Supreme Court of India
NITHYA ANAND RAGHAVANversusSTATE OF NCT OF DELHI & ANR.
- Citation
- 2017 INSC 1295
- Decided
- 3 July 2017
- Disposal
- Appeal(s) allowed
- Bench
- DIPAK MISRA
Holding
Indian courts are not compelled to return a child merely because of a pre‑existing foreign court order; the paramount consideration is the child's welfare, which in this case required the child to remain with her mother in India.
Summary
The mother, Nithya Anand Raghavan, removed her seven‑year‑old daughter Nethra from the United Kingdom to India and the father filed a writ of habeas corpus in Delhi seeking the child's production and compliance with a UK court order directing her return. The Delhi High Court ordered the mother to produce the child and either comply with the UK order or hand the child over to the father. On appeal, the Supreme Court held that Indian courts are not bound to enforce a foreign court's order where the child's welfare would be compromised; the paramount consideration is the best interests of the child. Considering the child's cardiac condition, her settled life with her mother, grandparents and extended family in India, and the risk of harm if separated, the Court allowed the appeal, set aside the High Court judgment, dismissed the habeas corpus petition, and ordered visitation rights for the father. The Court emphasized that the principle of comity of courts cannot override the child's welfare and that Indian courts may decline to return a child even in the presence of a pre‑existing foreign order.
Issues considered
- The extent to which Indian courts must give effect to a foreign court's order directing the return of a child under the principle of comity of courts.
- Whether the custody of the minor with her mother is unlawful merely because a foreign court has ordered her return.
- Whether a summary or elaborate inquiry is required to determine the child's best interests in an international custody dispute.
- The applicability of the Guardians and Wards Act, 1890 and the paramount consideration of the child's welfare in deciding the case.
Legislation cited
Subjects
child custodyhabeas corpusbest interests of the childcomity of courtsinternational child abductionwardship jurisdictionsummary inquiryelaborate inquiryGuardians and Wards Act
Judgment
[2017] 7 S.C.R. 281
NITHYA ANAND RAGHAVAN A
v.
STATE OF NCT OF DELHI & ANR.
(Criminal Appeal No. 972 of 2017)
JULY03,2017 B
[DIPAK MISRA, A. M. KHANWILKAR AND
MOHAN M. SHANTANAGOUDAR, JJ.]
Child and Family welfare - High Court issued writ for
production of minor daughter allegedly removed by mother-appellant C
from custody of father-respondent no.2 from U.K. - High Court
directed the mother to produce her daughter and to comply with the
order of High Court ofJustice, U.K. within 3 weeks or in alternative
to handover the custody of daughter to father within 3 weeks from
date of order - Whether the return of the minor to her native state
would be in the interests of the minor - Held: The Courts in India D
are not denuded from declining the relief to return the child to the
native state merely because of a pre-existing order of the foreign
Court of competent jurisdiction - In the instant case, the minor is
staying in India along with mother, her grandparents and other
family members and relatives unlike in the UK where she lived in a E
nuclear family of three with no extended family - She would be
more comfortable and feel secured to live with her mother -
Moreover, it is common ground that minor is suffering from cardiac
disorder and needs periodical medical reviews and proper care and
attention - That can be given only by her mother - Respondent
no.2 (father) is employed and may not be in a position to give F
complete attention to his daughter - In totality of the facts and
circumstances of the case, it is in the best interests of the minor to
remain in custody of her mother (appellant) else she would be
exposed to harm if separated from the mother - High Court was
unjustly impressed by the principle of comity of courts and the
obligation of the Indian Courts to comply with a pre-existing order G
of the foreign Court for return of the child and including the "first
strike" principle.
Child and Family welfare - Wardship jurisdiction - The
concept of forum convenience has no place in wardship jurisdiction
H
281
282 SUPREME COURT REPORTS (2017] 7 S.C.R.
A - In exercise of summary jurisdiction, the Court must be satisfied
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 farther that it will be in the child's welfare to return
to his native state because of the difference in language spoken or
B
social customs and contacts to which he/she has been accustomed
or such other tangible reasons - In such a case, the Court need not
resort to an elaborate inquiry into the merits of the paramount
welfare of the child but leave that inquiry to the foreign Court by
directing return of the child - In exceptional cases, the Court can
c still refase to issue direction to return the child to the native state'
and more particularly inspite 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 minor has been brought must
"ordinarily" consider the question on merits, bearing in mind the
D
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 inquiry - the welfare of the child
is of paramount consideration - While examining the issue the
E 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 in an
intolerable position or if the child is quite mature and objects to its
return - Jurisdiction.
F
Writ of habeas corpus - Object behind - Held: The object
underlying the writ of habeas corpus is to secure the re{ease of a
person who is illegally deprived of his liberty - The writ of habeas
corpus is a command addressed to the person who is alleged to
have another in unlawful custody, requiring him to produce the
G body of such person before the Court - On production of the person
before the Court, the circumstances in which the custody of the
person concerned has been detained can be inquired into by the
Court and upon due inquiry into the alleged unlawfal restraint pass
appropriate direction as may be deemed just and proper - High
H Court in such proceedings conducts qn inquiry for immediate
NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI 283
determtliation of the right of the persons freedom and his release A
when the detention is found to be unlawful.
Writ of habeas corpus for the production and custody of a
minor child - In a petition for issuance of a writ of habeas corpus
in relation to the custody of a minor child, the principal duty of the
Court is to ascertain whether the custody of child is unlawful or B
illegal and whether the welfare of the child requires that his present
custody should be changed and the child be handed over to the
care and custody of any other person - While doing so, the
paramount consideration must be about the welfare of the child -
The role of the High Court in examining the cases of custody of a
minor is on the touchstone ofprinciple ofparens patriae jurisdiction, C
as the minor is within the jurisdiction of the Court - In a habeas
corpus petition, the High Court must examine at the threshold
whether the minor is in lawful or unlawful custody of another person
(private respondent named in. the writ petition).
Writ of habeas corpus for the production and custody of a D
minor child - Custody of minor child with mother - Held: In the
instant case, the private respondent was none other than the natural
guardian of the minor being her biological mother - Therefore, it
can be presumed that the custody of the minor with her mother is
lawfal - In such a case, only in exceptionable situation, the custody E
of the minor (girl child) may be ordered to be taken away from her
mother for being given to any other person including the husband
(father of the child), in exercise of writ jurisdiction - Instead, the
other parent can be asked to resort to a substantive prescribed
remedy for getting custody of the child.
Writ of habeas corpus - High Court directed the mother to F
produce her daughter and to comply with the order of High Court
of Justice, U.K. within 3 weeks or in alternative to handover the
custody of daughter to father within 3 weeks from date of order -
Whether an order passed by the foreign court, directing the mother
to produce the child before it, would render the custody of the minor G
unlawful - Held: Merely because such an order is passed by the
foreign court, the custody of the minor would not become unlawfal
per se - No doubt, the Courts of England and Wales have jurisdiction
in the matters of parental responsibility over the child pursuant to
Arts. 8 and 10 of BIIR - For that reason, it ordered that the minor
H
284 SUPREME COURT REPORTS [2017) 7 S.C.R.
A shall remain a Ward ofthat Court during her minority or until further
order; and the mother (appellant) shall return or cause the return
of the minor forthwith to England and Wales - Appellant may have
violated the direction to return the minor to England, who has been
ordered to be a Ward of the court during her minority and further
order - However, no finding was rendered that till the minor returns
B
to England, the custody of the minor with the mother became or
would be treated as unlawful including for the purposes of
considering a petition for issuance of writ of habeas corpus - The
custody of the minor with the appellant, being her biological mother,
will have to be presumed to be lawful.
C Doctrines/Principles - Principle of comity of courts cannot
be given primacy or more weightage for deciding the matter of
custody or for return of the child to the native state - The order of
the foreign Court must yield to the welfare of the child - The remedy
of writ of habeas corpus cannot be used for mere enforcement of
D the directions given by the foreign court against a person within its
jurisdiction and convert that jurisdiction into that of an executing
court - Child and family welfare.
Allowing the appeal, the Court
HELD: 1. The consistent view of this court is that if the
E 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 was removed unless such return is shown to be
harmful to the child. In other words, even in the matter of a
F 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 elaborate inquiry, the Court is obliged to
examine the merits as to where the paramount interests and
G 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 issue according to the child's welfare.
That has to be done bearing in mind the totality of facts and
H circumstances of each case independently. [Para 26)(309-C-F)
NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI 285
2. The High Court while dealing with the petition for A
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. The decision of the Court, in each case, must
depend on the totality of the facts and circumstances of the case B
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 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 C
court. [Para 29)[310-G; 311-A-B)
3. In a habeas corpus petition, the High Court must examine
at the threshold whether the minor is in lawful 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 D ....
enough to note that the private respondent was none other thap
the natural guardian of the minor being her biological mother:
Once that fact is ascertained, it can be presumed that the c.ustody
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 E
any other person including the husband (father of the child), in
exercise of writ jurisdiction. Instead, the other parent can be
asked to resort to a substantive prescribed remedy for getting
custody of the child. [Para 30)[311-C-E)
4. The next question to be considered by the High Court F
would be whether an order passed by the foreign court, directing
the mother to produce the child before it, would render the custody
of the minor unlawful?
4.1 Merely because such an order is passed by the foreign
court, the custody of the minor would not become unlawful per G
se. The order passed by the High Court of Justice, Family Division
London on s•b January, 2016 for obtaining a Wardship order is an
ex parte order passed against the mother after recording prima
facie satisfaction that the minor (a girl born on 07/08/2009) was
as on 2•d July, 2015, habitually resident in the jurisdiction of H
286 SUPREME COURT REPORTS [2017] 7 S.C.R.
A England and Wales and was wrongfully removed from England
on 2•d July, 2015 and was wrongfully retained in India since then.
Further, the Courts of England and Wales have jurisdiction in
the matters of parental responsibility over the child pursuant to
Articles 8 and 10 of BIIR. For which reason, it was ordered that
B the minor shall remain a Ward of that Court during her minority
or until further order; and the mother (appellant) shall return or
cause the return of the minor forthwith to England and Wales in
any event not later than 22 January, 2016. Indeed, this order was
not challenged by the appellant so far nor the appellant applied
for modification thereof before the concerned court (foreign court).
