Supreme Court of India
RAJESWARI CHANDRASEKAR GANESHversusTHE STATE OF TAMIL NADU & ORS.
- Citation
- 2022 INSC 721
- Decided
- 14 July 2022
- Disposal
- Appeal(s) allowed
- Bench
- A M KHANWILKAR
Holding
In child‑custody matters, a writ of habeas corpus is maintainable only if the custody is illegal, and the court must prioritize the welfare of the child, directing the father to return the children to the United States and revive the shared parenting plan.
Summary
The petition filed by a mother under Article 32 sought a writ of habeas corpus to compel the father to return their two minor children, who were US residents, from India to the United States in accordance with a shared parenting plan ordered by an Ohio court. The Supreme Court examined whether a writ of habeas corpus is maintainable in child‑custody disputes and emphasized that the paramount consideration is the welfare and best interests of the child, not the parties' legal rights. It held that the father’s custody was not unlawful per se, but the children’s residence, education, and cultural milieu in the US made their return to the US the most appropriate outcome. The Court applied the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956, reiterating the inherent parens patriae jurisdiction of Indian courts in such matters. Consequently, the Court directed the father to obtain a visa and return the children to the US, reviving the shared parenting plan, and ordered compliance monitoring. The writ petition was allowed.
Issues considered
- The maintainability of a writ of habeas corpus under Article 32 in a child‑custody dispute
- Whether the father's custody of the children in India constitutes illegal detention
- The applicability and interpretation of the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956 in determining custody
- The weight to be given to foreign court orders and the principle of comity of courts
- The determination of the child's best interests and welfare as the paramount consideration
Legislation cited
- Guardians and Wards Act, 1890s. 10, s. 11, s. 12, s. 13, s. 17, s. 6, s. 7, s. 8, s. 9
- Hindu Minority and Guardianship Act, 1956s. 13, s. 6, s. 7
- Orissa Revised Code (ORC)s. 3105.73
Subjects
child custodyhabeas corpuswelfare of childparens patriaeGuardians and Wards ActHindu Minority and Guardianship ActArticle 32best interests of childshared parenting planinternational child abduction
Judgment
232 [2022]REPORTS
SUPREME COURT 5 S.C.R. 232 [2022] 5 S.C.R.
A RAJESWARI CHANDRASEKAR GANESH
v.
THE STATE OF TAMIL NADU & ORS.
(Writ Petition (Criminal) No. 402 of 2021)
B JULY 14, 2022
[A. M. KHANWILKAR AND J. B. PARDIWALA, JJ.]
Constitution of India – Art.32 – Writ of Habeas Corpus –
Object and scope of – Custody of minor children – Parties having
two minor children have been residing in the USA – As per the
C petitioner-mother, the respondent no.2-father picked up the minor
children and left for Michigan, USA, from Cleveland, Ohio, without
informing her – A shared parenting plan was arrived at between
the parties by the order passed by the Court at Ohio – Case of the
petitioner is that the respondent no.2 clandestinely and with a view
to remove the children from the USA and from the joint custody of
D the petitioner, left for India with the two minor children – Present
petition filed by her seeking a Writ of Habeas Corpus – Held: The
employment of the writ of Habeas Corpus in child custody cases is
not pursuant to, but independent of any statute – Jurisdiction
exercised by the court rests in such cases on its inherent equitable
E powers and exerts the force of the State, as parens patriae, for the
protection of its minor ward, and the very nature and scope of the
inquiry and the result sought to be accomplished call for the exercise
of the jurisdiction of a court of equity – Primary object of a Habeas
Corpus petition, as applied to minor children, is to determine in
whose custody the best interests of the child will probably be
F advanced – In the present case, the petitioner is a resident of the
USA and has acquired H1B visa via sponsorship and has a good
job in USA – She is earning handsome salary and has the resources
to provide for a comfortable life to her children in the USA – She is
comfortably settled in the USA and is accustomed to different kind
G of lifestyle, culture, society, etc. – She is a hard working woman
and would be in a position to take good care of her minor children
in accordance with the shared parenting plan – Allegations levelled
by the respondent no.2 that the petitioner suffers from mental illness
appear to be wild and reckless – Even otherwise this is a highly
disputed question of fact – Further, both the minor children are
H
232
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 233
TAMIL NADU & ORS.
