Supreme Court of India
LAHARI SAKHAMURIversusSOBHAN KODALI
- Citation
- 2019 INSC 383
- Decided
- 15 March 2019
- Disposal
- Disposed off
- Bench
- A M KHANWILKAR
Holding
The Supreme Court held that the Family Court lacked jurisdiction because the children were not ordinary residents of India, and the US court’s custody order must be honoured, directing the children’s return to the US in the best interest of the child.
Summary
The wife filed for divorce and custody of her US‑citizen children in a US court, which issued an interim order directing the father to appear for conciliation and later granted him temporary physical custody, ordering the children be returned to the US. She then travelled to India and, concealing the US proceedings, filed a petition in the Hyderabad Family Court seeking custody, obtaining an ex‑parte injunction. The High Court held the Family Court lacked jurisdiction because the children were not ordinary residents of India under Section 9(1) of the Guardians and Wards Act, 1890, and ordered their return to the US. On appeal, the Supreme Court affirmed the High Court’s view, emphasizing that the best‑interest of the child outweighs any claim of domestic jurisdiction and that the US court’s order must be respected. The Court directed the mother to return the children to the US within six weeks and dismissed the appeals.
Issues considered
- The Family Court, Hyderabad, had jurisdiction under the Guardians and Wards Act, 1890 to entertain the custody petition despite the children being US citizens and not ordinary residents of India.
- Whether the principle of the best interest of the child overrides the doctrine of comity of courts and the foreign court’s jurisdictional order.
- Whether a summary enquiry is appropriate or an elaborate enquiry is required in determining custody in an international context.
Legislation cited
- Code of Civil Procedure, 1908s. Order 7 Rule 11
- Guardians and Wards Act, 1890s. 9(1)
- Juvenile Justice (Care & Protection) Act, 2015s. 2(9)
Subjects
child custodybest interest of the childcomity of courtsinternational custodyjurisdictionGuardians and Wards ActUS court orderfamily lawinterim injunctionhabeas corpus
Judgment
240 [2019]
SUPREME COURT 5 S.C.R. 240
REPORTS [2019] 5 S.C.R.
A LAHARI SAKHAMURI
v.
SOBHAN KODALI
(Civil Appeal Nos. 3135-3136 of 2019)
B MARCH 15, 2019
[A. M. KHANWILKAR AND AJAY RASTOGI, JJ.]
Family Law:
Child custody – Petition for divorce and for custody of minor
C 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
D
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
E 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
F
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,
G 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.
H
240
LAHARI SAKHAMURI v. SOBHAN KODALI 241
Child custody – Court has to keep in mind the best interest of A
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
B
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.
C
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, D
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 E
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, F
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 G
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] H
242 SUPREME COURT REPORTS [2019] 5 S.C.R.
A 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
B
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
C 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]
D
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
E 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
F 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 &
G 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]
H
LAHARI SAKHAMURI v. SOBHAN KODALI 243
2.5 It is not in dispute that both the minor children, from A
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
B
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 C
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
D
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 E
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 F
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 G
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
H
244 SUPREME COURT REPORTS [2019] 5 S.C.R.
A 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
B 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
C 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
D 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,
E 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.
F [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
G 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
H
LAHARI SAKHAMURI v. SOBHAN KODALI 245
interest to accompany the children, the respondent shall deposit A
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
B
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 C
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 D
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 E
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 F
SCC 578 – referred to.
L(Minors) in re (1974) 1 All ER 913(CA) ; McKee v.
McKee (1951) AC 352 – referred to.
Case Law Reference G
[2017] 7 SCR 281 relied on Para 21
[2015] 4 SCR 903 relied on Para 21
(2018) 4 SCC 295 relied on Para 22
H
246 SUPREME COURT REPORTS [2019] 5 S.C.R.
A [1984] 3 SCR 422 relied on Para 23
(1987) 1 SCC 42 relied on Para 23
[2009] 15 SCR 960 relied on Para 23
[1997] 5 Suppl. SCR 30 referred to Para 36
B (2018) 9 SCC 578 referred to Para 42
CIVIL/CRIMINAL APPELLATE JURISDICTION: Civil Appeal
Nos.3135-3136 of 2019
C From the Judgment and Order dated 08.02.2018 of the High Court
of Judicature at Hyderabad for the State of Telangana and the State of
Andhra Pradesh in FCA Nos. 372 and 373 of 2017
With
Criminal Appeal No. 500 of 2019.
D
Ms. Malvika Rajkotia, Ms. Akriti Tyagi, Ms. Rytim Vohra,
Ms. Arpita Rai, Ms. Aashna Talwar, Mayank Grover, Ms. Trisha Gupta,
Ms. Udita Singh, Vivek Singh, Lakshmi Raman Singh, Advs. for the
Appellant.
E Ms. M. Arora, Sr. Advocate, Prabhjit Jauhar, Ms. Sheetal Kocher,
A. Ishwar Rosemary Raju, S. S. Jauhar, Advs. for the Respondents.
The Judgment of the Court was delivered by
RASTOGI, J. 1. Leave granted.
2. Both the appeals although arise from two separate orders passed
F
by the High Court of Hyderabad for the State of Telangana and State of
Andhra Pradesh dated 8th February 2018 in a Habeas Corpus Petition
filed at the instance of the respondent (Sobhan Kodali) and by the
appellant (Lahari Sakhamuri) under the Guardians & Wards Act, 1890
primarily for the custody of the two minor children who were born in the
G United States on 14th March, 2012 and 13th October, 2014 and are US
citizens and holding US passports. For the custody of children, a tussle
was going on between the parents who are residing in US since 2004-
2005. Their marriage was solemnized on 14th March 2008 in Hyderabad
and both are green card holders and not only highly educated but well
placed. It appears that some differences cropped up which can be a
H
LAHARI SAKHAMURI v. SOBHAN KODALI 247
[RASTOGI, J.]
misunderstanding or failing to understand each other, various efforts were A
made through conciliation and after the matter came to this Court through
the process of mediation, the orders of this Court indicate that lot of
efforts were made for reconciliation and at one point of time, it reached
to a final stage but unfortunately could not reach to its logical end for
various reasons and factors.
B
3. The persons who are affected are the minor children who have
been directly impacted because of the fact that their parents have not
been able to resolve their differences. Children are very sensitive and
due to the conflict of their parents if could not be resolved at the earliest,
the minor children became the victim of time for which they are not at
fault but indeed the sufferers. It has to be examined in different C
perspective also that rights of the child as a progressive approach to the
best interest of the child and what is needed in the best interest of the
child is the one which has to be deciphered by us in the instant proceedings
through the manifold arguments being advanced from both sides keeping
in view the principles of law on the subject but still remain a guess work. D
4. Before this Court may proceed to examine the question, there
are plentitude of judgments of this Court but still each case has to be
decided on its own facts and circumstances. Obviously, the ultimate
goal which has to be kept in mind is the best interest of the child which
is of utmost importance and of a paramount consideration. E
5. The brief facts of the case which manifests from the voluminous
record placed before us are that the appellant (Lahari Sakhamuri) and
respondent (Sobhan Kodali) are the parents of the minor children.
Appellant (Lahari Sakhamuri) went to USA for her masters in September,
2004 and thereafter started working in USA. She is a Biomedical Engineer F
by profession. Respondent (Sobhan Kodali) is also highly qualified and
went to USA in July 2005 and is presently a Cardiologist by profession.