C Even on a fair reading of this order, it is not possible to hold that
the custody of the minor with her mother. was declared to be
unlawful. [Para 31)(311-F; 315-C-F]
4.2 The High Court in such a situation may then examine
whether the return of the minor to his/her native state would be
D 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 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
E 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 must yield to the welfare of the child. For answering
this issue, there can be no strait jacket formulae or mathematical
exactitude. Nor can the fact that the other parent had already
F 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
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.[Para
G 32](315-H; 316-A-C]
5. For considering the factum of interests of the child, the
court must take into account all the attending circumstances and
totality of the situation. That will have to be decided on case to
case basis. In the instant case, the father as well as mother of the
H child are of Indian origin. They were married in Chennai in India
NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI 287
according to Hindu rites and customs. The father, an Indian A
citizen, had gone to the U.K. as a student in 2003 and was working
there since 2005. After the marriage, the couple shifted to the
U.K. in early 2007 and stayed in Watford. The mother got an
employment in London in 2008, but had to come to her parents'
house in Delhi in June 2009, where she gave birth to baby girl. B
Thus, the child is an Indian citizen by birth. She did not give up
her Indian citizenship. Indeed, the appellant, along with the
daughter, returned to the U.K. in March 2010. But from August
2010 till December 2011, because of matrimonial issues between
the appellant and respondent no.2, the appellant and her daughter
remained in India. It was only after the intervention of and C
mediation by the family members, the appellant and her daughter
went back to England in December 2011, more than a year after
they had come to India. After returning to the U.K., the daughter
was admitted to a nursery school in January 2012. An application
for grant of U.K. citizenship was made on behalf of daughter in D
September 2012 which was subsequently granted in December
2012. The father (respondent no.2) then acquired the citizenship
of the U.K. in January, 2013. After grant of citizenship of the
U.K., daughter was admitted to a primary school in the U.K. in
September 2013 and studied there only till July, 2015. Since
daughter had acquired British citizenship, the U.K. Court could E
exercise jurisdiction in respect of her custody issues. Significantly,
till daughter returned to India along with her mother on 2•d July,
2015, no proceeding of any nature came to be filed in the U.K.
Court, either in relation to the matrimonial dispute between the
appellant and respondent no.2 or for the custody of daughter.
F
Further, daughter is staying in India along with the appellant, her
grandparents and other family members and relatives unlike in
the UK she lived in a nuclear family of the three with no extended
family. She has been schooling here for the past over one year
and has spent equal time in both the countries out of the first six
years. She would be more comfortable and feel secured to live G
with her mother here, who can provide her love, understanding,
care and guidance for her complete development of character,
personality and talents. Being a girl child, the guardianship of
the mother is of utmost significance. Ordinarily, the custody of a
"girl" child who is around seven years of age, must ideally be
H
288 SUPREME COURT REPORTS [2017] 7 S.C.R.
A with her mother unless there are circumstances to indicate that
it would be harmful to the girl child to remain in custody of her
mother. No such material is forthcoming in this case except the
fact that the appellant (mother) has violated the order of the U.K.
Court directing her to return the child to the U.K. before the
stipulated date. Admittedly, when the daughter was in the U.K.,
B
no restraint order was issued by any court or authority in the
U.K. in that behalf. She had travelled along with her mother from
the U.K. to India on official documents. It is a different matter
that respondent no.2 alleges that he was not informed before
daughter was removed from the U.K. and brought to India by his
C wife (appellant). It is common ground that daughter is suffering
from cardiac disorder and needs periodical medical reviews and
proper care and attention. That can be given only by her mother.
The respondent no.2 (father) is employed and may not be in a
position to give complete attention to his daughter. There is force
D in the stand taken by the appellant that if her daughter returns to
the U.K., she may not be able to get meaningful access to provide
proper care and attention. Further, she has no intention to visit
the U.K. Admittedly, the appellant has acquired the status of only
a permanent resident of the U.K., as she was staying with
respondent no.2 who is gainfully employed there. The appellant
E has alleged and has produced material in support of her case that
during her stay with respondent no.2 in the U.K., she was
subjected to physical violence and mental torture. She has also
alleged that if she goes back to the U.K., she may suffer the
same ignominy. Further, the proceeding in the UK Court instituted
by the husband is a counter blast to the complaint filed by her in
F
Delhi about the violence inflicted on her by the husband and his
family members. Indeed, respondent no.2 has vehemently denied
and rebutted these allegations. Thcsi: are disputed questions of
facts. Taking the totality of the facts and circumstances into
account, it would be in the interests of daughter to remain in
G custody of her mother and it would cause harm to her if she returns
to the U.K. That does not mean that the appellant must disregard
the proceedings pending in the U.K. Court against her or for
custody of daughter, as the case may be. The instant appeal arises
from a writ petition filed by respondent no.2 for issuance of a writ
of habeas corpus and not to decide the issue of grant or non-grant
H
NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI 289
of custody of the minor as such. In a substantive proceeding for A
custody of the minor before the Court of competent jurisdiction
including in India if permissible, all aspects will have to be
considered on their own merit without being influenced by any
observations in this judgment. [Para 33)(316-D-H; 317-A-H; 318-
A-FJ
B
6. Whether it is a case of a summary inquiry or an elaborate
inquiry, the paramount consideration is the interests and welfare
of the child. Further, a pre-existing order of a foreign Court can
be reckoned only as one of the factor to be taken into
consideration. It is not relevant as to which party first approached
the Court or so to say "first strike". The invocation of first strike C
principle as a decisive factor would undermine and whittle down
the wholesome principle of the duty of the Court having jurisdiction
to consider the best interests and welfare of the child, which is of
paramount importance. If the Court is convinced in that regard,
the fact that there is already an order passed by a foreign Court D
in existence may not be so significant as it must yield to the welfare
of the child. That is only one of the factors to be taken into
consideration. The Courts in India are not denuded from declining
the relief to return the child to the native state merely because
of a pre-existing order of the foreign Court of competent
jurisdiction. In the present case, taking the totality of the facts E
and circumstances of the case into account, it would be in the
best interests of the minor to remain in custody of her mother
(appellant) else she would be exposed to harm if separated from
the mother. The High Court was unjustly impressed by the
principle of comity of courts and the obligation of the Indian F
Courts to comply with a pre-existing order of the foreign Court
for return of the child and including the "first strike" principle
referred to in Surya Vadanan's case. [Paras 38-42)(321-E-F, G;
322-G-H; 323-A, D, E-F)
Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC 112
: (1997) 5 Suppl. SCR 30; Surya Vadanan v. State of G
Tamil Nadu & Ors. (2015) 5 SCC 450 : [2015) 4 SCR
903 - relied on.
Dr. V. Ravi Chandran v. Union of India & Ors. (2010)
1SCC174: (2009) 15 SCR 960; Arathi Bandi v. Bandi
H
290 SUPREME COURT REPORTS [2017] 7 S.C.R.
A Jagadrakshaka Rao & Ors. (2013) 15 SCC 790 -
distinguished.
7. After the minor child 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
B in the custody of her mother unless the Court of competent
jurisdiction trying the issue of custody of the child orders to the
contrary. However, the father must be given visitation rights,
whenever he visits India. The appellant shall take all such steps
to comply with the visitation rights of respondent no. 2, in its
letter and spirit. Besides, the appellant will permit the respondent
c no. 2 to interact with daughter on telephone/mobile or video
conferencing, on school holidays between 5 PM to 7:30 PM IST.
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
D the High Court of Justice. For that, the respondent no.2 will
bear the costs of litigation and expenses to be incurred by the
appellant. In addition, respondent no.2 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
E before the High Court of Justice in the UK, the respondent no.2
shall not initiate any coercive process against her which may result
in penal consequences for the appellant and if any such proceeding
is already pending, he must take steps to first withdraw the same
and/or undertake before the concerned Court not to pursue it
any further. That will be condition precedent to pave way for the
F
appellant to appear before the concerned Court in the UK. (Paras
44, 45)(324-D-H; 325-A-C)
Surinder Kaur Sandhu v. Harbax Singh Sandhu & Am:
(1984) 3 SCC 698: (1984) 3 SCR 422; Mrs. Elizabeth
Dinshaw v. Arvand M Dinshaw & Anr. (1987) 1 SCC
G 42 : [1987) 1 SCR 175; Marggarate Maria Pulparampil
Nee Feldman v. Chacko Pulparampil & Anr. (1970) AIR
(Ker) 1; Ku/deep Sidhu v. Chanan Singh & Ors. (1989)
AIR (Punjab and Haryana) 103; Re: H.(lnfants) (1965)
H. No. 2428 : (1966) 1 All ER 886; Ruchi Majoo v.
H Sanjeev Majoo (2011) AIR SC 1952 : 120111 7 SCR
NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI 291
674; Sarita Sharma v. Sushi/ Sharma (2000) 3 SCC 14 A
: [2000) 1 SCR 915; Shi/pa Aggarwal v. Aviral Mittal
and Am: (2010) 1 SCC 591 : (2009) 16 SCR 287; Kanu
Sanyal \'. District Magistrate, Darjeeling & Ors. (2001)
5 SCC 247; Sayed Saleemuddin v. Dr. Rukhsana &
Ors. (2001) 5 SCC 247; Paul Mohinder Gahun v. State
B
of JI/CT of Delhi & Ors. 113 (2004) Delhi Law Time
823 - referred to.
Lozano v. Montoya Alvarez 572 US (2014) : 134 S.Ct.
1224 (2014) - referred to.
Case Law Reference
c
(2013) 15 sec 790 distinguished Para6
[2015) 4 SCR 903 relied on Para6
[19841 3 SCR 422 referred to Para6
[19871 1 SCR 175 referred to Para6
[2011] 7 SCR 674 referred to Para6 D
[20001 1 SCR 915 referred to Paras
(20091 15 SCR 960 distinguished Para 10
[20091 16 SCR 287 referred to Para 10
(1997) 5 Suppl. SCR 30 relied on Para 24
E
c2001) 5 sec 247 referred to Para 28
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No.
972 of 2017.
From the Judgment and Order dated 08.07 .2016 of the High Court
of Delhi at New Delhi in W. P. (Cr!.) No. 247 of2016.
F
Ms. Malavika Rajkotia, Ms. Arpita Rai, Ms. Saumya Maheshwari,
Lakshmi Raman Singh, Advs. for the Appellant.
S.S. Jauhar, Ms. Prabhjit Jauhar, Ms. Anita Gupta, R. K. Rathore,
Ravinder Bana, B. K. Prasad, Advs. for the Respondents.
The Judgment of the Court was delivered by
G
A. M. KHANWILKAR, J. 1. Leave granted.
2. This appeal arises from the final judgment and order (for short
"the Impugned Judgment") passed by the High Court of Delhi dated
8'h July, 2016 in a writ petition for issuance of a writ of habeas corpus
for production of the minor daughter Nethra, allegedly illegally removed H
292 SUPREME COURT REPORTS [2017] 7 S.C.R.
A by the mother-appellant on 211d July, 2015 from the custody of the father-
respondent no.2 (writ petitioner) from the United Kingdom (UK), being
Writ Petition (Criminal) No. 247 of2016.
3. The High Court inter alia directed the mother to produce her
daughter Nethra and to comply with the order dated 08.01.2016 passed
B by the High Court of Justice, Family Division, Principal Registry, United
Kingdom (UK), within 3 (three) weeks from the date of the impugned
order or in the alternative to handover the custody of the daughter to the
father within 3 (three) weeks from the date of the order.