residents of the USA – They have been brought up in the social and A
cultural milieu of the USA and are accustomed to the lifestyle,
language, customs etc. of that country – Also, both the minor children
have already been enrolled in school in the USA, a special school
meant for children with remarkably high IQ – They have better
prospects of getting refined education that may ultimately enhance
B
their potential they already possess and are already accustomed to
and comfortable with – It will be in the interest and welfare of both
the children to go back to the USA for the purpose of their education,
etc. – Respondent no.2 directed to go back to the USA with both the
minor children and abide by the shared parenting plan as ordered
by the Court at Ohio which though, stood terminated at the instance C
of the petitioner, but can be revived once again by the authorities
by going before the concerned court at Ohio – Further directions
issued – Guardians and Wards Act, 1890 – Hindu Minority and
Guardianship Act, 1956.
Doctrines/Principles – Doctrine of Parental Alienation D
Syndrome – Discussed.
Child Custody – Welfare of the child – Factors to be considered
– Discussed.
Allowing the writ petition, the Court
HELD: 1. A mere reading of the provisions of the Guardians E
and Wards Act, 1890 and Hindu Minority and Guardianship Act,
1956 makes it obvious that the welfare of the minor predominates
to such an extent that the legal rights of the persons claiming to
be the guardians or claiming to be entitled to the custody will
play a very insignificant role in the determination by the court. F
[Para 73][258-C]
2.1 In a petition seeking a writ of Habeas Corpus in a matter
relating to a claim for custody of a child, the principal issue which
should be taken into consideration is as to whether from the facts
of the case, it can be stated that the custody of the child is illegal.
G
The writ of Habeas Corpus is a prerogative writ and an
extraordinary remedy. It is a writ of right and not a writ of course
and may be granted only on reasonable ground or probable cause
being shown. The exercise of the extraordinary jurisdiction for
issuance of a writ of Habeas Corpus would, therefore, be seen to
be dependent on the jurisdictional fact where the applicant H
234 SUPREME COURT REPORTS [2022] 5 S.C.R.
A establishes a prima facie case that the detention is unlawful. It is
only where the aforementioned jurisdictional fact is established
that the applicant becomes entitled to the writ as of right. The
principal duty of the court in such matters should be to ascertain
whether the custody of the child is unlawful and illegal and whether
the welfare of the child requires that his present custody should
B
be changed and the child be handed over to the care and custody
of any other person. Thus, it is well established that in issuing
the writ of Habeas Corpus in the case of minors, the jurisdiction
which the Court exercises is an inherent jurisdiction as distinct
from a statutory jurisdiction conferred by any particular provision
C in any special statute. In other words, the employment of the writ
of Habeas Corpus in child custody cases is not pursuant to, but
independent of any statute. The jurisdiction exercised by the court
rests in such cases on its inherent equitable powers and exerts
the force of the State, as parens patriae, for the protection of its
minor ward, and the very nature and scope of the inquiry and the
D
result sought to be accomplished call for the exercise of the
jurisdiction of a court of equity. The primary object of a Habeas
Corpus petition, as applied to minor children, is to determine in
whose custody the best interests of the child will probably be
advanced. In a Habeas Corpus proceeding brought by one parent
E against the other for the custody of their child, the court has before
it the question of the rights of the parties as between themselves,
and also has before it, if presented by the pleadings and the
evidence, the question of the interest which the State, as parens
patriae, has in promoting the best interests of the child. [Paras
75, 78-80 and 91][258-F; 260-C-E; 265-C-E]
F
Mohd. Ikram Hussain v. State of Uttar Pradesh and
Others AIR 1964 SC 1625 : [1964] SCR 86; Kanu
Sanyal v. District Magistrate, Darjeeling (1973) 2 SCC
674 : [1974] 1 SCR 621; Nithya Anand Raghavan v.
State (NCT of Delhi) and Another (2017) 8 SCC 454 :
G [2017] 7 SCR 281; Syed Saleemuddin v. Dr. Rukhsana
and Others (2001) 5 SCC 247 : 2001 (1) Suppl. JT 1;
Tejaswini Gaud and Others v. Shekhar Jagdish Prasad
Tewari and Others (2019) 7 SCC 42 : [2019] 7 SCR
335; Anjali Kapoor v. Rajiv Baijal (2009) 7 SCC 322 :
H [2009] 6 SCR 560; Rosy Jacob v. Jacob A.
