Supreme Court of India
MRS. KANIKA GOELversusSTATE OF DELHI THROUGH S.H.O. AND ANR.
- Citation
- 2018 INSC 622
- Decided
- 20 July 2018
- Disposal
- Appeal(s) allowed
- Bench
- DIPAK MISRA
Holding
The Supreme Court held that the minor child’s custody remains with the mother in India until a competent court decides otherwise, and the High Court’s order directing her return to the United States was set aside.
Summary
The case involved a US‑born minor girl, M, whose mother (the appellant) fled the United States with her to India and filed for divorce. The father (respondent No.2) obtained a US custody order and sought a writ of habeas corpus in Delhi to have the child returned to the US. The Delhi High Court ordered her return, but the Supreme Court set aside that order, holding that the mother’s custody is lawful and that the best‑interest of the child requires she remain with her mother in India until a competent court decides otherwise, with visitation rights to the father. The Court emphasized that the High Court must consider the totality of facts, not merely the foreign court’s order, and that the child’s welfare, not parental rights, is paramount. It also directed that the pending family‑court proceedings in Delhi be resolved first and that the father bear the costs of any US litigation. The appeals were allowed and the writ petition disposed.
Issues considered
- The legality of the mother’s custody of the minor child under Indian law.
- Whether the Delhi High Court could order the child’s return to the United States in a habeas corpus petition.
- How the best‑interest of the child principle applies when the child is a foreign citizen and a foreign custody order exists.
- Jurisdiction of Indian courts versus US courts in determining custody of a child born abroad.
Legislation cited
- Code of Civil Procedure, 1908s. Section 151
- Constitution of Indias. Article 226
- Hindu Marriage Act, 1955s. Section 13(1), s. Section 26
- Juvenile Justice (Care and Protection of Children) Act, 2015
Subjects
custodyminor childhabeas corpusbest interest of the childjurisdictioninternational child abductionfamily lawparental rightsUS‑India legal conflict
Judgment
546 [2018] REPORTS
SUPREME COURT 11 S.C.R. 546 [2018] 11 S.C.R.
A MRS. KANIKA GOEL
v.
STATE OF DELHI THROUGH S.H.O. AND ANR.
(Criminal Appeal No. 635-640 of 2018)
B JULY 20, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Custody: Custody of minor girl child – Claim of – On facts,
marriage of appellant-wife and respondent No.2-husband as per
C
Sikh rites and Hindu Vedic rites in New Delhi – After three months
the parties performed a civil marriage in USA – Birth of girl child
M – Appellant fled from US with the minor daughter and filed divorce
petition in Delhi – Respondent no. 2 filed custody proceeding in US
and got a custody order – However, non-compliance by the appellant
D – Writ petition by respondent no. 2 for issuance of writ of habeas
corpus for production of minor daughter and direction to return
her to the jurisdiction of the court in US in compliance with the
order of the US court – Allowed by the Delhi High Court – On
appeal, held: Court must take into account the totality of the facts
and circumstances whilst ensuring the best interest of the minor
E
child – On facts, there is no compelling reason to direct return of
the minor child to the US nor is her stay in the company of her
mother (appellant), along with maternal grand-parents and extended
family at New Delhi, prejudicial to her in any manner, warranting
her return to the US – Instead of directing the biological mother to
F return to the US along with the minor girl child, so as to appear
before the competent court in the US, the custody of the minor girl
child M to remain with the appellant until she attains the age of
majority or the Court of competent jurisdiction, trying the issue of
custody of the minor child, orders to the contrary, with visitation
and access rights to the biological father whenever he would visit
G
India – A fortiori, dependant on the outcome of the proceedings,
before the Family Court, New Delhi, the appellant to participate
and defend herself in the proceedings before the US Court – Her
litigation, travel expenses and stay in US to be borne by respondent
no.2 – In view thereof, order of the High Court set aside.
H
546
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O. 547
AND ANR.
Allowing the appeals, the Court A
HELD: 1.1 It is not open to contend that the custody of the
female minor child with her biological mother would be unlawful,
for there is presumption to the contrary. In such a case, the High
Court whilst exercising jurisdiction under Article 226 for issuance
of a writ of habeas corpus need not make any further enquiry but B
if it is called upon to consider the prayer for return of the minor
female child to the native country, it has the option to resort to a
summary inquiry or an elaborate inquiry, as may be necessary in
the fact situation of the given case. In the instant case, the High
Court noted that it was not inclined to undertake a detailed inquiry. C
The question is, having said that whether the High Court took
into account irrelevant matters for recording its conclusion that
the minor female child, who was in custody of her biological
mother, should be returned to her native country. The Court must
take into account the totality of the facts and circumstances whilst
ensuring the best interest of the minor child. The High Court in D
the instant case focused primarily on the grievances of the
appellant and while rejecting those grievances, went on to grant
relief to respondent No.2 by directing return of the minor girl
child to her native country. On the totality of the facts and
circumstances, there is nothing to indicate that the native language E
(English) is not spoken or the child has been divorced from the
social customs to which she has been accustomed. Similarly, the
minor child had just entered pre-school in the USA before she
came to New Delhi along with her mother. In that sense, there
was no disruption of her education or being subjected to a foreign
system of education likely to psychologically disturb her. On the F
other hand, the minor child M is under the due care of her mother
and maternal grand-parents and other relatives since her arrival
in New Delhi. If she returns to US as per the relief claimed by the
respondent No.2, she would inevitably be under the care of a
Nanny as the respondent No.2 will be away during the day time
G
for work and no one else from the family would be there at home
to look after her. Placing her under a trained Nanny may not be
harmful as such but it is certainly avoidable. For, there is
likelihood of the minor child being psychologically disturbed after
her separation from her mother, who is the primary care giver to
H
548 SUPREME COURT REPORTS [2018] 11 S.C.R.
A her. In other words, there is no compelling reason to direct return
of the minor child M to the US as prayed by the respondent No.2
nor is her stay in the company of her mother, along with maternal
grand-parents and extended family at New Delhi, prejudicial to
her in any manner, warranting her return to the US. [Para 22]
[580-F-H; 581-A-G]
B
1.2 The issue ought not to be decided on the basis of rights
of the parties claiming custody of the minor child but the focus
should constantly remain on whether the factum of best interest
of the minor child is to return to the native country or otherwise.
C The fact that the minor child will have better prospects upon
return to his/her native country, may be a relevant aspect in a
substantive proceedings for grant of custody of the minor child
but not decisive to examine the threshold issues in a habeas
corpus petition. For the purpose of habeas corpus petition, the
Court ought to focus on the obtaining circumstances of the minor
D child having been removed from the native country and taken to
a place to encounter alien environment, language, custom etc.
interfering with his/her overall growth and grooming and whether
continuance there will be harmful. [Para 23] [581-G-H; 582-A-B]
1.3 The minor child M is a US citizen by birth. She has
E grown up in her native country for over three years before she
was brought to New Delhi by her biological mother (appellant).
She had joined a pre-school in USA. She had healthy bonding
with her father (respondent No.2). Her paternal grand-parents
used to visit her in the USA at some intervals. She was under the
F care of a Nanny during the day time, as her parents were working.
Indeed, the work place of her father is near the home. The
biological father of the minor child M has acquired US citizenship.
Both father and mother of the minor child M were of Indian origin
but domiciled in the USA after marriage. The mother is a
permanent resident of the USA-Green Card holder and has also
G applied for US citizenship. In her affidavit filed before the Delhi
High Court she admits that her legal status was complicated as
she has ceased to be an Indian citizen and her status of citizenship
of the USA is in limbo. [Para 24][582-C-F]
H
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O. 549
AND ANR.
1.4 Given the fact that the parties performed a civil marriage A
in USA and cohabited in the native country and gave birth to
minor child M who grew up in that environment for at least three
years, coupled with the fact that the father and minor child M are
US citizens and mother is a permanent resident of USA, the
closest contact and jurisdiction is possibly that of the Circuit
B
Court of Cook County, Illinois, USA. However, it may not be
understood to have expressed any final opinion in this regard. At
the same time, the appellant and respondent No.2 first got married
as per Sikh rites and Hindu Vedic rites and that marriage was
solemnised in New Delhi at which point of time the appellant was
admittedly a citizen of India. Presently, she is only a Green Card C
holder (permanent resident) of the US. It is, therefore, debatable
whether the Family Court at New Delhi, where the appellant has
already filed a petition for dissolution of marriage, has jurisdiction
in that behalf including to decide on the question of custody and
guardianship in respect of the minor child M. For that reason, it
D
may be appropriate that the said proceedings are decided with
utmost promptitude in the first place before the appellant is called
upon to appear before the US Court and including to produce the
minor child M before that Court. [Para 25] [582-G-H; 583-A-C]
1.5 The appellant and minor child are presently in New
E
Delhi and the appellant has no intention to return to her
matrimonial home in the U.S.A. The appellant has apprehensions
and serious reservations on account of her past experience in
respect of which it is not necessary to dilate in this proceedings.
That is a matter to be considered by the Court of Competent
Jurisdiction called upon to decide the issue of dissolution of F
marriage and/or grant of custody of the minor child, as the case
may be. For the time being, the parties must eschew from
pursuing parallel proceedings in two different countries. For, the
first marriage between the parties was performed in New Delhi
as per Anand Karaj Ceremony and Hindu Vedic rites and the
G
petition for dissolution of marriage has been filed in New Delhi.
Whereas, the civil marriage ceremony took place after four
months in USA. It was performed to complete the formalities for
facilitating the entry of the appellant into the US and to obtain US
Permanent Resident status. It is appropriate that the proceedings
H
550 SUPREME COURT REPORTS [2018] 11 S.C.R.
A pending in the Family Court at New Delhi are decided in the first
place including on the question of jurisdiction of that Court.