4. The appellant has assailed the aforesaid order inter alia on the
c ground that in the present scenario, the paramount interests and welfare
of the daughter, Nethra, who is presently over seven years of age, is to
remain in custody of her mother, especially because she suffers from a
cardiac disorder and that she would face immense physical and
psychological harm ifrepatriated to the custody of the father in England
in light of the alleged physical, verbal and mental abuse meted out by
D him. The appellant has also contended that the UK Court does not have
intimate contact with Nethra merely because she has acquired the
citizenship of the UK in December, 2012. The daughter has her deep
roots in India as she was born here in Delhi and has retained her Indian
citizenship. She has been schooling here for the past 12 (twelve) months
E and has spent equal time in both the countries out of her first six years.
Further, Nethra has her grandparents, family and relatives here in India,
unlike in the UK where she lived in a nuclear family of the three (father,
mother and herself) with no extended family and friends. Thus, it is the
Indian Courts which have the intimate contact with the minor and including
the jurisdiction to decide the matter in issue. Furthermore, the respondent
F no.2 did not initiate any action for initial six months even after knowing
that the appellant was unwilling to return along with her daughter and
until he was slapped with a notice' regarding complaint filed by the
appellant before the Women Cell at Delhi in December 2015, relating to
violence inflicted by him. As a counter blast to that notice the respondent
G no.2 rushed to the UK Court and then filed writ petition in the Delhi
High Court to pressurize the appellant to withdraw the allegations
regarding violence inflicted by him.
5. To be able to fully appreciate and analyse the issues raised
before this Court, it would be expedient to first set out the factual milieu
H from which the present case arises:
NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI 293
[A. M. KHANWILKAR, J.)
a. The appellant has a Masters' degree in communication and had worked A
in India prior to her marriage. Respondent no.2 had gone to the United
Kingdom as a student in 2003 and was working there since 2005.
Admittedly, both appellant and respondent no.2 were Indian citizens when
they contracted marriage.
b. On 30.11.2006, the appellant and respondent no.2 were married in B
Chennai according to Hindu rites and customs and was registered before
SDM Court Chennai the under the Hindu Marriage Act. Their traditional
marriage ceremony was performed in Chennai on 22.01.2007. After
marriage, the parties shifted to the.UK in e~rly 2007 and began living in
respondent no.2's home in Watford (UK). ·
c
c. After marriage, disputes and differences arose between the parties.
The appellant contends that these disputes were often violent and that
she was physically, mentally and psychologically abused, a claim
strenuously denied by respondent no.2.
d. The appellant eventually got a job with an advertising agency in London D
in 2008, earning close to 25,000 pounds (GBP) per annum.
e. Having conceived in and around December 2008, the appellant left
the UK for Delhi in June 2009 to be with her parents. On 7th August,
2009, the appellant gave birth to a girl child - Nethra, in Delhi. Respondent
no.2 soon joined them in India. E
f. After the birth of their daughter, they went back to the UK in March
2010. Subsequently in August 2010, the appellant and her daughter
returned to India after several incidents with respondent no.2.
g. After an exchange oflegal correspondence between the parties, setting
out the numerous differences which had arisen in the marriage, the F
appellant and her daughter eventually went back to London in December
2011, more than a year after they had come to India.
h. In January 2012, the daughter was admitted to a nursery school in the
UK and attended the same till she was old enough to attend a primary
school. G
i. In September 2012, an application was filed on behalfofthe daughter
for grant of UK citizenship, purportedly with the consent of both the
appellant and respondent no.2. The appellant, however, denies that she
gave consent for this application.
H
294 SUPREME COURT REPORTS [2017] 7 S.C.R.
A j. In December 2012 the daughter was granted citizenship of the UK.
Soon thereafter in January 2013, respondent no.2 was also granted
citizenship of the UK. Subsequently, respondent no.2 purchased another
house in the UK, purportedly with the consent of the appellant, and the
parties shifted there. The appellant had acquired a driving license in the
UK around the same time.
B
k. In September 2013, the daughter who was around 4 (four) years old
at the time, was admitted to a primary school in the UK (and studied
there till July 2015). Respondent no.2 was paying the annual fees for the
school amounting to approximately I 0,000 GBP per annum.
c I. Subsequently, in July 2014, the appellant returned to India owing to
certain purported health problems, and also brought her daughter along
with her. Both the appellant and her daughter went back to the UK
around a month later i.e. on 61h September, 2014, purportedly at the
insistence of respondent no.2.
D m. From late 2014 till early 2015, the daughter took ill and was eventually
diagnosed with a cardiac disorder for which she had to undergo periodical
medical reviews. According to the appellant, she was taking care of her
daughter during this period while respondent no.2 did not even bother
about the daughter's condition, a claim vehemently contested by
respondent no.2.
E
n. On 211d July, 2015, the appellant came back to India along with her
daughter because of the alleged violent behavior of respondent no.2.
Respondent no.2 asserts that soon after the appellant left for India with
their daughter, she sent an email to the school in which the daughter was
enrolled, giving the reason for her departure as 'family medical reasons'.
F The appellant then allegedly sent further emails to the school, first informing
it that her daughter would remain in India for an extended duration and
finally, informing it that her daughter would not be coming back to the
UK due to her own well-being and safety.
o. On 16th December, 2015, the appellant filed a complaint with the
G Crime Against Women Cell (CAWC), New Delhi which then issued
notice to respondent no.2 and his parents, asking them to appear before
it. On the date of hearing, neither respondent no.2 nor his parents appeared
before the CAWC.
p. As a counter blast, respondent no.2 filed a custody/wardship petition
H on g•h January, 2016 before the High Court of Justice, Family Division,
NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI 295
[A. M. KHANWILKAR, J.]
UK, seeking the return of his daughter to the jurisdiction of the UK A
Court. On this petition, the High Court of Justice passed an ex-parte
order inter alia directing the appellant to return the daughter to the UK
and to attend the hearing at the Royal Courts of Justice.
q. Then, on 23n1 January, 2016, respondent no.2 filed a habeas corpus
writ petition before the High Court of Delhi, seeking to have his daughter B
produced before the Court. The High Court passed the Impugned
Judgment dated 81h July, 2016, inter alia directing the appellant to produce
her daughter and comply with the orders passed by the UK Court or
handover her daughter to respondent no.2 within 3 (three) weeks from
the date of the order.
c
6. The High Court, while ordering that the mother-appellant return
to the UK with the child and produce her before the UK Court, set out
and examined the factual aspects of the case. The High Court held that
the child, having lived in the UK since the time of her birth in 2009, had
developed roots there. Further, the child was a permanent citizen of the
UK and held a British passport. The High Court also examined the D
wardship order passed ex-parte by the High Court of Justice, Family
Division, London on 81h January, 2016. In the said order, the UK Court
inter alia recorded that the child had been wrongfully removed from
England in July 2015 and wrongly retained in India since then. The UK
Court also recorded the father's willingness to bear the expenses for the E
transport and stay of the mother and the child to the UK. The UK Court
held that it had the jurisdiction to hear the matter and directed that the
child would become a ward of the court during her minority or until
further orders and that the mother would have to return the child to
England by 22 11d January, 2016. The High Court opined that in light of
the order by the UK Court, the mother would not face any financial F
hardship and further, the order of the UK Court had attained finality due
to lapse of time. The High Court then examined the law as propounded
in several judgments, including Arathi Bandi Vs. Bandi
Jagadrakshaka Rao & Ors. 1, Surya Vadanan Vs. State of Tamil
Nadu & Ors. 2, Surinder Kaur Sandhu Vs. Harbax Singh Sandhu & G
Anr. 3, Mrs. Elizabeth Dinshaw Vs. Arvand M. Dinshaw & Anr.4,
Marggarate Maria Pulparampil Nee Feldman V. Chacko
1
(2013) 15 sec 790
'(2015) 5 sec 450
'(1984) 3 sec 698
• (1987) 1 sec 42 H
296 SUPREME COURT REPORTS (2017) 7 S.C.R.
A Pulparampil & Anr. 5, Ku/deep Sidhu V. Chanan Singh & Ors. 6, In
Re: H.(lnfants)7 and Ruchi Majoo V Sanjeev Majoo 6• The High Court
held that since the mother had not sought custody of the child by
approaching any competent Indian Court prior to the passing of the order
by the UK Court, therefore, the first, effective order/direction had been
B passed by the UK/foreign court and, applying the principle expounded in
Surya Vadanan (supra) of comity of courts, the balance offavour would
lie with the UK Court. Since the child had spent most of her life in the
UK and studied there, it would be in the best interests of the child that
she be returned to the UK. After analyzing the principles deduced from
the aforesaid judgments, the High Court was of the opinion that:
c a. The foreign court having the most intimate contact with the child
would be better placed to appreciate the social and cultural milieu in
which the child had been brought up;
b. The principle of comity of courts should not be discarded except for
special and compelling reasons. Especially when interim or interlocutory
D orders have been passed by foreign courts;
c. If a foreign court has jurisdiction to hear the matter, then an interim/
interlocutory order passed by such court should be given due weightage
and respect. If such jurisdiction is not in doubt, then the "first strike"
principle i.e. a substantive order passed by a foreign court prior to a
E substantive order passed by another foreign or domestic court, becomes
applicable. Due respect and weight ought to be given to the earlier
substantive order as compared to the latter order;
d. A foreign court passing an interim/interlocutory order can make prima
facie adjudications, similar to a domestic court;
F
e. Merely because a parent has violated an order of a foreign court does
not mean that the parent should be penalized for the same. While the
conduct of the parent may be taken into account while passing the final
order, the said conduct should not have a penalising result;
G f. A court may either hold an elaborate inquiry to decide whether a child
should be repatriated to a foreign country or a summary inquiry without
going into the merits of the dispute, relating to the best interests and
'(1970) AIR (Ker) I
6 (1989) AIR (Punjab and Haryana) 103
7
(1965) H. No.2428 = (1966) 1 All ER 886
H '(2011) AIR SC 1952
NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI 297
[A. M. KHANWILKAR, J.]
welfare of the child. If, however, there exists a pre-existing order of a A
foreign Court of competent jurisdiction, then a domestic court must have
special reasons to hold an elaborate inquiry. It must consider various
factors such as the nature of the interim order passed by the foreign
court, the likelihood of harm caused to the child, if any, when repatriated,
the alacrity with which the parent moves the foreign court etc.
B
7. The High Court essentially applied the exposition in the case of
Surya Vadanan (supra) and held that there was no special or compelling
reason to ignore the interim order passed by the UK Court and that the
child was accustomed-to and well adapted to the culture in the UK.