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 235
TAMIL NADU & ORS.
Chakramakkal (1973) 1 SCC 840 : [1973] 3 SCR 918 A
– relied on.
2.2 The following circumstances emerge from the materials
on record so far as the two minor children are concerned : (1)
Both the minor children are residents of the USA. (2) The son is
a natural citizen and the daughter is a permanent resident of the B
USA. (3) Both the children have been brought up in the social
and cultural milieu of the USA. They are accustomed to the
lifestyle, language, customs, rules and regulations, etc. of that
country. (4) The children are residents of the USA. One of whom
is a natural citizen and will have better future prospects if goes
back to the USA. C
The minor daughter has a remarkable high IQ. She has
been identified to be a gifted child. In such circumstances, both
the minor children were admitted in a special school meant for
children with such remarkably high IQ in the USA. Such schools
in the USA are specialized in providing education to the gifted D
children which, ultimately, helps in the overall development of
such children. The special education ultimately enhances the
potential of such children. Both the children in the present case
have better prospects of getting refined education that may
ultimately enhance their potential they already possess and are
E
already accustomed to and comfortable with. Both the minor
children, in the case on hand, have already been enrolled in the
school in the USA. Therefore, if the minor children are repatriated
to the USA, they will not be subjected entirely to any foreign
system of education. It is the fundamental right of the petitioner-
mother to have the company of her children and not to be deprived F
of the same without a reasonable cause. [Paras 108, 109, 110][278-
G-H; 286-F-H; 287-A]
2.3 Facts Supporting The Stay Of The Petitioner In The
USA: The petitioner is a resident of the USA and has acquired
H1B visa via sponsorship and has a good job at Ranstad, USA. G
The petitioner is earning handsome salary and has the resources
to provide for a comfortable life to her children in the USA. The
petitioner is comfortably settled in the USA and is accustomed to
different kind of lifestyle, culture, society, etc. Petitioner worked
very hard to secure admission in the Cleveland State University
H
236 SUPREME COURT REPORTS [2022] 5 S.C.R.
A and completed her studies with the GPA of more than 3, while
taking care of her children. This is indicative of the fact that she
is a hard working woman and would be in a position to take good
care of her minor children in accordance with the shared parenting
plan. It would be too much for this Court to tell the petitioner
that she may periodically visit India to meet her children but the
B
children should not be asked to go back to the USA with their
father, i.e. the respondent no.2. [Paras 111-113][287-B-E]
2.4 In the overall view of the matter, the respondent no.2,
at the earliest, should be directed to go back to the USA with
both the minor children and abide by the shared parenting plan
C as ordered by the Court at Ohio. Although, the shared parenting
plan as ordered by the Court at Ohio stood terminated at the
instance of the petitionermother, yet the same can be revived
once again by the authorities by going before the concerned court
at Ohio. It is for the parties to take the necessary steps in this
D regard. The respondent no.2 shall immediately apply for the visa
on the strength of this order. If the respondent no.2 is in a position
to obtain a job in the USA on the strength of a work permit or any
other document, then it is well and good. However, this Court is
sure of one thing that it will be in the interest and welfare of both
the children to go back to the USA for the purpose of their
E education, etc. The allegations levelled by the respondent no.2
that the petitioner suffers from some mental illness appears to
be absolutely wild and reckless. Even otherwise this issue is a
highly disputed question of fact. In the case at bar the dominant
consideration to which all other considerations must remain
F subordinate must be the welfare of the child. This is not to say
that the question of custody will be determined by weighing the
economic circumstances of the contending parties. The matter
will not be determined solely on the basis of the physical comfort
and material advantages that may be available in the home of one
contender or the other. The welfare of the child must be decided
G on a consideration of these and all other relevant factors, including
the general psychological, spiritual and emotional welfare of the
child. It must be the aim of the Court, when resolving disputes
between the rival claimants for the custody of a child, to choose
the course which will best provide for the healthy growth,
H
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 237
TAMIL NADU & ORS.
development and education of the child so that he or she will be A
equipped to face the problems of life as a mature adult. Further
directions issued. [Paras 114, 115][287-E-H; 288-A-C]
Elizabeth Dinshaw v. Arvand M. Dinshaw (1987) 1 SCC
42 : [1987] 1 SCR 175; V. Ravi Chandran v. Union of
India and Others (2010) 1 SCC 174 : [2009] 15 SCR B
960; Surya Vadanan v. State of Tamil Nadu (2015) 5
SCC 450 : [2015] 4 SCR 903; Vivek Singh v. Romani
Singh (2017) 3 SCC 231 : [2017] 2 SCR 312; Vasudha
Sethi and Others v. Kiran V. Bhaskar and Another (2022)
SCC OnLine SC 43 107 – relied on.
