I have taken liberty to create yet another FOLDER for dumping all Munchausen's Syndrome by Proxy (which has relevancy in Child custody suits and this neuro. Disorder symptoms are found in mother’s) citations from contextual Jurisprudence and members are encouraged to dump specific citations here as they may wish in days to come.
Thank you all for co-operating
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Reportable
IN THE SUPREME COURT OF
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRL.) NO.112 / 2007
Dr. V. Ravi Chandran ..Petitioner
Versus
J U D G M E N T
R.M. LODHA, J.
Adithya is a boy of seven, born on
2. On
3. We heard Ms. Pinky Anand, learned senior counsel for the petitioner and Mr. T.L.V. Iyer, learned senior counsel for respondent no. 6. Now since minor Adithya has been produced, the only question that remains to be considered is with regard to the prayer made by the petitioner for handing over the custody of minor Adithya to him with his passport.
4. But before we do that, it is necessary to notice few material facts. Dr. V. Ravi Chandran – petitioner – is an American citizen. He and respondent no. 6 got married on
July 2003, respondent no. 6 approached the New York State Supreme Court for divorce and dissolution of marriage. A consent order governing the issues of custody and guardianship of minor Adithya was passed by the New York State Supreme Court on
5. Upon the petition for modification of custody filed by the petitioner and the petition for enforcement filed by him and upon the petition for enforcement filed by respondent no.6 before the Family Court of the State of New York, on June 18, 2007, upon the consent of both parties, inter – alia, the following order came to be passed:
“ORDERED, the parties shall share joint legal and
physical custody of the minor child; and it is further
ORDERED, that commencing during August 2007,
Adithya shall reside in
ORDERED, that the parties acknowledge that it is
the intention of the parties to reside within the same
community. As such, it is the mother’s current intention to
relocate to
father’s residence. If the mother does relocate to a forty (40)
mile radius of the father’s residence (which shall be within
a twenty (20) mile radius from the child’s school),, the parties
shall equally share physical custody of Adithya. The parties
shall alternate physical custody on a weekly basis, with the
exchange being on Friday, at the end of the School day, or
at the time when school would ordinarily let out in the event
that there is no school on Friday; …………….
……………………………………………………………
……………………………………………………………
ORDERED, that in the event that the mother does
not relocate within forty (40) miles from the father’s
residence located in
miles of Adithya’s school), the mother shall have custodial
time with the minor child, as follows:
A. On Alternating weekends from Friday, at the end of the
school day until Monday, prior to the beginning of
school, commencing during the first week of
September, 2007. Such periods of custodial time shall
take place within forty (40) miles from the father’s
residence located in
there is no school on the Friday of the mother’s
weekend, she shall have custodial time with the child
beginning at
event that there is no school on Monday of the mother’s
custodial weekend, she shall have custodial time until
B. For ten (10) consecutive days during Spring vacation
from school; and
C. For the entirety of the Christmas recess from School,
except for Christmas Eve and Christmas day, which
shall be with the father. In the event that the school
recess is prior to Christmas Eve, the mother shall have
the right to have custodial time during those recessed
days to long as she produces the child at the father’s
residence for Christmas Eve and Christmas day ; and
D. During the following holidays:
i) Mother’s birthday, which is on April 25;
ii) Mother’s Day;
iii) Hindu Festival of Diwali and Deepavali;
iv) Adithya’s birthday (July 1) in alternating years;
v) Thanks giving in alternating years (so that the
mother has custodial time during even –
numbered years and the father has custodial
time during odd – numbered years);
vi) New Year’s Day in alternating years (so that
the mother has custodial time during even –
numbered years and the father has custodial
time during odd –numbered years) ;…………
……………..
……………………………………………………
ORDERED, that the parties shall share the
summer recess from school so that the mother has
custodial time for a total of up to fifty (50) days on a
schedule so that each party has custodial time for 4
consecutive weeks, with the mother’s custodial time
commencing on the Monday following the final day of
school……….
