social security etc., which would be available in USA,

we are of the view that the child should not be deprived of the

same only on the ground that the mother does not want to go

back to USA.

30. Visa issue

Learned counsel for the appellant­wife has laid great emphasis

on the fact that the visa/work permit of the husband is expiring

in 2020.  That by itself is no ground to deny custody of the child

to the husband.  If his visa/work permit is extended no problem

will arise but if his visa/work permit is not extended, we shall be

making directions in this regard in the latter part of the

judgment.  Whether the work visa/work permit of the husband is

to be extended or not is for the authorities in the USA to decide

and this Court cannot comment on the same.  We cannot pass an

order presuming that the visa will not be extended.

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31. There are various factors to be taken into consideration

while deciding what is best in the interest of the child.  No hard

and fast rules can be laid down and each case has to be decided

on its own merits.  We are also not oblivious of the fact that when

two parents are at war with each other it is impossible to provide

a completely peaceful environment to the child. The court has to

decide what is in the best interest of the child after weighing all

the pros and cons of both the respective parents who claim

custody of the child.   Obviously, any such order of custody

cannot give a perfect environment to the child because that

perfect environment would only be available if both the parents

put the interest of the child above their own differences.  Even if

parents separate, they  may reach an arrangement where the

child can live in an environment which is reasonably conducive

to her/his development.  As far as the present case is concerned

other than the age of the child nothing is in favour of the mother.

She herself approached the jurisdictional court in Norfolk.   She

entered into an agreement on the basis of which a consent order

was passed.  She has violated that order with impunity and come

back to India and, this is a factor which we have to hold

against her.

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32. In view of the above discussion, we are clearly of the view

that it is in the best interest of the child to have parental care of

both the parents, if not joint then at least separate. We are

clearly of the view that if the wife is willing to go back to USA

then all orders with regard to custody, maintenance etc., must be

looked into by the jurisdictional court in USA.   A writ court in

India cannot, in proceedings like this direct that an adult spouse

should go to America.   We are, therefore,  issuing directions in

two parts.  The first part will apply if the appellant­wife is willing

to go to USA on terms and conditions offered by the husband in

his affidavit.  The second part would apply if she is not willing to

go to USA, how should the husband be granted custody of the

child.

1  st   part

33. (a) At the outset we note that the husband has filed an

affidavit, the relevant portion of which reads as follows:­

“(2) That I have always been calling up my wife to come back to us along with the minor child so that all of us could stay together in the US as a happy family.  In this regard I have sent her various emails to come back and I would be willing to bear all the expenses of the travel of my wife and minor child back to US.

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(3) That I further  undertake that I shall  make  all the arrangements of stay and travel expenses (including air tickets)  of  my wife  and minor  child in  our  own house which is a two bedroom apartment for which I am paying a rental of US $1500 per month.

(4) That in case my wife is not willing to stay with me for personal reasons, then I shall sift out and make arrangements to stay somewhere else.

(5) That I further undertake to take care of all expenses of day to day running of the house, medical insurance for both my wife and child, electricity, gas all other incidental expenses till the time the US Court makes a provision in this regard.

(6)  That I  also  undertake to  bear  all expenses for the education of the minor child including the admission in a nursery school in the  US  which expense  would  be of about US $1000­$1500 per month not including the meals  and school  supplies.   I  also  undertake  that the expenses of the school supplies and other requirements as part of the minor child’s life in school would also be borne by me.

(7) That I undertake that I will be available for any Medical Emergency and Vaccination during weekdays for my wife­ Yashita and the minor child­ Kiyara.   I undertake that for any other errands, I will be available after the office or on weekends.

(8)  That  I  also state that  for each time that  the minor child has visited in terms of an order of shared parenting, I have taken work from home to ensure that all my time is spent around the child and I undertake that even after the minor child’s admission to nursery school (Kindergarten), during her school hours I would go to my office and after school hours I will take work from home and avail parenting time with her.   I undertake that should need arises, I will call my mother to help us in the US.

(8)  That  I  also undertake to pay US $200 towards the upkeep and maintenance of the minor child apart from all other expenses.”

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We record this as an undertaking to the Court and the husband

is duty bound to abide by this undertaking.

(b) We feel that it will be in the interest of the child if the

mother herself accompanies the child to USA.  The appellant­wife

may like to live in USA or not, and this is a personal choice of the

appellant­wife.  However, if she goes back to USA along with the

child, then she must comply with the orders of the Norfolk Court.