C
Sumedha Nagpal v. State of Delhi (2000) 9 SCC 745 :
2000 (7) JT 450; Muthuswami Chettiar v. K.M. Chinna
Muthuswami Moopanar AIR 1935 Mad 195; Shilpa
Aggarwal v. Aviral Mittal (2010) 1 SCC 591 : [2009]
16 SCR 287; Lahari Sakhamuri v. Sobhan Kodali
(2019) 7 SCC 311 : [2019] 5 SCR 240; Surinder Kaur D
Sandhu v. Harbax Singh Sandhu (1984) 3 SCC 698 :
[1984] 3 SCR 422; Dhanwanti Joshi v. Madhav Unde
(1998) 1 SCC 112 : [1997] 5 Suppl. SCR 30 – referred
to.
K. G. v. State of Delhi and Another dated 16.11.2017 in E
Writ Petition (Criminal) No. 374/2017 – approved.
Secretary of State for Home Affairs v. O’Brien (1923)
AC 603 (609); Mckee v. McKee 1951 AC 352 101;
InRe: McGrath (Infants) [1893] 1 Ch. 143; Inre “O”
(An Infant) [1965] 1 Ch. 23; Walker v. Walker & F
Harrison 1981 New Ze Recent Law 257 – referred
to.
Halsbury’s Laws of England, Fourth Edition, Vol. 24,
Article 511; American Jurisprudence, Vol. 39, Second
Edition, Para 148 at pages 280-281 – referred to.
G
Case Law Reference
[1987] 1 SCR 175 relied on Para 61
[2009] 15 SCR 960 relied on Para 61
H
238 SUPREME COURT REPORTS [2022] 5 S.C.R.
A [2009] 16 SCR 287 referred to Para 61
[2019] 5 SCR 240 referred to Para 61
[1984] 3 SCR 422 referred to Para 61
[2017] 7 SCR 281 relied on Para 67
B [1964] SCR 86 relied on Para 78
[1974] 1 SCR 621 relied on Para 78
[2019] 7 SCR 335 relied on Para 82
[2009] 6 SCR 560 relied on Para 83
[1973] 3 SCR 918 relied on Para 83
C
[2015] 4 SCR 903 relied on Para 98
[1997] 5 Suppl. SCR 30 referred to Para 101
[2017] 2 SCR 312 relied on Para 106
CRIMINAL ORIGINAL JURISDICTION: Writ Petition
D (Criminal) No. 402 of 2021.
Under Article 32 of The Constitution of India
Prabhjit Jauhar, Ms. Tulika Bhatnagar, S. S. Jauhar, Advs. for the
Petitioner.
Ms. Meenakshi Arora, Sr. Adv., Sushila Ram, Anurag Pandey,
E
Ms. Suchitra Upadhyay, Varnim Gupta, Ms. Anuradha K., Ms. Reena
Pandey, Dr. Joseph Aristotle S., Ms. Nupur Sharma, Shobhit Bhardwaj,
Sanjeev Kumar Mahara, Advs. for the Respondents.
The Judgment of the Court was delivered by
F J. B. PARDIWALA, J.
1. This writ petition under Article 32 of the Constitution of India
involves a contest over the custody of children born out of the wedlock
between the petitioner-mother and the respondent no.2-father. The
respondents nos.4 and 5 respectively are the brother and father of the
respondent no.2.
G
2. The petitioner-mother has prayed for the following reliefs :
“(a) Issue an appropriate writ, order or direction in the nature
Habeas Corpus to the Respondent No.1 to immediately trace
and produce the minor children Lakshaya Ganesh and Bhavin
Sai Ganesh before this Hon’ble Court and deliver their
H
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 239
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
custody to the Petitioner Mother so as to repatriated them to A
the U.S. in compliance with the Order passed by the U.S. Court
dated 30.07.2021.