Depending on the outcome of the said proceedings, the parties
would be free to pursue such other remedies as may be permissible
in law before the Court of Competent Jurisdiction. [Para 26]
[583-C-G]
B
1.6 It is true that both respondent No.2 and also the minor
child M are US citizens. The minor girl child has a US Passport
and has travelled to India on a tenure Visa which has expired.
That does not mean that she is in unlawful custody of her biological
mother. Her custody with the appellant would nevertheless be
C lawful. The appellant has already instituted divorce proceedings
in the Family Court, New Delhi. The respondent No.2 has also
filed proceedings before the Court in the US for custody of the
minor girl child, directing her return to her natural environment
in the US. In such a situation, the arrangement directed by this
D Court in the case of Nithya Anand Raghavan may be of some
help to pass an appropriate order in the peculiar facts of this
case, instead of directing the biological mother to return to the
US along with the minor girl child, so as to appear before the
competent court in the US. In that, the custody of the minor girl
child M would remain with the appellant until she attains the age
E of majority or the Court of competent jurisdiction, trying the issue
of custody of the minor child, orders to the contrary, with visitation
and access rights to the biological father whenever he would visit
India and in particular as delineated in the interim order. [Para
27] [583-G-H; 584-A-D]
F 1.7 A fortiori, dependant on the outcome of the proceedings,
before the Family Court, New Delhi, the appellant may then be
legally obliged to participate in the proceedings before the US
Court and must take all measures to effectively defend herself in
the said proceedings by engaging solicitors of her choice in the
G USA to espouse her cause before the Circuit Court USA. In that
event, the respondent No.2 shall bear the cost of litigation and
expenses to be incurred by the appellant to pursue the
proceedings before the US Courts, the air fares or purchase the
tickets for the travel of the appellant and the minor child M to
H
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O. 551
AND ANR.
the USA and including their return journey for India, as may be A
required. The respondent No.2 shall also make all suitable
arrangements for the comfortable stay of the appellant and her
companions at an independent place of her choice, at a reasonable
cost. Further, the respondent No.2 shall not initiate any coercive/
penal action against the appellant and if any such proceeding
B
initiated by him in that regard is pending, the same shall be
withdrawn and not pursued before the concerned Court any
further. [Para 28] [584-D-G]
1.8 The appellant and respondent No.2 must ensure early
disposal of the proceedings for grant of custody of the minor girl
child to the appellant, instituted and pending before the Family C
Court, New Delhi. The impugned judgment and orders of the
High Court is set aside and writ petition is disposed of. [Para 29,
30] [584-H; 585-A-B]
K.S. Puttaswamy & Anr. v. Union of India & Ors. (2017)
10 SCC 1; Nithya Anand Raghavan v. State (NCT of D
Delhi) & Anr. (2017) 8 SCC 454; Prateek Gupta v. Shilpi
Gupta & Ors. (2018) 2 SCC 309; Surinder Kaur
Sandhu v. Harbax Singh Sandhu and Anr. (1984) 3 SCC
698: [1984] 3 SCR 422; Aviral Mittal v. State (2009)
112 DRJ 635; Shilpa Aggarwal v. Aviral Mittal and E
Anr. (2010) 1 SCC 591: [2009] 16 SCR 287; Dr. V.
Ravi Chandran v. Union of India & Ors.(2010) 1 SCC
174: [2009] 15 SCR 960 – referred to.
Case Law Reference
(2017) 10 SCC 1 referred to Para 12 F
(2017) 8 SCC 454 referred to Para 12
(2018) 2 SCC 309 referred to Para 12
[1984] 3 SCR 422 referred to Para 16
(2009) 112 DRJ 635 referred to Para 16 G
[2009] 16 SCR 287 referred to Para 16
[2009] 15 SCR 960 referred to Para 16
H
552 SUPREME COURT REPORTS [2018] 11 S.C.R.
A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 635-640 of 2018
From the Judgment and Order dated 16.11.2017, 01.12.2017 and
06.12.2017 of the High Court of Delhi at New Delhi in W.P. (Crl.) No.
374 of 2017 and Crl. M.A. No. 2007 of 2017.
B Ms. Malavika Rajkotia, Lakshmi Raman Singh, Prabhjit Jauhar,
Ms. Upasana Goel, Ms. Aishwarya, S. S. Jauhar, Advs. for the appearing
parties.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J. 1. These appeals take exception to
C the judgment and orders passed by the High Court of Delhi at New
Delhi dated 16th November, 2017, 1st December, 2017 and 6th December,
2017, in Writ Petition (Criminal) No.374 of 2017 and Criminal M.A.
No.2007 of 2017, whereby the writ petition filed by respondent No.2 for
issuing a writ of habeas corpus for production of his minor daughter M
(assumed name), who was about 3 years of age at the time of filing of
D the writ petition and for a direction for return of M to the jurisdiction of
the competent Court in the United States of America in compliance with
the order dated 13th January, 2017 passed by the Circuit Court of Cook
County, Illinois, USA, came to be allowed. The Delhi High Court directed
the appellant to comply with the directions as M was in her custody, the
E appellant being M’s mother.
2. The respondent No.2 asserted that he was born in India but
presently is a citizen of USA since 2005. He is working as the CEO of a
Company called ‘Get Set Learning’. The appellant is his wife and mother
of the minor child M. She is a US Permanent Resident and a “Green
Card” holder and has also applied for US citizenship on 2 nd December,
F
2016. At the relevant time, she was a certified teacher in the State of
Illinois and was employed as a Special Education Classroom Assistant
in Chicago Public Schools. The respondent No.2 and the appellant got
married on 31st December, 2010 as per Sikh rites, i.e. Anand Karaj
ceremony, and Hindu Vedic rites in New Delhi. It was clearly understood
G between both the parties that the appellant, after marriage, would reside
with respondent No.2 in the USA. Eventually, the appellant travelled to
the USA on a Fiance Visa and got married to respondent No.2 again on
19th March, 2011 at Cook County Court in Chicago, Illinois. Before the
marriage, the parties entered into a Pre-Nuptial Agreement dated
20th October, 2010 enforceable in accordance with the laws of the State
H
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O. 553
AND ANR. [A. M. KHANWILKAR, J.]
of Illinois, USA. The appellant then took employment as a teacher in A
Chicago Public School and also secured a US Permanent Citizen Green
Card. The appellant became pregnant and gave birth to M on 15th
February, 2014 in USA. M is thus a natural born US citizen and was
domiciled in the State of Illinois, USA from her birth till she was
clandestinely removed by the appellant in December 2016 under the
B
guise of undertaking a short trip to New Delhi to meet the appellant’s
parents.
3. The appellant was scheduled to return to Chicago on 7th January,
2017 but she went missing and filed a petition under Section 13(1) of the
Hindu Marriage Act, 1955 (for short “the 1955 Act”) being H.M.A.
Case No.27 of 2017 seeking dissolution of marriage on the ground of C
cruelty, along with an application under Section 26 of the 1955 Act on 7th
January, 2017 seeking a restraint order against respondent No.2 from
taking M away from the jurisdiction of Indian Courts. A notice was
issued thereon to respondent No.2, made returnable on 11 th January,
2017. D
4. The respondent No.2, however, filed an emergency petition for
temporary sole allocation of parental responsibilities and parenting time
in his favour or in the alternative, an emergency order of protection for
possession of his minor daughter M, before the Circuit Court of Cook
County, Illinois on 9th January, 2017. A notice of emergency motion was
served on the appellant by e-mail, informing her of the proposed hearing E
on 13th January, 2017.
5. In the meantime, on 11th January, 2017 the Family Court at
New Delhi issued a fresh notice to respondent No.2 and passed an ex-
parte order on the application filed by the appellant under Section 151 of
the Code of Civil Procedure, restraining respondent No.2 from removing F
the minor child from the jurisdiction of that Court until further orders.
6. The respondent No.2 on the other hand, caused to file a missing
person complaint on 13th January, 2017 before the SHO, Vasant Kunj
(South), P.S. New Delhi, which was acknowledged by the Police Station
on 14th January, 2017. Besides the said complaint, respondent No.2 G
moved the Circuit Court of Cook County, Illinois, USA on 13th January,
2017 when an ex-parte order was passed for interim sole custody of the
minor child. The said order reads thus:
“1) The child M born on 15.02.2014, in Chicago, Illinois and having
resided in Chicago solely for her entire life (specifically at 360
East Randolph Street, Chicago, IL 60601) is also a US citizen. H
554 SUPREME COURT REPORTS [2018] 11 S.C.R.
A 2) The child is a habitual resident of the state of Illinois, United
States of America having never resided anywhere else. Illinois is
the home state of the child pursuant to the Uniform Child Custody
Jurisdiction Enforcement Act.
3) Karan Goel is the natural father of the minor child and granted
B interim sole custody of the minor child. Child is to be immediately
returned to the residence located in Cook County, Illinois, USA by
Respondent.
4) The Cook County, Illinois Court having personal and subject
matter jurisdiction over the parties and matter.
C 5) All further issues regarding visitation, child support are reserved
until further Order of Court.”
7. The appellant did not comply with the order of the Circuit Court
of Cook County, Illinois, therefore, respondent No.2 filed a writ petition
before the Delhi High Court on 1st February, 2017, to issue a writ of
D habeas corpus and direct the appellant to produce the minor child M and
cause her return to the jurisdiction of the Court in the United States, in
compliance with the order dated 13th January, 2017 passed by the Circuit
Court of Cook County, Illinois, to enable the minor child to go back to
United States and if the appellant failed to do so within a fixed time
E period, to direct the appellant to immediately hand over the custody of
the minor child to respondent No.2 (writ petitioner) to enable him to take
the minor child to the jurisdiction of the US Court.
8. This writ petition was contested by the appellant. The High
Court issued interim orders including regarding giving access of the minor
F child to respondent No.2 in the presence of the appellant and her parents.
