Family Law:
Child custody – Petition for divorce and for custody of minor children (US citizens) filed by wife/mother in US – Order by US Court directing the husband/father to appear for conciliation and not to change the residence of children – In the meantime, due to family urgency wife/mother when came to India, filed petition in the Family Court seeking custody of the children – Family Court passed ex parte interim injunction order restraining the husband/father from taking away minor children – Emergency petition by husband/father before US Court – US Court passed order for continuing jurisdiction over custody matter and granted temporary custody to the wife/mother with direction to return the children to the jurisdiction of US Court – Husband/father’s application objecting to jurisdiction of Family Court rejected – Appeal to High Court – Husband/father also filed writ petition seeking writ of Habeas Corpus for producing the minor children – High Court disposed of the appeal and the writ petition holding that Family Court did not have jurisdiction and that it was in the interest of the children to return to US – On appeal, held: In the facts of the case, High Court rightly rejected the application for custody of minor children before Family Court holding that the children were not ordinary residents of India – Taking holistic consideration of entire case, all the criteria such as comity of courts, orders of foreign court having jurisdiction over the matter regarding custody of children, citizenship of spouse and children, intimate connect and welfare and best interest of minor children weigh in favour of the husband/father – Direction issued to the wife/mother to return to US alongwith the children – Foreign Court – Comity of Court. Child custody – Court has to keep in mind the best interest of the child as the paramount consideration while granting custody of minor children – The crucial factors for gauging the welfare of the children are such as maturity and judgment; mental stability; ability to provide access to school; moral character; ability to provide continuing involvement in the community; financial sufficiency; factors involving relationship with the child as opposed to characteristic of the parent as an individual.
Custody dispute – Negotiated resolution – Preference of, over judicial resolution – Held: Negotiated resolution is preferable from child’s perspective.
Disposing of the appeals, the Court
HELD: 1. The appellant had filed application for divorce and custody of minor children in the US Court and order came to be passed by the US Court. Despite that interim order, the appellant came to India and within 20 days of her arrival in India, filed an application for custody of minor children, in the Family Court in India concealing her application for custody filed in the US Court. She also did not disclose that an order came to be passed by the US Court against her. In the given facts and circumstances, the opinion of the High Court that the minor children were not ordinary residents of India as envisaged under Section 9(1) of the Guardians and Wards Act, 1890, is upheld. Resultantly, the application for custody of minor children filed before the Family Court in India is rightly rejected by the High Court in exercise of power under Order 7 Rule 11 of CPC. At the same time, when the orders have been passed by the US Court, the parties cannot disregard the proceedings instituted before the US Court filed at the instance of the appellant who is supposed to participate in those proceedings. [Para 31] [265-E-H]
2.1 Child rights may be limited but they should not be ignored or eliminated since children are in fact persons wherein all fundamental rights are guaranteed to them keeping in mind the best interest of the child and the various other factors which play a pivotal role in taking decision to which reference has been made taking note of the parental autonomy which courts do not easily discard. [Para 50] [276-B]
2.2 It is true that this Court has to keep in mind the best interest of the child as the paramount consideration. The observations of the US Court clearly show that principle of welfare of the children has been taken into consideration by the US Court in passing of the order as it reiterates that both the parties are necessary for proper upbringing of the children and the ultimate decision of custody and guardianship of the two minor children will be taken by the US which has the exclusive jurisdiction to take the decision as the children happened to be the US citizens and further order been passed on the respondent’s emergency petition with special release in custody on 9 th March, 2018 permitting the respondent to apply for US passports on behalf of the minor children without appellant being mother’s consent. The appellant cannot disregard the proceedings instituted at her instance before the US Court and she must participate in those proceedings by engaging solicitors of her choice to espouse her cause. [Para 48] [275-D-F]
2.3 The crucial factors which have to be kept in mind by the Courts for gauging the welfare of the children equally for the parent’s can be inter alia, delineated, such as (1) maturity and judgment; (2) mental stability; (3) ability to provide access to schools; (4) moral character; (5) ability to provide continuing involvement in the community; (6) financial sufficiency and last but not the least the factors involving relationship with the child, as opposed to characteristics of the parent as an individual. [Para 49] [285-G]
2.4 The expression “best interest of child” which is always kept to be of paramount consideration is indeed wide in its connotation and it cannot remain the love and care of the primary care giver, i.e., the mother in case of the infant or the child who is only a few years old. The definition of “best interest of the child” is envisaged in Section 2(9) of the Juvenile Justice (Care & Protection) Act, 2015, as to mean “the basis for any decision taken regarding the child, to ensure fulfilment of his basic rights and needs, identify, social well-being and physical, emotional and intellectual development”. [Para 43] [273-D-E]