(b) issue a direction to the Respondent No.3/Director of CBI
to trace the minor children Lakshaya Ganesh and Bhavin Sai
Ganesh and to produce them before this Hon’ble Court, since B
the Respondent No.2 is not traceable.
(c) issue an appropriate writ, order or direction in the nature
Habeas Corpus to Respondent No.2 to cooperate with anyone
appointed by the Petitioner Ex-Wife to transport the minor
children – Lakshaya Ganesh and Bhavin Sai Ganesh to the C
United States within a time frame;
(d) Pass such other order or further orders and directions as
this Hon’ble Court may deem fit and proper in the facts and
circumstances of the case and in the interest of justice.”
3. The case put up by the petitioner-mother may be summarised D
as under :
4. The marriage between the petitioner and the respondent no.2
was solemnized on 31st October 2008 as per the Hindu rites and rituals
at Chennai, India. Within one month from the date of the marriage, the
parties migrated to the Bear, Delaware, USA.
E
5. The respondent no.2, at the relevant point of time, was working
with the Satyam Computers. Sometime in May 2009, the parties were
constrained to return to Chennai, India, as the project that the respondent
no.2 had been working on with the Satyam Computers got terminated
on account of some internal issues in the company.
F
6. On 7th October 2009, the parties were blessed with a daughter
named Lakshaya Ganesh. It appears from the materials on record that
sometime in January 2012, the respondent no.2 was able to secure a job
in Kansas, USA. Since 2012, the parties have been residing in the USA.
7. It further appears that between April 2012 and November 2012,
the respondent no.2 lost several jobs, and in such circumstances, the G
parties had to shift from Kansas, USA, to Boston, Massachusetts, USA.
Sometime later, they shifted to Findlay, Ohio, USA. In January 2012, the
minor daughter Lakshaya Ganesh started her preschool at the Owen’s
Day Care, Findlay, Ohio, and thereafter, was admitted to a kindergarten
at the Lincoln Elementary School, Findlay, Ohio. While the minor daughter H
240 SUPREME COURT REPORTS [2022] 5 S.C.R.
A Lakshaya was studying in the kindergarten, the teachers over there
noticed that Lakshaya was a gifted child, i.e. a child with a remarkable
IQ level. The parties were blessed thereafter with a son named Bhavin
Sai Ganesh on 20th July 2013 at the Blanchard Valley Hospital, Findlay,
Ohio. The minor son Bhavin Sai Ganesh is a U.S. citizen by naturalization
and holds an American passport.
B
8. In March 2016, the petitioner cleared her GRE and TOEFL
and secured admission in the Cleveland State University Ohio, USA.
The respondent no.2, on the other hand, lost yet another job.
9. It is the case of the petitioner that she started living in a room
C with eight other girls and her minor children. She attended the university
and had to take up two jobs to feed and take care of herself and her
minor children.
10. By December 2016, both the children started going to school.
It is her case that she used to take care of her children in all respects.
Sometime in August 2016, the respondent no.2 moved for yet another
D job to Milwaukee, Wisconsin, and in such circumstances, the petitioner
had to stay all alone with the minor children and take care of them.
11. In May 2018, the petitioner completed her Master’s in
Computer and Information Science and also obtained a Graduate
Certificate in Data Analytics with the GPA of 3.64. She started working
E with the G&S Metal Products. On the other hand, in April 2019, the
respondent no.2-father managed to find a full time job in Michigan, USA.
12. It is the case of the petitioner that once the respondent no.2
was able to procure a full time job in Michigan, USA, he started conceiving
ideas of taking away the minor children.
F 13. It is the case of the petitioner that on 1st June 2019, the
respondent no.2 picked up the minor children and left for Michigan, USA,
from Cleveland, Ohio, without informing the petitioner-mother.
14. It is alleged that the respondent no.2 also took away all the
legal documents of the petitioner including her passport, State ID, home
G keys, car keys along with the documents of the minor children.
15. It is alleged that the petitioner was locked in her own house. It
is also alleged that with a view to ensure that the petitioner had no
recourse/redressal, the respondent no.2, before leaving for Michigan,
USA, lodged a false complaint with the local police that the petitioner
H was mentally ill and that she had run away from a mental ward.