ORDERED, for the summer of 2007, the
mother shall have custodial time from June 18 until
June 20; the father shall have custodial time from
June 20 until June 24; the mother shall have custodial
time from June 25 until July 1; the father shall have
custodial time from July 1 until July 6; and the mother
shall then have custodial time from July 6 until
August 3 and she shall be solely responsible for
transporting the child to the father’s residence in
custodial time until the commencement of school.
Thereafter the father shall continue to have custodial
time until such time as the mother either a) returns
from
schedule as set froth herein, or b) moves within 40
miles of the father’s residence in
commences her custodial time during alternating
weeks;………………………………
…………………………………………………….
…………………………………………………….
ORDERED, that each party agrees that they
shall provide the other parent with a phone number
and address where the child will be located at all time,
and that the other parent shall have reasonable and
regular telephone communication with the minor child;
and it is further
ORDERED, that each party agrees to provide
the other party with the child’s passport during each
custodial exchange of the minor child, and that each
party shall sign and deliver to the other, whatever
written authorization may be necessary for travel with
the child within the Continental
abroad;”……………………………………….
6. On
7. It transpires that the Family Court of the State of
8. In the backdrop of the aforenoticed facts, we have to consider—now since the child has been produced—what should be the appropriate order in the facts and circumstances keeping in mind the interest of the child and the orders of the courts of the country of which the child is a national.
9. In re B—’s Settlement,1 {1940}
The father began divorce proceedings in
“…At the moment my feeling is very strong that, even
assuming in the father’s favour that there is nothing in his
character or habits which would render him unfitted to have
the custody of the child, the welfare of the child requires, in
all the circumstances as they exist, that he should remain in
In the present case the position is that nearly two years ago,
when the child was already in
order was made by the
custody of the child to the father I do not know how far, if at
all, the matter was considered on the footing of what was
best for the child at that time, or whether it was regarded as
a matter of course that the father, being the guardian by the
common law of
proceedings and the only parent in
given the custody. I cannot regard that order as rendering
it in any way improper or contrary to the comity of nations if I
now consider, when the boy has been in this country for
nearly two years, what is in the best interests of the boy. I
do not think it would be right for the Court, exercising its
jurisdiction over a ward who is in this country, although he is
a Belgian national, blindly to follow the order made in
from Nugent v. Vetzera {FN10}, the case that was before
Page Wood V.-C., and it is to be observed that even in that
case, and in the special circumstances of that case, the
Vice-Chancellor guarded himself against anything like
abdication of the control of this Court over its wards. It does
not appear what the Vice-Chancellor’s view would have
been if there had been evidence, for example, that it would
be most detrimental to the health and well-being of the
children if they were removed from
……..I ought to give due weight to any views formed by the
Courts of the country whereof the infant is a national. But I
desire to say quite plainly that in my view this Court is
bound in every case, without exception, to treat the
welfare of its ward as being the first and paramount
consideration, whatever orders may have been made by
the Courts of any other country.”……………… ………………
………….
10. In Mark T. Mc.Kee vs. Eyelyn McKee2, {1951} A.C. 352 the Privy Council was concerned with an appeal from the Supreme Court of Canada. That was a case where the parents of the infant were American citizens. They were married in
The mother thereupon instituted habeas corpus proceedings in the Supreme Court of Ontario seeking to have the child delivered to her. Wells, J., before whom the matter came held that infant’s best interests would be served in the custody of his father. The Court of Appeal for
However, the Supreme Court of Canada by majority judgment allowed the appeal of the mother and set aside the order of custody of child to the father. On appeal from the Supreme Court of Canada at the instance of the father, the Privy Council held as follows:
“……….For, after reaffirming “the well established general
rule that in all questions relating to the custody of an infant
the paramount consideration is the welfare of the infant”,
he observed that no case had been referred to which
established the proposition that, where the facts were
such as he found them to exist in the case, the salient
features of which have been stated, a parent by the simple
expedient of taking the child with him across the border into
judgment of the court, whose jurisdiction he himself invoked,
becomes “entitled as of right to have the whole question
retried in our courts and to have them reach a anew and
independent judgment as to what is best for the infant”. and
it is, in effect, because he held that the father had no such
right that the judge allowed the appeal of the mother, and
that the Supreme Court made the order already referred to.