Further, the High Court opined that there was no force in the mother's
allegation that she was a victim of domestic abuse since she had not C
made a single complaint to the authorities while she was staying with the
respondent no.2 in the UK. In addition, there was no documentary
evidence to support such a claim either. Finally, the High Court rejected
the contention, that the child ought to be medically treated only in Delhi
for her heart condition and not in the UK, as baseless. D
8. Advocate Malavika Rajkotia, learned counsel for the Appellant,
first submits that the High Court has given undue emphasis to the principle
of comity of courts in complete disregard to the paramount interests and
welfare of the child. She submits that the welfare of the child is of
paramount consideration and that such consideration ought to over-ride E
the need to enforce the principle of comity of courts. There is an obvious
need to protect the interests of the child and the mother, especially in
light of the fact that that the respondent no.2 had been physically and
verbally abusive to the appellant in the past and even put the child at risk
with his behavior. She submits that while India is a signatory to the United
Nations Child Rights Convention (UNCRC), it is not a signatory to the F
Hague Convention. The UNCRC mandates that in allactions concerning
children, the best interests of the child shall be of primary concern and
the child shall be provided the opportunity to be heard. The Hague
Convention is intended to prevent parents from abducting children across
borders and is governed by the principle of comity of courts. Upholding G
the principle of comity of courts while disregarding the welfare of the
child would thus go against the public policy in India and result in great
harm being caused to the child and the appellant.
9. Ms. Rajkotia submits that parens patriae jurisdiction of the
court within whose jurisdiction the child is located as also the welfare of H
298 SUPREME COURT REPORTS [2017] 7 S.C.R.
A the child in question must be given greater weightage as opposed to a
mechanical interpretation of the principle of comity of courts. By giving
effect to the comity of courts, the High Court has eroded its own parens
patriae jurisdiction and also ignored the welfare of the child who is
located within its jurisdiction. In fact, the evolving standard, atleast as
far as the USA and the UK Courts are concerned, is to give greater
B
importance to the welfare of the child as opposed to giving primacy to
the principle of comity of courts. She has relied upon a judgment of the
United States Supreme Court in Lozano v Montoya Alvarez 9 wherein
the Court inter alia stated that while the Hague Convention was intended
to discourage child abduction, it was not supposed to do so at the cost of
c the child's interest in choosing to remain in the jurisdiction of the country
or in settling the matter.
10. Ms. Rajkotia then submits that the High Court has failed to
follow the established judicial trail of opinion as set out in several
judgments of this Court while deciding custody matters. She submits
D that this Court has expounded that the welfare of the child is of paramount
consideration and that the Court must rest its decision based on the best
interests of the child. Even in instances where a mother has submitted to
the jurisdiction of a foreign court but has subsequently fled that country
with her child after an order of the foreign court, this Court has protected
the welfare of the child. In the present case, the appellant left the UK
E prior to any proceedings being initiated against her, let alone any judicial
order being passed. Ms. Rajkotia has relied upon the followingjudgments
to buttress her argument: Smt. Surinder Kaur Sandhu (supra), Mrs.
Elizabeth Dinshaw (supra), Sarita Sharma Vs Sushi/ Sltarma 10 and
Dr. V. Ravi Chandran Vs Union of India & Ors. 11
F I I. Ms. Rajkotia further submits that in two cases, viz Shi/pa
Aggarwal Vs. Aviral Mittal and Anr. 12 and most recently in Surya
Vadanan (supra), this Court has deviated from the established principle
of putting the welfare of the child above all other considerations. In both
these cases, the Court ordered that the child and mother return to the
G jurisdiction of the foreign court, despite the fact that the two had left the
foreign jurisdiction before the court had passed any order. She has taken
exception to the reasoning given in these two judgments on the ground
9 572 US_(2014) = 134 S.Ct. 1224 (2014)
'° (2000) 3 sec 14
11
(201 OJ 1 sec 174
H 12 (2010)1SCC591
NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI 299
[A. M. KHANWILKAR, J.]
that the decisions overlook the parens patriae jurisdiction of the Court A
as also misinterpreted the concept of 'intimate contact' with the child.
The 'intimate contact' principle only applies in an instance where the
child has been taken to a country with an alien language, social customs
etc. It cannot be applicable where the child returns to a country where
he/she has been born and brought up in, like in the present case. Further,
B
the judgment in Surya Vadanan (supra) has the chilling effect of giving
dominance to the principle of comity of courts over the welfare of the
child. The judgment, in effect, rejects the perspective o_f the child and
may encourage multiplicity of proceedings. This, ultimately, leads to a
mechanical application of the principle of comity of courts. This is in
direct conflict with the binding decision in Dr. V Ravi Cha11dra11 (sRpra) c
where a three-judge bench categorically held that under no circumstances
can the principle of welfare of the child be eroded and that a child can
seek refuge under the parens patriae jurisdiction of the Court.
12. Ms. Rajkotia then submits that the child has been born and
brought up in India. While the child now has British citizenship, she still D
retains her Indian citizenship. The child was forced to return with the
mother under compelling situation emanating from domestic violence
inflicted by the father. The appellant even informed respondent no.2 that
she had no desire to return to the UK, to which there was no reply.
13. Ms. Rajkotia submits that the legal action taken by respondent E
no.2 was nothing but a counter-blast to the appellant's allegations of
abuse and violence leveled against him. This can be discerned from the
fact that respondent no.2 initiated action before the UK court 6 (six)
months after the appellant had left the UK and only after he learned that
she had filed a complaint with the CAWC in December 2015. The court
also needs to consider that the order of the UK court was passed ex- F
parte without giving the appellant an opportunity to present her case.
The intention of respondent no.2 can be ascertained by the fact that he
filed a habeas corpus petition before the High Court, which is meant
for urgent and immediate relief whereas the appellant and the child were
staying in India for more than 6 months. Clearly, there was no immediate G
or urgent need necessitating the production of the child and the petition
was filed as an after-thought and litigation stratagem. The High Court
should have been loath to countenance such stratagem adopted by
respondent no.2, which is bordering on abuse of the process of Court.
14. Ms. Rajkotia finally submits that the High Court has failed to
H
300 SUPREME COURT REPORTS [2017] 7 S.C.R.
A consider certain factual circumstances and has committed manifest error
in that regard. In that, respondent no.2 was offering the appellant a
paltry monthly maintenance of just 1000 GBP whereas he himself was
earning 10,000 GBP per month. Even after making such offer, respondent
no.2 has not paid for the welfare or education of the child in India.
B Further, the High Court has not considered the serious health issues
being faced by the child while ordering her to go back to the UK. Ms.
Rajkotia submits that in India, the child has access to private, specialist
healthcare whereas in the UK, the child would be constrained by the
National Health Service (NHS) which is the publicly funded national
healthcare system for England. Further, the High Court has relied on
C incorrect facts while passing the Impugned Judgment.
15. In addition to the aforementioned cases, Ms. Rajkotia has
also submitted a compendium ofjudgments titled 'List ofjudgments filed
on behalf of appellant'. The judgments referred to therein have been
considered by us.
D 16. Per contra, Advocate Prabhjit Jauhar appearing for respondent
no.2 first submits that the child was a British citizen and had been brought
up in the UK. The child had been residing in the UK and the appellant
was also a permanent resident of the UK. The respondent no.2 has also
acquired citizenship of the UK. Both the appellant and respondent no.2
E had every intention to permanently settle in the UK along with their
.child. The appellant had even signed the application/citizenship form of
the child for British citizenship. Thus, the appellant's submission before
the High Court that she had not given permission to apply for their child's
British citizenship is patently false. In the emails exchanged with the
child's school, the appellant mentioned that they would be returning to
F the UK. It is only much later that respondent no.2 was made aware by
the school that the appellant would not be returning to the UK. The High
Court even recorded that the parties had every intention of making the
UK their home and that the child had developed roots in the UK. Hence,
the UK courts had the closest concern and intimate contact with the
G child as regards welfare and custody and would have jurisdiction in the
matter.
17. Further, Mr. Jauhar submits that the High Court has duly
considered the factum of welfare and interests of the child while passing
the impugned judgment. While citing the judgments in Surinder Kaur
H Sandhu (supra) and Surya Vadanan (supra), the High Court noted that
NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI 301
[A. M. KHANWILKAR, J.]
the UK Court would have the most intimate contact with and closest A
concern for the child. The child had clearly adapted to the social and
cultural milieu of the UK and it was in the best interests of the child that
she return to the UK. There was neither any material to suggest that
repatriation of the child would result in psychological, physical or cultural
harm nor anything to indicate that the UK Court was incompetent to
take a decision in the interests and welfare of the child. There was no B
compelling reason for the High Court to ignore the principle of comity of
courts. Further, as regards the medical condition of the child, the High
Court was right in accepting the argument that the UK would have
better medical facilities to treat the child and that she was fully covered
by the medical services there. Further, respondent no.2 even had the C
resources to approach private hospitals.
18. Mr. Jauhar then submits that the respondent no.2's bonafides
can be gleaned from the fact that the High Court directed respondent
no.2 to honour his commitment of paying for accommodation near the
child's school as well as boarding and travelling expenses of the appellant D
and the child. Respondent no.2 made statements before the UK court
that he would vacate his family home for use of the appellant's family,
pay for the child's school expenses and pay.1000 GBP per month for
incidental expenses. In fact, respondent no.2 even made a statement
before the High Court that he would not pursue any criminal proceedings
against the appellant for kidnapping the child and only wished the family E
to be reunited in the UK so that the child could continue with her
education. In addition to the aforesaid payments, respondent no.2 was
even ready to provide a monthly payment of 1000 GBP to the appellant
and is now willing to fund the cost of litigation borne by the appellant for
custody of the child in the UK. F
19. Mr. Jauhar then submits that only the UK Court would have
jurisdiction with regard to the alleged acts of domestic violence leveled
against respondent no.2 as the acts complained against allegedly occurred
while the parties were staying in the UK.
20. Mr. Jauhar submits that there has been no delay on the part of G
respondent no.2 in filing the writ petition before the High Court of Delhi.
Respondent no.2 became aware that the appellant was not inclined to
bring the child back to the UK only on z3ro November, 2015 and thereafter
came to India in December 2015. He then moved the UK court on s•h
January 2016 and filed the writ petition before the High Court of Delhi H
302 SUPREME COURT REPORTS [2017] 7 S.C.R.
A on z3ro January 2016. Thus, it can be seen that respondent no.2 did not
delay filing of proceedings.
21. Mr. Jauhar finally submits that legal notices were exchanged
between the parties from 24th December 20 l 0 till 7th June 2011, after
which the appellant and the daughter came back to the UK on 11th
B December 2011 and the parties stayed together till znct July 2015. Thus,
on applying the principle of condonation all the allegations made in the
aforesaid legal notices stood condoned and the fact that these notices
were exchanged in 2010-2011 are ofno relevance and do not take away
the jurisdiction of the foreign court.
c 22. In support of his arguments, Mr. Jauhar has cited several
cases which have been placed before this Court in the form of a "List of
judgments on Habeas Corpus". The same have been taken on record
and duly considered.