Obviously, she can apply for modification/vacation of the order, if

so advised;

(c) In case the wife goes back to USA it shall be the

responsibility of the husband to pay reasonable expenses for her

entire travel and stay.  The wife must within one week of  the

passing of this order intimate counsel for the husband whether

she is willing to go back to USA or not.  In case she expresses her

willingness to do so, the husband shall purchase tickets for travel

of the wife, and the minor child to USA, which journey must be

performed on or before 20.02.2020.  We make it clear that it will

be the wife’s responsibility to obtain the requisite travel

documents required by her to travel to the USA by the said date;

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(d) In case the wife is willing to go back to USA but is not  

willing to live with the husband, in view of the undertaking given  

by the husband, we direct that the husband shall make   

alternative arrangements  for  his own stay and hand over the   

possession of the  apartment now in his possession to the wife;   

(e) The husband in terms of the undertaking is directed to

take care of  all  expenses of  day to day running of the house,

medical insurance for both wife and child, electricity, gas and all

other incidental expenses till the time the jurisdictional court in

USA makes a provision in this regard;

(f) The husband shall not  initiate any coercive or penal

action against the wife in the USA and if such action has already

been initiated by him or any proceedings in that regard are

pending, then the same shall be withdrawn and not pursued any

further by the husband. This will be a precondition to facilitate

the wife’s appearance before the concerned Courts in the USA to

effectively represent and defend herself in all matters relating to

the matrimonial dispute (including custody and guardianship

issues of the minor child) between the husband and the wife.

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34. We, however, clarify that this arrangement will only

continue up to 30.04.2020 before which date the parties must get

proper directions from the jurisdictional court in USA.  Once the

jurisdictional Court in USA passes the order then this portion of

the order shall cease to operate.  In addition, we also direct that

the  husband shall  pay  US $250 per  week  to the  wife for  her

personal expenses in USA till 30.04.2020 or till the jurisdictional

court in USA passes orders in this regard.   This amount is an

addition to the US $200 per week that the husband has

undertaken to pay for the upkeep and maintenance of the minor

child.  

2  nd   part

35. In case the wife does not inform the counsel for the

husband within one week from today that she  is willing to go

back to USA then it shall be presumed that she has no intention

to go to USA along with the child.   In that event we issue the

following directions :­

(a) The wife shall handover custody of minor Kiyara to the

husband or if the husband is unable to travel to India, then to

the mother of the husband, before the Registrar

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General/Registrar(Judicial),  of the High Court  of  Rajasthan on

03.02.2020 at 11.00 A.M.   Thereafter, the husband shall make

necessary arrangements for taking the child to USA accompanied

by at least one of the husband’s parents;

(b) In case the child goes to USA with the husband or

either of  his parents, the husband shall  ensure that the child

talks to her mother through video calling facilities such as

WhatsApp, Skype etc., everyday at 8.30 P.M. Eastern Standard

Time on weekdays  (Monday­Thursday) for  at least  10 minutes

each day and on weekends (Friday­Sunday) he shall ensure that

the child talks to the mother at the same time or any other time

mutually settled between the parties through video calling for at

least 15 minutes.

(c) We further direct that if the wife visits USA hereafter

and is staying in the same town where the husband resides, she

will be permitted custody of the child on all weekends from 6.00

P.M. on Friday till 6.00 P.M. on Sunday.

(d) Even if the mother does not visit USA, the father shall

ensure that the child visits India at least twice a year, once

during the summer vacations and once during the winter break,

as per the child’s school schedule.  It will be his responsibility to

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ensure that the child comes to India accompanied either by him

or one of the grandparents of the child.   During this period the

child shall remain exclusively with the mother.  However, in case

the husband is also visiting with the child then during the period

when the child is in India, the husband will have the custody of

the child for 2 days per week, preferably on weekends or on other

suitable days as settled by the parties. 36. Mr. Rajkotia, learned counsel for the appellant­wife had

urged that the position would totally  change in case the work

permit/visa of the husband is not extended.  This is in the realm

of speculation, we cannot presume whether the visa will be

extended or not.   We have, therefore, issued the aforesaid

directions but make it clear that if the visa/work permit of the

husband is not extended and he has to leave the USA then the

wife will be at liberty to move this Court for fresh directions. 37.  The appeal is disposed of in the aforesaid terms.  Pending

application(s), if any, stand(s) disposed of. The Registrar

(Judicial) of the Registry of the Supreme Court of India, is

directed to send a copy of this judgment to the Registrar

General/Registrar (Judicial) of the High Court of Rajasthan.

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.......................................J. (Deepak Gupta)

.......................................J. (Aniruddha Bose)

New Delhi, January 20, 2020

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