TaxTMI 
TaxTMI 
2017 (7) TMI 1466
X X X X Extracts X X X X
X X X X Extracts X X X X
.... comply with the order dated 08.01.2016 passed by the High Court of Justice, Family Division, Principal Registry, United Kingdom (UK), within 3 (three) weeks from the date of the impugned order or in the alternative to handover the custody of the daughter to the father within 3 (three) weeks from the date of the order. 4. The Appellant has assailed the aforesaid order inter alia on the ground that in the present scenario, the paramount interests and welfare of the daughter, Nethra, who is presently over seven years of age, is to remain in custody of her mother, especially because she suffers from a cardiac disorder and that she would face immense physical and psychological harm if repatriated to the custody of the father in England in light of the alleged physical, verbal and mental abuse meted out by him. The Appellant has also contended that the UK Court does not have intimate contact with Nethra merely because she has acquired the citizenship of the UK in December, 2012. The daughter has her deep roots in India as she was born here in Delhi and has retained her Indian citizenship. She has been schooling here for the past 12 (twelve) months and has spent equal time in both the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Appellant gave birth to a girl child-Nethra, in Delhi. Respondent No. 2 soon joined them in India. f. After the birth of their daughter, they went back to the UK in March 2010. Subsequently in August 2010, the Appellant and her daughter returned to India after several incidents with Respondent No. 2. g. After an exchange of legal correspondence between the parties, setting out the numerous differences which had arisen in the marriage, the Appellant and her daughter eventually went back to London in December 2011, more than a year after they had come to India. h. In January 2012, the daughter was admitted to a nursery school in the UK and attended the same till she was old enough to attend a primary school. i. In September 2012, an application was filed on behalf of the daughter for grant of UK citizenship, purportedly with the consent of both the Appellant and Respondent No. 2. The Appellant, however, denies that she gave consent for this application. j. In December 2012 the daughter was granted citizenship of the UK. Soon thereafter in January 2013, Respondent No. 2 was also granted citizenship of the UK. Subsequently, Respondent No.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tice passed an ex-parte order inter alia directing the Appellant to return the daughter to the UK and to attend the hearing at the Royal Courts of Justice. q. Then, on 23rd January, 2016, Respondent No. 2 filed a habeas corpus writ petition before the High Court of Delhi, seeking to have his daughter produced before the Court. The High Court passed the Impugned judgment dated 8th July, 2016, inter alia directing the Appellant to produce her daughter and comply with the orders passed by the UK Court or handover her daughter to Respondent No. 2 within 3 (three) weeks from the date of the order. 6. The High Court, while ordering that the mother-Appellant return to the UK with the child and produce her before the UK Court, set out and examined the factual aspects of the case. The High Court held that the child, having lived in the UK since the time of her birth in 2009, had developed roots there. Further, the child was a permanent citizen of the UK and held a British passport. The High Court also examined the wardship order passed ex-parte by the High Court of Justice, Family Division, London on 8th January, 2016. In the said order, the UK Court inter alia recorded that the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....reign court has jurisdiction to hear the matter, then an interim/interlocutory order passed by such court should be given due weightage and respect. If such jurisdiction is not in doubt, then the "first strike" principle i.e. a substantive order passed by a foreign court prior to a substantive order passed by another foreign or domestic court, becomes applicable. Due respect and weight ought to be given to the earlier substantive order as compared to the latter order; d. A foreign court passing an interim/interlocutory order can make prima facie adjudications, similar to a domestic court; e. Merely because a parent has violated an order of a foreign court does not mean that the parent should be penalized for the same. While the conduct of the parent may be taken into account while passing the final order, the said conduct should not have a penalising result; f. A court may either hold an elaborate inquiry to decide whether a child should be repatriated to a foreign country or a summary inquiry without going into the merits of the dispute, relating to the best interests and welfare of the child. If, however, there exists a pre-existing order of a foreign C....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and result in great harm being caused to the child and the Appellant. 9. Ms. Rajkotia submits that parens patriae jurisdiction of the court within whose jurisdiction the child is located as also the welfare of the child in question must be given greater weightage as opposed to a mechanical interpretation of the principle of comity of courts. By giving effect to the comity of courts, the High Court has eroded its own parens patriae jurisdiction and also ignored the welfare of the child who is located within its jurisdiction. In fact, the evolving standard, atleast as far as the USA and the UK Courts are concerned, is to give greater importance to the welfare of the child as opposed to giving primacy to the principle of comity of courts. She has relied upon a judgment of the United States Supreme Court in Lozano v. Montoya Alvarez 134 S. Ct. 1224 (2014) wherein the Court inter alia stated that while the Hague Convention was intended to discourage child abduction, it was not supposed to do so at the cost of the child's interest in choosing to remain in the jurisdiction of the country or in settling the matter. 