Mrs. Kanika Goel vs State of Delhi through S.H.O. and Anr.

HELD: 1.1 It is not open to contend that the custody of the female minor child with her biological mother would be unlawful, for there is presumption to the contrary. In such a case, the High Court whilst exercising jurisdiction under Article 226 for issuance of a writ of habeas corpus need not make any further enquiry but if it is called upon to consider the prayer for return of the minor female child to the native country, it has the option to resort to a summary inquiry or an elaborate inquiry, as may be necessary in the fact situation of the given case. In the instant case, the High Court noted that it was not inclined to undertake a detailed inquiry. The question is, having said that whether the High Court took into account irrelevant matters for recording its conclusion that the minor female child, who was in custody of her biological mother, should be returned to her native country. The Court must take into account the totality of the facts and circumstances whilst ensuring the best interest of the minor child. The High Court in the instant case focused primarily on the grievances of the appellant and while rejecting those grievances, went on to grant relief to respondent No.2 by directing return of the minor girl child to her native country. On the totality of the facts and circumstances, there is nothing to indicate that the native language (English) is not spoken or the child has been divorced from the social customs to which she has been accustomed. Similarly, the minor child had just entered pre-school in the USA before she came to New Delhi along with her mother. In that sense, there was no disruption of her education or being subjected to a foreign system of education likely to psychologically disturb her. On the other hand, the minor child M is under the due care of her mother and maternal grand-parents and other relatives since her arrival in New Delhi. If she returns to US as per the relief claimed by the respondent No.2, she would inevitably be under the care of a Nanny as the respondent No.2 will be away during the day time for work and no one else from the family would be there at home to look after her. Placing her under a trained Nanny may not be harmful as such but it is certainly avoidable. For, there is likelihood of the minor child being psychologically disturbed after her separation from her mother, who is the primary care giver to her. In other words, there is no compelling reason to direct return of the minor child M to the US as prayed by the respondent No.2 nor is her stay in the company of her mother, along with maternal grand-parents and extended family at New Delhi, prejudicial to her in any manner, warranting her return to the US. [Para 22] [580-F-H; 581-A-G]

1.2 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. [Para 23] [581-G-H; 582-A-B]

1.3 The minor child M is a US citizen by birth. She has grown up in her native country for over three years before she was brought to New Delhi by her biological mother (appellant). She had joined a pre-school in USA. She had healthy bonding with her father (respondent No.2). Her paternal grand-parents used to visit her in the USA at some intervals. She was under the care of a Nanny during the day time, as her parents were working. Indeed, the work place of her father is near the home. The biological father of the minor child M has acquired US citizenship. Both father and mother of the minor child M were of Indian origin but domiciled in the USA after marriage. The mother is a permanent resident of the USA-Green Card holder and has also applied for US citizenship. In her affidavit filed before the Delhi High Court she admits that her legal status was complicated as she has ceased to be an Indian citizen and her status of citizenship of the USA is in limbo. [Para 24][582-C-F]

AND ANR.

1.4 Given the fact that the parties performed a civil marriage in USA and cohabited in the native country and gave birth to minor child M who grew up in that environment for at least three years, coupled with the fact that the father and minor child M are US citizens and mother is a permanent resident of USA, the closest contact and jurisdiction is possibly that of the Circuit Court of Cook County, Illinois, USA. However, it may not be understood to have expressed any final opinion in this regard. At the same time, the appellant and respondent No.2 first got married as per Sikh rites and Hindu Vedic rites and that marriage was solemnised in New Delhi at which point of time the appellant was admittedly a citizen of India. Presently, she is only a Green Card holder (permanent resident) of the US. It is, therefore, debatable whether the Family Court at New Delhi, where the appellant has already filed a petition for dissolution of marriage, has jurisdiction in that behalf including to decide on the question of custody and guardianship in respect of the minor child M. For that reason, it may be appropriate that the said proceedings are decided with utmost promptitude in the first place before the appellant is called upon to appear before the US Court and including to produce the minor child M before that Court. [Para 25] [582-G-H; 583-A-C]