Finally, all the contentious issues between the parties were answered by
the High Court by a speaking judgment and order dated 16th November,
2017, in favour of respondent No.2, after recording a finding that the
paramount interest of the minor child was to return to USA, so that she
could be in her natural environment. To facilitate the parties to have a
G working arrangement and to minimize the inconvenience, the Division
Bench of the High Court issued directions in the following terms:
“139. In the light of the aforesaid, we are more than convinced
that respondent No.2 should, in the best interest of the minor child
M, return to USA along with the child, so that she can be in her
H
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O. 555
AND ANR. [A. M. KHANWILKAR, J.]
natural environment; receive the love, care and attention of her A
father as well – apart from her grandparents, resume her school
and be with her teachers and peers. Pertinently, respondent No.2
is able-bodied, educated, accustomed to living in Chicago, USA,
was gainfully employed and had an income before she came to
India in December 2016 and, thus, she should not have any
B
difficulty in finding her feet in USA. She knows the systems
prevalent in that country, and adjustment for her in that
environment would certainly not be an issue. Accordingly, we
direct respondent no.2 to return to USA with the minor child M.
However, this direction is conditional on the conditions laid down
hereinafter. C
140. Respondent No.2 has raised certain issues which need to be
addressed, so that when she returns to USA, she and the minor
child do not find themselves to be in a hostile or disadvantageous
environment. There can be no doubt that the return of respondent
No.2 with the minor child should be at the expense of the petitioner; D
their initial stay in Chicago, USA, should also be entirely funded
and taken care of by the petitioner by providing a separate furnished
accommodation (with all basic amenities & facilities such as water,
electricity, internet connection, etc.) for the two of them in the
vicinity of the matrimonial home of the parties, wherein they have
lived till December 2016. Thus, it should be the obligation of the E
petitioner to provide reasonable accommodation sufficient to cater
to the needs of respondent No.2 and the minor child. Since
respondent No.2 came to India in December 2016 and would,
therefore, not have retained her job, the petitioner should also
meet all the expenses of respondent No.2 and the minor child, F
including the expenses towards their food, clothing and shelter, at
least for the initial period of six months, or till such time as
respondent No.2 finds a suitable job for herself. Even after
respondent No.2 were to find a job, it should be the responsibility
of the petitioner to meet the expenses of the minor daughter M,
including the expenses towards her schooling, other extra-curricular G
activities, transportation, Attendant/ Nanny and the like, which
even earlier were being borne by the petitioner. The petitioner
should also arrange a vehicle, so that respondent No.2 is able to
move around to attend to her chores and responsibilities.
H
556 SUPREME COURT REPORTS [2018] 11 S.C.R.
A 141. Considering that the petitioner had initiated proceedings in
USA and the respondent No.2 has been asked to appear before
the Court to defend those proceedings, the petitioner should also
meet the legal expenses that respondent No.2 may incur, till the
time she is not able to find a suitable job for herself. However, if
respondent no.2 is entitled to legal aid/assurance from the State,
B
to the extent the legal aid is provided to her, the legal expenses
may not be borne by the petitioner.
142. The petitioner should also undertake that after the return of
the minor child M with respondent No.2 to USA, the custody of
M shall remain with respondent No.2 and that he shall not take
C the minor child out of the said custody by use of force. He should
also undertake that after respondent No.2 lands in Chicago, USA,
the visitation and custody rights qua the parties, as may be
determined by the competent Court in USA, shall be honoured.
143. Respondent No.2 has also expressed apprehension that the
D petitioner would seek to enforce the terms of the Pre-Nuptial
Agreement entered into between the parties. Since the said
agreement has been entered into in India, its validity has to be
tested as per the Indian law. Respondent No.2 has already initiated
suit for declaration and permanent injunction to challenge the said
E Pre-Nuptial Agreement dated 22.10.2010. We have perused the
said agreement and we are of the view the petitioner should not
be permitted to enforce the terms of this agreement in USA, at
least till the said suit preferred by the respondent No.2 is decided.
The petitioner should, therefore, give an undertaking to this Court,
not to rely upon or enforce the said Pre-Nuptial Agreement to the
F detriment of respondent No.2 in any proceedings either in USA,
or in India. The undertaking shall remain in force till the decision
in the suit for declaration and injunction filed by respondent No.2
challenging validity of the Pre-Nuptial Agreement. This undertaking
shall, however, not come in the way of the petitioner while
G defending the said suit of the respondent No.2.
144. With the aforesaid arrangements and directions, in our view,
respondent No.2 can possibly have no objection to return to USA
with M. The comfort that we have sought to provide to respondent
No.2, as aforesaid, is to enable her to have a soft landing when
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MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O. 557
AND ANR. [A. M. KHANWILKAR, J.]
she reaches the shores of USA, so that the initial period of at A
least six months is taken care of for her, during which period she
could find her feet and live on her own, or under an arrangement
as may be determined by the competent Courts in USA during
this period. At this stage, we are not inclined to direct that the
custody of M be given to the petitioner so that he takes her back
B
to USA. M is a small child less than 4 years of age, and that too,
is a female child. Though she may be attached to the petitioner –
her father, she is bound to need her mother – respondent no.2
more. In our view, once M returns to USA with her mother, i.e.
respondent No.2, orders for custody or co-parenting should be
obtained by the parties from the competent Courts in USA. C
Moreover, it would be for the Courts in USA to eventually rule on
the aspect concerning the financial obligations and responsibilities
of the parties towards each other and towards the minor child M
– for upbringing the minor child – M independent of any directions
issued by this Court in this regard.
D
145. The petitioner is directed to file his affidavit of undertaking in
terms of paras 140 to 144 above within ten days with advance
copy of the respondents. The matter be listed on 01.12.2017 for
our perusal of the affidavit of undertaking, and for passing of final
orders.”
E
9. By this judgment and order passed by the High Court and the
directions issued, as reproduced hitherto, the substantive issues inter se
the parties were answered against the appellant to the extent indicated.
In continuation of the aforementioned directions, a further order was
passed on 1st December, 2017 by the High Court which reads thus:
F
“1. In terms of the directions contained in our judgment dated
16.11.2017, the petitioner Karan Goel has filed the affidavit dated
20.11.2017. A perusal of the affidavit shows that the petitioner
has undertaken and consented to abide by all the conditions imposed
upon him, so that respondent no.2 could return to USA with the
minor child. G
2. Respondent no.2 has also filed a counter-affidavit to the said
affidavit of the petitioner. Respondent no.2 has raised the issue
that the petitioner has not particularized the amounts and facilities
H
558 SUPREME COURT REPORTS [2018] 11 S.C.R.
A that the petitioner would provide in case respondent no. 2 were to
return to USA with the minor child.
3. The petitioner is present in Court with his parents. The petitioner
has tendered in Court the details/particulars of the proposed
financial aid in terms of our judgment. The said details/ particulars
B read as follows:
‘1. Upon Respondent No.2 giving a date/this Hon’ble Court
fixing a date on which she and minor child M will depart from
Delhi for Chicago, Illinois, USA, the Petitioner shall do the
following at least 3 [three] days prior to their departure date:-
C (i) Book airline tickets on United Airlines with a non-stop flight
from Delhi to USA for minor child M and Respondent No.2;
(ii) Provide a hotel room at The Hyatt Regency (located ~7
minute walk from minor child M’s preschool) for the first seven
(7) days after landing in Chicago to enable Respondent No.2
D to sign leases for (a) accommodation and (b) a car; and
2. The Petitioner is/ was already paying [directly out of his
salary] the following amounts for minor child M and shall
continue to do so in compliance of the directions of this Hon’ble
Court (all amounts in US Dollars = USD):-
E
(i) ~$2,100/month Preschool tuition at Bright Horizons
Lakeshore East where she was enrolled five days a week;
and
(ii) ~$232/month for health insurance via Blue Cross Blue
Shield of Illinois.
F
3. In addition to point 2 above, the Petitioner shall pay the
following amounts (all amounts in US Dollars =USD) for a
total of $4,200/month to Respondent No.2 in advance for the
first month [by transferring the said amount into a joint account
prior to Respondent No.2 and minor child M taking off from
G Delhi] and thereafter by the 28th of every month for the
subsequent month [for the initial period of six months]:-
(i) $2,600/month as rent for a fully furnished apartment with
high-speed internet, air conditioning and heating, water, garbage
disposal, and parking for a vehicle;
H
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O. 559
AND ANR. [A. M. KHANWILKAR, J.]
(ii) $400/month for Respondent No. 2’s health insurance; A
(iii) $1,000/month in expenses for food, shelter, and clothing
for minor child M and Respondent No. 2; and
(iv) $200/month for a car lease and car insurance.
4. In case legal aid / assurance is not available / provided to B
Respondent No.2, the Petitioner shall give an additional amount
of $1,500/ month to Respondent No.2 for her legal expenses
for the first six months after her and minor child M’s return to
Chicago, Illinois, USA’.
4. We have also separately recorded the statement of petitioner C
on oath, wherein he has undertaken to this Court to abide by the
offer made by him in terms of our decision. He has also undertaken
that in case of any breach of the said stipulation, respondent no.2
may enforce the same before the competent Court in USA.
5. To ensure compliance of the aforesaid obligation, the petitioner D
has offered that he shall deposit an amount US$ 25,000 in an
escrow account, which shall be operated upon orders of the
competent Court in Cook County, Illinois, USA. The said account
shall be operatable at the instance of respondent no.2 in case of
non compliance of any of the condition and to the extent it becomes
necessary, under the orders of the said Court. E
6. The petitioner seeks a short adjournment to produce the relevant
documents in that regard before this Court.