Their marriage was solemnized according to Hindu rites in Hyderabad
on 14th March, 2008. From this wedlock, son, namely, Arthin and daughter
Neysa were born on 14th March, 2012 and 13th October, 2014 and both
are US citizens and also hold US passports. The couple purchased G
house in Pennsylvania on 29th January, 2016 in their joint names and
moved to their new home. The son started going to a school in September
2014 and a daughter in December, 2016. Both the children being there
in US from their birth, the social and cultural value of US certainly was
embedded in both of them. H
248 SUPREME COURT REPORTS [2019] 5 S.C.R.
A 6. This fact cannot be ruled out that something certainly has gone
wrong in their marital relations and it went to an extent where the
appellant (Lahari Sakhamuri) took a decision to file petition for divorce
and custody of the minor children in US on 21st December, 2016 on the
premise that there was a complete irretrievable breakdown of marriage
under the Divorce Code, 1980 prevalent in US. It may be relevant to
B
note that along with the application filed for divorce and custody of minor
children, there is a prescribed format which has to be filled disclosing
the details of any wrong, if happened physically or abuse has been
committed and the fact is that she was completely silent and positive in
assertion in her application. Although both the parties were residing
C together in the same house, with joint legal custody of their children who
were residing with them and there was no criminal/abuse history ever in
the past.
7. Irretrievable breakdown of marriage can be due to marital
difficulties with no reasonable prospect of reconciliation but it appears
D that in the US before such matrimonial matters are taken up for
adjudication on the judicial side, all efforts are being made for conciliation
and mediation between the parties which is also being actively taken
note of under Section 89 of Code of Civil Procedure of resolving
matrimonial and custodial disputes through the process of mediation and
which is very successful and effective in India as well.
E
8. It reveals from the record that on the date of filing of the petition
for divorce and custody of minor children by the appellant (Lahari
Sakhamuri), i.e. 21st December, 2016 in US, the order came to be passed
on the petition directing respondent (Sobhan Kodali) to appear for
conciliation conference on 20th January, 2017 and both the parties were
F directed not to change the residence of the children which would affect
the other party’s ability to exercise custodial rights. It may be appropriate
to quote the extract of the order which came to be passed on the
application filed by the appellant (Lahari Sakhamuri) which reads as
under:
G “ ORDER OF COURT
You, Sobhan Kodali, Defendant/Respondent, have been sued
in court to obtain shared legal and primary physical custody of the
children, Arthin Kodali, born March 14, 2012 and Neysa Sakhamuri
Kodali, born October 13, 2014.
H
LAHARI SAKHAMURI v. SOBHAN KODALI 249
[RASTOGI, J.]
You are ordered to appear in person at Room 325, Lehigh A
County Courthouse, 455 W. Hamilton Street, Allentown,
Pennsylvania, on January 20, 2017 at 2:00 p.m. , for
XX a conciliation or mediation
conference.
a pretrial conference. B
a hearing b efore the Court.
If you fail to appear as provided by this Order, an order for
custody may be entered against you or the Court may issue a
warrant for your arrest. C
You must file with the Court a verification regarding any
criminal record or abuse history regarding you and anyone living
in your household on or before the initial in-person contact with
the Court (including, but not limited to, a conference with a
conference officer or judge or conciliation) but not later than 30 D
days after service of the Complaint or Petition.
No party may make a change in the residence of any child
which significantly impairs the ability of the other party to exercise
custodial rights without first complying with all of the applicable
provisions of 23 Pa.C.S. §5337 and Pa.R.C.P. No. 1915.17 E
regarding relocation.
YOU SHOULD TAKE THIS PAPER TO YOUR
LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER,
GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.
THIS OFFICE CAN PROVIDE YOU WITH INFORMATION F
ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD
TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES
THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE
PERSONS AT A REDUCED FEE OR NO FEE.
G
Lehigh County Bar Association
Lawyer Referral Service
P.O. Box 1324
Allentown, PA 18105-1324
Telephone: 610-433-7094 H
250 SUPREME COURT REPORTS [2019] 5 S.C.R.
A Americans with Disabilities Act of 1990
The Court of Common Pleas of Lehigh County is required by
law to comply with the Americans with Disabilities Act of 1990.
For information about accessible facilities and reasonable
accommodations available to disabled individuals having business
B before the Court, please contact the Court Administrator’s Office
at (610) 782-3014. All arrangements must be made at least 72
hours prior to any hearing or business before the Court. You must
attend the scheduled conference or hearing.
C BY THE COURT:
12/21/2016 _________________________/RR
Date J.”
9. It reveals from the record that efforts were going on in the
D
process of conciliation and the same were held on 21st March, 2017 and
since the parties could not arrive to any consensus regarding the custody
of their children, another conference was scheduled as agreed for 25th
March, 2017.
E 10. By the time parties could reach to a final consensus by the
intervention of the trained conciliators which indisputedly play a very
pivotal role in matrimonial matters, there was a sad demise of the
maternal grandmother of the appellant (Lahari Sakhamuri) and in providing
strength and support to the family, the appellant travelled to India with
both the minor children on 23rd March, 2017 with return tickets of 24th
F April, 2017 and within 20 days of coming to Hyderabad(India) where
her family reside, filed a petition in the Family Court, Hyderabad on 12th
April, 2017 seeking custody of minor children and injunction against
respondent (Sobhan Kodali) under the Guardians and Wards Act, 1890
and she was able to succeed in getting ex-parte interim injunction on
G 12th April, 2017. It would be appropriate to quote the extract of the ex-
parte injunction order passed by the learned Family Court, Hyderabad
dated 12th April, 2017 which is as follows:-
H
LAHARI SAKHAMURI v. SOBHAN KODALI 251
[RASTOGI, J.]
“AD INTERIM INJUNCTION A
IN THE COURT OF JUDGIGE ADDITIONAL FAMILY COURT :
CITY CIVIL COURT : HYDERABAD
I.A. No. 292 OF 2017
in B
OP No.433 of 2017
BETWEEN :
Smt. Lahari Sakhamuri,
W/o Sobhan Kodali, Hindu, C
aged 34 years, R/o Plot No. 443/A-28,
Road No.86, Jubilee Hills,
Hyderabad T.S … Petitioner
D
AND
Sobhan Kodali,
S/o Dr. Jaya Ramesh Kodali, Hindu,
aged about 37 years,
R/o # 2C85, Bellflower Lane,
Centre Valley, Lehigh County, E
Pennsylvania-18034, USA … Respondent
To
Sobhan Kodali,
F
S/o Dr. Jaya Ramesh Kodali,
Hindu, aged about 37 years,
R/o # 2C85, Bellflower Lane,
Centre Valley, Lehigh County,
Pennsylvania-18034, USA
G
UPON MOTION made unto this court by Sri K. Chaitanya,
Counsel for the petitioner seeking the court to grant ad interim
injunction restraining the respondent from forcibly taking away
H
252 SUPREME COURT REPORTS [2019] 5 S.C.R.
A the minor children Arthin Kodali and Neysa Sakhamur from the
custody of the petitioner pending the above O.P.
Upon hearing of the arguments of the counsel for the petitioner
this court while issuing notice to respondent returnable by
26.04.2017 doth order restraining respondent from taking away
B minor children namely Arthin Kodali and Neysa Sakhamur from
the custody of the petitioner till 26.04.2017 and that petitioner
should not shift the children from the jurisdiction of this court without
permission from the court, and that petitioner should also look
after food, shelter and medical facilities of the children petition
stood posted to 26.04.2017.
C
Given under my hand and the seal of the court on this the 12th day
of April, 2017.
Sd/-
D JUDGE, ADDL. FAMILY COURT
CITY CIVIL COURT, HYDERABAD”
11. After few days, she also filed a FIR against respondent (Sobhan
Kodali) and his family members for offence under Section 498A IPC
E i.e. on 21st April, 2017 but after investigation, the police filed closure
report on 1st November, 2017. The fact to be noticed here at this stage
is that the very appellant (Lahari Sakhamuri) filed a petition for divorce
and custody of minor children in US on 21st December, 2016, there was
no whisper or an averment that there was any domestic violence or
F abuse either subjected upon her or the minor children by respondent
(Sobhan Kodali) and he was informed on 23rd April, 2017, twelve hours
before her flight that she would not be returning and does not have a
travel date in mind. Respondent (Sobhan Kodali) and his counsel in the
US were orally informed of the ex-parte order which was received by
respondent (Sobhan Kodali) on 29th April, 2017 through e-mail from the
G counsel for appellant (Lahari Sakhamuri) in India.