10. Ms. Rajkotia then submits that the High Court has failed to f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Ravi Chandran (supra) where a three-judge bench categorically held that under no circumstances 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. 12. Ms. Rajkotia then submits that the child has been born and brought up in India. While the child now has British citizenship, she still retains her Indian citizenship. The child was forced to return with the mother under compelling situation emanating from domestic violence inflicted by the father. The Appellant even informed Respondent No. 2 that she had no desire to return to the UK, to which there was no reply. 13. Ms. Rajkotia submits that the legal action taken by Respondent No. 2 was nothing but a counter-blast to the Appellant's allegations of abuse and violence leveled against him. This can be discerned from the fact that Respondent No. 2 initiated action before the UK court 6 (six) months after the Appellant had left the UK and only after he learned that she had filed a complaint with the CAWC in December 2015. The court also needs to consider that the order of the UK court was passed ex-parte without giving the Appellant an opportu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s patently false. In the emails exchanged with the child's school, the Appellant mentioned that they would be returning to the UK. It is only much later that Respondent No. 2 was made aware by the school that the Appellant would not he returning to the UK. The High Court even recorded that the parties had every intention of making the UK their home and that the child had developed roots in the UK. Hence, the UK courts had the closest concern and intimate contact with the child as regards welfare and custody and would have jurisdiction in the matter. 17. Further, Mr. Jauhar submits that the High Court has duly considered the factum of welfare and interests of the child while passing the impugned judgment. While citing the judgments in Surinder Kaur Sandhu (supra) and Surya Vadanan (supra), the High Court noted that the UK Court would have the most intimate contact with and closest concern for the child. The child had clearly adapted to the social and cultural milieu of the UK and it was in the best interests of the child that she return to the UK. There was neither any material to suggest that repatriation of the child would result in psychological, physical or cultural harm ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....notices were exchanged between the parties from 24th December 2010 till 7th June 2011, after which the Appellant and the daughter came back to the UK on 11th December 2011 and the parties stayed together till 2nd July 2015. Thus, on applying the principle of condonation all the allegations made in the aforesaid legal notices stood condoned and the fact that these notices were exchanged in 2010-2011 are of no relevance and do not take away the jurisdiction of the foreign court. 22. In support of his arguments, Mr. Jauhar has cited several cases which have been placed before this Court in the form of a "List of judgments on Habeas Corpus". The same have been taken on record and duly considered. 23. We have cogitated over the submissions made by the counsel for both the sides and also the judicial precedents pressed into service by them. The principal argument of the Respondent-husband revolves around the necessity to comply with the direction issued by the foreign Court against the Appellant-wife to produce their daughter before the UK Court where the issue regarding wardship is pending for consideration and which Court alone can adjudicate that issue. The argument proceeds tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 1001) and Australia. (See Khamis v, Khamis) 29. However, there is an apparent contradiction between the above view and the one expressed in H. (infants), and in E. (an infant), 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), and in R. (minors) (wardship; jurisdiction), It was held by the Court of Appeal in L., that the view in McKee v. McKee 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of comity but 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 India were within six months. In that context, this Court referred to H. (infants), which case, as pointed out by us above has been explained in L. 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), are today well settled in UK, Canada, Australia and the USA. The same principles 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 India do not operate as constructive res judicata. 31. xxx xxxx xxxx 32. In this connection, it is necessary to refer to the Hague Convention of 1980 on "Civil Aspects of International Child Abduction". As of today, about 45 countries are parties to t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....This answers the contention relating to removal of the child from USA. 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 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 s....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., the three-judge bench observed thus: 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ly, 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. 