7. Since the petitioner and his parents are in India, and it is submitted
that the petitioner has not met his minor daughter since March
F
2017, it is agreed that the petitioner and his parents shall be allowed
to meet the minor child M today, tomorrow and day after tomorrow
at DLF Promenade Mall, Vasant Kunj, New Delhi.
8. Today’s meeting shall take place between 6:00 p.m. to 8:00
p.m., and on Saturday and Sunday, the meeting shall take place
from 11:00 a.m. to 2:00 p.m. The petitioner has desired that the G
meeting may take place exclusively.
9. Since respondent no.2 has apprehensions, the petitioner has
offered to and has deposited his American Passport with the Court
Master. The Court Master shall seal the same in Court and
H
560 SUPREME COURT REPORTS [2018] 11 S.C.R.
A thereafter the same be handed over to the Deputy Registrar
concerned to be kept in safe custody. The same shall not be parted
with unless so ordered by this Court.
10. The petitioner has assured that the child shall not be taken
away unauthorisedly and shall be duly returned to respondent no.2
B at the end of the meeting on each date.
11. List on 06.12.2017 for further directions. On the next date, the
child may be brought to the Court so that the petitioner and his
parents are able to meet the child in the Children’s Room at the
Mediation Centre between 2:30 p.m. to 4:30 p.m.
C 12. Order dasti under the signatures of the Court Master.”
10. Again, on 6th December, 2017, another order was passed to
formally dispose of the writ petition finally in the following terms:
1. “Mr. Jauhar has tendered in Court the affidavit of undertaking
sworn by the petitioner along with three annexures, which are:
D
(i) A statement from Citibank, USA in respect of joint account
held by the petitioner and respondent No.2;
(ii) An affidavit of Molshree A., Sharma, ESQ., a partner at the
law firm of Mandel, Lipton, Roseborough & Sharma Ltd., based
in Chicago; and
E
(iii) Documents to show deposit of US$25,000 in an escrow
account operated by the aforesaid law firm.
2. The petitioner has stated that he has already deposited
US$25,000 into his attorney’s escrow account. The affidavit of
F Molshree A., Sharma affirms that the said escrow account may
be operated by respondent No.2/ Kanika Goel in the event of
failure of the petitioner/ Karan Goel in meeting his obligations as
per his undertaking given to this Court.
3. We are satisfied with the aforesaid arrangement made by the
G petitioner to secure the interests of respondent No.2 and the minor
child in terms of our decision dated 16.11.2017.
4. In these circumstances, we now direct respondent No.2 to
return to USA along with the minor child M within two weeks
from today, failing which the minor child M shall be handed over
to the petitioner, to be taken to USA.
H
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O. 561
AND ANR. [A. M. KHANWILKAR, J.]
5. We may observe that learned counsel for respondent No.2 has A
sought more time on the ground that respondent No.2 wishes to
assail the decision dated 16.11.2017 and that the Supreme Court
shall be closed for Winter Vacation in later part of December,
2017 and early part of January, 2018. However, we are not inclined
to grant any further time for the reason that it is imperative for
B
respondent No.2 to return to USA on or before 23.12.2017, and if
she does not so return, her return may not be permitted by the
Immigration Department of USA without further compliance being
made by her. We cannot permit a situation to arise where
respondent No.2 is able to defeat the direction issued by this Court
on account of her own acts & omissions. C
6. The passport of the petitioner deposited in this Court is directed
to be returned forthwith. The said passport be returned to Mr.
Prabhjit Jauhar, larned counsel for the petitioner. The said passport
shall be retained by Mr. Jauhar so as to enable the petitioner and
his parents to meet the child M, while they are in New Delhi, D
India. Mr. Jauhar shall return the passport to the petitioner only at
the time when the petitioner has to return to USA, after ensuring
that the custody of the child is with respondent No. 2.
7. The meeting between the petitioner and his parents, on the one
hand, and the child, on the other hand, shall be undertaken as per
the arrangement worked out by us earlier, i.e. two hours every E
working day, and three hours at the weekends, as mutually agreed
between the parties.
8. The petition stands disposed of in the aforesaid terms.”
11. Being aggrieved by the aforesaid judgment and orders, the
appellant, being the mother of the minor child M, has approached this F
Court by way of Special Leave under Article 136 of the Constitution of
India. This Court issued notice on 15th December, 2017, when it passed
the following interim order:
“O R D E R
G
Issue notice.
As Dr. Abhishek Manu Singhvi and Mr. R.S. Suri, learned
senior counsel along with Mr. Prabhjit Jauhar, learned counsel
has entered appearance for the respondent No.2, no further notice
need be issued.
H
562 SUPREME COURT REPORTS [2018] 11 S.C.R.
A Counter affidavit be filed within two weeks. Rejoinder
affidavit, if any, be filed within a week therefrom.
Let the matter be listed on 24th January, 2018.
As an interim measure, it is directed that the arrangements
made by the High Court for the visitation rights shall remain in
B force. The petitioner-wife shall not create any kind of impediment
in the meeting of the father with the child.
In the course of hearing, we have also been apprised by Dr.
Singhvi that the Green Card issued in favour of the petitioner-
wife is going to expire on 22nd December, 2017. Be that as it
C may, If, eventually, the petitioner loses in this proceeding and the
respondent No.2 succeeds, the expiration of the Green Card cannot
be a ground to deny the custody of the child to the father. Needless
to say, if the petitioner wife intends to go to United States of
America and gets the Green Card renewed, it is open for her to
D do so. We may also record that the husband has acceded to, as
stated by the learned counsel for the respondent No.2, that he
shall not implicate her in any criminal proceeding.”
In continuation of the aforementioned interim arrangement, a further
order was passed by this Court on 24th January, 2018, which reads thus:
E “O R D E R
Heard Mr. Kapil Sibal, learned senior counsel along with Ms.
Malavika Rajkotia, learned counsel for the petitioner and Dr.
A.M.Singhvi, learned senior counsel along with Mr. Prabhjit
Jauhar, learned counsel for the respondents.
F
Though, we are not inclined to interfere with the interim
arrangement made by the High Court yet, regard being had to
some grievances of both the parties, we intend to pass an order
clarifying the position.
Having heard learned counsel for the parties, it is directed as
G follows:
(i) Whenever respondent No.2 is available in India, he shall
intimate the petitioner by E-mail and also forward a copy of
the said E-mail to the counsel for the petitioner so that she can
make the child available for meeting with the father at
H
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O. 563
AND ANR. [A. M. KHANWILKAR, J.]
Promenade Mall, Vasant Kunj between 5.30 P.M. to 7.30 P.M. A
on weekdays and 11.00 A.M. to 2.00 P.M. on holidays when
the school is closed.
(ii) When the father will be meeting the child, they shall meet
without any supervision.
(iii) When the father is not in India, there can be communication/ B
interaction through Skype at about 7.30 P.M.(Indian Standard
Time) or any other mode on line.
(iv) The passport of the child, which is presently with the father,
shall be handed over to the mother for a period of one week so
that she can take appropriate steps to complete certain C
formalities for admission of the child in a school. This direction
is without prejudice to the final result in the special leave petition.
The passport shall be returned by Ms.Malavika Rajkotia, learned
counsel for the petitioner to Mr.Prabhjit Jauhar, learned counsel
for the respondents. D
Let the matter be listed on 19.02.2018 at 2.00 P.M. for final
disposal.”
These are the relevant interim orders, which were to operate until the
final disposal of the appeals. On 18th May, 2018, a grievance was made
before this Court about non-cooperation by the appellant, which has E
been recorded as under:
“O R D E R
As mentioned in the first hour, the matter is taken up today.
Be it noted, we have listed the matter today as it relates to the
F
conversation right of the father with the child.
In the course of hearing, Mr. Prabhjit Jauhar, learned counsel
appearing for the respondent-father submitted that the directions
issued by this Court on earlier occasion relating to Skype contact
are not being complied with.
G
Ms. Malavika Rajkotia, learned counsel appearing for the
appellant submitted that there has been no deviation and in any
case, the mother does not intend to anyway affect, indict or
intervene in the right to converse by Skype. Ms. Rajkotia has
assured this Court that her client has not given any occasion to
H
564 SUPREME COURT REPORTS [2018] 11 S.C.R.
A raise any grievance and if any grievance is nurtured by the father,
the same shall be duly addressed, so that the order of this Court is
duly complied with.
We are sure, the parties shall behave like compliant litigants.”
The hearing was concluded and the interim arrangement as directed by
B this Court was to be observed by the parties until the pronouncement of
the final judgment.