23. We have cogitated over the submissions made by the counsel
D for both the sides and also the judicial precedents pressed into service
by them. The principal argument of the respondent-husband revolves
around the necessity to comply with the direction issued by the foreign
Court against the appellant-wife to produce their daughter before the
UK Court where the issue regarding wardship is pending for consideration
and which Court alone can adjudicate that issue. The argument proceeds
E that the principle of comity of courts must be respected, as rightly applied
by the High Court in the present case.
24. We must remind ourselves of the settled legal position that the
concept of forum convenience has no place in wardship jurisdiction.
Further, the efficacy of the principle of comity of courts as applicable to
F India in respect of child custody matters has been succinctly delineated
in several decisions of this Court. We may usefully refer to the decision
in the case of Dhanwanti Joshi v Madhav Unde 13 • In Paragraphs 28
to 30, 32 and 33 of the reported decision, the Court observed thus:-
"28. The leading case in this behalf is the one rendered by
G the Privy Council in 1951, in McKee v. McKee. In that case,
the parties, who were American citizens, were married in USA
in 1933 and lived there till December 1946. But they had
separated in December 1940. On 17-12-1941, a decree of
divorce was passed in USA and custody of the child was
H " (1998) 1 sec 112
NITHYAANAND RAGHAVAN v. STATE OF NCT OF DELHI 303
[A. M. KHANWILKAR, J.]
given to the father and later varied in favour of the mother. A
At that stage, the father took away the child to Canada. Jn
habeas corpus proceedings by the mother, ·though initially
the decisions of lower courts went against her, the Supreme
Court of Canada gave her custody but the said Court held ·
that the father could not have the question of custody retried B
in Canada once the question was adjudicated in favour of
the mother in the USA earlier. On appeal to the Privy Council,
Lord Simonds held that in proceedings relating to custody
before the Canadian Court, the welfare and happiness of
the infant was of paramount consideration and the order of
a foreign court in USA as to his custody can be given due C
weight in the circumstances of the case, but such an order
of a foreign court was only one of the facts which must be
taken into consideration. It was further held that it was the
duty of the Canadian Court to form an independent judgment
on the merits of the matter in regard to the welfare of the D
child. The order of the foreign court in US would yield to the
welfare of the child. "Comity of courts demanded not its
enforcement. but its grave· consideration". This case arising
from Canada which lays down the law for Canada and U.K.
has been consistently followed in latter cases. This view was
reiterated by the House of Lords in J v. C. This is the law E
also in USA (see 24 American Jurisprudence, para 1001)
and Australia. (See Khamis v. Khamis)
29. However, there is an apparent contradiction between the
above view and the one expressed in H. (infants), and in E.
(an infant), to the effect that the court in the country to which F
the child is removed will send back the child to the country
from which the child has been removed. This apparent conflict
was explained and resolved by the Court of Appeal in 1974
in L. (minors) (wardship : jurisdiction), and in R. (minors)
(wardship : jurisdiction), It was held by the Court ofAppeal
in L.. that the view in McKee v. McKee is still the correct G
view and that the limited question which arose in the latter
decisions was whether the court in the country to which the
child was removed could conduct (a) a summary inquiry or
{b) an elaborate inquiry on the question of custody. Jn the
H
304 SUPREME COURT REPORTS [2017] 7 S.C.R.
A case of (a) a summary inquiry, the court would return custody
to the country from which the child was removed unless such
return could be shown to be harmful to the child. Jn the case
of (b) an elaborate inquiry, the court could go into the merits
as to where the permanent welfare lay and ignore the order
of the foreign court or treat the fact of removal of the child
B
from another country as only one of the circumstances. The
crucial question as to whether the Court On the country to
which the child is removed) would exercise the summary or
elaborate procedure is to be determined according to the
child's welfare. The summary jurisdiction to return the child
c is invoked. for example. if the child had been removed from
its native land and removed to another country where. mavbe.
his native language is not spoken. or the child gets divorced
from the social customs and contacts to which he has been
accustomed, or if its education in his native land is
interrupted and the child is being subjected to a foreign
D
system of education. - for these are all acts which could
psychologically disturb the child. Again the summary
jurisdiction is exercised only if the court to which the child
has been removed is moved promptly and quickly, for in that
event, the Judge may well be persuaded that it would be
E better for the child that those merits should be investigated
in a court in his native country on the expectation that an
early decision in the native country could be in the interests
of the child before the child could develop roots in the
country to which he had been removed. Alternatively, the
said court might think of conducting an elaborate inquiry
F
on merits and have regard to the other facts of the case and
the time that has lapsed after the removal of the child and
consider if it would be in the interests of the child not to
have it returned to the country from which it had been
removed. In that event, the unauthorised removal of the child
G from the native country would not come in the way of the
court in the country to which the child has been removed, to
ignore the removal and independently consider whether the
sending back of the child to its native country would be in
the paramount interests of the child. (See Rayden & Jackson,
15th Edn., 1988, pp. 1477-79; Bromley, Family law, 7th Edn.,
H
NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI 305
[A. M. KHANWILKAR, J.]
1987.) In R. (minors) (wardship : jurisdiction), it has been A
firmly held that the concept of forum convenience has no
place in wardship jurisdiction.
30. We may here state that this Court in Elizabeth Dinshaw
v. Arvind M Dinshaw. while dealing with a child removed
by the father trom USA contrary to the custody orders of the B
US Court directed that the child be sent back to USA to the
mother not only because of the principle of comity but also
because, on facts. - which were independently considered
- it was in the interests of the child to be sent back to the
native State. There the removal of the child by the father and
the mothers application in India were within six months. Jn C
that context, this Court referred to H. (infants), which case,
as pointed out by us above has been explained in L. as a
case where the Court thought it fit to exercise its summary
jurisdiction in the interests of the child. Be that as it may, the
general principles laid down in McKee v. McKee and J v. C D
and the distinction between summary and elaborate inquiries
as stated in L. (infants), are today well settled in UK, Canada,
Australia and the USA. The same principles apply in our
country. TherefOre nothing precludes the Indian courts trom
considering the question on merits. having regard to the
delay from 1984 - even assuming that the earlier orders E
passed in India do not operate as constructive res judicata.
31. xxxx xxxx xxxx
32. In this connection, it is necessary to refer to the Hague
Convention of 1980 on "Civil Aspects of International Child F
Abduction". As of today. about 45 countries are parties to
this Convention. India is not yet a signatory. Under the
Convention, any child below 16 years who had been
"wrongfully" removed or retained in another contracting
State, could be returned back to the country from which the
child had been removed, by application to a central authority. G
Under Article 16 of the Convention, if in the process, the
issue goes before a court, the Convention prohibits the court
from going into the merits of the welfare of the child. Article
12 requires the child to be sent back. but ifa period of more
than one year has lapsed (rom the date of removal to the H
306 SUPREME COURT REPORTS [2017] 7 S.C.R.
A date of commencement of the proceedings before the court.
the child would still be returned unless it is demonstrated
that the child is now settled in its new environment. Article
12 is subject to Article 13 and a return could be refused ifit
would expose the child to physical or psychological harm
or otherwise place the child in an intolerable position or if
B
the child is quite mature and objects to its return. In England,
these aspects are covered by the Child Abduction and
Custody Act, 1985.
33. So far as non-Convention countries are concerned. or
where the removal related to a period before adopting the
c Convention. the law is that the court in the country to which
the child is removed will consider the question on merits
bearing the welfare of the child as ofparamount importance
and consider the order of the foreign court as only a factor
to be taken into consideration as stated in McKee v. McKee
D unless the Court thinks it fit to exercise summary jurisdiction
in the interests of the child and its prompt return is {Or its
welfare. as explained in L. As recently as 1996-1997, it has
been held in P (A minor) (Child Abduction: Non-Convention
Country), by Ward, L.J. [1996 Current Law Year Book, pp.
165-166) that in deciding whether to order the return of a
E child who has been abducted from his or her country of
habitual residence - which was not a party to the Hague
Convention, 1980, - the courts' overriding consideration
must be the childs welfare. There is no need {Or the Judge to
attempt to apply the provisions of Article 13 of the
F Convention bv ordering the childs return unless a grave
risk of harm was established. See also A (A minor)
(Abduction: Non-Convention Country) [Re, The Times 3-7-
97 by Ward, L.J. (CA) (quoted in Current Law, August 1997,
p. 13). This answers the contention relating to removal of
the child from USA. "
G
(emphasis supplied)
The Court has noted that India is not yet a signatory to the Hague
Convention of 1980 on "Civil Aspects oflntemational Child Abduction".
As regards the non-convention countries, the law is that the Court in the
H country to which the child has been removed must consider the question
NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI 307
[A. M. KHANWILKAR, J.]
on merits bearing the welfare of the child as of paramount importance A
and reckon the order of the foreign Court as only a factor to be taken
into consideration, unless the Court thinks it fit to exercise summary
jurisdiction in the interests of the child and its prompt return is for its
welfare. In exercise of summary jurisdiction, the Court must be satisfied
and of the opinion that the proceeding instituted before it was in close B
proximity and filed promptly after the child was removed from his/her
native state and brought within its territorial jurisdiction, the child has not
gained roots here and further that it will be in the child's welfare to
return to his native state because of the difference in language spoken
or social customs and contacts to which he/she has been accustomed or
such other tangible reasons. In such a case the Court need not resort to C
an elaborate inquiry into the merits of the paramount welfare of the child
but leave that inquiry to the foreign Court by directing return of the child.
Be it noted that in exceptional cases the Court can still refuse to issue
direction to return the child to the native state and more particularly
inspite of a pre-existing order of the foreign Court in that behalf, if it is D
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 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 E
summary inquiry or an elaborate 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 ofretum 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
F
harm or otherwise place the child in an intolerable position or ifthe child
is quite mature and objects to its return. We are in respectful agreement
with the aforementioned exposition.
25. Notably, the aforementioned exposition has been quoted with
approval by a three-judge bench of this Court in Dr. V. Ravi Chandran
(supra) as can be discerned from paragraph 27 of the reported decision. G
In that, after extracting paragraphs 28 to 30 ofthe decision in Dlramvanti
Joslri's case, the three-judge bench observed thus:
"27 ........ However, in view of the fact that the child had lived
with his mother in India for nearly twelve years, this Court
H
308 SUPREME COURT REPORTS [2017) 7 S.C.R.
A held that it would not exercise a summary jurisdiction to
return the child to the United States ofAmerica on the ground
that its removal from USA in 1984 was contrary to the orders
of US courts. it was also held that whenever a question
arises before a court pertaining to the custody of a minor
child. the matter is to be decided not on considerations of
B
the legal rights of the parties but on the sole and predominant
criterion of what would best serve the interest of the minor."