27. The Respondent husband has placed emphasis on four decisions of this Court in the case of V. Ram Chandran, Shilpa Aggarwal, Arathi Bandi and Surya Vadanan. We shall deal with those decisions a little latter. 28. The present appeal emanates from a petition seeking a writ of habeas corpus for the production and custody of a minor child. This Court in Kanu Sanyal v. District Magistrate, Darjeeling and Ors. (2001) 5 SCC 247, has held that habeas corpus was essentially a procedural writ dealing with machinery of justice. The object underlying the writ was to secure the release of a person who is illegally deprived of his liberty. The writ of habeas corpus is a command addressed to the person who is alleged to have another in unlawful custody, requiring him to produce the body of such person before the Court. On production of the person before the Court, the circumstances in which the custody of the person concerned has been detained can be inquired into by the Court and upon due inquiry into the alleged unlawful rest....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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. 30. 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). For considering that issue, in a case such as the present one, it is enough to note that the private Respondent was none other than the natural guardian of the minor being her biological mother. Once that fact is ascertained, it can be presumed that the custody of the minor with his/her mother is lawful. In such a case, only in exceptionable situation, the custody of the minor (girl child) may be ordered to be taken away from her mother for being given to any other person including the husband (father of the child), in exercise of writ jurisdiction. Instead, the other parent can be asked to resort to a substantive prescribed remedy for getting custody of the child. 31. The next question to be considered by the High Court would be whether an order passed by the foreign court, direct....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pplicant is ANAND RAGHAVAN represented by Dawson Cornwell Solicitors The Respondent is NITHYA ANAND RAGHA VAN Recitals 2. This order was made at a hearing without notice to the Respondent. The reason why the order was made without notice to the Respondent is because she left England and Wales on or about 2 July 2015 and notice may lead her to take steps to defeat the purpose of the application and fail to return the child. 3. The Judge read the following documents: a. Position statement b. C67 application and C1A form c. Statement of Anand Raghavan with exhibits dated 8.01.2016. 4. The court was satisfied on a provisional basis of the evidence filed that a. NETHRA ANAND (a girl born on 7/8/09) was on 2 July 2015 habitually resident in the jurisdiction of England and Wales. b. NETHRA ANAND (a girl born on 7/8/09) was wrongfully removed from England on 2 July, 2015 and been wrongfully retained in India since. c. The courts of England and Wales have jurisdiction in matters of parental responsibility over the child pursuant to Articles 8 and 10 of BIIR. 5. The Father has agreed to pay for the cost....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... so instructed. She shall file and serve by 4 pm 27 January, 2016 a short statement responding to the application. 14. This order may be served on the Respondent, outside of the jurisdiction of England and Wales as may be required, by way of fax, email or personally in order for the court to deem that it constitutes good service. 15. Costs reserved. Dated this 8 January 2016. 32. On a bare perusal of this order, it is noticed that it is an ex parte order passed against the mother after recording prima facie satisfaction that the minor Nethra Anand (a girl born on 07/08/2009) was as on 2nd July, 2015, habitually resident in the jurisdiction of England and Wales and was wrongfully removed from England on 2nd July, 2015 and has been wrongfully retained in India since then. Further, the Courts of England and Wales have jurisdiction in the matters of parental responsibility over the child pursuant to Articles 8 and 10 of BUR. For which reason, it has been ordered that the minor shall remain a Ward of that Court during her minority or until further order; and the mother (Appellant herein) shall return or cause the return of the minor forthwith to England and Wales in....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ty of the situation. That will have to be decided on case to case basis. In the present case, we find that the father as well as mother of the child are of Indian origin. They were married in Chennai in India according to Hindu rites and customs. The father, an Indian citizen, had gone to the U.K. as a student in 2003 and was working there since 2005. After the marriage, the couple shifted to the U.K. in early 2007 and stayed in Watford. The mother did get an employment in London in 2008, but had to come to her parents' house in Delhi in June 2009, where she gave birth to Nethra. Thus, Nethra is an Indian citizen by birth. She has not given up her Indian citizenship. Indeed, the mother, along with Nethra, returned to the U.K. in March 2010. But from August 2010 till December 2011, because of matrimonial issues between the Appellant and Respondent No. 2, the Appellant and her daughter remained in India. It is only after the intervention of and mediation by the family members, the Appellant and her daughter Nethra went back to England in December 2011, more than a year after they had come to India. After returning to the U.K., Nethra was admitted to a nursery school in January 20....