But with great respect to the judge, this was not the
question which had to be determined. It is possible that a
case might arise in which it appeared to a court, before
which the question of custody of an infant came, that it was
in the best interests of that infant that it should not look
beyond the circumstances in which its jurisdiction was
invoked and for that reason give effect to the foreign
judgment without further inquiry. But it is the negation of
the proposition, from which every judgment in this case has
proceeded, namely, that the infant’s welfare is the
paramount consideration, to say that where the trial judge
has in his discretion thought fit not to take the drastic
course above indicated, but to examine all the
circumstances and form an independent judgment, his
decision ought for that reason to be overruled. Once it is
conceded that the court of Ontario had jurisdiction to
entertain the question of custody and that it need not blindly
follow an order made by a foreign court, the consequence
cannot be escaped that it must form an independent
judgment on the question, though in doing so it will give
proper weight to the foreign judgment. What is the proper
weight will depend on the circumstances of each case. It
may be that, if the matter comes before the court of Ontario
within a very short time of the foreign judgment and there is
no new circumstance to be considered, the weight may be
so great that such an order as the Supreme Court made in
this case could be justified. But if so, it would be not
because the court of Ontario, having assumed jurisdiction,
then abdicated it, but because in the exercise of its
jurisdiction it determined what was for the benefit of the
infant.
It cannot be ignored that such consequences might follow as
are suggested by Cartwright, J. The disappointed parent
might meet stratagem by stratagem and, taking the child
into the
courts, whose duty it would then be to determine the
question of custody. That is a consideration which, with
others, must be weighed by the trial judge. It is not,
perhaps, a consideration which in the present case should
have weighed heavily.
It has been said that the weight or persuasive effect of a
foreign judgment must depend on the circumstances of
each case. In the present case there was ample reason for
the trial judge, in the first place, forming the opinion that he
should not take the drastic course of following it without
independent inquiry and, in the second place, coming to a
different conclusion as to what was for the infant’s
benefit.”……………………………..
11. The aforesaid two cases came up for consideration in Harben vs. Harben3, {1957} 1. W.L.R. 261 wherein Sachs J. observed as follows:
“It has always been the practice of this court to
ensure that a parent should not gain advantage by the use
of fraud or force in relation to the kidnapping of children
from the care of the other spouse, save perhaps where
there is some quite overwhelming reason in the children’s
interest why the status quo should not be restored by the
court before deciding further issues. In the present case I
am concerned with three young children, two of whom are
girls and the youngest is aged only three. It is a
particularly wicked thing to snatch such children from the
care of a mother, and, in saying that, I have in mind not
merely the mother’s position but the harm that can be done
to the children. No affidavit of the husband tendering
either his regrets or any vestige of excuse for his action has
been proffered. Further, as I have already mentioned, when
first I asked Mr. Syms what was the nature of the case
which he might wish to make, if so minded, for depriving
these children of a mother’s care, he only spoke of her
association with a certain man and never suggested that
she had in any way whatsoever failed to look after the
children properly.”
12. In Kernot Vs. Kernot4, {1965} Ch.217 the facts were thus: In May 1961, the plaintiff mother, an Italian lady, married an English man in
On
proceedings in which she brought a motion for an order that the father return the infant to her in
“So that even where a foreign court has made an order on
the merits – which is not the present case, because the only
order which has been made was a consent order without
any investigation of the merits by the Italian court – that
domestic court before whom the matter comes (the
court in the case to which I have just referred, or this court
in the case before me) is bound to consider what is in the
best interests of the infant; and although the order of the
foreign court will be attended to as one of the
circumstances to be taken into account it is not conclusive
one way or the other. How much stronger must the duty of
this court be to entertain the case where the foreign court
has not made any order based on any investigation of the
case on its merits.”
13. In re H. (Infants)5, (1966) 1 W.L.R. 381 = (1966) 1 All.E.R. 886 the Court of Appeal was concerned with two American boys whose divorced parents were both citizens of
“The sudden and unauthorized removal of children from
one country to another is far too frequent nowadays, and as
it seems to me it is the duty of all courts in all countries to
do all they can to ensure that the wrongdoer does not gain
an advantage by his wrongdoing.”