(emphasis supplied)
Again in paragraphs 29 and 30, the three-judge bench observed thus:-
C "29. While dealing with a case of custody of a child removed
by a parent from one country to another in contravention of
the orders of the court where the parties had set up their
matrimonial home, the court in the country to which the child
has been removed must first consider the question whether
the court could conduct an elaborate enquiry on the question
D of custody or by dealing with the matter summarily order a
parent to return custody of the child to the country from
which the child was removed and all aspects relating to the
child's welfare be investigated in a court in his own country.
Should the court take a view that an elaborate enquiry is
E necessary. obviously the court is bound to consider the
welfare and happiness of the child as the paramount
consideration and go into all relevant aspects of we/tare of
the child including stability and security. loving and
understanding care and guidance and full development of
the child's character. personalitv and talents. While doing
F so. the order of a foreign court as to his custody may be
given due weight: the weight and persuasive effect of a
foreign judgment must depend on the circumstances of each
case.
30. However, in a case where the court decides to exercise
G its jurisdiction summarily to return the child to his own
country, keeping in view the jurisdiction of the court in the
native country which has the closest concern and the most
intimate contact with the issues arising in the case, the court
may leave the aspects relating to the welfare of the child to
be investigated by the court in his own native country as
H
NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI 309
[A. M. KHANWILKAR, J.]
that could be in the best interests of the child. The indication A
given in Mckee v. McKee that there may be cases in which it
is proper for a court in one jurisdiction to make an order
directing that a child be returned to a foreign jurisdiction
without investigating the merits of the dispute relating to the
care of the child on the ground that such an order is in the B
best interests of the child has been explained in L (Minors),
In re and the said view has been approved by this Court in
Dhanwanti Joshi. Similar view taken by the Court o[Appeal
in H. (Infants). in re has been approved by this Court in
Elizabeth Dinshaw. "
(emphasis supplied) c
26. 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 was removed unless such return is shown D
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
elaborate inquiry, the Court is obliged to examine the merits as to where E
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 issue according to the child's welfare. That has to be done
bearing in mind the totality of facts and circumstances of each case F
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 deciding the matter of custody or for return of the
child to the native state.
G
27. The respondent husband has placed emphasis on four decisions
of this Court in the case of V. Ravi Chandran, Sltilpa Aggarwal, Aral/ii
Bandi and Surya Vadanan. We shall deal with those decisions a little
latter.
28. The present appeal emanates from a petition seeking a writ of H
310 ·SUPREME COURT REPORTS [2017] 7 S.C.R.
A habeas corpus for the production and custody of a minor child. This
Court in Kanu Sanyal v. District Magistrate, Darjeeling & Ors. 14,
has held that habeas corpus was essentially a procedural writ dealing
with machinery of justice. The object underlying the writ was to secure
the release ofa person who is illegally deprived of his liberty. The writ
of habeas corpus is a command addressed to the person who is alleged
B
to have another in unlawful custody, requiring him to produce the body
of such person before the Court. On production of the person before
the Court, the circumstances in which the custody of the person concerned
has been detained can be inquired into by the Court and upon due inquiry
into the alleged unlawful restraint pass appropriate direction as may be
c deemed just and proper. The High Court in such proceedings conducts
an inquiry for immediate determination of the right of the person's freedom
and his release when the detention is found to be unlawful. In a
petition for issuance of a writ of habeas corpus in relation to the
custody of a minor child, this Court in Sayed Saleemuddin v. Dr.
Rukhsana & Ors. 15, has held that the principal duty of the Court is to
D ascertain whether the custody of child is unlawful or illegal and whether
the welfare of the child requires that his present custody should be changed
and the child be handed over to the care and custody of any other person.
While doing so, the paramount consideration must be about the welfare
of the child. In the case of Mrs. Elizabeth (supra), it is held that in such
E cases the matter must be decided not by reference to the legal rights of
the parties but on the sole and predominant criterion of what would best
serve the interests and welfare of the minor. The role of the High Court
in examining the cases of custody of a minor is on the touchstone of
principle of parens patriae jurisdiction, as the minor is within the
F jurisdiction of the Court (see Paul Mohinder Gahun Vs. State ofNCT
of Delhi & Ors. 16 relied upon by the appellant). It is not necessary to
multiply the authorities on this proposition.
29. 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
G keeping in mind all the attending facts and circumstances including the
settled legal position referred to above. Once again, we may hasten to
add that the decision of the Court, in each case, must depend on the
1
• (2001) s sec 247
1
• (2001) s sec 247
H 16
113 (2004) Delhi Law Time 823
NITHYAANAND RAGHAVAN v. STATE OF NCT OF DELHI 311
[A. M. KHANWIL.KAR, J.]
totality of the facts and circumstances of the case brought before it A
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 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 B
that of an executing court. Indubitably, the writ petitioner can take
recourse to such other remedy as may be permissible in law for
enforcement of the order passed by the foreign Court or 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.
30. In a habeas corpus petition as aforesaid, the High Court C
must examine at the threshold whether the minor is in lawful 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 D
ascertained, it can be presumed that the custody of the minor with his/
her mother is lawful. In such a case, only in exceptionable situation, the
custody of the minor (girl child) may be ordered to be taken away from
her mother for being given to any other person including the husband
(father of the child), in exercise of writ jurisdiction. Instead, the other
parent can be asked to resort to a substantive prescribed remedy for E
getting custody of the child.
31. The next question to be considered by the High Court would
be whether an order passed by the foreign court, directing the mother to
produce the child before it, would render the custody of the minor
unlawful? Indubitably, merely because such an order is passed by the F
foreign court, the custody of the minor would not become unlawful per
se. As in the present case, the order passed by the High Court of Justice,
Family Division London on 8th January, 2016 for obtaining a Wardship
order reads thus:
"Order made by His Honour Judge Richards sitting as a G
Deputy High Court Judge sitting at the Royal Courts of
Justice, Strand, London WC2A 2LL in chambers on 8
January, 2016 IN THE MATTER OF THE CHILDREN ACT
1989 AND IN THE MATTER OF THE SENIOR COURTS ACT
1981
H
312 SUPREME COURT REPORTS [2017) 7 S.C.R.
A The Child is Nethra Anand (a girl, born 718109) AFTER
HEARING Counsel paul Hepher, on behalf of the applicant
father
AFTER consideration of the documents lodged by the
applicant.
B IMPORTANT WARNING TO NITHYA ANAND RAGHAVAN
If you NITHYA ANAND RAGHAVAN disobey this order you
may be held to be in contempt of court and may be
imprisoned, fined or have your assets seized.
If any other person who knows of this order and does
c anything which helps or permits you NITHYA ANAND
RAGHAVAN to breach the terms of this order they may be
held to be in contempt of court and may be imprisoned, fined
or have their assets seized.
You have the following legal rights:
D a) to seek legal advice. This right does not entitle you to
disobey any part to this order until you have sought legal
advice;
b) to require the applicant's solicitors, namely Dawson
Cornwell, 15 Red Lion Square, London WC IR 4QT, tel 020
7242 2556 to provide you with a copy of any application
E form(s), statement(s), note of the hearing;
c) to apply, whether by counsel or solicitor or in person, to
Judge of the Family Court assigned to hearing urgent
applications at the Royal Courts of Justice, Strand, London,
if practicable after giving notice to the applicant's solicitors
F and to the court, for an order discharging or varying any
part of this order. This right does not entitle you to disobey
any part of this order until your application has been heard;
d) if you do not speak or understand English adequately, to
have an interpreter present in court at public expense in
G order to assist you at the hearing of any application relating
to this order
The parties
I. The Applicant is ANAND RAGHAVAN represented by
Dawson Cornwell Solicitors The Respondent is NITHYA
H
NITHYAANAND RAGHAVAN v. STATE OF NCT OF DELHI 313
[A. M. KHANWILKAR, J.]
ANAND RAGHAVAN Recitals A
2. This order was made at a hearing without notice to the
respondent. The reason why the order was made without
notice to the respondent is because she left England and
Wales on or about 2 July 2015 and notice may lead her to
take steps to defeat the purpose of the application and fail B
to return the child.
3. The Judge read the following documents:
a. Position statement
b. C67 application and CIA form
c
c. Statement of Anand Raghavan with exhibits dated
8.01.2016.
4. The court was satisfied on a provisional basis of the
evidence filed that
a. NETHRA ANAND (a girl born on 718109) was on 2 July D
2015 habitually resident in the jurisdiction of England and
Wales.
b. NETHRA ANAND (a girl born on 718109) was wrongfully
removed from England on 2 July, 2015 and been wrongfally
retained in India since. E
c. The courts of England and Wales have jurisdiction in
matters of parental responsibility over the child pursuant to
Articles 8 and JO of BllR.
5. The Father has agreed to pay for the cost of the flights F
for the Mother and child in returning from India to England.
He will either purchase the tickets for the Mother and child
himself, or put her in funds, or invite her to purchase the
tickets on his credit card, as she may wish, in order for her
to purchase the tickets herself
G
Undertakings to the court by the solicitor for the applicant
6. The solicitors for the applicant undertake;
a. To issue these proceedings forthwith and in any event by
no later than 4 pm II January 2016;
H
314 SUPREME COURT REPORTS [2017] 7 S.C.R.
A b. To pay the ex parte application fee forthwith and in any
event by no later than 4 pm 11 January 2016;
AND NOW THEREFORE THIS HONOURABLE COURT
RESPECTFULLY REQUESTS:
7. Any person not within the jurisdiction of this Court who
B is in a position to do so to co-operate in assisting and
securing the immediate return to England and Wales of the
Ward NETHRA ANAND (a girl born on 718109)
IT IS ORDERED THAT:
c 8. NETHRA ANAND (a girl born on 718109) is and shall
remain a Ward of this Court during the minority or until
further order.
9. The respondent mother shall return or cause the return of
NETHRA ANAND (a girl born on 718109) forthwith to
D England and Wales, and in any event no later than 23.59 on
22 January 2_016.
10. Every person within the jurisdiction of this Honourable
Court who is in a position to do so shall co-operate in
assisting and securing the immediate return to England and
Wales of NETHRA ANAND (a girl born on 718109) a ward of
E
this Court.
11. The applicant's solicitor shall fax copies of this order to
the Office of the Head of International, Family Justice at
the Royal Courts of Justice, the Strand, London WC2A 2LL
(DX4550 Strand RCJ: fax 02079476408); and (if
F
appropriate) to the Head of the Consular Division, Foreign
and Commonwealth Office Spring Gardens London SWlA
2PA, Tel: 02070080212, Fax 02070080152. .
12. The matter shall be listed for directions at 10: 30 am on
29 January 2016 at the Royal Courts of Justice, the Strand,
G London Wc2A 2LL, with a time estimate of 30 minutes, when
the court shall consider what further orders shall be made.