X X X X Extracts X X X X
X X X X Extracts X X X X
....That can be given only by her mother. The Respondent No. 2 (father) is employed and may not be in a position to give complete attention to his daughter. There is force in the stand taken by the Appellant that if Nethra returns to the U.K., she may not be able to get meaningful access to provide proper care and attention. Further, she has no intention to visit the U.K. Admittedly, the Appellant has acquired the status of only a permanent resident of the U.K., as she was staying with Respondent No. 2 who is gainfully employed there. The Appellant has alleged and has produced material in support of her case that during her stay with Respondent No. 2 in the U.K., she was subjected to physical violence and mental torture. She has also alleged that if she goes back to the U.K., she may suffer the same ignominy. Further, the proceeding in the UK Court instituted by the husband is a counter blast to the complaint filed by her in Delhi about the violence inflicted on her by the husband and his family members. Indeed, Respondent No. 2 has vehemently denied and rebutted these allegations. It is not necessary for us to adjudicate these disputed questions of facts. Suffice it to observe t....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... This Court, therefore, chose to exercise summary jurisdiction in the interests of the child. The Court directed the mother to return the child "Aditiya" on her own to the USA within stipulated time. In the present case, the minor is a "girl" child who was born in India and is a citizen of India by birth. She has not given up her citizenship of India. It is a different matter that she later acquired citizenship of the U.K. We have already indicated the reasons in the preceding paragraph, which would distinguish the facts from the case relied upon by the Respondent No. 2 and under consideration. 36. As regards the case of Shilpa Aggarwal (supra), the minor (girl child) was born in England having British citizenship, who was only three and a half years of age. The parents had also acquired the status of permanent residents of the UK. The UK Court had not passed any order to separate the child from the mother until the final decision was taken with regard to the custody of the child, as in this case. This Court recorded its satisfaction on the basis of the facts and circumstances of the case before it that in the interests of the minor child, it would be proper to return the child ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....other order of the UK Court giving peremptory direction to the wife to produce the two daughters before the UK Court. A penal notice was also issued to the wife. The husband then invoked the jurisdiction of the Madras High Court for issuance of a writ of habeas corpus on the ground that the wife had illegal custody of the two daughters of the couple and that they may be ordered to be produced in the Court and to pass appropriate direction thereafter. The said relief was granted by this Court. After the discussion of law in paragraphs 46 to 56 of the reported decision, on the basis of precedents adverted to in the earlier part of the judgment, in paragraph 56 the Court opined as under: 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ction. Section 14 of the said Act plainly deals with that aspect. The same reads thus: 14. Simultaneous proceedings in different Courts.-(1) If proceedings for the appointment or declaration of a guardian of a minor are taken in more Courts than one, each of those Courts shall, on being apprised of the proceedings in the other Court or Courts, stay the proceedings before itself (2) If the Courts are both or all subordinate to the same High Court, they shall report the case to the High Court, and the High Court shall determine in which of the Courts the proceedings with respect to the appointment or declaration of a guardian of the minor shall be had. [(3) In any other case in which proceedings are stayed under Sub-section (1), the Courts shall report the case to and be guided by such orders as they may receive from their respective State Governments.] Similarly, the principle underlying Section 10 of the Code of Civil Procedure, 1908 can be invoked to govern that situation. The explanation clarifies the position even better. The same reads thus: 10. Stay of suit,-No Court shall proceed with the trial of any suit in which the matter in issue....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted judgments, as it would result in repetition of similar position and only burden this judgment. 43. In the present case, we are of the considered opinion that taking the totality of the facts and circumstances of the case into account, it would be in the best interests of the minor (Nethra) to remain in custody of her mother (Appellant) else she would be exposed to harm if separated from the mother. We have, therefore, no hesitation in overturning the conclusion reached by the High Court. Further, we find that the High Court was unjustly impressed by the principle of comity of courts and the obligation of the Indian Courts to comply with a pre-existing order of the foreign Court for return of the child and including the "first strike" principle referred to in Surya Vadanan's case (supra). 44. We once again reiterate that the exposition in the case of Dhanwanti Joshi (supra) is a good law and has been quoted with approval by a three-judge bench of this Court in V. Ravi Chandran (supra). We approve the view taken in Dhanwanti Joshi (supra), inter alia in paragraph 33 that so far as non-convention countries are concerned, the law is that the Court in the country to which ....