12. Immediately, on receiving the oral information, on 26th April,
2017, emergency petition for interim orders in petition for divorce and
custody filed at the instance of the appellant (Lahari Sakhamuri) was
H
LAHARI SAKHAMURI v. SOBHAN KODALI 253
[RASTOGI, J.]
filed by respondent (Sobhan Kodali). The said application was contested A
by the appellant (Lahari Sakhamuri) through Attorney and in defence
stated that she had only temporarily relocated to India for attending her
grandmother’s funeral and providing emotional support to her mother.
After hearing the parties, the US Court passed order on 22nd May, 2017
for continuing the jurisdiction over the custody matter and granted
B
temporary physical custody of the children to respondent (Sobhan Kodali)
with a further direction that children be returned to the jurisdiction of the
Court in US by 2nd June, 2017. It would be appropriate to quote the
extract of the order passed by US Court on the emergency custody
petition filed by respondent Sobhan Kodali on 22nd May, 2017:-
“IN THE COURT OF COMMON PLEAS OF LEHIGH C
COUNTY, PENNSYLVANIA CIVIL DIVISION
Lahari Sakhamuri )
Plaintiff ) File No.2016-FC-1641 D
Vs )
Sobhan Kodali ) in custody E
Defendant )
ORDER
F
AND NOW, this 22nd May, 2017 upon consideration of the
Emergency Petition for Relief Requesting an Interim order of
custody filed 26.04.2017, by defendant and hearing conducted on
22.05.2017 attended by the defendant / petitioner Sobhan Kodali
represented by his legal counsel, Mark B. Dischell, Esquire and G
plaintiff/respondent, Lahari Sakhamuri having failed to appear for
said hearing, but represented by her legal counsel, Mary J B.
Eidelman Esquire;
H
254 SUPREME COURT REPORTS [2019] 5 S.C.R.
A IT IS HEREBY ORDERED that :
1. Lehigh County, Pennsylvania, United States of America shall
remain the sole home country, home state and country of the
parties’ minor children, Arthin Kodali born 14.03.2012 and Neyas
Sakhamuri Kodali, born 13.10.2014.
B 2. This Court shall have sole continuing jurisdiction of this custody
matter which was filed by the plaintiff, Lahari Sakhamuri, on
21.12.2016.
3. Pending further order of court, father is granted temporary
physical custody of the children;
C
4. Mother shall return the children to Lehigh County, Pennsylva-
nia, United States of America, to the father’s custody on late
than 02.06.2017.
5. Until the children’s return, father shall have telephone and
D video chat contact with the children each day;
6. Upon her return to this jurisdiction, mother shall not be
permitted to travel out of the Commonwealth of Pennsylvania
with the minor children without further order of court;
7. The passports of the children shall be held in escrow by the
E parties’ counsel or another mutually agreeable person;
8. Should the mother fail to return the children to father by
02.06.2017, mother shall pay to father $1,000 each day she
does not return the children;
9. In the event mother does not return the children to the father
F by 02.06.2017, father and/or any of his designees being his
father, Jayaramesh Kodali; his mother, Vijaya Bharathi; his
cousin, Chaitanya Kadiyala, shall be permitted to receive the
children from mother in India and bring them to Lehigh County,
Pennsylvania, United States of America;
G 10. Until such time as mother returns to the United States, she shall
be precluded from seeking child support on behalf of the
children;
H
LAHARI SAKHAMURI v. SOBHAN KODALI 255
[RASTOGI, J.]
11. A certified copy of this order shall be sent to the America A
Consulate in India and shall be registered with appropriate court
/ jurisdiction in Hyderabad, India;
12. Within thirty (30) days of this order, mother shall pay father
$10,000 as partial payment towards counsel fee incurred by
father in this matter. A final determination on the amount of B
counsel fees to be paid by mother to father will be made by the
court after subsequent hearing which may be requested by
either party.
BY THE COURT : C
Sd/-
Daniel K. McCarthy”
13. Thereafter, the respondent (Sobhan Kodali) moved an
application under Order 7 Rule 11 CPC in the proceedings instituted in D
the Family Court, Hyderabad asserting that the Family Court, Hyderabad
has no jurisdiction to decide the application for the custody of minor
children as they are not the ordinary resident of Hyderabad but that
came to be rejected vide order dated 15th September, 2017 holding that
the Family Court, Hyderabad is competent to exercise jurisdiction to E
examine the application filed at the instance of the appellant (Lahari
Sakhamuri) on merits.
14. At this stage, respondent (Sobhan Kodali) preferred appeal
to the High Court under Section 19(1) of the Family Courts Act against
the order dated 15th September, 2017 passed by the learned Family Court, F
Hyderabad holding jurisdiction to examine the application filed by the
appellant (Lahari Sakhamuri) regarding custody of the minor children
under Guardians and Wards Act, 1890. Simultaneously, without any loss
of time, respondent (Sobhan Kodali) also filed a writ petition seeking
Writ of Habeas Corpus for producing the minor children in the custody
of the US Court taking note of the earlier order passed dated G
21st December, 2016 followed with order dated 22nd May, 2017. The
appeal and the writ petition were clubbed but were decided by the High
Court by separate orders dated 8th February, 2018 holding that the Family
H
256 SUPREME COURT REPORTS [2019] 5 S.C.R.
A Court, Hyderabad has no jurisdiction as the children are not ordinarily
residing within the jurisdiction of the Family Court, Hyderabad as provided
under Section 9 of the Guardians and Wards Act, 1890. In consequence
thereof, application filed by the appellant (Lahari Sakhamuri) stood
rejected. At the same time, in the Habeas Corpus Petition, Order came
to be passed dated 8th February, 2018. The Court finally ordered as
B
under:-
“36 In view of the above discussion and the legal position, we are
of the considered opinion that it would be in the best interest of
the minor children to return to the US so that they can enjoy
there in the natural environment, receive the love, care and
C attention of their father and paternal grandparents, resume their
school and be with their teachers, peers and friends.
37. Accordingly, we hereby direct the 5th respondent to return the
children to the petitioner in India within four (04) weeks from
the date of receipt of a copy of this order failing which, the
D Consulate General of the US at Hyderabad shall take the
custody and handover the custody of the children to the petitioner
in India or in the US by making their comfortable journey to
US.
38. The 5th respondent is also highly educated and was gainfully
E employed in the US for number of years. Accordingly, we
hereby grant liberty to the 5th respondent, whenever she feels
to visit the children in US, the petitioner shall make all
arrangements i.e., travel, comfortable stay at US and other
expenses till the US Court pass directions in the petitions filed
F by the 5th respondent or she become the gainful in any country,
whichever is earlier.
39. As undertaken by the petitioner that, we direct the petitioner
that he shall not insist upon costs and fine imposed by the Court
of US upon the 5th respondent.
G 40. We also direct the petitioner that if children are in India and 5th
respondent happens to be in India, the children shall remain
with 5th respondent. He shall give all access to 5th respondent
to chat with the children on whatsapp and video conference
etc.”
H
LAHARI SAKHAMURI v. SOBHAN KODALI 257
[RASTOGI, J.]
15. Both the orders passed by the High Court while disposing of A
the appeal filed by the respondent (Sobhan Kodali) under Section 19(1)
of the Family Courts Act as well as the Habeas Corpus Petition dated
8th February, 2018 came to be challenged by the appellant (Lahari
Sakhamuri) in the present appeals.