The Court may consider making declarations in the terms of
paragraph 4 above.
13. The respondent mother shall attend at the hearing listed
H
NITHYAANAND RAGHAVAN v. STATE OF NCT OF DELHI 315
[A. M. KHANWILK.AR, J.]
pursuant to the preceding paragraph, together with solicitors A
or counsel if so instructed. She shall file and serve by 4 pm
2 7 January, 2016 a short statement responding to the
application.
14. This order may be served on the respondent, outside of
the jurisdiction of England and Wales as may be required, B
by way of fax, email or personally in order for the court to
deem that it constitutes good service.
15. Costs reserved.
Dated this 8 January 2016."
c
On a bare perusal of this order, it is noticed that it is an ex parte
order passed against the mother after recordingprimafacie satisfaction
that the minor Nethra Anand (a girl born on 07/08/2009) was as on 2nd
July, 2015, habitually resident in the jurisdiction of England and Wales
and was wrongfully removed from England on 2nd July, 2015 and has
been wrongfully retained in India since then. Further, the Courts of England D
and Wales have jurisdiction in the matters of parental responsibility over
the child pursuant to Articles 8 and 10 ofBIIR. For which reason, it has
been ordered that the minor shall remain a Ward of that Court during her
minority or until further order; and the mother (appellant herein) shall
return or cause the return of the minor forthwith to England and Wales E
in any event not later than 22 January, 2016. Indeed, this order has not
been challenged by the appellant so far nor has the appellant applied for
modification thereof before the concerned court (foreign court). Even
on a fair reading of this order, it is not possible to hold that the custody of
the minor with her mother has been declared to be unlawful. At best, the
appellant may have violated the direction to return the minor to England, F
who has been ordered to be a Ward of the court during her minority and
further order. No finding has been rendered that till the minor returns to
England, the custody of the minor with the mother has become or will be
treated as unlawful including for the purposes of considering a petition
for issuance of writ of habeas corpus. We may not be understood to G
have said that such a finding is permissible in law. We hold that the
custody of the minor with the appellant, being her biological mother, will
have to be presumed to be lawful.
32. 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
H
316 SUPREME COURT REPORTS [2017] 7 S.C.R.
A 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
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
B
return of the child within the stipulated time, since the order of the foreign
Court 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
C production of the child, be a decisive factor. Similarly, the parent having
custody of the minor has not 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.
D 33. For considering the factum of interests of the child, the court
must take into account all the attending circumstances and totality of the
situation. That will have to be decided on case to case basis. In the
present case, we find that the father as well as mother of the child are of
Indian origin. They were married in Chennai in India according to Hindu
rites and customs. The father, an Indian citizen, had gone to the U.K. as
E a student in 2003 and was working there since 2005. After the marriage,
the couple shifted to the U.K. in early 2007 and stayed in Watford. The
mother did get an employment in London in 2008, but had to come to her
parents' house in Delhi in June 2009, where she gave birth to Nethra.
Thus, Nethra is an Indian citizen by birth. She has not given up her
F Indian citizenship. Indeed, the mother, along with Nethra, returned to the
U.K. in March 2010. But from August 2010 till December 2011, because
of matrimonial issues between the appellant and respondent no.2, the
appellant and her daughter remained in India. It is only after the
intervention of and mediation by the family members, the appellant and
her daughter Nethra went back to England in December 2011, more
G than a year after they had come to India. After returning to the U.K.,
Nethra was admitted to a nursery school in January 2012. An application
for grant ofU.K. citizenship was made on behalf ofN ethra in September
2012 which was subsequently granted in December 2012. The father
(respondent no.2) then acquired the citizenship of the U.K. in January,
H 2013. After grant of citizenship of the U.K., Nethra was admitted to a
NITHYAANAND RAGHAVAN v. STATE OF NCT OF DELHI 317
[A. M. KHANWILKAR, J.]
primary school in the U.K. in September 2013 and studied there only till A
July, 2015. Since Nethra had acquired British citizenship, the U.K. Court
could exercise jurisdiction in respect of her custody issues. Significantly,
till Nethra returned to India along with her mother on 2"d July, 2015, no
proceeding of any nature came to be filed in the U.K. Court, either in
relation to the matrimonial dispute between the appellant and respondent B
no.2 or for the custody of Nethra. Further, Nethra is staying in India
along with the appellant, her grandparents and other family members
and relatives unlike in the UK she lived in a nuclear family of the three
with no extended family. She has been schooling here for the past over
one year and has spent equal time in both the countries out of the first
six years. She would be more comfortable and feel secured to live with C
her mother here, who can provide her love, understanding, care and
guidance for her complete development of character, personality and
talents. Being a girl child, the guardianship of the mother is of utmost
significance. Ordinarily, the custody of a "girl" child who is around seven
years of age, must ideally be with her mother unless there are
circumstances to indicate that it would be harmful to the girl child to D
remain in custody of her mother [see Sarita Sharma (supra) para 6].
No such material or evidence is forthcoming in the present case except
the fact that the appellant (mother) has violated the order of the U.K.
Court directing her to return the child to the U.K. before the stipulated
date. Admittedly, when Nethra was in the U.K., no restraint order was E
issued by any court or authority in the U.K. in that behalf. She had
travelled along with her mother from the U.K. to India on official
documents. It is a different matter that respondent no.2 alleges that he
was not informed before Nethra was removed from the U.K. and brought
to India by his wife (appellant herein). It is common ground that Nethra
F
is suffering from cardiac disorder and needs periodical medical reviews
and proper care and attention. That can be given only by her mother.
The respondentno.2 (father) is employed and may not be in a position to
give complete attention to his daughter. There is force in the stand taken
by the appellant that ifNethra returns to the U.K., she may not be able
to get meaningful access to provide proper care and attention. Further, G
she has no intention to visit the U.K.
Admittedly, the appellant has acquired the status of only a permanent
resident of the U.K., as she was staying with respondent no.2 who is
gainfully employed there. The appellant has alleged and has produced
material in support of her case that during her stay with respondent no.2 H
318 SUPREME COURT REPORTS [2017] 7 S.C.R.
A in ihe U.K., she was subjected to physical violence and mental torture.
She has also alleged that if she goes back to the U.K., she may suffer
the same ignominy. Further, the proceeding in the UK Court instituted
by the husband is a counter blast to the complaint filed by her in Delhi
about the violence inflicted on her by the husband and his family members.
B Indeed, respondent no.2 has vehemently denied and rebutted these
allegations. It is not necessary for us to adjudicate these disputed questions
of facts.
Suffice it to observe that talcing the totality of the facts and circumstances
into account, it would be in the interests ofNethra to remain in custody
of her mother and it would cause harm to her if she returns to the U.K.
c That does not mean that the appellant must disregard the proceedings
pending in the U.K. Court against her or for custody ofNethra, as the
case may be. So long as that court has jurisdiction to adjudicate those
matters, to do complete justice between the parties we may prefer to
mould the reliefs to facilitate the appellant to participate in the proceedings
D before the U.K. Court which she can do through her solicitors to be
appointed to espouse her cause before that court. In the concluding part
of this judgment, we will indicate the modalities to enable the appellant
to take recourse to such an option or any other remedy as may be
permissible in law. We say so because the present appeal arises from a
writ petition filed by respondent no.2 for issuance of a writ of habeas
E corpus and not to decide the issue of grant or non-grant of custody of
the minor as such. In a substantive proceeding for custody of the minor
before the Court of competent jurisdiction including in India if permissible,
all aspects will have to be considered on their own merit without being
influenced by any observations in this judgment.
F 34. As aforesaid, the respondent No. 2 has heavily relied on four
decisions of this Court. The case of V. Ravi C/iandran (supra) also
arose from a writ of habeas corpus for production of minor son and not
from the substantive proceedings for custody of the minor by the father.
The minor was in custody of his mother. It was a case of custody of a
G "male" child born in the US and an American citizen by birth, who was
around 8 years of age when he was removed by the mother from the
United States of America (USA) in spite of a consent order governing
the issue of custody and guardianship of the minor passed by the
competent Court namely, the New York State Supreme Court. The minor
was given in joint custody to the parents and a restraint order was
H
NITHYAANAND RAGHAVAN v. STATE OF NCT OF DELHI 319
[A. M. KHANWILKAR, J.]
operating against the mother when the child was removed from the USA A
surreptitiously and brought to India. Before being removed from the
USA, the minor had spent his initial years there. These factors weighed
against the mother, as can be discerned from the discussion in paragraphs
32 to 38 of the reported judgment. This Court, therefore, chose to exercise
summary jurisdiction in the interests of the child. The Court directed the B
mother to return the child "Aditiya" on her own to the USA within
stipulated time. In the present case, the minor is a "girl" child who was
born in India and is a citizen oflndia by birth. She has not given up her
citizenship of India. It is a different matter that she later acquired
citizenship of the U.K. We have already indicated the reasons in the
· preceding paragraph, which would distinguish the facts from the case C
relied upon by the respondent no. 2 and under consideration.
35. As regards the case of Shi/pa Aggarwal (supra), the minor
(girl child) was born in England having British citizenship, who was only
three and a half years of age. The parents had also acquired the status
of permanent residents of the UK. The UK Court had not passed any D
order to separate the child from the mother until the final decision was
taken with regard to the custody of the child, as in this case. This Court
recorded its satisfaction on the basis of the facts and circumstances of
the case before it that in the interests of the minor child, it would be
proper to return the child to the UK and then applied the doctrine of
comity of courts. Further, the Court was of the opinion that the issue E
regarding custody of the child should be decided by the foreign Court
from whose jurisdiction the child was removed and brought to India.
This decision has been rendered after a summary inquiry on the facts of
that case. It will be of no avail to the respondent no. 2. It does not
whittle down the principle expounded in Dhanwanti Joshi (supra), the F
duty of the Court to consider the overarching welfare of the child. Be it
noted, the predominant criterion o(the best interests and welfare of the
minor outweighs or offsets the principle of comity of courts. In the present
case, the minor is born in India and is an Indian citizen by birth. When
she was removed from the UK, no doubt she had, by then, acquired UK
citizenship, yet for the reasons indicated hitherto dissuade us to direct G
return of the child to the country from where she was removed.
36. In the case of Arathi Bandi (supra) also, the male child was
born in the USA and had acquired citizenship by birth there. The child
was removed from the USA by the mother in spite of a restraint order
H
320 SUPREME COURT REPORTS [2017] 7 S.C.R.
A and a red comer notice operating against her issued by the Court of
competent jurisdiction in the USA. The Court, therefore, held that the
matter on hand was squarely covered by facts as in V. Ravi Chandran
(supra). More importantly, as noted in paragraph 42 of the reported
decision the mother (the wife of the writ petitioner) had expressed her
B intention to return to the USA and live with the husband. However, the
husband was not prepared to cohabit with her. In the present case, the
situation is distinguishable as alluded to earlier.