Willmer L.J. went on to hold:
“The judge took the view (and I think it was the right view)
that in a case such as the present it was not necessary to
go into all the disputed questions between the parents, but
that he ought to send these boys back to their own country
to be dealt with by the court of their own country, provided
that he was satisfied (as he was satisfied, having seen the
father himself, and having had the benefit of the view
expressed on behalf of the Official Solicitor) that they would
come to no harm if the father took them back to the United
States; and that this was so, even though it might
subsequently turn out, after all the merits of the case had
been thoroughly thrashed out in the court in
it would perhaps be better after all for the boys to reside in
Harman L.J. in his separate judgment held thus:
“…….But if he chose to take the course which the judge
here took in the interests of the children , as he thought, of
sending them back to the
into the matter than to ensure, so far as he could, that there
was no danger to their moral or physical health in taking that
course, I am of opinion that he was amply justified, and that
that was the right way in which to approach the issue.
These children had been the subject of an order (it
is true made by consent) made in the courts of their own
country in December, 1964. It was only three months later
that the mother flouted that order, deceived her own
advisers and deceived the court , and brought the children
here with the object of taking them right out of their father’s
life and depriving him altogether of their society. The interval
is so short that it seems to me that the court inevitably was
bound to view the matter through those spectacles; that is to
say, that the order having been made so shortly before, and
there being no difference in the circumstances in the three
months which had elapsed , there was no justification for
the course which the mother had taken, and that she was
not entitled to seek to bolster her own wrong by seeking
the assistance of this court in perpetuating that position, and
seeking to change the situation to the father’s disadvantage.”
14. In re. L (minors)6, (1974) 1 All ER 913 the Court of Appeal was concerned with the custody of the foreign children who were removed from foreign jurisdiction by one parent. That was a case where a German national domiciled and resident in
unless it appeared to the court that it would be harmful to the children if they were returned. He concluded that in view of the arrangements which their father could make for them, the children would not be harmed by being returned. He, accordingly, ordered that they be returned to
“…….Where the court has embarked on a full-scale investigation of that facts, the applicable principles, in my view, do not differ from those which apply to any other wardship case. The action of one party in kidnapping the child is doubtless one of the circumstances to be taken into account, any may be a circumstance of great weight; the weight to be attributed to it must depend on the circumstances of the particular case. The court may conclude that notwithstanding the conduct of the ‘kidnapper’ the child should remain in his or her care (McKee v. McKee, Re E (an infant) and Re. T.A. (infants), where the order was merely interim); or it may conclude that the child should be returned to his or her native country or the jurisdiction from which he or she has been removed. Where a court makes a summary order for the return of a child to a foreign country without investigating the merits, the same principles, in my judgment apply, but the decision must be justified on somewhat different grounds.
……………………………………………………………………
………..The judge may well be persuaded that it would be better for
the child that those merits should be investigated in a court in his
native country than that he should spend in this country the period
which must necessarily elapse before all the evidence can be
assembled for adjudication here. Anyone who has had experience
of the exercise of this delicate jurisdiction knows what
complications can result from a child developing roots in new soil,
and what conflicts this can occasion in the child’s own life. Such
roots can grow rapidly. An order that the child should be returned
forthwith to the country from which he has been removed in the
expectation that any dispute about his custody will be satisfactorily
resolved in the courts of that country may well be regarded as
being in the best interests of the child……”
15. In re. L. (minors)6, the Court of Appeal has made a distinction between cases, where the court considers the facts and fully investigates the merits of a dispute, in a wardship matter in which the welfare of the child concerned is not the only consideration but is the first and paramount consideration, and cases where the court do not embark on a full-scale investigation of the facts and make a summary order for the return of a child to a foreign country without investigating the merits. In this regard, Buckley, L.J. noticed what was indicated by the Privy Council in McKee v. McKee2 that there may be cases in which it is proper for a court in one jurisdiction to make an order directing that a child be returned to a foreign jurisdiction without investigating the merits of the dispute relating to the care of the child on the ground that such an order is in the best interest of the child.