2.5 It is not in dispute that both the minor children, from the very inception of their birth, till removal from the US were living with their parents in US. This fact was admitted by the appellant also in the guardianship petition filed before the Family Court in India and also in the divorce and custody petition filed by her in US and only after hearing counsel for the parties, order was passed by the US Court on 22nd May, 2017 on the emergency custody petition granting temporary physical custody of the children with further direction to the appellant to return along with the children to the jurisdiction of US Court on 2nd June, 2017. In case she was aggrieved by the order dated 22nd May, 2017 passed by the US Court after affording an opportunity of hearing which she contested through her Attorney, all the courses were available to her to assail the order of the Court. Since the appellant failed in returning the children to the jurisdiction of the US Court despite order dated 22nd May, 2017, there was no option left with the respondent but to file a Habeas Corpus Petition and pray that the children be repatriated back to US in compliance of the order of the US Court. [Para 47] [274-G-H; 275-A-C]
2.6 The best interest of the children being of paramount importance will be served if they return to US and enjoy their natural environment with love, care and attention of their parents including grandparents and to resume their school and be with their teachers and peers. [Para 56] [277-F-G]
2.7 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 that the direction to return the child to the foreign jurisdiction must not result in any physical, mental, psychological, or other harm to the child. Taking a holistic consideration of the entire case, the Court is satisfied that all the criteria such as comity of courts, orders of foreign court having jurisdiction over the matter regarding custody of the children, citizenship of the spouse and the children, intimate connect, and above all, welfare and best interest of the minor children weigh in favour of the respondent and that has been looked into by the High Court in the impugned judgment in detail. That needs no interference under Article 136 of the Constitution of India. [Para 51] [276-C-E]
3. The judicial resolution of a custody dispute may permanently affect or even end the parties’ legal relationship but the social and psychological relationship will usually continue and it seems appropriate that a negotiated resolution between the parents is preferable from the child’s perspective for several reasons. A child’s future relationship with each of his parents may be better maintained and his existing relationship is less damaged by a negotiated settlement than by one imposed by a court after adversarial proceedings. In the present case, there is every possibility that the parties may reconcile and start over their relationship afresh, at least for the sake of happiness of their own off-spring if for no other reason. The parties are indeed mature and sensible enough to understand that the ordinary wear and tear of married life has to be put up in within the larger interests of their own happiness and of the healthy, normal growth and development of their offspring, whom destiny has entrusted to their joint parental care. Spouses must come over the temperamental disharmony which usually exists in every marriage, rather than magnifying it with impulsive desires and passions. Parents are not only caretakers, but they are instrumental in the development of their child’s social, emotional, cognitive and physical well-being and work harmoniously to give their children a happy home to which they are justly entitled to. [Para 54, 55] [277-B-E]
4. The appellant is directed to return to US along with both the children, within a period of six weeks. Further respondent is directed to make all arrangements of stay and travel expenses(including air tickets) of the appellant and both the children as well as her companion, if any, in their own house or if she is not willing to stay for any personal reasons, make all arrangements for stay at the place of her choice at reasonable cost. In case the appellant reports that she is not inclined to travel to US along with the minor children, or do not show any interest to accompany the children, the respondent shall deposit a sum of Rs. 15 lakhs in the bank account of the appellant and proof of deposit shall be placed in the Registry of the High Court who shall thereupon call upon the Consulate General of the US at Hyderabad to take the custody of the minor children, along with their passports and other travel documents from the appellant and hand over the same to the respondent with a condition for taking the custody of the minor children for being taken to US and hand over to the jurisdictional Court in US until further orders are passed in the pending proceedings by the US Court. The appellant will be at liberty to utilize the money deposited by the respondent in connection with her visit to US, if so desired, in future and the respondent shall not take any coercive steps against her which in any manner may result in adverse consequences.[Para 57] [277-G-H; 278-A-D]
Nithya Anand Raghavan v. State (NCT of Delhi) and Another (2017) 8 SCC 454: [2017] 7 SCR 281; Surya Vadanan v. State of Tamil Nadu and Others (2015) 5 SCC 450 : [2015] 4 SCR 903 ; Jasmeet Kaur v. Navtej Singh (2018) 4 SCC 295 ; Surinder Kaur Sandhu v. Harbax Singh Sandhu and Anr. (1984) 3 SCC 698 : [1984] 3 SCR 422 ; Elizabeth Dinshaw v. Arvand M. Dinshaw and Another (1987) 1 SCC 42; V. Ravi
Chandran (Dr.) v. Union of India and Others [2010] 1 SCC 174 : [2009] 15 SCR 960 – relied on.
Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC 112 : [1997] 5 Suppl. SCR 30 ; Kanika Goel v. State of Delhi through Station House Officer and Another (2018) 9 SCC 578 – referred to.
L(Minors) in re (1974) 1 All ER 913(CA) ; McKee v. McKee (1951) AC 352 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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