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 241
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
16. In such circumstances referred to above, the petitioner was A
constrained to immediately file an Emergency Motion for Temporary
Custody of the minor children along with a complaint for divorce before
the Court of Common Pleas, Division of Domestic Relations, Cuyahoga
County, Ohio. The court concerned, vide order dated 17th June 2019,
granted temporary custody of the minor children to the petitioner.
B
17. It is alleged that despite such order being passed by the court
of Common Pleas referred to above, the respondent no.2 paid no heed
to such order and continued to keep the children away without allowing
them to talk with their mother.
18. It appears that the petitioner also filed for an Emergency Motion C
restraining the removal of the minor children from the jurisdiction of the
Ohio Court. The court concerned passed a restraint order in favour of
the petitioner on the same date, i.e. 17th June 2019.
19. Sometime in July 2019, one Ms. Megan was appointed by the
US Court as the guardian-ad-litem. However, the order granting the
custody of the minor children to the petitioner was not acted upon by the D
respondent no.2.
20. In August 2019, the US Court directed supervised visitation
and referred the parties to mental evaluation experts.
21. It is the case of the petitioner that despite the custody order
E
dated 17th June 2019 passed in favour of her, the respondent no.2, without
seeking permission of the US Court and without informing the petitioner,
removed the minor children from the specialized school in Ohio to
Allegan, Michigan. While doing so, the respondent no.2 did not even
furnish the details of the petitioner-mother including her contact number,
etc. so as to completely alienate the petitioner from her children. F
22. It is the case of the petitioner that thereafter the respondent
no.2 started administering threats that he would take away the children
to India. As a result of such threats, the petitioner was constrained to
bring the necessary facts to the notice of the Court concerned. The
Court concerned directed that the passport of both the minor children be G
put in the Court’s custody.
23. As the respondent no.2 was not able to remove the minor
children from the USA, he decided to alienate the children from the
petitioner-mother by refusing her unsupervised visitation. It is alleged
that the respondent no.2 prevented the children from reaching out to
H
242 SUPREME COURT REPORTS [2022] 5 S.C.R.
A their mother and it was only with the intervention of the expert evaluator,
namely Dr.Mark Lovinger, that the petitioner was allowed to spend time
with the minor children.
24. In November 2019, both the expert evaluators, submitted their
opinion, stating that the petitioner was fit to have unsupervised time with
B the children and there was no merit in any of the allegations levelled by
the respondent no.2.
25. In February 2020, the petitioner was able to procure a new
job and obtained H1B visa via sponsorship. The petitioner moved back
to Findlay, Ohio, where the minor son was born and was able to secure
C a new apartment with good facilities for the children. However, according
to the petitioner, the respondent no.2 failed to abide by the custody order
dated 17th June 2019 and also failed to abide by the evaluation reports
recommending unsupervised visitation to the petitioner qua the minor
children. It is alleged that the respondent no.2 declined to bring the children
to the petitioner and allowed her to visit them only in his presence.
D 26. It appears that a shared parenting plan was arrived at between
the parties vide order dated 12th May 2021 passed by the Court of
Common Pleas, Division of Domestic Relations, Cuyahoga County, Ohio.
The shared parenting means the parents share the rights and
responsibilities as provided for in a plan approved by the Court as to all
E or some of the aspects of the physical and legal care of their children.
The mother and the father together, under a shared parenting agreement,
are granted custody, care and control of the minor children until further
order that may be passed by the Court subject to certain terms and
conditions. By virtue of the shared parenting plan referred to above,
both the parties got joint custody of their children. The visitation schedule
F was clearly laid down in the shared parenting plan dated 12th May 2021.
The parties agreed to not relocate without the consent of the other party
and without the Court’s permission by way of a 60 day prior notice and
the passports of the children were to stay in alternation with the non-
custodian parent while the children were in the custody of the other
G parent.
27. It appears that a separation agreement was also entered upon
between the parties dated 27th July 2021. On 28th July 2021, the
respondent no.2 sent an email to the US Court in the form of an intimation
that he would like to take his minor children on a vacation to India and
asked the petitioner-mother to keep the children for three weeks.
H
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 243
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
28. On 15th August 2021, the respondent no.2 posted a travel A
itinerary. The petitioner noticed that the itinerary was such that the
children would miss their school by a week. The petitioner declined to
accept the itinerary. The petitioner requested the respondent no.2 to go
to India for his vacation, and during that period, the kids would stay with
their mother.