16. This Court in Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu7 (1984) 3 SCC 698and Another was concerned with the custody of a child— British citizen by birth—to the parents of Indian citizens, who after their marriage settled in
“The modern theory of Conflict of Laws recognises and, in
any event, prefers the jurisdiction of the State which has the most
intimate contact with the issues arising in the case. Jurisdiction is
not attracted by the operation or creation of fortuitous
circumstances such as the circumstance as to where the child,
whose custody is in issue, is brought or for the time being lodged.
To allow the assumption of jurisdiction by another State in such
circumstances will only result in encouraging forum-shopping.
Ordinarily, jurisdiction must follow upon functional lines. That is to
say, for example, that in matters relating to matrimony and custody,
the law of that place must govern which has the closest concern
with the well-being of the spouses and the welfare of the offsprings
of marriage. The spouses in this case had made
home where this boy was born to them. The father cannot deprive
the English Court of its jurisdiction to decide upon his custody by
removing him to
matrimonial home but, by an act which was gravely detrimental to
the peace of that home. The fact that the matrimonial home of the
spouses was in
that State in order to make it reasonable and just for the courts of
that State to assume jurisdiction to enforce obligations which were
incurred therein by the spouses. (See International Shoe Company
v. State of
is regarded as the fountainhead of the subsequent developments of
jurisdictional issues like the one involved in the instant case.) It is
our duty and function to protect the wife against the burden of
litigating in an inconvenient forum which she and her husband had
left voluntarily in order to make their living in
gave birth to this unfortunate boy.”
17. In Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and Another8(1987) 1 SCC 42, this Court held that it was the duty of courts in all countries to see that a parent doing wrong by removing children out of the country does not gain any advantage by his or her wrongdoing. In para 9 of the report, this Court considered the decision of the Court of Appeal in re H.5 and approved the same in the following words:
“9. In Re H. (infants) [(1966) 1 All ER 886] the Court of Appeal in
“The sudden and unauthorised removal of children from one
country to another is far too frequent nowadays, and as it
seems to me, it is the duty of all courts in all countries to do
all they can to ensure that the wrongdoer does not gain an
advantage by his wrongdoing.
The courts in all countries ought, as I see it, to be careful not
to do anything to encourage this tendency. This substitution
of self-help for due process of law in this field can only harm
the interests of wards generally, and a Judge should, as I
see it, pay regard to the orders of the proper foreign court
unless he is satisfied beyond reasonable doubt that to do so
would inflict serious harm on the child.”
10. With respect we are in complete agreement with the aforesaid enunciation of the principles of law to be applied by the courts in situations such as this.”
18. In the case of Dhanwanti Joshi v. Madhav Unde9, (1998) 1 SCC 112 this Court was again concerned with the matter relating to removal of a child from one country to another contrary to custody order of the court from where the child was removed. This court considered English decisions, inter alia, McKee v. McKee2 and H. (infants), re.5 and also noticed the decision of this Court in Mrs. Elizabeth Dinshaw8 and observed as follows :
“28. The leading case in this behalf is the one rendered by
the Privy Council in 1951, in McKee v. McKee [(1951) AC 352]. In
that case, the parties, who were American citizens, were married in
separated in December 1940. On
was passed in
and later varied in favour of the mother. At that stage, the father
took away the child to
the mother, though initially the decisions of lower courts went
against her, the Supreme Court of
the said Court held that the father could not have the question of
custody retried in
favour of the mother in the
Council, Lord Simonds held that in proceedings relating to custody
before the
was of paramount consideration and the order of a foreign court in
circumstances of the case, but such an order of a foreign court was
only one of the facts which must be taken into consideration. It was
further held that it was the duty of the
independent judgment on the merits of the matter in regard to the
welfare of the child. The order of the foreign court in US would yield
to the welfare of the child. “Comity of courts demanded not its
enforcement, but its grave consideration”. This case arising from
consistently followed in latter cases. This view was reiterated by the
House of Lords in J v. C (1970 AC 668). This is the law also in USA