16. In the pending proceedings, in the Court of Common Pleas of B
Lehigh County, Pennsylvania Civil Division-Law, further order has been
passed on 9th March, 2018 permitting the respondent (Sobhan Kodali) to
apply for replacement of US passports on behalf of the minor children.
The order is reproduced as under:-
“IN THE COURT OF COMMON PLEAS OF C
LEHIGH COUNTY, PENNSYLVANIA
CIVIL DIVISION – LAW
LAHARI SAKHAMURI, :
Plaintiff, : NO. 2016-FC-1641
D
Vs. :
SOBHAN KODALI, : IN CUSTODY
Defendant, :
E
ORDER OF COURT
th
AND NOW THIS 9 day of March, 2018, upon consideration
of the Defendant’s Emergency Petition for Special Relief in
Custody, it is hereby ORDERED and DECREED as follows:
F
1. Defendant’s Emergency Petition for Special Relief is
GRANTED;
2. Defendant, Sobhan Kodali, is granted sole legal custody of the
minor children, Arthin Kodali, born March 14, 2012, and Neysa
Sakhamuri Kodali, born October 13, 2014; G
3. Mother’s retention of the children in India is a “wrongful
retention” of the children pursuant to the Child Abduction
Remedies Act, codified at 23 Pa.C.S. § 5201 et. seq.
H
258 SUPREME COURT REPORTS [2019] 5 S.C.R.
A 4. Defendant, Sobhan Kodali, shall be permitted to apply for
replacement U.S. Passports on behalf of the minor children,
Arthin Kodali, born March 14, 2012, and Neysa Sakhamuri
Kodali, born October 13, 2014, through application of Form DS-
11 attached hereto as Exhibit “B”, and without Mother’s consent.
B 5. The United States Department of State, upon presentation of a
Certified Copy of this Order, shall issue replacement passports
to Sobhan Kodali, Father of the minor children, even though
Father previously requested the entry of the children into the
Department’s Child Passport Issuance Alert Program (CPIAP)
and received confirmation of the entry of the children into that
C system on May 24, 2017, via Case Number 1536567.
BY THE COURT
__________________J.”
D 17. Before the submissions made by the learned counsel for the
parties being canvassed, it may reveal from the orders passed by this
Court that keeping in view the personal relations of the spouse and the
utmost and paramount consideration of the welfare of the children on a
high pedestal and to find out if there is any possibility in resolving their
E matrimonial differences through the process of mediation which
indisputably plays a very pivotal role in such matters. The parties appeared
in person on various dates and at one stage, it was sent for mediation as
it reveals from Order dated 12th October 2018, the Court appointed
Mediator used his good office to find out an amiable solution which may
be acceptable to the parties and at one stage from Order dated 29th
F October, 2018, it reveals that the parties had reached to an amicable
solution in resolving their on-going matrimonial differences by sitting across
the table with the intervention of the Court appointed Mediator. But
what happened thereafter is really very unfortunate that parties could
not reach to any final conclusion and both the learned counsel informed
G this Court that as the mediation could not have been now possible, the
matter may be heard and decided on merits.
18. Learned counsel for the appellant Ms. Malavika Rajkotia,
submits that repatriation to US would not be in the best interest of the
children and this Court has always held that the best interest of the
children cannot be sacrificed on the principle of comity of courts or any
H
LAHARI SAKHAMURI v. SOBHAN KODALI 259
[RASTOGI, J.]
other legal principle could not plead in overcoming the best interest of A
the children which is of primary and paramount consideration. Learned
counsel submits that there is a statutory presumption in favour of the
mother, under the tender years doctrine and respondent (Sobhan Kodali)
is unable to dispel from the pleadings on record in the instant proceedings
and she being a fit mother and the best interest of the children is with
B
mother as the primary caretaker and once the custody of the minor
children is with mother appellant (Lahari Sakhamuri), it is in the children’s
best interest for the court to ensure the psychological well-being and the
legal rights of the mother by protecting her autonomy at the first instance,
to exercise her choice of location, particularly when she is distressed in
her matrimonial home. C
19.Learned counsel further submitted that the prima facie
assumption may be rebutted in a trial but she cannot be non-suited by
not providing her an opportunity in establishing her parental competence
and the circumstances leading to protect herself and the children.
Learned counsel further submitted that the appellant (Lahari Sakhamuri) D
and respondent (Sobhan Kodali) are Indian citizens and to separate the
primary caregiver from the children under the “best interest of child”
rule constitutes invasion of her fundamental right of autonomy guaranteed
to her under the law and further submitted that in giving parental rights
and privileges, what is to be ensured is the best interest of the children
that is admittedly difficult as it is related to their life and welfare in such E
circumstances is being called by a psychologist as the “least worst option”
considering that the ideal of proximity with both parents is not possible in
a given situation. The children and their mother are in India and is an
accessible jurisdiction for the father being married in India and Indian
law applies in a cultural context that is well appreciated here and F
respondent (Sobhan Kodali) father has means to come to India and meet
his children in India.
20. Learned counsel for the appellant further submits that though
she has been completely silent in her proceedings instituted in the US
Court in a divorce and custody petition of the children as there is a G
provision in US that one can seek divorce if there is a irretrievable break
down of marriage and prospects of conciliation is reasonably ruled out
hence there was no occasion for her to indicate what mentally and
physically she has suffered and how constrained it was to live due to
acute mental, emotional and even physical violence and it is not in the
H
260 SUPREME COURT REPORTS [2019] 5 S.C.R.
A interest of the children that their mother be pinned into an unhappy,
abusive situation. It is not in the welfare of the children to be witness to
their mother being devalued. It is also not in their interest that they,
witness continued toxic conflict of their parents living as a family or
even in proximity of collaborative parenting. In such cases, distance
with the spouse, with the child as the only point of contact between two
B
parents in their own location is the best solution.
21. Learned counsel for the appellant submits that due to the
harassment meted out and humiliation suffered by her and their minor
children at the hands of respondent (Sobhan Kodali) husband, no other
option was left with her other than staying away from US. Further, the
C children are admitted in the best school in Hyderabad where they are
presently studying. Learned counsel has further submitted that in Nithya
Anand Raghavan Vs. State(NCT of Delhi) and another1, this Court
has disagreed with the conclusions drawn in Surya Vadanan Vs. State
of Tamil Nadu and Others2 laying down the “first strike” principle
D that weightage should be given to the order of the foreign Court which
has jurisdiction and held that the best interest and welfare of the children
is of paramount importance and that if handing over of the children to
the foreign Court’s jurisdiction would harm their best interest and welfare,
the Court would not direct their return to the place falling within the
jurisdiction of the foreign Court. That applying the principles laid down
E in the said case, the two minor children who are happily placed in the
company of the appellant and her parents, if are entrusted to the foreign
court’s jurisdiction, the same may not be in their best interest and welfare
of the children. Learned counsel submits that Indian Courts have
jurisdiction because the parties had married here and the Hindu Marriage
F Act applies to Divorce and Section 26 deals with custody. What is being
pleaded by the respondent under Order 7 Rule 11 CPC is a mixed
question of law and facts and hence could be examined only during the
course of the trial but not at this stage.