1.5 The appellant and minor child are presently in New Delhi and the appellant has no intention to return to her matrimonial home in the U.S.A. The appellant has apprehensions and serious reservations on account of her past experience in respect of which it is not necessary to dilate in this proceedings. That is a matter to be considered by the Court of Competent Jurisdiction called upon to decide the issue of dissolution of marriage and/or grant of custody of the minor child, as the case may be. For the time being, the parties must eschew from pursuing parallel proceedings in two different countries. For, the first marriage between the parties was performed in New Delhi as per Anand Karaj Ceremony and Hindu Vedic rites and the petition for dissolution of marriage has been filed in New Delhi. Whereas, the civil marriage ceremony took place after four months in USA. It was performed to complete the formalities for facilitating the entry of the appellant into the US and to obtain US Permanent Resident status. It is appropriate that the proceedings pending in the Family Court at New Delhi are decided in the first place including on the question of jurisdiction of that Court. Depending on the outcome of the said proceedings, the parties would be free to pursue such other remedies as may be permissible in law before the Court of Competent Jurisdiction. [Para 26] [583-C-G]

1.6 It is true that both respondent No.2 and also the minor child M are US citizens. The minor girl child has a US Passport and has travelled to India on a tenure Visa which has expired. That does not mean that she is in unlawful custody of her biological mother. Her custody with the appellant would nevertheless be lawful. The appellant has already instituted divorce proceedings in the Family Court, New Delhi. The respondent No.2 has also filed proceedings before the Court in the US for custody of the minor girl child, directing her return to her natural environment in the US. In such a situation, the arrangement directed by this Court in the case of Nithya Anand Raghavan may be of some help to pass an appropriate order in the peculiar facts of this case, instead of directing the biological mother to return to the US along with the minor girl child, so as to appear before the competent court in the US. In that, the custody of the minor girl child M would remain with the appellant until she attains the age of majority or the Court of competent jurisdiction, trying the issue of custody of the minor child, orders to the contrary, with visitation and access rights to the biological father whenever he would visit India and in particular as delineated in the interim order. [Para 27] [583-G-H; 584-A-D]

1.7 A fortiori, dependant on the outcome of the proceedings, before the Family Court, New Delhi, the appellant may then be legally obliged to participate in the proceedings before the US Court and must take all measures to effectively defend herself in the said proceedings by engaging solicitors of her choice in the USA to espouse her cause before the Circuit Court USA. In that event, the respondent No.2 shall bear the cost of litigation and expenses to be incurred by the appellant to pursue the proceedings before the US Courts, the air fares or purchase the tickets for the travel of the appellant and the minor child M to AND ANR.

the USA and including their return journey for India, as may be required. The respondent No.2 shall also make all suitable arrangements for the comfortable stay of the appellant and her companions at an independent place of her choice, at a reasonable cost. Further, the respondent No.2 shall not initiate any coercive/penal action against the appellant and if any such proceeding initiated by him in that regard is pending, the same shall be withdrawn and not pursued before the concerned Court any further. [Para 28] [584-D-G]

1.8 The appellant and respondent No.2 must ensure early disposal of the proceedings for grant of custody of the minor girl child to the appellant, instituted and pending before the Family Court, New Delhi. The impugned judgment and orders of the High Court is set aside and writ petition is disposed of. [Para 29, 30] [584-H; 585-A-B]

K.S. Puttaswamy & Anr. v. Union of India & Ors. (2017)

10 SCC 1; Nithya Anand Raghavan v. State (NCT of Delhi) & Anr. (2017) 8 SCC 454; Prateek Gupta v. Shilpi Gupta & Ors. (2018) 2 SCC 309; Surinder Kaur

Sandhu v. Harbax Singh Sandhu and Anr. (1984) 3 SCC 698: [1984] 3 SCR 422; Aviral Mittal v. State (2009)

112 DRJ 635; Shilpa Aggarwal v. Aviral Mittal and Anr. (2010) 1 SCC 591: [2009] 16 SCR 287; Dr. V. Ravi Chandran v. Union of India & Ors.(2010) 1 SCC 174: [2009] 15 SCR 960 – referred to.