37. In the case of Surya Vadanan (supra), the minor girls were
again British citizens by birth. The elder daughter was l 0 years of age
and the younger daughter was around 6 years of age. They lived in the
C UK throughout their lives. In a petition for issuance of a writ of habeas
corpus, the Court directed return of the girls to the UK also because of
the order passed by the Court of competent jurisdiction in the UK to
produce the girls before that Court. The husband had succeeded in getting
that order even before any formal order could be passed on the petition
D filed by the wife in Coimbatore Court seeking a divorce from the
appellant-husband. That order was followed by another order of the UK
Court giving peremptory direction to the wife to produce the two daughters
before the UK Court. A penal notice was also issued to the wife. The
husband then invoked the jurisdiction of the Madras High Court for
issuance of a writ of habeas corpus on the ground that the wife had
E illegal custody of the two daughters of the couple and that they may be
ordered to be produced in the Court and to pass appropriate direction
thereafter. The said relief was granted by this Court. After the discussion
oflaw in paragraphs 46 to 56 of the reported decision, on the basis of
precedents adverted to in the earlier part of the judgment, in paragraph
F 56 the Court opined as under:-
"56. However, if there is a pre-existing order of a foreign
court of competent jurisdiction and the domestic court decides
to conduct an elaborate inquiry (as against a summary
inquiry), it must have special reasons to do so. An elaborate
G inquiry should not be ordered as a matter of course. While
deciding whether a summary or, an elaborate inquiry should
be conducted, the domestic court must take into
consideration:
(a) The nature and effect of the interim or interlocutory order
H passed by the foreign court.
NITHYAANAND RAGHAVAN v. STATE OF NCT OF DELHI 321
[A. M. KHANWILKAR, J.]
(b) The existence of special reasons for repatriating or not A
repatriating the child to the jurisdiction of the foreign court.
(c) The repatriation of the child does not cause any moral
or physical or social or cultural or psychological harm to
the child, nor should it cause any legal harm to the parent
with whom the child is in India. There are instances where B
the order of the foreign court may result in the arrest of the
parent on his or her return to the foreign country. In such
cases, the domestic court is also obliged to ensure the physical
safety of the parent.
(d) The alacrity with which the parent moves the foreign court c
concerned or· the domestic court concerned, is also relevant.
If the time gap is unusually large and is not reasonably
explainable and the child has developed firm roots in India,
the domestic court may be well advised to conduct an
elaborate inquiry. "
D
38. As regards clauses (a) to (c), the same, in our view, with due
respect, tend to drift away from the exposition in Dhanwanti Joshi's
case (supra), which has been quoted with approval by a three-judge
bench of this Court in V. Ravi Chandran (supra). In that, the nature of
inquiry suggested therein inevitably recognises giving primacy to the order
of the foreign Court on the issue of custody of the minor. That has been E
explicitly negated in Dhawanti Joshi 's case. For, whether it is a case of
a summary inquiry or an elaborate inquiry, the paramount consideration
is the interests and welfare of the child. Further, a pre-existing order of
a foreign Court can be reckoned only as one of the factor to be taken
into consideration. We have elaborated on this aspect in the earlier part F
of this judgment.
39. As regards the fourth factornoted in clause (d), we respectfully
disagree with the same. The first part gives weightage to the "first strike"
principle. As noted earlier, it is not relevatrf""as to which party first
approached the Court or so to say "first strike" referred to in paragraph G
52 of the judgment. Even the analogy given in paragraph 54 regarding
extrapolating that principle to the Courts in India, if an order is passed by
the Indian Court is inapposite. For, the Indian Courts are strictly governed
by the provisions of the Guardians and Wards Act, 1890, as applicable to
the issue of custody of the minor within its jurisdiction. Section 14 of the
said Act plainly deals with that aspect. The same reads thus:- H
322 SUPREME COURT REPORTS [2017) 7 S.C.R.
A "14. Simultaneous proceedings in different Courts.- (1) !f
proceedings for the appointment or declaration of a guardian
of a minor are taken in more Courts than one, each of those
Courts shall, on being apprised of the proceedings in the
other Court or Courts, stay the proceedings before itself.
B (2) If the Courts are both or all subordinate to the same
High Court,· they shall report the case to the High Court,
and the High Court shall determine in which of the Courts
the proceedings with respect to the appointment or
declaration of a guardian of the minor shall be had.
c [(3) In any other case in which proceedings are stayed under
sub-section (1), the Courts shall report the case to and be
· guided by such orders as they may receive from their
respective State Governments.]"
Similarly, the principle underlying Section 10 of the Code of Civil
D Procedure, 1908 can be invoked to govern that situation. The explanation
clarifies the position even better. The same reads thus:-
"JO. Stay of suit. - No Court shall proceed with the trial of
any suit in which the matter in issue is also directly and
substantially in issue in a previously instituted suit between
E the same parties, or between parties under whom they or
any of them claim litigating under the same title where such
suit is pending in the same or any other Court in [India}
having jurisdiction to grant the relief claimed, or in any Court
beyond the limits of [India] established or continued by [the
Central Government} [***} and having like jurisdiction, or
F before [the Supreme Court].
Explanation.- The pendency ofa suit in a foreign Court does
not preclude the Courts in [Jndial tram trving a suit founded
on the same cause of action. "
(emphasis supplied)
G
40. The invocation of.first strike principle as a decisive factor, in
our opinion, would undermine and whittle down the wholesome principle
of the duty of the Court having jurisdiction to consider the best interests
and welfare of the child, which is of paramount importance. If the Court
is convinced in that regard, the fact that there is already an order passed
H
NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI 323
[A. M. KHANWILKAR, J.]
by a foreign Court in existence may not be so significant as it must yield A
to the welfare of the child. That is only one of the factors to be taken
into consideration. The interests and welfare of the child are of paramount
consideration. The principle of comity of courts as observed inDhanwanti
Joshi's case (supra), in relation to non-convention countries is that the
Court in the country to which the child is removed will consider the B
question on merits bearing the welfare of the child as of paramount
importance and consider the order of the foreign Court as only a factor
to be taken into consideration. While considering that aspect, the Court
may reckon the fact that the child was abducted from his or her country
of habitual residence but the Court's overriding consideration must be
the child's welfare. C
41. The facts in all the four cases primarily relied upon by the
respondent no.2, in our opinion, necessitated the Court to i~sue direction
to return the child to the native state. That does not mean that in deserving
cases the Courts in India are denuded from declining the relief to return
the child to the native state merely because of a pre-existing order of the D
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.
E
42. In the present case, we are of the considered opinion that
taking the totality of the facts and circumstances of the case into account,
it would be in the best interests of the minor (Nethra) to remain in custody
of her mother (appellant) else she would be exposed to harm if separated
from the mother. We have, therefore, no hesitation in overturning the
conclusion reached by the High Court. Further, we find that the High F
Court was unjustly impressed by the principle of comity of courts and
the obligation of the Indian Courts to comply with a pre-existing order of
the foreign Court for return of the child and including the "first strike"
principle referred to in Surya Vadanan's case (supra).
43. We once again reiterate that the exposition in the case of G
Dhanwanti Joshi (supra) is a good law and has been quoted with
approval by a three-judge bench of this Court in V. Ravi Cha11dran
(supra). We approve the view taken in Dhanwanti Joshi (supra), inter
alia in paragraph 33 that so far as non-convention countries are concerned,
the law is that the Court in the country to which the child is removed H
324 SUPREME COURT REPORTS [2017) 7 S.C.R.
A while considering the question must bear in mind the welfare of the child
as of paramount importance and consider the order of the foreign Court
as only a factor to be taken into consideration. The summary jurisdiction
to return the child be exercised in cases where the child had been
removed from its native land and removed to another country where,
may be, his native language is not spoken, or the child gets divorced
B
from the social customs and contacts to which he has been accustomed,
or if its education in his native land is interrupted and the child is being
subjected to a foreign system of education, - for these are all acts which
could psychologically disturb the child. Again the summary jurisdiction
be exercised only if the court to which the child has been removed is
C moved promptly and quickly. The overriding consideration must be the
interests and welfare of the child.
44. 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
D remain in the custody of her mother unless the Court of competent
jurisdiction trying the issue of custody of the child orders to the contrary.
However, the father must be given visitation rights, whenever he visits
India. He can do so by giving notice of at least two weeks in advance
intimating in writing to the appellant and if such request is received, the
appellant must positively respond in writing to grant visitation rights to
E the respondent no. 2 - Mr. Anand Raghavan (father) for two hours per
day twice a week at the mentioned venue in Delhi or as may be agreed
by the appellant, where the appellant or her representatives are
necessarily present at or near the venue. The respondent no. 2 shall not
be entitled to, nor make any attempt to take the child (Nethra) out from
F the said venue. The appellant shall take all such steps to comply with the
visitation rights of respondent no. 2, in its letter and spirit. Besides, the
appellant will permit the respondent no. 2 - Mr. Anand Raghavan to
interact with Nethra on telephone/mobile or video conferencing, on school
holidays between 5 PM to 7:30 PM IST.
G 45. As mentioned earlier, the appellant cannot disregard the
proceedings instituted before the UK Court. She must participate in those
proceedings by engaging solicitors of her choice to espouse her· cause
before the High Court of Justice. For that, the respondent no.2-Anand
. Raghavan will bear the costs oflitigation and expenses to be incurred by
the appellant. If the appellant is required to appear in the said proceeding
H
NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI 325
[A. M. KHANWILKAR, J ·)
in person and for which she is required to visit the UK, respondent no.2 A
-Anand Raghavan will bear the air fares or purchase the tickets for the
travel of appellant and Nethra to the UK and including for their return
journey to India as may be required. In addition, respondent no.2-Anand
Raghavan will make all arrangements for the comfortabje stay of the
appellant and her companions at an independent place of her choice at B
reasonable costs. In the event, the appellant is required to appear in the
proceedings before the High Court of Justice in the UK, the respondent
no.2 shall not initiate any coercive process against her which may
result in penal consequences for the appellant and if any such proceeding
is already pending, he must take steps to first withdraw the same and/or
undertake before the concerned Court not to pursue it any further. That C
will be condition precedent to pave way for the appellant to appear before
the concerned Court in the UK.
46. Accordingly, this appeal is allowed in the above terms. The
impugned judgment and order passed by the High Court of Delhi dated
8th July 2016 in Writ Petition (Criminal) No. 247 of2016 is set aside. D
Resultantly, the writ petition for issuance of writ of habeas corpus filed
by the respondent no. 2 stands dismissed subject however, to the
arrangement indicated above in paragraphs 44 and 45 respectively.
47. No order as to costs.
E
Devika Gujral Appeal allowed.
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