22. In support of the submission, learned counsel has placed reliance
G on the decision of this Court in Jasmeet Kaur Vs. Navtej Singh3 holding
that the jurisdiction founded on domicile is a matter of trial and cannot be
decided summarily and submitted that the custody petition filed under
Guardians and Wards Act, 1890 has been rejected by the High Court
1
2017(8) SCC 454
2
2015(5) SCC 450
H 3
2018(4) SCC 295
LAHARI SAKHAMURI v. SOBHAN KODALI 261
[RASTOGI, J.]
without taking note of the given fact situation and the scope under Order A
7 Rule 11 CPC.
23. Per contra, learned senior counsel for the respondent Ms.
Meenakshi Arora, referred to the decisions of this Court in Surinder
Kaur Sandhu Vs. Harbax Singh Sandhu and Anr. 4; Elizabeth
Dinshaw Vs. Arvand M. Dinshaw and Another 5 ; V. Ravi B
Chandran(Dr.) Vs. Union of India and Others 6; Nithya Anand
Raghavan’s case(supra) and Surya Vadanan’s case(supra),and taking
assistance thereof, submitted that two minor children were born in US
and both of them are US citizens and are school goers and they enjoyed
their schooling (which is evident from the photographs filed along with
the additional documents) and removal of children from the US despite C
the Order of the US Court affects their future and the same may not be
in their best interest.
24. Learned counsel further submitted that the appellant (Lahari
Sakhamuri) and respondent (Sobhan Kodali) started their matrimonial
life in the US and been there for almost 14 years, they are being D
acclimatized with that culture and in their married life, except for duration
on short visit to India, they spent their good time in US and removing the
children from the US, in the given circumstances, may not be in their
best interest. Learned counsel submitted that the appellant (Lahari
Sakhamuri) had herself admitted that children were in shared custody E
with respondent (Sobhan Kodali) and she was never subjected to domestic
violence at any given point of time and she had invoked the jurisdiction
of US Court for divorce and custody of minor children based on their
residence and, therefore, it may not be open for her to disregard the
orders of US Court, more specially the order dated 22nd May, 2017
whereby respondent (Sobhan Kodali) was granted temporary physical F
custody of the children and appellant (Lahari Sakhamuri) was directed
that minor children should be returned to the jurisdiction of US Court by
2nd June, 2017.
25. Learned counsel submitted that from the material which has
come on record, even inference cannot be drawn that there could be G
any harm caused to the minor children in returning to their native state,
i.e. US. Moreover, in the proceedings on behalf of the appellant (Lahari
4
1984(3) SCC 698
5
1987(1) SCC 42
6
2010(1) SCC 174 H
262 SUPREME COURT REPORTS [2019] 5 S.C.R.
A Sakhamuri) filed before the US Court, it is her own admission that there
was no domestic violence having perpetrated upon her nor she was
subjected to cruelty rather had asked for shared custody of children
along with respondent (Sobhan Kodali) and in the given circumstances,
her unilateral decision to return to India cannot deprive the minor children
in terms of the love, attention, care and facilities, amenities, upbringing
B
and environment to which they are accustomed to while in the US. No
doubt, it is not the decision of the minor children to remain in India away
from their father and their school and their peers. The US Court has the
most intimate contact and closest concern to decide on the issue of
minor children which has been extensively examined by the High Court
C and finding has been recorded under the impugned judgment upholding
children best interest.
26. Learned counsel submitted that best interest of children has
been sidelined while deciding to stay back in India with the minor children
who are admittedly US citizens and were permanently residing in US till
D 23rd March, 2017 when they were removed from US in contravention of
the Order dated 21st December, 2016 passed by the US Court and forcibly
separated from their father respondent herein and the environment in
US which children were experiencing, is their natural environment and
in the given circumstances, detention of the children in India is unlawful
and in violation of Child Abduction Remedies Act of minor children
E applicable in US and US Court has rightly directed the appellant (Lahari
Sakhamuri) to bring back the children to US Court by 2nd June, 2017 and
the findings which have been recorded by the High Court are based on
cogent available material on records and needs no further interference.
27. Learned counsel further submits that the minor children are
F not ordinary residents of the jurisdiction of Family Court, Hyderabad as
defined under Section 9 of the Guardians and Wards Act, 1890 as both
are natural born US citizens and came to India only on 23rd March, 2017
and within 20 days, application came to be filed by the appellant (Lahari
Sakhamuri) on 12th April, 2017 before the Family Court, Hyderabad for
G the custody of the children with ex-parte interim injunction passed by
the learned Court and even from the pleadings, nothing is borne out that
how the Ld. Family Court, Hyderabad was having jurisdiction to entertain
application under Guardians and Wards Act, 1890 and in the given
H
LAHARI SAKHAMURI v. SOBHAN KODALI 263
[RASTOGI, J.]
circumstances, the application filed by the respondent (Sobhan Kodali) A
under Order 7 Rule 11 CPC was arbitrarily rejected by the Ld. Family
Court and that was reviewed by the High Court on the material available
on record and the finding has been recorded holding that the children are
not the ordinary residents of jurisdiction of the Family Court, Hyderabad
where an application was filed by the appellant (Lahari Sakhamuri) for
B
custody of the children and no error was committed by the High Court in
rejecting the application filed by the appellant (Lahari Sakhamuri) under
Guardians and Wards Act, 1890 for lack of jurisdiction and merely because
their marriage was solemnized in Hyderabad would not confer a territorial
jurisdiction to the Family Court, Hyderabad for the purpose of custody
of the minor children under the Guardians and Wards Act, 1890. C
28. Learned counsel further submits that both the issues in respect
of the custody of the minor children and rejection of an application due
to lack of territorial jurisdiction entertained by learned Family Court,
Hyderabad has been discussed in detail under the two separate impugned
judgments by the High Court and needs no further interference of this D
Court.
29. We have heard learned counsel for the parties and with their
assistance perused the record and also the plentitude of judgments cited
of this Court. Before we proceed, it will be appropriate to take note of
what transpired between the hearing of the instant appeals. On 26th E
March, 2018, this Court directed the appellant (Lahari Sakhamuri) and
respondent (Sobhan Kodali) to remain personally present on the next
date of hearing which was 9th April, 2018. During pendency of the
proceedings, respondent (Sobhan Kodali) was allowed to meet children
possibly keeping in view the amicable solution, if possible, to be arrived
at between the parties and at one stage by Order dated 12th October, F
2018, the parties were granted liberty to resolve their issues inter se
amicably and to facilitate the parties in arriving at an amicable solution,
a senior counsel was requested to mediate which was voluntarily accepted
by the parties. Pursuant thereto, possibilities of settlements were explored
and at one stage, settlement was also arrived at possibly acceptable to G
the parties as it reveals from the Order dated 29th October, 2018 of this
Court. It will be appropriate to quote the extract of the order dated 29th
October, 2018 followed by Order dated 27th November, 2018, which are
as under:-
H
264 SUPREME COURT REPORTS [2019] 5 S.C.R.
A Order dated 29th October, 2018
“Both the respondent/husband and petitioner/wife are
present. We are extremely happy that they have decided to forgive
each other, forget the past and take their family life forward.
Mrs. Lahri Sakhamuri/petitioner has submitted that she
B will withdraw all the cases filed by her in India and abroad and
she does not want to pursue any criminal proceedings.
Since Mr. Sobhan Kodali/respondent has to go back to
United States tomorrow i.e. on 30.10.2018, post this matter on
14.11.2018 for formal orders, on the basis of the arrangement the
C parties have jointly made.
We stay all the pending cases between Mrs. Lahari
Sakhamuri and Sobhan Kodali, both civil and criminal.
We also restrain them from instituting any case against
D each other or the members of their family or filing any petition/
complaint against each other or their family members, without
express permission from this Court.
We record our appreciation for the strenuous efforts taken
by Mr. Gurukrishna Kumar, learned senior counsel, for facilitating
the reconciliation.”
E
Order dated 27th November, 2018
“Learned counsel for both sides on instructions submit that
they will withdraw all the cases filed against each other either in
India or in United States.
F We direct the petitioner-Mrs. Lahari Sakhamuri to withdraw
all the cases in both the jurisdictions within a period of one week
from today. Let the respondent also withdraw all the cases filed
both in India or in United States within the same period of time.