12. The appellant, being the mother of the minor child M, has
assailed the decision of the High Court for having overlooked the
rudimentary principles governing the issue of invoking jurisdiction to issue
C a writ of habeas corpus in respect of a minor child who was in lawful
custody of her mother. According to the appellant, the High Court has
completely glossed over or to put it differently, misconstrued and
misapplied the principles of paramount interest of the minor girl child of
tender age of about 4 years. Similarly, the High Court has glossed over
D the doctrine of choice and dignity of the mother of a minor girl child
keeping in mind the exposition in K.S. Puttaswamy & Anr. Vs. Union
of India & Ors.1 The High Court has also failed to take into account
that the intimate contact of the minor child would be her mother who
was her primary care giver and more so, when she was at the relevant
time in the company of her mother. The appellant, being the mother, had
E a fundamental right to look after her minor daughter which cannot be
whittled down or trivialized on the considerations which found favour
with the High Court. The welfare and paramount interest of the minor
girl child would certainly lean towards the mother, all other things being
equal. The role of the mother of a minor girl child cannot be reduced to
F an appendage of the child and the mother cannot be forced to stay in an
unfriendly environment where she had been victim of domestic violence
inflicted on her. This would be so when the mother was also a working
woman whose career would be at stake in the event the directions given
by the High Court were to be complied with in letter and spirit. The High
Court ought to have adopted a child rights based approach but the reasons
G which weighed with the High Court, clearly manifest that it was influenced
by the values of pre-constitutional morality standard. The approach of
the High Court, of delineating an arrangement, which it noted as the
lowest prejudice option to the mother, has no place for deciding the
1
(2017) 10 SCC 1
H
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O. 565
AND ANR. [A. M. KHANWILKAR, J.]
issue of removing the custody of a minor girl child of tender age from A
her mother and giving it to her father for being taken away to her native
country. The High Court has misunderstood and misapplied the principle
expounded in Nithya Anand Raghavan Vs. State (NCT of Delhi) &
Anr.,2 and Prateek Gupta Vs. Shilpi Gupta & Ors.3 The High Court
has completely overlooked the autonomy of the appellant inasmuch as
B
the directions given by the High Court would virtually subjugate all her
rights and would compel her to stay in an unfriendly environment at the
cost of her career and dignity. The arrangement directed by the High
Court can, by no standard, be said to be a just and fair muchless
collaborative arrangement to be worked out between the parents, without
compromising on the paramount interest and welfare of the minor girl C
child. The High Court committed a manifest error in answering the issue
of best interest of the minor girl child, inter alia on the basis of the
provisions of the Juvenile Justice Act and disregarding the crucial fact
that the minor girl child was presently staying with her mother along
with her extended family, which she would be completely deprived of if
D
taken away to a place within the jurisdiction of the US Court by respondent
No.2 - her father. It was also contended that in the process of reasoning
out the plea taken by the appellant regarding the circumstances in which
she fled from USA with the minor girl child due to domestic violence
inflicted on her, the said issue has been trivialized. It is contended that as
the marriage between the appellant and respondent No.2 was solemnized E
in New Delhi as per Anand Karaj ceremony and Hindu Vedic rites, the
fact that the appellant went to the United States to stay with her husband,
would make no difference to her status and nationality, much less have
any bearing on the issue of best interest of the minor girl child.
13. On the other hand, the respondent No.2 would submit that the F
High Court analysed all the relevant aspects of the matter keeping in
mind the legal principles expounded in the recent decisions of this Court
and recorded its satisfaction about the best interest of the minor girl
child coupled with the necessity of the minor girl child to be produced
before the Circuit Court of Cook County, Illinois, USA, which had intimate
contact with the minor girl child, inasmuch as the minor girl child was G
born and was domiciled within the jurisdiction of that Court before she
was clandestinely removed by the appellant to India. It is contended that
since both the father as well as the minor girl child are US citizens and
2
(2017) 8 SCC 454
3
(2018) 2 SCC 309 H
566 SUPREME COURT REPORTS [2018] 11 S.C.R.
A the mother is a permanent resident of US and domiciled in that country,
only the Courts of that country will have jurisdiction to decide the
matrimonial issues between the parties, including custody of the minor
girl child and her guardianship. Further, at the tender age of about 3
years, the minor girl child had hardly spent any time in India so as to
suggest that she has gained consciousness in India and thus it would be
B
in the best interest of the child to be taken away to the US. It is contended
by respondent No.2 that the High Court has analysed all the relevant
facts before recording the finding that the welfare and best interest of
the minor girl child would be served by returning to United States. As
that finding is based on tangible material on record as adverted to by the
C High Court, this Court should be loath to overturn the same and, more
so, when the High Court has issued directions to balance the equities
and also facilitate return of the minor child to be produced before the
Court of competent jurisdiction. The directions so issued are no different
than the directions given by this Court in Nithya Anand Raghavan’s
case, (supra). It is contended by respondent No.2 that this Court may
D
primarily examine the directions issued by the High Court and if
necessary, issue further directions to safeguard the interest of the
appellant, but in no case should the plea taken by the appellant, that the
minor girl child should not return to US, be accepted. It is contended that
the sole consideration in a proceeding such as this, must be to ascertain
E the welfare of the minor girl child and not to adjudicate upon the rights of
the father or the mother. While doing so, the Court may take into account
all such aspects to ascertain as to whether any harm would be caused to
the minor child or for that matter, has been caused in the past during her
stay in US. From the order passed by the US Court, it is evident that the
custody of the minor girl child with the appellant had become unlawful
F
and for which reason, this Court in exercise of its jurisdiction for issuance
of a writ of habeas corpus, must direct the appellant to give the custody
of the minor girl child to her father. It is contended that the argument
regarding health or personal matters raised by the appellant are only
arguments of causing prejudice and should have no bearing for answering
G the matters in issue, particularly in the context of the equitable directions
passed by the High Court. The Court must keep in mind that the minor
girl child is presently staying in India without a valid Visa after her Visa
obtained for travelling to India expired. The respondent No.2 would submit
that no interference with the directions issued by the High Court is
warranted in the fact situation of the present case.
H
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O. 567
AND ANR. [A. M. KHANWILKAR, J.]
14. We have heard Ms. Malavika Rajkotia, learned counsel A
appearing for the appellant and Ms. Meenakshi Arora, learned senior
counsel appearing for the respondent No.2.
15. We shall first advert to the analysis made by the High Court in
respect of the contentious issues. That can be discerned from paragraph
102 onwards of the impugned judgment. The High Court was conscious B
of the fact that it must first examine the issue regarding the welfare and
best interest of the minor child. It noted that the minor girl child was
about 3 years when the writ petition for habeas corpus was preferred on
1st February, 2017. It then noted that the respondent No.2 – father of the
minor girl child had acquired citizenship of the USA in 2005 and holds an
American Passport. He is living in the USA since 1994 and is thus C
domiciled in the USA. He had acquired a Bachelors’ degree in Economics
and obtained MBA qualification from the University of Chicago. He
was an Education Software Entrepreneur. The appellant wife is the
biological mother of the minor child M, who has acquired permanent
resident status of the USA i.e. Green Card and had also applied for D
American citizenship on 2nd December, 2016. The respondent No.2 and
appellant were classmates during their schooling and revived their
contacts in 2000. Eventually, they decided to get married and thereafter
reside in USA where the respondent No.2 had his work place and home.
The marriage was solemnized in New Delhi in India on 31st October,
2010 as per Anand Karaj ceremony, and Hindu Vedic rites in the presence E
of the elders of both the families. After the appellant arrived in USA,
they performed civil marriage before the competent Court in USA on
19th March, 2011.
16. The High Court adverted to the accomplishment of the
appellant in her education and occupation. The High Court noted that F
the couple started their matrimonial life in the United States and lived as
a couple in that country. They made the United States their home and
their entire married life, except the duration during which they were on
short visits to India, had been spent in the USA. They gave birth to a girl
child M in USA on 15th February, 2014 at North Western Memorial G
Hospital, Chicago, Illinois, USA. The minor child M is a US citizen by
birth and grew up there until she was clandestinely removed by the
appellant to India on 25th December, 2016. The minor child had, in fact,
started attending pre-school in Chicago and had a full time schedule at
school from August, 2016. Thus, the mental development of M while
H
568 SUPREME COURT REPORTS [2018] 11 S.C.R.
A she was in USA till the end of 2016, had taken place to such an extent
that she was very well aware and conscious of her surroundings. She
was perceiving and absorbing from her surroundings and communicated
not only with her parents, but also with her other relatives, her peers at
the pre-school, her instructors, teachers and other care givers. The
American way of life and systems were already in the process of being
B
learnt and experienced by M when she came to India in December,
2016. The environment which M was experiencing during her growth
was the natural environment of Chicago, USA. Both her parents were
looking after her proper upbringing. The Court also noted that the paternal
grandparents of the minor child M were visiting and interacting with her.
C The Court then adverted to the decisions in Surinder Kaur Sandhu Vs.
Harbax Singh Sandhu and Anr.4, Aviral Mittal Vs. State5, Shilpa
Aggarwal Vs. Aviral Mittal and Anr.6, Dr. V. Ravi Chandran Vs.
Union of India & Ors.7, and Nithya Anand Raghavan (supra), to
opine that the Court in the US seemed to be the most appropriate Court
to decide the issue of custody of M, considering that it had intimate
D
contact with the parties and the child. It went on to observe that it was
neither inclined nor in a position to undertake a detailed enquiry into
aspects of custody, visitation and co-parenting of the minor child in the
facts and circumstances of the case, considering all the events unfolded
in, circumstances developed in and evidences were located in the USA.
E After having said this, it examined the compelling reasons disclosed by
the appellant to dissuade the Court from issuing directions for return of
M to her native country and the environment where she was born and
being brought up. That analysis has been done in paragraph 114 onwards.
The High Court considered the grievances of the appellant in paragraphs
114 to 117 in the following words:
F
“114. The allegations of respondent no.2 against the petitioner
and his mother are that the petitioner’s mother follows a strict
eco-friendly lifestyle and imposes the same on the couple, which
even caused chronic backache to the respondent since she was
forced to sleep on a hard eco-friendly mattress. She claim that all
G her day to day affairs were influenced by the lifestyle of her mother
in law, such as not using plastic products, non stick cookware,
4
(1984) 3 SCC 698
5
(2009) 112 DRJ 635
6
(2010) 1 SCC 591
7
H (2010) 1 SCC 174
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O. 569
AND ANR. [A. M. KHANWILKAR, J.]
personal care products etc. The respondent had no voice in the A
matter. The petitioner took minimal interest in household affairs,
while his mother interfered in the lives of the parties by tracking
their schedules. The petitioner and his mother did not respect the
respondents privacy and the plan of the parties to bear a child
were disclosed to the petitioner’s mother in advance. She even
B
imposed lifestyle changes upon the respondent. The petitioner’s
mother also did not permit the respondent to maintain a secular
household. She was not permitted to celebrate both Sikh and Hindu
festivals and the petitioner insisted that they celebrate only Sikh
festivals. Respondent no.2 states that she was diagnosed with a
grave’s disease in October 2014. The petitioner and his mother C
insisted that the respondent undergoes surgery rather than taking
medication, since medication would have made it difficult for her
to conceive in future. She claims that the petitioner even threatened
her with divorce in case she prioritised her own health at the cost
of expanding their family. The respondent makes several other
D
allegations against the petitioner and his mother complaining of
cruelty and indifference on their part towards her.