(see 24 American Jurisprudence, para 1001) and
Khamis v. Khamis [(1978) 4 Fam LR 410 (
29. However, there is an apparent contradiction between the above
view and the one expressed in H. (infants), Re[(1966) 1 All ER 886]
and in E. (an infant), Re [(1967) 1 All ER 881] to the effect that the
court in the country to which the child is removed will send back the
child to the country from which the child has been removed. This
apparent conflict was explained and resolved by the Court of
Appeal in 1974 in L. (minors) (wardship : jurisdiction), Re [(1974) 1
All ER 913, CA] and in R. (minors) (wardship : jurisdiction), Re
[(1981) 2 FLR 416 (CA)]. It was held by the Court of Appeal in L.,
Re [(1974) 1 All ER 913, CA] that the view in McKee v. McKee
[1951 A.C. 352 : (1951) All ER 942] is still the correct view and that
the limited question which arose in the latter decisions was whether
the court in the country to which the child was removed could
conduct (a) a summary inquiry or (b) an elaborate inquiry on the
question of custody. In the case of (a) a summary inquiry, 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. In the case of (b) an elaborate inquiry, the court could go into
the merits 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. 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. The summary
jurisdiction to return the child is invoked, for example, if the child
had been removed from its native land and removed to another
country where, maybe, his native language is not spoken, or the
child gets divorced from the social customs and contacts to which
he has been accustomed, or if its education in his native land is
interrupted and the child is being subjected to a foreign system of
education, — for these are all acts which could psychologically
disturb the child. Again the summary jurisdiction 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 well be persuaded that
it would be better for the child that those merits should be
investigated in a court in his native country on the expectation that
an early decision in the native country could be in the interests of
the child before the child could develop roots in the country to
which he had been removed. Alternatively, the said court might
think of conducting an elaborate inquiry on merits and have regard
to the other facts of the case and the time that has lapsed after the
removal of the child and consider if it would be in the interests of
the child not to have it returned to the country from which it had
been removed. In that event, the unauthorised 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 interests of
the child. (See Rayden & Jackson, 15th Edn., 1988, pp. 1477-79;
Bromley, Family law, 7th Edn., 1987.) In R. (minors) (wardship :
jurisdiction), Re [(1981) 2 FLR 416 (CA)] it has been firmly held
that the concept of forum conveniens has no place in wardship
jurisdiction.
30. We may here state that this Court in Elizabeth Dinshaw v.
Arvand M. Dinshaw [(1987) 1 SCC 42 : 1987 SCC (Crl.) 13] while
dealing with a child removed by the father from
custody orders of the
to
also because, on facts, — which were independently considered —
it was in the interests of the child to be sent back to the native
State. There the removal of the child by the father and the mother’s
application in
Court referred to H. (infants), Re which case, as pointed out by us
above has been explained in L. Re as a case where the Court
thought it fit to exercise its summary jurisdiction in the interests of
the child. Be that as it may, the general principles laid down in
McKee v. McKee and J v. C and the distinction between summary
and elaborate inquiries as stated in L. (infants), Re are today well
settled in
apply in our country. Therefore nothing precludes the Indian courts
from considering the question on merits, having regard to the delay
from 1984 — even assuming that the earlier orders passed in
do not operate as constructive res judicata.”
However, in view of the fact that the child had lived with his mother in
19. In the case of Sarita Sharma v. Sushil Sharma10, (2000) 3 SCC 14 this Court was seized with a matter where the mother had removed the children from
“6. Therefore, it will not be proper to be guided entirely by
the fact that the appellant Sarita had removed the children from
view of the facts and circumstances of the case, the decree passed
by the
consideration of welfare of the minor children. We have already
stated earlier that in
his mother aged about 80 years. There is no one else in the family.
The respondent appears to be in the habit of taking excessive
alcohol. Though it is true that both the children have American
citizenship and there is a possibility that in U.S.A they may be able
to get better education, it is doubtful if the respondent will be in a
position to take proper care of the children when they are so young.
Out of them, one is a female child. She is aged about 5 years.