Learned counsel for the respondent-husband on instructions
G submits that within 10 days, he will arrange for the passport of the
minor child-Arthin from U.S. Consulate. It is also stated that
husband will take all necessary steps for resolving all issues, if
any, pertaining to the immigration and Visa status of the petitioner
within the same period of time.
H
LAHARI SAKHAMURI v. SOBHAN KODALI 265
[RASTOGI, J.]
Once such issues are cleared, we direct the petitioner to A
travel to U.S. along with her husband and children within a week
of obtaining such clearances.
We record our appreciation for the strenuous efforts taken
by Shri Gurukrishna Kumar, learned senior counsel for assisting
the parties to arrive at an amicable settlement and for reunion. B
List on mentioning by either side.”
30. What unfolded thereafter may not be appropriate for this Court
to take notice but the fact remains that agreement arrived at between
the parties could not be taken to its logical end. It would have been
better and in the interest of the parties themselves to amicably resolve C
their differences for their better future but as they have failed to do so,
the judicial process has to intervene to decide the case on merits based
on judicial precedents.
31. In the instant case, the facts on record clearly manifest that
parties were residing in US since 2004-2005 and their marriage was D
solemnized in Hyderabad on 14th March, 2008. Both the children were
born in US on 14th March, 2012 and 13th October, 2014 and are US
citizens with US passports. Notably, the appellant (Lahari Sakhamuri)
filed application for divorce and custody of minor children in the US
Court on 21st December, 2016 and order came to be passed by the US E
Court on 21st December, 2016. Despite that interim order, the appellant
(Lahari Sakhamuri) came to India on 23rd March, 2017 and within 20
days of her arrival in India, filed an application on 12th April, 2017 for
custody of minor children in the Family Court, Hyderabad 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 dated F
22nd May, 2017 after hearing the counsel for the parties. In the given
facts and circumstances, we find no difficulty in upholding the opinion of
the High Court that the minor children were not ordinary residents of
Hyderabad(India) as envisaged under Section 9(1) of the Guardians and
Wards Act, 1890. Resultantly, the application for custody of minor G
children filed before the Family Court, Hyderabad 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 (Lahari Sakhamuri) who is supposed
to participate in those proceedings. H
266 SUPREME COURT REPORTS [2019] 5 S.C.R.
A 32. The judgment relied upon by the learned counsel for the
appellant of Jasmeet Kaur’s case(supra) may not be of any assistance
for the reason that it was a case where one of the child was born in
India which was one of the reason prevailed upon this Court to hold that
principle of comity of courts or principle of forum convenience cannot
determine the threshold bar of jurisdiction and when paramount
B
consideration is the best interest of the child, it can be the subject-matter
of final determination in proceedings and not under Order 7 Rule 11
CPC. In our considered view, the application for custody of minor children
filed at the instance of the appellant was rightly rejected by the High
Court under the impugned judgment, in consequence thereof, no legal
C proceedings in reference to custody of the minor children remain pending
in India.
33. The custody of minor children has been considered difficult in
adjudication by the Courts apart from raising delicate issues, especially
when the spouses are non-resident Indians(NRIs).
D 34. This Court in Surinder Kaur Sandhu’s case(supra) was
concerned with the custody of a child who was British citizen by birth
whose parents had been settled in England after their marriage. A child
was removed by the husband from the house and was brought to India.
The wife obtained a judicial order from the UK Court whereby the
E husband was directed to hand over the custody of a child to her. The
said order was later confirmed by Court of England and thereafter the
wife came to India and filed a writ petition in the High Court of Punjab
and Haryana praying for custody and production of the child which came
to be dismissed against which the wife appealed to this Court. This
Court keeping in view the ‘welfare of the child’, ‘comity of courts’ and
F ‘jurisdiction of the State which has most intimate contact with the issues
arising in the case’ held thus:-
“10. We may add that the spouses had set up their matrimonial
home in England where the wife was working as a clerk and the
husband as a bus driver. The boy is a British citizen, having been
G born in England, and he holds a British passport. It cannot be
controverted that, in these circumstances, the English Court had
jurisdiction to decide the question of his custody. The modern
theory of Conflict of Laws recognises and, in any event, prefers
the jurisdiction of the State which has the most intimate contact
H
LAHARI SAKHAMURI v. SOBHAN KODALI 267
[RASTOGI, J.]
with the issues arising in the case. Jurisdiction is not attracted by A
the operation or creation of fortuitous circumstances such as the
circumstance as to where the child, whose custody is in issue, is
brought or for the time being lodged. To allow the assumption of
jurisdiction by another State in such circumstances will only result
in encouraging forum-shopping. Ordinarily, jurisdiction must follow
B
upon functional lines. That is to say, for example, that in matters
relating to matrimony and custody, the law of that place must
govern which has the closest concern with the well-being of the
spouses and the welfare of the offsprings of marriage. The spouses
in this case had made England their home where this boy was
born to them. The father cannot deprive the English Court of its C
jurisdiction to decide upon his custody by removing him to India,
not in the normal movement of the matrimonial home but, by an
act which was gravely detrimental to the peace of that home.
The fact that the matrimonial home of the spouses was in England,
establishes sufficient contacts or ties with that State in order to
D
make it reasonable and just for the courts of that State to assume
jurisdiction to enforce obligations which were incurred therein by
the spouses(See International Shoe Company v. State of
Washington [90 L Ed 95 (1945) : 326 US 310] which was not a
matrimonial case but which is regarded as the fountainhead of
the subsequent developments of jurisdictional issues like the one E
involved in the instant case.) It is our duty and function to protect
the wife against the burden of litigating in an inconvenient forum
which she and her husband had left voluntarily in order to make
their living in England, where they gave birth to this unfortunate
boy.”
F
35. In Elizabeth Dinshaw’s case(supra), this Court held that it is
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 and was guided by the factors such as the longer
time spent by the child in the US in which the child was born and became
US citizen and also the fact that the child has not taken roots in India and G
was still not accustomed and acclimatized to the conditions and
environment obtaining in the place of his origin in the United States of
America. This Court took note of the fact that the child’s presence in
India is the result of an illegal act of abduction and the father who is
H
268 SUPREME COURT REPORTS [2019] 5 S.C.R.
A guilty of the said act cannot claim any advantage by stating that he has
already put the child in some school in Pune.
36. In V. Ravi Chandran(Dr.)’s case(supra), this Court was
concerned with the custody of the child removed by a parent from one
country to another in contravention of the orders of the Court where the
B parties had set up their matrimonial home. This Court took note of the
English decisions, namely L(Minors) in re7 and McKee Vs. McKee8
and also noticed the decision of this Court in Elizabeth Dinshaw’s
case(supra) and Dhanwanti Joshi Vs. Madhav Unde9 keeping into
consideration the fact that the child was left with his mother in India for
nearly twelve years, this Court held that it would not exercise its
C jurisdiction summarily to return the child to the US on the ground that his
removal from US in 1984 was contrary to the orders of US Courts. The
relevant portion is as under:-
“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
D of the court where the parties had set up their matrimonial home,
the court in the country to which the child has been removed must
first 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
E 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
F 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.