115. The above allegations per se do not suggest any grave
undesirable conduct or deviant behavior on the part of the petitioner,
or his mother qua the child M – even if they were to be assumed
to be true for the time being. The allegations even remotely, not E
such as to suggest that the minor child M may be exposed to any
adversity, harm, undesirable influence, or danger if she were to
be allowed to meet them or spend time with them in USA. There
is nothing to suggest that the petitioner – father of M, or her
grandmother would leave a bad and undesirable influence on M. F
These allegations are not such as to persuade this Court not to
send the child M back to her country of origin and initial upbringing.
On the contrary, the petitioner appears to be an educated person
who is gainfully managing his business, and the photographs on
record show healthy bonding between M and her father. He also
appears to have actively participated in the upbringing of M – if G
the averments made by him in his petition are to be believed. In
fact, respondent no.2 had also expressed her willingness to let M
interact with the petitioner and to allow him visitation rights, which
would not have been the case if she considered him to be a bad
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570 SUPREME COURT REPORTS [2018] 11 S.C.R.
A influence on, or a potential threat to her daughter. The fact that
the petitioner’s mother is a pediatrician, in fact, is a reassuring
fact that M would be taken good care of medically in her tender
years. The photographs filed by the petitioner along with the
petition show M to be having a healthy and normal upbringing
while she was in USA. She is seen enjoying the love, care and
B
company of her parents and others – including children of her
age. There is no reason why she should be allowed to be uprooted
from the environment in which she was naturally growing up, and
to be retained in an environment where she would not have the
love, care and attention of her father and paternal grandparents,
C apart from her peers, teachers, school and other care givers who
were, till recently, with her.
116. From the allegations made by respondent No.2, it appears
that she may have had issues of living with and adjusting with the
petitioner and his parents – particularly the mother-in-law.
D However, there is absolutely nothing placed on record to even
remotely suggest that so far as the petitioner is concerned, his
conduct qua M and his presence with M, or for that matter, even
the grandparents, could be said to be detrimental to or harmful for
M. It certainly cannot be said that if M were to be returned to her
place of origin where she spent the initial three years of her life –
E considering that those three years constitute more than 3/4th of
her entire existence on this planet till date, would be detrimental
to her interest in any manner whatsoever.
117. The parties started their married life in USA, and as clearly
appears from their conduct, their mutual commitment was to spend
F their married life and to raise their children in USA. There is
absolutely nothing to suggest that the parties mutually ever agreed
to or intended to shift from their place of residence to a place in
India, though respondent no.2 may have unilaterally so desired. In
such a situation, in our view, respondent No.2 cannot breach her
G maternal commitment without any valid justification and remain
in return to India with M – who is an American citizen and would,
obviously, be attached to her father and grandparents; her home;
her Nanny; her teachers & instructors and her peers and friends,
all of whom are in USA.”
H 17. After having said this, the High Court considered the argument
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O. 571
AND ANR. [A. M. KHANWILKAR, J.]
of the appellant that she was the primary care giver qua M but disregarded A
the same by observing that that alone cannot be made the basis to reject
the prayer for return of the minor girl child to her native country, and
more so, when the minor girl child deserves love, affection and care of
her father as well. The Court found that nothing prevents the appellant
from returning to the USA if she so desires. Further, the fact that the
B
minor girl child would make new friends and have new care givers and
teachers in India at a new school, cannot be the basis to deny her the
love and affection of her biological father or parenting of grandparents
which was equally important for the grooming and upbringing of the
child. The Court then went on to notice that the expression “best interest
of child” is wide in its connotation and cannot be limited only to love and C
care of the primary care giver i.e. the mother. It then adverted to the
provisions of the Juvenile Justice (Care and Protection of Children) Act,
2015, while making it clear that it was conscious of the fact that the said
Act may not strictly apply to the case on hand for examining the issue of
best interest of the child. In paragraphs 124 to 126 of the impugned
D
judgment, it went on to observe thus:
“124. Thus, all decisions regarding the child should be based on
primary consideration that they are in the best interest of the child
and to help the child to develop to full potential. When involvement
of one of the parents is not shown to be detrimental to the interest
of the child, it goes without saying that to develop full potential of E
the child, it is essential that the child should receive the love, care
and attention of both his/ her parents, and not just one of them,
who may have decided on the basis of his/ her differences with
the other parent, to re-locate in a different country. Development
of full potential of the child requires participation of both the F
parents. The child, who does not receive the love, care and attention
of both the parents, is bound to suffer from psychological and
emotional trauma, particularly if the child is small and of tender
age. The law also recognizes the fact that the primary responsibility
of care, nutrition and protection of the child falls primarily on the
biological family. The “biological family” certainly cannot mean G
only one of the two parents, even if that parent happens to be the
primary care giver.
125. The JJ Act encourages restoration of the child to be re-
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572 SUPREME COURT REPORTS [2018] 11 S.C.R.
A united with his family at the earliest, and to be restored to the
same socio-economic and cultural status that he was in, before
being removed from that environment, unless such restoration or
repatriation is not in his best interest. The present is not a case
where respondent No.2 fled from USA or decided to stay back in
India on account of any such conduct of the petitioner which could
B
be said to have been detrimental to her own interest, or the interest
of the minor child M. The decision of respondent No.2 to stay
back in India is entirely personal to her, and her alone. It is not
based on consideration of the best welfare of the minor child M.
In fact, the best interest of the child M has been sidelined by
C respondent no.2 while deciding to stay back in India with M.
126. Pertinently, respondent No.2 in her statement in response to
the missing person report made by the petitioner on 14.01.2017
vide DD No.20B dated 14.01.2017 at PS – Vasant Kunj (South),
New Delhi, inter alia, stated that ‘the parties came to New Delhi,
D India with their daughter M on 20.12.2016. She further stated
that during this time, I realized that I do not want to continue with
his suppressed marriage and file for divorce and custody petition
against K G in the Hon’ble Court Sh. Arun Kumar Arya, Principle
Judge, Family Courts, Patiala House, New Delhi via HMA No.27/
17……’. Thus, it appears from the statement of respondent No.2
E that the realization that she did not want to continue in her marriage
dawned upon her only when she came to India, and it is not that
when she left the shores of USA in December 2016, she left with
a clear decision in her mind that she would not return to USA for
any specific and justifiable reason.”
F 18. Reference was then made to the provisions of the Convention
on the Rights of the Child adopted by the General Assembly of the United
Nations dated 20 th November, 1989, which was ratified by the
Government of India on 11th December, 1992, and the resolution by the
Government of India issued by the Ministry of Human Resource
G Development vide Resolution No.6-15/98 C.W., dated 9th February, 2004
framing the “National Charter for Children, 2003” and the Court observed
in paragraph 138 as follows:
“138. Thus, best welfare of the child, normally, would lie in living
with both his/ her parents in a happy, loving and caring environment,
H where the parents contribute to the upbringing of the child in all
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O. 573
AND ANR. [A. M. KHANWILKAR, J.]
spheres of life, and the child receives emotional, social, physical A
and material support - to name a few. In a vitiated marriage,
unfortunately, there is bound to be impairment of some of the
inputs which are, ideally, essential for the best interest of the child.
Then the challenge posed before the Court would be to determine
and arrive at an arrangement, which offers the best possible solution
B
in the facts and circumstances of a given case, to achieve the
best interest of the child.”
19. On a perusal of the impugned judgment, it is noticed that the
High Court has taken note of all the relevant decisions including the
latest three-Judge Bench decision of this Court in Nithya Anand
Raghavan’s case, (supra), which has had occasion to exhaustively C
analyse the earlier decisions on the subject matter under consideration.
The exposition in the earlier decisions has been again restated and re-
affirmed in the subsequent decision of this Court in Prateek Gupta Vs.
Shilpi Gupta & Ors., (supra). Let us, therefore, revisit these two
decisions. In paragraph 40 of the Nithya Anand Raghavan’s case, D
(supra), this Court observed thus:
“40. The Court has noted that India is not yet a signatory to the
Hague Convention of 1980 on “Civil Aspects of International Child
Abduction”. As regards the non-Convention countries, the
law is that the court in the country to which the child has E
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 F
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 G
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
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574 SUPREME COURT REPORTS [2018] 11 S.C.R.
A 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 to the native state and more particularly in spite of a pre-
existing order of the foreign court in that behalf, if it is satisfied
that the child’s return may expose him to a grave risk of harm.
This means that the courts in India, within whose jurisdiction the
B
minor has been brought must “ordinarily” consider the question
on merits, bearing in mind the welfare of the child as of paramount
importance whilst reckoning the pre-existing order of the foreign
court if any as only one of the factors and not get fixated therewith.
In either situation—be it a summary inquiry or an elaborate
C inquiry—the welfare of the child is of paramount consideration.
Thus, while examining the issue the courts in India are free
to decline the relief of return of the child brought within its
jurisdiction, if it is satisfied that the child is now settled in
its new environment or if it would expose the child to
physical or psychological harm or otherwise place the child
D
in an intolerable position or if the child is quite mature and
objects to its return. We are in respectful agreement with the
aforementioned exposition.”
