9911796707
TMI Blog2013 (7) TMI 1212X X X X Extracts X X X X X X X X Extracts X X X X ..... . 31378 of 2010 in W.P. No. 25479 of 2010, directing the Petitioner to produce the child along with necessary documents to give effect to the main judgment and order dated 24th September, 2010. The Appellant has framed three questions of law for the consideration of this Court in the Special Leave Petition giving rise to these appeals. They are as under: (A) Has not the Hon'ble High Court failed to exercise jurisdiction vested in it under law in not considering the welfare and well being of the minor child before issuing the impugned directions? (B) Has not the Hon'ble High Court erred in holding that when there is an order passed by foreign court, it is not necessary to go into the facts of the case? (C) Is not the judgment of US Court not conclusive as between the parties and hence unenforceable in India for being in violation of Section 13(c) and (d) of the Code of Civil Procedure, 1908? 3. The relevant facts giving rise to the aforesaid questions of law as narrated by the parties are as under: (a) Respondent No. 1 (hereinafter referred to as the husband ) invoked the Habeas Corpus jurisdiction of the Andhra Pradesh High Court under Article 226 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the husband or the father ) filed a petition for dissolution of marriage in Superior Court of Washington, County of King at Seattle. In these proceedings, an ex parte order was issued restraining the wife from leaving the State of Washington. The husband was authorised to hold on to the passport and Person of Indian Origin Card (PIO Card) of Anand. Within days of the husband petitioning for dissolution of marriage, the wife on 13th November, 2006 submitted a complaint of domestic violence in which the Superior Court of Washington, Kent directed the husband to move out of the matrimonial home. Anand was to remain in the custody of wife with limited visitation rights were granted to the husband. The wife was, however, directed to pay US $ 1500 for the husband's expenses until the regular hearing. On 4th December, 2006, further orders were issued stipulating that the wife/mother would occupy the family home with the child. Furthermore, the father was to bear half of the mortgage on family home, child's day care expenses and insurance costs for the child and the mother. The unsupervised visitation rights of the father were increased from 9 hours to 12 hours per week. Fath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utive days of residential time, at a time. Out of State or International travel was permitted to both the parties during the residential time. The attorney of the husband was ordered by the Superior Court of Washington to prepare final orders. 4. On 20th March, 2008, the motion of the wife for relocation to India was denied. On 7th July, 2008, the wife filed a motion petition before the Superior Court of Washington, Kent requesting a clarification on final parenting plan to permit 13 consecutive days of vacation with the child for traveling to India. On 16th July, 2008, Superior Court of Washington denied her motion. In violation of the aforesaid orders, the wife travelled to India with Anand on 17th July, 2008. On 22nd August, 2008, final orders were passed in the petition filed by the husband for dissolution of marriage. The order includes findings of fact and law entered by the Superior Court of Washington. The Court specifically recorded the reasons that led to the denial of the motion filed by the wife for relocation on 20th March, 2008. On 23rd August, 2008, divorce decree entered by the Superior Court of Washington as part of final orders. 5. On the same day, i.e., 23r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be present along with Anand before it on the next date of hearing, i.e., 10th December, 2010. She was also directed to produce her passport and visa papers and the PIO Card of Anand, so as to enable the husband to comply with the directions of the High Court issued in Writ Petition No. 25479 of 2009 dated 24th September, 2010. It seems that on 10th December, 2010, another Advocate, who replaced the earlier counsel, appeared for the wife and sought some more time to comply with the order dated 3rd December, 2010. On 14th December, 2010, the wife came to the High Court, albeit without Anand and served the copy of her Review Petition against the judgment dated 24th September, 2010 to the Petitioner/husband. On 18th December, 2010, the present appeal was preferred before this Court, by the wife. Meanwhile on 22nd December, 2010, neither the wife nor Anand came to the High Court and a death in the family at Vijayawada was reported by her as the reason for the absence. Again on 28th December, 2010, the wife and Anand absented themselves from the High Court. The High Court, however, issued directions on the same date to the Commissioner of Police, Hyderabad City to produce Anand befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e husband sometimes had difficulty in waking up in the morning and after drinking he suffered occasional hangovers. Mr. Shishodia also pointed out that the husband is also addicted to cigarette smoking. He also has a history of employment problems. This apart, the husband had also admitted before the evaluator about his past drug use. Referring to the Parenting Evaluation Report, Mr. Shishodia pointed out the numerous other difficulties which were being faced by both the parties whilst they were married. On the basis of the aforesaid, he submitted that the High Court erred in law by not taking into consideration the relevant factors