G 30. However, in a case where the court decides to exercise its
jurisdiction summarily to return the child to his own country,
7
(1974) 1 All ER 913(CA)
8(
1951) AC 352
9
H 1998(1) SCC 112
LAHARI SAKHAMURI v. SOBHAN KODALI 269
[RASTOGI, J.]
keeping in view the jurisdiction of the court in the native country A
which has the closest concern and the most intimate contact with
the issues arising in the case, the court may leave the aspects
relating to the welfare of the child to be investigated by the court
in his own native country as that could be in the best interests of
the child. The indication given in McKee v. McKee [1951 AC 352
B
: (1951) 1 All ER 942 (PC)] that there may be cases in which it is
proper for a court in one jurisdiction to make an order directing
that a child be returned to a foreign jurisdiction without investigating
the merits of the dispute relating to the care of the child on the
ground that such an order is in the best interests of the child has
been explained in L (Minors), In re [(1974) 1 WLR 250 : (1974) C
1 All ER 913 (CA)] and the said view has been approved by this
Court in Dhanwanti Joshi [(1998) 1 SCC 112] . Similar view
taken by the Court of Appeal in H. (Infants), In re [(1966) 1
WLR 381 (Ch & CA) : (1966) 1 All ER 886 (CA)] has been
approved by this Court in Elizabeth Dinshaw [(1987) 1 SCC 42
D
: 1987 SCC (Cri) 13].”
37. This Court once again reiterated the principles of the closest
concern, most intimate contact with the issues arising in the case, natural
habitat of the minor child, best interest of the child and comity of Courts.
This Court eventually directed the child to be taken to US from where
he was removed to enable the parties to establish their right in the native E
state of the child, i.e. US.
38. In Surya Vadanan’s case(supra), it was a case where the
spouses were of Indian origin and later the husband became the citizen
of UK. They got married in India and had two daughters in UK. The
wife also became a British citizen and had a British passport. After F
matrimonial dispute arose between them, the wife returned to India with
her daughters and filed a petition under Section 13(1)(ia) of the Hindu
Marriage Act, 1955 seeking divorce in the Family Court. At the same
time, husband filed a petition in the High Court of Justice. The said
Court had passed an order making the children wards of the Court during G
their minority or until further orders of the court and the wife was directed
to return the children to the jurisdiction of the foreign court. This Court
applied the principles of (i) “the first strike”, i.e the UK Court had passed
effective and substantial order declaring the children of the parties as
wards of that court, (ii) the comity of courts and (iii) the best interest and
H
270 SUPREME COURT REPORTS [2019] 5 S.C.R.
A welfare of the child. It also held that the “most intimate contact” doctrine
and the “closest concern” laid down in Surinder Kaur Sandhu’s
case(supra) are very much alive and cannot be ignored only because
their application might be uncomfortable in certain situations. The Court
also reiterated that the best interest and welfare of the child are of
paramount importance which shall always be kept in mind by the courts
B
while adjudicating the disputes.
39. This was followed by a three Judge Bench of this Court in
Nithya Anand Raghavan’s case(supra) in which one of us(Justice
Khanwilkar) was a party. In that case, the couple married on 30th
November, 2006 at Chennai and shifted to UK in early 2007. Disputes
C arose between the spouse. The wife had conceived in December, 2008
came to New Delhi in June 2009 and stayed there with her parents and
she gave birth to a girl child in August, 2009 at Delhi. After the husband
arrived in India, the couple went back to UK in March, 2010 and following
certain unsavoury events, the wife and the daughter returned to India in
D August 2010. After exchange of legal correspondence, the wife and
her daughter went back to London in December 2011. In July, 2014, the
wife returned to India along with her daughter and early 2015 the child
became ill and was diagnosed with cardiac disorder and due to the alleged
violent behavior of her husband filed complaint against him at the GAW
Cell, New Delhi. In 2016, husband filed custody/wardship petition in
E UK to seek return of the child. He also filed habeas corpus petition in
2017 in Delhi High Court which was allowed. The matter was brought
before this Court by the wife. This Court heavily relied upon its earlier
judgment in Dhanwanti Joshi’s case(supra) which in turn referred to
Mckee’s case(supra) where the Privy Council held that the order of
F foreign court would yield to the welfare of the child and that the comity
of courts demanded not its enforcement, but its grave consideration.
This Court also relied upon the judgment in V. Ravi Chandran’s
case(supra) and held that the role of the High Court in examining the
cases of custody of a minor is on the touchstone of principle of parents
patriae jurisdiction, as the minor is within the jurisdiction of the Court.
G This Court further held that the High Court while dealing with the petition
for issuance of habeas corpus concerning a minor child in a given case,
may direct return of the child or decline to change the custody of the
child keeping in mind all the attending facts and circumstances into
consideration. It was held further by this Court that each case must
H
LAHARI SAKHAMURI v. SOBHAN KODALI 271
[RASTOGI, J.]
depend on the totality of the facts and circumstances brought before it A
while considering the welfare of the child which is of paramount
consideration and the order of the foreign Court must yield to the welfare
of the child and the remedy of writ of habeas corpus cannot be used for
mere enforcement of the directions given by the foreign court against a
person within its jurisdiction and convert that jurisdiction into that of an
B
executing court. It was further observed that writ petitioner can take
recourse to such other remedy as may be permissible in law for
enforcement of the order passed by the foreign court or resort to any
proceedings as may be permissible in law before the Indian Court for
the custody of the child, if so advised. This Court has disapproved
paragraph 56 (a) to (d) in Surya Vadanan’s case(supra) which reads C
as follows:-
“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 D
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. E
(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 F
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. [Arathi Bandi v. Bandi
Jagadrakshaka Rao, (2013) 15 SCC 790 : (2014) 5 SCC (Civ)
475] In such cases, the domestic court is also obliged to ensure G
the physical safety of the parent.
(d) The alacrity with which the parent moves the foreign court
concerned or the domestic court concerned, is also relevant. If
the time gap is unusually large and is not reasonably explainable
H
272 SUPREME COURT REPORTS [2019] 5 S.C.R.
A and the child has developed firm roots in India, the domestic court
may be well advised to conduct an elaborate inquiry.”
40. As regards clauses (a) to (c) of paragraph 56 above, this
Court termed the same as tending to drift away from the exposition in
Dhanwanti Joshi’s case(supra) and V. Ravi Chandran’s case(supra)
B and with regard to clause (d), this Court disagreed with the same, and it
was finally concluded as under:-
“69. We once again reiterate that the exposition in Dhanwanti
Joshi [Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112]
is a good law and has been quoted with approval by a three-Judge
C Bench of this Court in V. Ravi Chandran (2) [V. Ravi Chandran
(2) v. Union of India, (2010) 1 SCC 174 : (2010) 1 SCC (Civ)
44] . We approve the view taken in Dhanwanti Joshi, inter alia,
in para 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
D 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
E 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
F is moved promptly and quickly. The overriding consideration must
be the interests and welfare of the child.”
41. The essence of the judgment in Nithya Anand Raghavan’s
case(supra) is that the doctrines of comity of courts, intimate connect,
orders passed by foreign courts having jurisdiction in the matter regarding
G 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.
10
H 2018(9) SCC 578
LAHARI SAKHAMURI v. SOBHAN KODALI 273
[RASTOGI, J.]
42. In Kanika Goel Vs. State of Delhi through Station House A
Officer and another10 in which one of us(Justice Khanwilkar) is a
member, the marriage of the couple was solemnized in New Delhi and
accordingly girl child was born in US in 2014. The mother along with
the child came to India in December, 2016 with their return ticket to
Chicago in January 2017. She filed a divorce petition after coming to
B
India in Delhi and husband filed emergency custody petition in US Court.
Wife obtained an ex-parte order from Family Court, Delhi restraining
husband from removing the child from India on 11th January, 2017.
Husband obtained ex-parte order for interim sole custody on 13th January,
2017 from foreign Court. At the same time, husband filed Habeas Corpus
Petition in Delhi High Court which ordered the mother to comply with C
the order of UK Court. This Court, after taking into consideration totality
of facts and circumstances, observed that the custody of the minor girl
child to remain with the appellant mother until she attains the age of
majority or the court of competent jurisdiction, trying the issue of custody
of the minor.
D
43. 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 E
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”.