Ordinarily, a female child should be allowed to remain with the
mother so that she can be properly looked after. It is also not
desirable that two children are separated from each other. If a
female child has to stay with the mother, it will be in the interest of
both the children that they both stay with the mother. Here in
also proper care of the children is taken and they are at present
studying in good schools. We have not found the appellant wanting
in taking proper care of the children. Both the children have a
desire to stay with the mother. At the same time it must be said that
the son, who is elder then the daughter, has good feelings for his
father also. Considering all the aspects relating to the welfare of the
children, we are of the opinion that in spite of the order passed by
the Court in
allowed the habeas corpus writ petition and directed the appellant
to hand over custody of the children to the respondent and permit
him to take them away to
the children requires a full and thorough inquiry and, therefore, the
High Court should have directed the respondent to initiate
appropriate proceedings in which such an inquiry can be held. Still
there is some possibility of the mother returning to
interest of the children. Therefore, we do not desire to say anything
more regarding entitlement of the custody of the children. The
chances of the appellant returning to
depend upon the joint efforts of the appellant and the respondent to
get the arrest warrant cancelled by explaining to the Court in
the circumstances under which she had left
without taking permission of the Court. There is a possibility that
both of them may thereafter be able to approach the Court which
passed the decree to suitably modify the order with respect to the
custody of the children and visitation rights.”
20. While dealing with a case of custody of a child removed by a parent from one country to another in contravention to 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. 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. The indication given in McKee v. McKee2 that there may be cases in which it is proper for a court in one jurisdiction to make an order directing that a child be returned to a foreign jurisdiction without investigating the merits of the dispute relating to the care of the child on the ground that such an order is in the best interest of the child has been explained in re. L (minors)6 and the said view has been approved by this Court in Dhanwanti Joshi9. Similar view taken by the Court of Appeal in re. H5 has been approved by this Court in Elizabeth Dinshaw8.
21. Do the facts and circumstances of the present case warrant an elaborate enquiry into the question of custody of minor Adithya and should the parties be relegated to the said procedure before appropriate forum in this country in this regard? In our judgment, this is not required. Admittedly, Adithya is an American citizen, born and brought up in
22. It is true that child Adithya has been in
24. The learned Senior Counsel for respondent no. 6 sought to raise an objection regarding the maintainability of habeas corpus petition under Article 32 of the Constitution before this Court but we are not persuaded to accept the same. Suffice it to say that in the peculiar facts and circumstances of the case which have already
been noticed above and the order that we intend to pass, invocation of jurisdiction of this Court under Article 32 cannot be said to be inappropriate.
25. We record our appreciation for the work done by the concerned officers/officials of CBI in tracing the minor child Adithya and producing him in less than two months of the order passed by this Court, although, the Police Officers and Officials of different States failed in tracing the child Adithya and respondent no. 6 for more than two years. But for the earnest efforts on the part of the CBI authorities, it would not have been possible for this Court to hear and decide this habeas corpus petition involving the sensitive issue concerning a child of seven years who is a foreign national.
26. In the result and for the reasons stated, we pass the following order :
(i) The respondent no. 6 shall act as per the consent
order dated
State of
the petition that may be moved by the parties henceforth and,
accordingly, she will take the child Adithya of her own to the
report to that court.
(ii) The petitioner shall bear all the traveling expenses
of the respondent no. 6 and minor child Adithya and make
arrangements for the residence of respondent no. 6 in the
United States of
competent court.
(iii) The petitioner shall request the authorities that the
warrants against respondent no. 6 be dropped. He shall not file
or pursue any criminal charges for violation by respondent no. 6
of the consent order in the
(iv) The respondent no. 6 shall furnish her address and
contact number in
them in advance the date and flight details of her departure
along with child Adithya for
(v) In the event of respondent no. 6 not taking the child
Adithya of her own to United States of
days from today, child Adithya with his passport shall be
restored to the custody of the petitioner to be taken to United
States of
court that passed the consent order dated
be open to respondent no. 6 to move that court for a review of
the custody of the child, if so advised.
(vi) The parties shall bear their own costs.
……………………J (Tarun Chatterjee)
…….……………..J (R. M. Lodha)
…….……………..J
(Dr. B.S. Chauhan)
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