(emphasis supplied)
Again in paragraph 42, the Court observed thus:
E
“42. The consistent view of this Court is that if the child has been
brought within India, the courts in India may conduct: (a) summary
inquiry; or (b) an elaborate inquiry on the question of custody. In
the case of a summary inquiry, the court may deem it fit to
order return of the child to the country from where he/she
F was removed unless such return is shown to be harmful to
the child. In other words, even in the matter of a summary inquiry,
it is open to the court to decline the relief of return of the child to
the country from where he/she was removed irrespective of a
pre-existing order of return of the child by a foreign court. In an
G elaborate inquiry, the court is obliged to examine the merits as to
where the paramount interests and welfare of the child lay and
reckon the fact of a pre-existing order of the foreign court for
return of the child as only one of the circumstances. In either
case, the crucial question to be considered by the court (in
the country to which the child is removed) is to answer the
H
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O. 575
AND ANR. [A. M. KHANWILKAR, J.]
issue according to the child’s welfare. That has to be done A
bearing in mind the totality of facts and circumstances of
each case independently. Even on close scrutiny of the
several decisions pressed before us, we do not find any
contra view in this behalf. To put it differently, the principle of
comity of courts cannot be given primacy or more weightage for
B
deciding the matter of custody or for return of the child to the
native State.”
(emphasis supplied)
It will be apposite to also advert to paragraphs 46 & 47 of the reported
decision, which read thus: C
“46. The High Court while dealing with the petition for issuance
of a writ 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 including the settled legal position referred to above. D
Once again, we may hasten to add that the decision of the
court, in each case, must depend on the totality of the facts
and circumstances of the case brought before it whilst
considering the welfare of the child which is of paramount
consideration. The order of the foreign court must yield to
the welfare of the child. Further, the remedy of writ of habeas E
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
executing court. Indubitably, the writ petitioner can take recourse
to such other remedy as may be permissible in law for enforcement F
of the order passed by the foreign court or to resort to any other
proceedings as may be permissible in law before the Indian Court
for the custody of the child, if so advised.
47. In a habeas corpus petition as aforesaid, the High Court
must examine at the threshold whether the minor is in lawful G
or unlawful custody 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
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576 SUPREME COURT REPORTS [2018] 11 S.C.R.
A 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
B
parent can be asked to resort to a substantive prescribed remedy
for getting custody of the child.”
(emphasis supplied)
Again in paragraph 50, the Court expounded as under:
C “50. The High Court in such a situation may then examine whether
the return of the minor to his/her native state would be in the
interests of the minor or would be harmful. While doing so, the
High Court would be well within its jurisdiction if satisfied,
that having regard to the totality of the facts and
circumstances, it would be in the interests and welfare of
D the minor child to decline return of the child to the country
from where he/she had been removed; then such an order
must be passed without being fixated with the factum of an
order of the foreign court directing return of the child within
the stipulated time, since the order of the foreign court
E must yield to the welfare of the child. For answering this
issue, there can be no straitjacket formulae or mathematical
exactitude. Nor can the fact that the other parent had already
approached the foreign court or was successful in getting an order
from the foreign court for production of the child, be a decisive
factor. Similarly, the parent having custody of the minor has not
F resorted to any substantive proceeding for custody of the child,
cannot whittle down the overarching principle of the best interests
and welfare of the child to be considered by the Court. That ought
to be the paramount consideration.”
(emphasis supplied)
G In paragraphs 67 and 69, the Court propounded thus:
“67. The facts in all the four cases primarily relied upon by
Respondent 2, in our opinion, necessitated the Court to issue
direction to return the child to the native state. That does not
mean that in deserving cases the courts in India are denuded from
H
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O. 577
AND ANR. [A. M. KHANWILKAR, J.]
declining the relief to return the child to the native state merely A
because of a pre-existing order of the foreign court of competent
jurisdiction. That, however, will have to be considered on case to
case basis — be it in a summary inquiry or an elaborate inquiry.
We do not wish to dilate on other reported judgments, as it would
result in repetition of similar position and only burden this judgment.
B
xxx xxx xxx
69. …………… 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 C
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 D
been removed is moved promptly and quickly. The overriding
consideration must be the interests and welfare of the child.”
(emphasis supplied)
20. At this stage, we deem it apposite to reproduce paragraphs 70
and 71 of the reported judgment, which may have some bearing on the E
final order to be passed in this case. The same read thus:
“70. Needless to observe that after the minor child (Nethra) attains
the age of majority, she would be free to exercise her choice to go
to the UK and stay with her father. But until she attains majority,
she should remain in the custody of her mother unless the court of F
competent jurisdiction trying the issue of custody of the child orders
to the contrary. However, the father must be given visitation rights,
whenever he visits India. He can do so by giving notice of at least
two weeks in advance intimating in writing to the appellant and if
such request is received, the appellant must positively respond in G
writing to grant visitation rights to Respondent 2 Mr Anand
Raghavan (father) for two hours per day twice a week at the
mentioned venue in Delhi or as may be agreed by the appellant,
where the appellant or her representatives are necessarily present
at or near the venue. Respondent 2 shall not be entitled to, nor
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578 SUPREME COURT REPORTS [2018] 11 S.C.R.
A make any attempt to take the child (Nethra) out from the said
venue. The appellant shall take all such steps to comply with the
visitation rights of Respondent 2, in its letter and spirit. Besides,
the appellant will permit Respondent 2 Mr Anand Raghavan to
interact with Nethra on telephone/mobile or video conferencing,
on school holidays between 5 p.m. to 7.30 p.m. IST.
B
71. As mentioned earlier, the appellant cannot disregard the
proceedings instituted before the UK Court. She must participate
in those proceedings by engaging solicitors of her choice to espouse
her cause before the High Court of Justice. For that, Respondent
2 Anand Raghavan will bear the costs of litigation and expenses
C to be incurred by the appellant. If the appellant is required to
appear in the said proceeding in person and for which she is
required to visit the UK, Respondent 2 Anand Raghavan will bear
the air fares or purchase the tickets for the travel of appellant and
Nethra to the UK and including for their return journey to India as
D may be required. In addition, Respondent 2 Anand Raghavan will
make all arrangements for the comfortable stay of the appellant
and her companions at an independent place of her choice at
reasonable costs. In the event, the appellant is required to appear
in the proceedings before the High Court of Justice in the UK,
Respondent 2 shall not initiate any coercive process against her
E which may result in penal consequences for the appellant and if
any such proceeding is already pending, he must take steps to
first withdraw the same and/or undertake before the court
concerned not to pursue it any further. That will be condition
precedent to pave way for the appellant to appear before the
F court concerned in the UK.”
21. In the subsequent judgment of two Judges of this Court in
Prateek Gupta (supra), after analysing all the earlier decisions, in
paragraphs 49 to 51 the Court noted thus:
“49. The gravamen of the judicial enunciation on the issue
G of repatriation of a child removed from its native country is
clearly founded on the predominant imperative of its overall
well-being, the principle of comity of courts, and the
doctrines of “intimate contact and closest concern”
notwithstanding. Though the principle of comity of courts and
H
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O. 579
AND ANR. [A. M. KHANWILKAR, J.]
the aforementioned doctrines qua a foreign court from the territory A
of which a child is removed are factors which deserve notice in
deciding the issue of custody and repatriation of the child, it is no
longer res integra that the ever-overriding determinant would be
the welfare and interest of the child. In other words, the invocation
of these principles/doctrines has to be judged on the touchstone
B
of myriad attendant facts and circumstances of each case, the
ultimate live concern being the welfare of the child, other factors
being acknowledgeably subservient thereto. Though in the
process of adjudication of the issue of repatriation, a court
can elect to adopt a summary enquiry and order immediate
restoration of the child to its native country, if the applicant/ C
parent is prompt and alert in his/her initiative and the
existing circumstances ex facie justify such course again in
the overwhelming exigency of the welfare of the child, such
a course could be approvable in law, if an effortless
discernment of the relevant factors testify irreversible,
D
adverse and prejudicial impact on its physical, mental,
psychological, social, cultural existence, thus exposing it
to visible, continuing and irreparable detrimental and
nihilistic attenuations. On the other hand, if the applicant/parent
is slack and there is a considerable time lag between the removal
of the child from the native country and the steps taken for its E
repatriation thereto, the court would prefer an elaborate enquiry
into all relevant aspects bearing on the child, as meanwhile with
the passage of time, it expectedly had grown roots in the country
and its characteristic milieu, thus casting its influence on the
process of its grooming in its fold.
F
50. The doctrines of ‘intimate contact’ and ‘closest concern’
are of persuasive relevance, only when the child is uprooted
from its native country and taken to a place to encounter
alien environment, language, custom, etc. with the portent
of mutilative bearing on the process of its overall growth
and grooming. G
51. It has been consistently held that there is no forum convenience
in wardship jurisdiction and the peremptory mandate that underlines
the adjudicative mission is the obligation to secure the unreserved
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580 SUPREME COURT REPORTS [2018] 11 S.C.R.
A welfare of the child as the paramount consideration.”
(emphasis supplied)
Again, in paragraph 53 of the judgment, the Court observed thus:
“53. .... The issue with regard to the repatriation of a child,
B as the precedential explications would authenticate has to
be addressed not on a consideration of legal rights of the
parties but on the sole and preponderant criterion of the
welfare of the minor. As aforementioned, immediate
restoration of the child is called for only on an unmistakable
discernment of the possibility of immediate and irremediable
C harm to it and not otherwise. As it is, a child of tender years,
with malleable and impressionable mind and delicate and
vulnerable physique would suffer serious set-back if
subjected to frequent and unnecessary translocation in its
formative years. It is thus imperative that unless, the
D continuance of the child in the country to which it has been
removed, is unquestionably harmful, when judged on the
touchstone of overall perspectives, perceptions and
practicabilities, it ought not to be dislodged and extricated
from the environment and setting to which it had got
adjusted for its well-being.”