44. We shall now consider as to whether the facts and
circumstances of the present case warrant summary enquiry into the F
question of custody of minor children, namely, Arthin and Neysa (as no
legal proceedings between the parties remain pending in India) or whether
an elaborate enquiry procedure will be necessary for entrustment of
custody of the two minor children to the appellant (Lahari Sakhamuri)
until they are produced before the US Court. G
45. Indisputedly, the appellant (Lahari Sakhamuri) and respondent
(Sobhan Kodali) both were residing in US since 2004-2005 and are well
educated as the appellant (Lahari Sakhamuri) did Biomedical Engineering
and the respondent (Sobhan Kodali) is a Cardiologist by profession. Their
marriage was solemnized on 14th March, 2008 and two loving children H
274 SUPREME COURT REPORTS [2019] 5 S.C.R.
A namely, Arthin and Neysa, were born from this wedlock in US on 14th
March, 2012 and 13th October 2014. Both have started going to school.
They purchased a house in their joint name and moved to the new house
in January, 2016. Something must have been gone wrong between them
which compelled the appellant (Lahari Sakhamuri) in filing a divorce
and custody petition of the minor children in the Court of Common Pleas
B
of Lehigh County, Pennsylvania Civil Division on 21st December, 2016,
seeking divorce, equitable distribution of marital property, primary physical
and shared legal custody of the minor children. In the divorce petition,
the appellant (Lahari Sakhamuri) made a specific averment about the
permanent residence in US for both the parties and securing children’s
C custody and also admitted that both the minor children were residing in
US. It was also admitted that both the children were in joint custody of
the appellant (Lahari Sakhamuri) and respondent (Sobhan Kodali) and
they resided at 2085, Bellflower Lane, Canter Valley, Pennsylvania 18034.
46. It was her own admission in the declaration form annexed to
D the application that no mode of domestic violence or abuse was ever
subjected upon her or upon the minor children by the respondent (Sobhan
Kodali). The respondent (Sobhan Kodali) had purchased to and fro
tickets of the appellant (Lahari Sakhamuri) and of minor children as also
of his mother in law who was staying together in their matrimonial home,
US with return tickets of 24th April, 2017 but after coming to India on
E 23 rd March, 2017, because of the alleged death of her maternal
grandmother, the appellant (Lahari Sakhamuri) refused to return back
and was advised to file a Guardianship Petition before the Family Court,
Hyderabad on 12th April, 2017 and took the ex-parte order concealing
the material facts from the Family Court that such a petition is pending
F in US filed at her instance and there was an order passed on 21st
December, 2016 restraining both the parties not to change residence of
the children which would affect the other parties ability to exercise
custodial rights.
47. It is not in dispute that both the minor children, from the very
G inception of their birth, till removal from the US on 23rd March, 2017
were living with their parents in US. This fact was admitted by the
appellant (Lahari Sakhamuri) also in the guardianship petition filed before
the Family Court, Hyderabad and also in the divorce and custody petition
filed by her in US and only after hearing learned counsel for the parties,
order was passed by the US Court on 22nd May, 2017 on the emergency
H
LAHARI SAKHAMURI v. SOBHAN KODALI 275
[RASTOGI, J.]
custody petition granting temporary physical custody of the children with A
further direction to the appellant (Lahari Sakhamuri) 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
B
order of the Court. Since the appellant (Lahari Sakhamuri) 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
(Sobhan Kodali) 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. C
48. 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 D
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 9th March, 2018 permitting the
respondent (Sobhan Kodali) to apply for US passports on behalf of the E
minor children without appellant (Lahari Sakhamuri) being mother’s
consent. The appellant (Lahari Sakhamuri) 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. F
49. 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 G
sufficiency and last but not the least the factors involving relationship
with the child, as opposed to characteristics of the parent as an individual.
50. While dealing with the younger tender year doctrine, Janusz
Korczar a famous Polish-Jewish educator & children’s author observed
“children cannot wait too long and they are not people of tomorrow, but H
276 SUPREME COURT REPORTS [2019] 5 S.C.R.
A are people of today. They have a right to be taken seriously, and to be
treated with tenderness and respect. They should be allowed to grow
into whoever they are meant to be - the unknown person inside each of
them is our hope for the future.” 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
B
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.
51. The doctrines of comity of courts, intimate connect, orders
passed by foreign courts having jurisdiction in the matter regarding custody
C 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, we are
D 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 (Sobhan Kodali) and that has been looked into by the High
Court in the impugned judgment in detail. That needs no interference
E under Article 136 of the Constitution of India.
52. Before we conclude, we would like to observe that it is much
required to express our deep concern on the issue. Divorce and custody
battles can become quagmire and it is heart wrenching to see that the
innocent child is the ultimate sufferer who gets caught up in the legal
F and psychological battle between the parents. The eventful agreement
about custody may often be a reflection of the parents’ interests, rather
than the child’s. The issue in a child custody dispute is what will become
of the child, but ordinarily the child is not a true participant in the process.
While the best-interests principle requires that the primary focus be on
G the interests of the child, the child ordinarily does not define those interests
himself or does he have representation in the ordinary sense.
53. The child’s psychological balance is deeply affected through
the marital disruption and adjustment for changes is affected by the way
parents continue positive relationships with their children. To focus on
H the child rights in case of parental conflict is a proactive step towards
LAHARI SAKHAMURI v. SOBHAN KODALI 277
[RASTOGI, J.]
looking into this special situation demanding a specific articulation of A
child rights.
54. 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 B
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.
55. In the present case, there is every possibility that the parties C
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 D
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 E
give their children a happy home to which they are justly entitled to. We
hope and trust that the parties will forget and forgive their differences
and join hands together in providing the congenial atmosphere which
may be good not for themselves but also for the development of their
minor children.
F
56. In our view, 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.
G
57. We accordingly direct the appellant (Lahari Sakhamuri) to
return to US along with both the children, namely, Arthin and Neysa,
within a period of six weeks from today. We further direct respondent
(Sobhan Kodali) to make all arrangements of stay and travel
expenses(including air tickets) of the appellant (Lahari Sakhamuri) and
H
278 SUPREME COURT REPORTS [2019] 5 S.C.R.
A 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 (Lahari Sakhamuri) 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 (Sobhan Kodali) shall deposit a
B
sum of Rs. 15 lakhs in the bank account of the appellant (Lahari
Sakhamuri) and proof of deposit shall be placed in the Registry of the
High Court of Andhra Pradesh who shall thereupon call upon the Consulate
General of the US at Hyderabad to take the custody of the minor children,
namely, Arthin and Neysa, along with their passports and other travel
C documents from the appellant (Lahari Sakhamuri) and hand over the
same to the respondent (Sobhan Kodali) with a condition for taking the
custody of the minor children (Arthin and Neysa) 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 (Lahari
Sakhamuri) will be at liberty to utilize the money deposited by the
D
respondent (Sobhan Kodali) in connection with her visit to US, if so
desired, in future and the respondent (Sobhan Kodali) shall not take any
coercive steps against her which in any manner may result in adverse
consequences.
58. It is further made clear that the observations which has been
E made by us are only for the limited purpose of engaging in summary
inquiry for consideration in the petition of Habeas Corpus and will be of
no assistance to either party in the custody proceedings pending in the
US Court which indeed will be decided on its own merits.
59. While parting, we express our word of gratitude for the sincere
F efforts put in by Mr. Gurukrishna Kumar, Senior Advocate, in persuading
the parties to arrive at an amicable settlement.
60. Consequently, Civil Appeals arising out of SLP(Civil) Nos.
15892-15893 of 2018 are dismissed. No costs.
G 61. The Criminal Appeal arising out of SLP(Crl.) No. 2316 of
2018 stands disposed of in the above terms.
62. Pending application(s), if any, stand disposed of.
Kalpana K. Tripathy Appeals disposed of.
H
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