9911796707
TMI Blog2017 (7) TMI 1466X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 countries out of her first six years. Further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned 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. 2 purchased another house in the UK, purportedly with the consent of the Appellant, and the parties shifted there. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 child had been wrongfully removed from England in July 2015 and wrongly retained in India since then. The UK Court also recorded the father's willingness to bear th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 Court of competent jurisdiction, then a domestic court must have special reasons to hold an elaborate inquiry. It must consider various factors such as the nature of the interim order passed by the foreign court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 follow the established judicial trial of opinion as set out in several judgments of this Court while deciding custody matters. She submits that this Court has expounded that the welfare of the child is of paramount consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 opportunity to present her case. The intention of Respondent No. 2 can be ascertained by the fact that he filed a habeas corpus petition before the High Court, which is meant for urgent and immediate relief whereas the Appellant and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 nor anything to indicate that the UK Court was incompetent to take a decision in the interests and welfare of the child. There was no compelling reason for the High Court to ignore the principle of comity of courts. Further, as regar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that the principle of comity of courts must be respected, as rightly applied by the High Court in the present case. 24. We must remind ourselves of the settled legal position that the concept of forum convenience has no place in wardship jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 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 the child from another country as only one of the circumstances. The crucial question as to whether the Court (in the country to which the child is removed) would exercise the summary or elaborate procedure is to be determined according to the child's welfare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntext, 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 this Convention. India is not yet a signatory. Under the Convention, any child below 16 years who had been "wrongfully" removed or retained in another contracting State, could be returned back to the country from which the child had been removed, by application to. a central authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 such a case the Court need not resort to an elaborate inquiry into the merits of the paramount welfare of the child but leave that inquiry to the foreign Court by directing return of the child. Be it noted that in exceptional cases the Court can still refuse to issue direction to return the child ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the circumstances of each case. 30. However, in a case where the court, decides to exercise its jurisdiction summarily to return the child to his own country, keeping in view the jurisdiction of the court in the native country which has the closest concern and the most intimate contact with the issues arising in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 restraint pass appropriate direction as may be deemed just and proper. The High Court in such proceedings conducts an inquiry for immediate determination of the right of the person's freedom and his release when the detention is found to be unlawful. in a petition for issuance of a writ of habeas corpus in relation to the custod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ody 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, directing the mother to produce the child before it, would render the custody of the minor unlawful? Indubitably, merely because such an order is passed by the foreign court, the custody of the minor would not become unlawful per se. As in the present case, the order passed by the High Court of Justice, Family Division London on 8th January ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 of the flights for the Mother and child in returning from India to England. He will either purchase the tickets for the Mother and child himself or put her in funds, or invite her to purchase the tickets on his credit card, as she may wish, in order for her to purchase the tickets herself. Undertakings to the court by the solicitor for the applicant 6. The solicitors for the applicant undertake; a. To issue these proceedings forthwith and in any event by no later than 4 pm 11 January 201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 any event not later than 22 January, 2016. Indeed, this order has not been challenged by the Appellant so far nor has the Appellant applied for modification thereof before the concerned court (foreign court). Even on a fair reading of this order, it is not possible to hold that the custody of the minor with her mother has been declared to be unlawful. At best, the Appellant may have violated the direction to return the minor to England, who has been ordered to be a Ward of the court during her minority and further order. No finding has been rendered that till the minor returns to England, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra 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 2012. An application for grant of U.K. citizenship was made on behalf of Nethra in September 2012 which was subsequently granted in December 2012. The father (Respondent No. 2) then acquired the citizenship of the U.K. in January, 2013. After grant of citizenship of the U.K., Nethra was admitted to a primary school in the U.K. in September 2013 and studied there only till July, 2015. 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 pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that taking the totality of the facts and circumstances into account, it would be in the interests of Nethra to remain in custody of her mother and it would cause harm to her if she returns to the U.K. That does not mean that the Appellant must disregard the proceedings pending in the U.K. Court against her or for custody of Nethra, as the case may be. So long as that court has jurisdiction to adjudicate those matters, to do complete justice between the parties we may prefer to mould the reliefs to facilitate the Appellant to participate in the proceedings before the U.K. Court which she can do thro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to the UK and then applied the doctrine of comity of courts. Further, the Court was of the opinion that the issue regarding custody of the child should be decided by the foreign Court from whose jurisdiction the child was removed and brought to India. This decision has been rendered after a summary inquiry on the facts of that case. It will be of no avail to the Respondent No. 2. It does not whittle down the principle expounded in Dhanwanti Joshi (supra), the duty of the Court to consider the overarching welfare of the child. Be it noted, the predominant criterion of the best interests and welfare of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by the foreign court. (b) The existence of special reasons for repatriating or not repatriating the child to the jurisdiction of the foreign court. (c) The repatriation of the child does not cause any moral or physical or social or cultural or psychological harm to the child, nor should it cause any legal harm to the parent with whom the child is in India. There are instances where the order of the foreign court may result in the arrest of the parent on his or her return to the foreign country. In such cases, the domestic court is also obliged to ensure the physical safety of the parent. (d) The alacrity with whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 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 is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in [India] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of [India] established or continued by [the Central Government] [***] and having like jurisdiction, or before [the Supreme Court]. Explanation.-The pendency of a suit in a foreign Court does not preclude the Courts in [India] from trying a suit founded on the same cause of action. 41. The invocation of first strike principle as a decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the child is removed while considering the question must bear in mind the welfare of the child as of paramount importance and consider the order of the foreign Court as only a factor to be taken into consideration. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