E
(emphasis supplied)
22. After these decisions, it is not open to contend that the custody
of the female minor child with her biological mother would be unlawful,
for there is presumption to the contrary. In such a case, the High Court
F whilst exercising jurisdiction under Article 226 for issuance of a writ of
habeas corpus need not make any further enquiry but if it is called
upon to consider the prayer for return of the minor female child to the
native country, it has the option to resort to a summary inquiry or an
elaborate inquiry, as may be necessary in the fact situation of the given
case. In the present case, the High Court noted that it was not inclined
G to undertake a detailed inquiry. The question is, having said that whether
the High Court took into account irrelevant matters for recording its
conclusion that the minor female child, who was in custody of her
biological mother, should be returned to her native country. As observed
in Nithya Anand Raghavan’s case (supra), the Court must take into
account the totality of the facts and circumstances whilst ensuring the
H
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O. 581
AND ANR. [A. M. KHANWILKAR, J.]
best interest of the minor child. In Prateek Gupta’s case (supra), the A
Court noted that the adjudicative mission is the obligation to secure the
unreserved welfare of the child as the paramount consideration. Further,
the doctrine of “intimate and closest concern” are of persuasive relevance,
only when the child is uprooted from its native country and taken to a
place to encounter alien environment, language, custom etc. with the
B
portent of mutilative bearing on the process of its overall growth and
grooming. The High Court in the present case focused primarily on the
grievances of the appellant and while rejecting those grievances, went
on to grant relief to respondent No.2 by directing return of the minor girl
child to her native country. On the totality of the facts and circumstances
of the present case, in our opinion, there is nothing to indicate that the C
native language (English) is not spoken or the child has been divorced
from the social customs to which she has been accustomed. Similarly,
the minor child had just entered pre-school in the USA before she came
to New Delhi along with her mother. In that sense, there was no disruption
of her education or being subjected to a foreign system of education
D
likely to psychologically disturb her. On the other hand, the minor child
M is under the due care of her mother and maternal grand-parents and
other relatives since her arrival in New Delhi. If she returns to US as
per the relief claimed by the respondent No.2, she would inevitably be
under the care of a Nanny as the respondent No.2 will be away during
the day time for work and no one else from the family would be there at E
home to look after her. Placing her under a trained Nanny may not be
harmful as such but it is certainly avoidable. For, there is likelihood of the
minor child being psychologically disturbed after her separation from
her mother, who is the primary care giver to her. In other words, there is
no compelling reason to direct return of the minor child M to the US as
F
prayed by the respondent No.2 nor is her stay in the company of her
mother, along with maternal grand-parents and extended family at New
Delhi, prejudicial to her in any manner, warranting her return to the US.
23. As expounded in the recent decisions of this Court, the issue
ought not to be decided on the basis of rights of the parties claiming
custody of the minor child but the focus should constantly remain on G
whether the factum of best interest of the minor child is to return to the
native country or otherwise. The fact that the minor child will have better
prospects upon return to his/her native country, may be a relevant aspect
in a substantive proceedings for grant of custody of the minor child but
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582 SUPREME COURT REPORTS [2018] 11 S.C.R.
A not decisive to examine the threshold issues in a habeas corpus petition.
For the purpose of habeas corpus petition, the Court ought to focus on
the obtaining circumstances of the minor child having been removed
from the native country and taken to a place to encounter alien
environment, language, custom etc. interfering with his/her overall growth
and grooming and whether continuance there will be harmful. This has
B
been the consistent view of this Court as restated in the recent three-
Judge Bench decision in Nithya Anand Raghavan (supra), and the
two-Judge Bench decision in Prateek Gupta (supra). It is unnecessary
to multiply other decisions on the same aspect.
24. In the present case, the minor child M is a US citizen by birth.
C She has grown up in her native country for over three years before she
was brought to New Delhi by her biological mother (appellant) in
December 2016. She had joined a pre-school in the USA. She had healthy
bonding with her father (respondent No.2). Her paternal grand-parents
used to visit her in the USA at some intervals. She was under the care of
D a Nanny during the day time, as her parents were working. Indeed, the
work place of her father is near the home. The biological father
(respondent No.2) of the minor child M has acquired US citizenship.
Both father and mother of the minor child M were of Indian origin but
domiciled in the USA after marriage. The mother (appellant) is a
permanent resident of the USA-Green Card holder and has also applied
E for US citizenship. In her affidavit filed before the Delhi High Court
dated 30th November, 2017, she admits that her legal status was
complicated as she has ceased to be an Indian citizen and her status of
citizenship of the USA is in limbo.
25. Be that as it may, the father filed a writ petition before the
F Delhi High Court for issuance of a writ of Habeas Corpus for production
of the minor child and for directions for her return to USA without any
loss of time. Given the fact that the parties performed a civil marriage
on 19th March, 2011 in the USA and cohabited in the native country and
gave birth to minor child M who grew up in that environment for at least
G three years, coupled with the fact that the father and minor child M are
US citizens and mother is a permanent resident of USA, the closest
contact and jurisdiction is possibly that of the Circuit Court of Cook
County, Illinois, USA. However, we may not be understood to have
expressed any final opinion in this regard. At the same time, it is
indisputable that the appellant and respondent No.2 first got married on
H
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O. 583
AND ANR. [A. M. KHANWILKAR, J.]
31st October, 2010 as per Sikh rites, i.e. Anand Karaj ceremony, and A
Hindu Vedic rites and that marriage was solemnised in New Delhi at
which point of time the appellant was admittedly a citizen of India.
Presently, she is only a Green Card holder (permanent resident) of the
US. It is, therefore, debatable whether the Family Court at New Delhi,
where the appellant has already filed a petition for dissolution of marriage,
B
has jurisdiction in that behalf including to decide on the question of custody
and guardianship in respect of the minor child M. For that reason, it may
be appropriate that the said proceedings are decided with utmost
promptitude in the first place before the appellant is called upon to appear
before the US Court and including to produce the minor child M before
that Court. C
26. It is not disputed that the appellant and minor child are presently
in New Delhi and the appellant has no intention to return to her
matrimonial home in the U.S.A. The appellant has apprehensions and
serious reservations on account of her past experience in respect of
which we do not think it necessary to dilate in this proceedings. That is D
a matter to be considered by the Court of Competent Jurisdiction called
upon to decide the issue of dissolution of marriage and/or grant of custody
of the minor child, as the case may be. For the time being, we may
observe that the parties must eschew from pursuing parallel proceedings
in two different countries. For, the first marriage between the parties
was performed in New Delhi as per Anand Karaj Ceremony and Hindu E
Vedic rites on 31st October, 2010 and the petition for dissolution of
marriage has been filed in New Delhi. Whereas, the civil marriage
ceremony on 19th March, 2011 at Circuit Court of Cook County, Illinois,
USA, was performed to complete the formalities for facilitating the entry
of the appellant into the US and to obtain US Permanent Resident status. F
It is appropriate that the proceedings pending in the Family Court at
New Delhi are decided in the first place including on the question of
jurisdiction of that Court. Depending on the outcome of the said
proceedings, the parties will be free to pursue such other remedies as
may be permissible in law before the Court of Competent Jurisdiction.
G
27. As aforesaid, it is true that both respondent No.2 and also the
minor child M are US citizens. The minor girl child has a US Passport
and has travelled to India on a tenure Visa which has expired. That does
not mean that she is in unlawful custody of her biological mother. Her
custody with the appellant would nevertheless be lawful. The appellant
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584 SUPREME COURT REPORTS [2018] 11 S.C.R.
A has already instituted divorce proceedings in the Family Court at Patiala
House, New Delhi. The respondent No.2 has also filed proceedings
before the Court in the US for custody of the minor girl child, directing
her return to her natural environment in the US. In such a situation, the
arrangement directed by this Court in the case of Nithya Anand
Raghavan (supra), as exposited in paragraphs 70-71, may be of some
B
help to pass an appropriate order in the peculiar facts of this case, instead
of directing the biological mother to return to the US along with the
minor girl child, so as to appear before the competent court in the US.
In that, the custody of the minor girl child M would remain with the
appellant until she attains the age of majority or the Court of competent
C jurisdiction, trying the issue of custody of the minor child, orders to the
contrary, with visitation and access rights to the biological father whenever
he would visit India and in particular as delineated in the interim order
passed by us reproduced in paragraph 11 (eleven) above.
28. A fortiori, dependant on the outcome of the proceedings, before
D the Family Court at New Delhi, the appellant may then be legally obliged
to participate in the proceedings before the US Court and must take all
measures to effectively defend herself in the said proceedings by engaging
solicitors of her choice in the USA to espouse her cause before the
Circuit Court of Cook County, Illinois, USA. In that event, the respondent
No.2 shall bear the cost of litigation and expenses to be incurred by the
E appellant to pursue the proceedings before the Courts in the native
country. In addition, the respondent No.2 will bear the air fares or purchase
the tickets for the travel of the appellant and the minor child M to the
USA and including their return journey for India, as may be required.
The respondent No.2 shall also make all suitable arrangements for the
F comfortable stay of the appellant and her companions at an independent
place of her choice, at a reasonable cost. Further, the respondent No.2
shall not initiate any coercive/penal action against the appellant and if
any such proceeding initiated by him in that regard is pending, the same
shall be withdrawn and not pursued before the concerned Court any
further. That will be the condition precedent to facilitate the appellant to
G appear before the Courts in the USA to effectively defend herself on all
matters relating to the matrimonial dispute and including custody and
guardianship of the minor child.
29. The appellant and respondent No.2 must ensure early disposal
H
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O. 585
AND ANR. [A. M. KHANWILKAR, J.]
of the proceedings for grant of custody of the minor girl child to the A
appellant, instituted and pending before the Family Court at Patiala House,
New Delhi. All contentions available to the parties in that regard will
have to be answered by the Family Court on its own merits and in
accordance with law.
30. We, accordingly, set aside the impugned judgment and orders B
of the High Court and dispose of the writ petition in the aforementioned
terms. The appeals are allowed with no order as to costs.
Nidhi Jain Appeals allowed.
C
D
E
F
G
H
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