2017 (7) TMI 1466 - SC - Indian Laws

Seeking a writ of habeas corpus for the production and custody of a minor child - allegedly illegally removed by the mother-Appellant from the custody of the father-Respondent No. 2 (writ Petitioner) from the United Kingdom (UK) - Jurisdiction of Courts - Return of the Child to England and Wales -Welfare of the Child - Compliance with Foreign Court Orders - Visitation Rights and Participation in Foreign Proceedings - The court provisionally found that Nethra Anand was habitually resident in England and Wales as of 2 July 2015 and was wrongfully removed to India on that date. The child has been wrongfully retained in India since then. HELD THAT - 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. Since Nethra had acquired British citizenship, the U.K. Court could exercise jurisdiction in respect of her custody issues. Significantly, till Nethra returned to India along with her mother on 2nd July, 2015, no proceeding of any nature came to be filed in the U.K. Court, either in relation to the matrimonial dispute between the Appellant and Respondent No. 2 or for the custody of Nethra. Further, Nethra is staying in India along with the Appellant, her grandparents and other family members and relatives unlike in the UK she lived in a nuclear family of the three with no extended family. She has been schooling here for the past over one year and has spent equal time in both the countries out of the first six years. She would be more comfortable and feel secured to live with her mother here, who can provide her love, understanding, care and guidance for her complete development of character, personality and talents. Being a girl child, the guardianship of the mother is of utmost significance. Ordinarily, the custody of a girl child who is around seven years of age, must ideally be with her mother unless there are circumstances to indicate that it would be harmful to the girl child to remain in custody of her mother. No such material or evidence is forthcoming in the present case except the fact that the Appellant (mother) has violated the order of the U.K. Court directing her to return the child to the U.K. before the stipulated date. Admittedly, when Nethra was in the U.K., no restraint order was issued by any court or authority in the U.K. in that behalf. She had travelled along with her mother from the U.K. to India on official documents. It is a different matter that Respondent No. 2 alleges that he was not informed before Nethra was removed from the U.K. and brought to India by his wife (Appellant herein). It is common ground that Nethra is suffering from cardiac disorder and needs periodical medical reviews and proper care and attention. 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. Compliance with Foreign Court Orders - No such material or evidence is forthcoming in the present case except the fact that the Appellant (mother) has violated the order of the U.K. Court directing her to return the child to the U.K. before the stipulated date. Admittedly, when Nethra was in the U.K., no restraint order was issued by any court or authority in the U.K. in that behalf. She had travelled along with her mother from the U.K. to India on official documents. It is a different matter that Respondent No. 2 alleges that he was not informed before Nethra was removed from the U.K. and brought to India by his wife (Appellant herein). It is common ground that Nethra is suffering from cardiac disorder and needs periodical medical reviews and proper care and attention. 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. Thus, 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 2015 (2) TMI 1408 - SUPREME COURT . Welfare of the Child - The summary jurisdiction to return the child be exercised in cases where the child had been removed from its native land and removed to another country where, may be, 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 be exercised only if the court to which the child has been removed is moved promptly and quickly. The overriding consideration must be the interests and welfare of the child. Needless to observe that after the minor child (Nethra) attains the age of majority, she would be free to exercise her choice to go to the UK and stay with her father. But until she attains majority, she should remain in the custody of her mother unless the Court of competent jurisdiction trying the issue of custody of the child orders to the contrary. However. the father must be given visitation rights, whenever he visits India. He can do so by giving notice of at least two weeks in advance intimating in writing to the Appellant and if such request is received, the Appellant must positively respond in writing to grant visitation rights to the Respondent No. 2-Mr. Anand Raghavan (father) for two hours per day twice a week at the mentioned venue in Delhi or as may be agreed by the Appellant, where the Appellant or her representatives are necessarily present at or near the venue. Visitation Rights and Participation in Foreign Proceedings - The Respondent No. 2 shall not be entitled to, nor make any attempt to take the child (Nethra) out from the said venue. The Appellant shall take all such steps to comply with the visitation rights of Respondent No. 2, in its letter and spirit. Besides, the Appellant will permit the Respondent No. 2-Mr. Anand Raghavan to interact with Nethra on telephone/mobile or video conferencing, on school holidays between 5 PM to 7 30 PM IST. As mentioned earlier, the Appellant cannot disregard the proceedings instituted before the UK Court. She must participate in those proceedings by engaging solicitors of her choice to espouse her cause before the High Court of Justice. For that, the Respondent No. 2-Anand Raghavan will bear the costs of litigation and expenses to be incurred by the Appellant. If the Appellant is required to appear in the said proceeding in person and for which she is required to visit the UK, Respondent No. 2-Anand Raghavan will bear the air fares or purchase the tickets for the travel of Appellant and Nethra to the UK and including for their return journey to India as may be required. In addition, Respondent No. 2-Anand Raghavan will make all arrangements for the comfortable stay of the Appellant and her companions at an independent place of her choice at reasonable costs. In the event, the Appellant is required to appear in the proceedings before the High Court of Justice in the UK, the Respondent No. 2 shall not initiate any coercive process against her which may result in penal consequences for the Appellant and if any such proceeding is already pending, he must take steps to first withdraw the same and/or undertake before the concerned Court not to pursue it any further. That will be condition precedent to pave way for the Appellant to appear before the concerned Court in the UK. Accordingly, this appeal is allowed in the above terms. The impugned judgment and order passed by the High Court of Delhi in Writ Petition (Criminal) is set aside. Resultantly, the writ petition for issuance of writ of habeas corpus filed by the Respondent No. 2 stands dismissed subject however, to the arrangement indicated respectively.

Summary

Issues Involved:
1. Custody of the minor child.
2. Application of the principle of comity of courts.
3. Welfare and best interests of the child.
4. Jurisdiction and authority of the foreign court's order.

Summary:

Custody of the Minor Child:
The appeal arises from a judgment by the High Court of Delhi directing the mother to produce her daughter Nethra and comply with the UK Court's order or handover custody to the father. The mother contended that the child's welfare, especially due to her cardiac disorder and alleged abuse by the father, necessitated her staying with the mother in India.

Application of the Principle of Comity of Courts:
The High Court emphasized the principle of comity of courts, noting that the UK Court had jurisdiction and had issued an order for the child's return. The High Court opined that the UK Court's order should be respected, and the child should be returned to the UK.

Welfare and Best Interests of the Child:
The Supreme Court reiterated that the welfare of the child is of paramount importance. It noted that the child was born in India, had Indian citizenship, and had spent significant time in India. The Court highlighted that the child's welfare, including her health condition, was best served by staying with her mother in India. The Court also considered the child's comfort and security with her extended family in India.

Jurisdiction and Authority of the Foreign Court's Order:
The Supreme Court acknowledged the UK Court's order but emphasized that the custody of the child with the mother could not be deemed unlawful. The Court stated that the principle of comity of courts must yield to the welfare of the child. The Court held that the High Court of Delhi was unjustly influenced by the principle of comity of courts and the "first strike" principle.

Conclusion:
The Supreme Court set aside the High Court's judgment, allowing the child to remain in the custody of her mother in India. The Court provided for visitation rights to the father and directed that the mother must participate in the UK Court proceedings through solicitors. The appeal was allowed, and the writ petition for habeas corpus filed by the father was dismissed.