whilst passing the impugned judgment. At this stage, he relied on the judgment of this Court in Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu and Anr. (1984) 3 SCC 698. He submitted that the High Court has totally ignored the relevant facts for determining what would be in the best interest of the child. He also pointed out to the conclusion in the Parenting Evaluation Report which is as under: In my opinion, Anand should reside primarily with Ms. Bandi. He should have regular, limited visitation with Mr. Rao, increasing at regular intervals. Thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emoval of Anand from USA was neither thoughtless nor malicious. The wife had to return to India due to the serious ailment and old age of her parents. She is now looking after them in India. Therefore, it cannot be concluded that the wife is trying to alienate the child from the husband. 10. Mr. Patwalia, learned senior counsel, for the Respondent-husband submitted that the wife has come to India in violation of the parenting plan. It is submitted that she participated in the proceedings in USA, where some orders were passed in her favour while the others were against her. 11. He submits that all efforts of the wife are simply to alienate the child from the father. He emphasises that the Petitioner and Respondent No. 1 were married in USA. At the time of marriage, they were both divorcees. They had settled in Seattle, USA. Anand was born in USA and is, therefore, a US citizen by birth. Due to irreconcilable differences, the husband was constrained to initiate proceedings in the USA Court for dissolution of marriage. During the pendency of the proceedings in the USA Court, the wife had shown a consistent propensity to disobey the orders of the Court. At the same time, she file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. It was submitted before the Court that she had filed a review petition which ought to be taken up for hearing and sought one week's time for production of the child. Upon this assurance, the Court again directed that the child be produced on 22nd December, 2010. According to Mr. Patwalia, she was all along misleading the Andhra Pradesh High Court, whilst preparing to file the SLP against the impugned judgment. The SLP was actually filed on 18th December, 2010, challenging three orders viz. Orders dated 24th September, 2010 passed in W.P. No. 25479 of 2009 and subsequent orders dated 3rd December, 2010 and 14th December, 2010 passed in W.P.M.P. No. 31378 of 2010 in the aforesaid writ petition. 13. Mr. Patwalia points out that, in fact, the conduct of the Petitioner is noticed in the order dated 28th December, 2010. The High Court noticed that in spite of the directions having been given, the Petitioner has not produced the child in the Court. She had also not produced necessary papers relating to the child. On 14th December, 2010, she had undertaken to produce the child on 22nd December, 2010. On 22nd December, 2010, the counsel for the Petitioner had submitted that her ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned senior counsel relies on the same judgments which were cited by Mr. Shishodia. 15. Mr. Patwalia also pointed out that not only the Petitioner had made false statements before the Court but she had denied the husband any contact with the child. From 6th April, 2010, the husband was entitled to see the child for 21/2 hours. From 3rd October, 2010, the period was increased to 4 hours. Mr. Patwalia further submitted that the Petitioner has also filed a complaint in the Court of XIII Additional Chief Metropolitan Magistrate, Hyderabad against her husband, both his parents and his brother, alleging commission of offences under Sections 498-A, 506 of Indian Penal Code; and Sections 4 6 of the Dowry Prohibition Act, 1961. The Respondent and his parents had filed Criminal Petition No. 6711 of 2009 under Section 482 of Code of Criminal Procedure, before the High Court of Andhra Pradesh seeking quashing of the criminal complaint. In the said proceedings, the High Court, vide order dated 23rd December 2011, partly allowed the said criminal petition and directed that the Respondent husband and other co-accused should not be prosecuted for offences said to have taken place in USA wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Petitioner was granted temporary sole legal and physical custody of the minor child and Respondent No. 6 was directed to immediately turn over the minor child and his passport to the Petitioner. The order could not however be implemented in USA because of illegal removal of child by Respondent No. 6 to India. The Petitioner thereafter filed habeas corpus petition under Article 32 of the Constitution in the Supreme Court for production of the minor child and for handing over his custody to the Petitioner along with the child's passport. Despite orders of the Supreme Court, the State Police could not produce the child for two years, but CBI, on the directions of the Supreme Court, was able to trace and produce the child within two months. The Court considered what would be an appropriate order in the facts and circumstances, keeping in mind the interests of the child and the orders of the courts of the United States of America. The Supreme Court while passing orders in this case also took into consideration several concessions which the Petitioner husband made so that the wife could return to USA and present her claim, if any, over the child in the Courts in USA. 20. This C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servations are fully applicable in the facts and circumstances of this case. 22. Again in Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and Anr. (1987) 1 SCC 42, this Court reiterated the principle 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 Re: H. (Infants) (1966) 1 W.L.R. 381 (Ch and CA); (1966) 1 All ER 886, the Court of Appeal in England had also observed that the sudden and unauthorized removal of children from one country to another is far too frequent nowadays. Therefore, 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. These observations were also approved specifically by the Court in the case of Mrs. Elizabeth Dinshaw (supra). In the case of V. Ravichandran (supra), in Paragraph 29 and 30, this Court has concluded as follows: 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the American court, which passed the order/decree has no jurisdiction and being inconsistent in Indian Laws can not be executed in India. It was observed that despite the fact that the Respondent had been staying in India for more than 2 years, she has not pursued any legal proceeding for the sole custody of the minor child or for the declaration that the orders passed by the American courts concerning the custody of minor child are null and void and without jurisdiction. Similar are the facts in the present case. The wife has not pursued any legal proceeding for seeking custody of Anand. She has also not sought a declaration that the orders passed by the American Courts are null and void and are without jurisdiction. Therefore, in our opinion, the High Court of Andhra Pradesh can not be said to have acted erroneously. In V. Ravichandran's case (supra), this Court again observed in Paragraph 35 as follows: 35. The facts and circumstances noticed above leave no manner of doubt that merely because the child has been brought to India by Respondent 6, the custody issue concerning minor child Adithya does not deserve to be gone into by the courts in India and it would be in ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his order was challenged by the husband under Article 227 of the Constitution of India before the High Court of Delhi. The Delhi High Court accepted the petition, set aside the order of the District Court and dismissed the custody case filed by the mother primarily on the ground that the Court at Delhi had no jurisdiction to entertain the claim as the minor was not ordinarily residing at Delhi. The High Court also held that all issues relating to the custody of child ought to be adjudicated by the Courts in America not only because that Court had already passed an order to that effect in favour of the father, but also because all the three parties namely, the parents of the minor and the minor himself were American citizens. The High Court then buttressed its decision on the principle of comity of courts and certain observations made by this Court in the earlier decisions relied upon by the husband. It was in these circumstances that the appeal filed by the wife/mother against the order of the High Court was allowed. This Court specifically took note of the following circumstances: 34. The Appellant's case is that although the couple and their son had initially planned to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem. In Paragraph 64, the Court observed as follows: 64. Secondly, the Respondent's case that the minor was removed from the jurisdiction of the American courts in contravention of the orders passed by them, is not factually correct. Unlike V. Ravi Chandran case, where the minor was removed in violation of an order passed by the American court there were no proceedings between the parties in any court in America before they came to India with the minor. Such proceedings were instituted by the Respondent only after he had agreed to leave the Appellant and the minor behind in India, for the former to explore career options and the latter to get admitted to a school. The charge of abduction contrary to a valid order granting custody is, therefore, untenable. 27. These observations clearly are of no assistance to the Appellant herein. She had participated in the proceedings in America for two years prior to fleeing to India in the defiance of the orders passed by the Court of competent jurisdiction restraining her from taking the child to India for a period of more than 5 days. The Appellant, therefore, can not be allowed to take advantage of her own wrong. Therefore, the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ild from the jurisdiction of U.S. Courts. In view of the above, we are constrained to pass the following order: 31. The directions issued by the High Court in the impugned order are upheld with the following additions and modifications: Direction No. (iv) of the High Court shall be substituted by the following: (iv) The Petitioner shall make necessary arrangements for the stay of the Respondent No. 7 and the child in suitable accommodation in a locality according to her status prior to the dissolution of marriage for a period of three months on their landing in USA. Direction No. (vi)-Prior to making any travel arrangements for the 7th Respondent and Anand, the Petitioner shall move the Court of Competent Jurisdiction in USA for withdrawal of the bailable warrants issued against the Respondent No. 7 to enable her to attend the custody proceedings in the US Courts. Direction No. (viii)-Upon the bailable warrants having been withdrawn, the Petitioner shall personally escort Respondent No. 7 and Anand from India to the USA. 32. With these observations, the judgment of the High Court is upheld and the Criminal Appeals No. 934-936 of 2013 @ SLP (Crl.) Nos. 10606-10608 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