B
29. It is the case of the petitioner that the respondent no.2, out of
spite, called upon the local police levelling false allegations that the
petitioner was causing harm to her children owing to an alleged mental
illness. The local police responded to the call and after due verification
arrived at the conclusion that the children were healthy and were well
taken care of by the petitioner. The case was accordingly closed. C
30. It appears that on 16th August 2021, the respondent no.2 lodged
one another complaint with the police. The petitioner had to leave her
house with the minor children so as to consult her lawyer. She requested
her friend to take care of her children while she was gone. When the
friend of the petitioner reached the petitioner’s house, the children were D
nowhere to be found. In such circumstances, the petitioner immediately
called up the US police at Findlay, Ohio. At 10:00 pm., the respondent
no.2 informed the petitioner that the children were in Michigan.
31. It is the case of the petitioner that on 16/17th August 2021 at
2:55 am, she received a distress call from her minor daughter Lakshaya E
Ganesh aged 12. The petitioner noticed that her minor daughter Lakshaya
Ganesh was crying on phone. The minor daughter also informed the
petitioner-mother that she was in Chicago and the father was intending
to take them to India. The petitioner was shocked to hear what was
informed by her daughter on phone, as the respondent no.2 was not
scheduled to travel to India before 19th August 2021 as per his own F
itinerary. The minor daughter revealed to the petitioner-mother that the
respondent no.2-father had sent an incorrect itinerary.
32. It is the case of the petitioner that the respondent no.2
clandestinely and with a view to solely removing the children from the
USA and from the joint custody of the petitioner, left for India with the G
two minor children on 17th August 2021.
33. On 18th August 2021, being completely unaware of the
respondent no.2 having left for India with the minor children, the
petitioner immediately moved an Emergency Motion for restraining the
respondent no.2 from removing the minor children from the USA. The H
244 SUPREME COURT REPORTS [2022] 5 S.C.R.
A Court concerned granted the order as prayed for by the petitioner. It
was after this order that, according to the petitioner, she checked with
the Etihad Airways to confirm the itinerary of the respondent no.2 and
found that the one submitted by the respondent no.2 was incorrect.
34. The petitioner later discovered that the respondent no.2 had
B already flown out with the minor children on 17th August 2021 against
his own itinerary. The respondent no.2 was supposed to leave on 19th
August 2021.
35. The petitioner desperately tried to get in touch with her minor
daughter on phone between 16th August 2021 and 21st August 2021 but
C her phone was found to be switched off. On 21st August 2021, the
petitioner received a call from her minor daughter pleading with the
petitioner-mother to take her back to the USA.
36. The petitioner-mother consoled her minor daughter not to panic
or confront the respondent no.2-father less he would harm her. The
petitioner was also informed by her minor daughter that the respondent
D no.2 had first taken them to someone’s house at Chennai and was
thereafter planning to move to the house of their grandfather.
37. At this stage, we would like to reproduce the verbatim
averments made by the petitioner as contained in paragraphs 25 to 28
respectively. We quote the necessary averments thus :
E
“25. That the Petitioner Ex-Wife has been deliberately kept
away from the children since 2019 and finally when the
Settlement Agreement/In-Court Agreement allowed the
Petitioner Ex-Wife to enjoy the company of the minor children
that the Respondent no. 2 had deprived her off, the minor
F children have now been abducted by the Respondent No.2
and illegally removed from the US. That the Respondent No.2
deliberately left with the legal documents of the minor children
in absolute breach of the terms of the Settlement Agreement
dated 30.07.2021 and switched off the minor daughter’s
phone to block any and every channel of communication with
G
the Petitioner Ex-Wife. The Respondent No.2 has a manic
tendency of harassing and torturing the Petitioner Ex-Wife
to no extent and in this final blow has misused the children as
a weapon to seek vengeance from the Petitioner Ex-Wife.
H
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 245
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
26. The minor children are currently nowhere to be found A
and the Petitioner’s father has made all possible attempts to
trace the minor children in Chennai. The Petitioner Ex-Wife’s
father tried to trace the minor children to the Respondent
No.2’s brother’s house i.e. the Respondent No.3 at Tripti
Apartments, Apt No.20, Marshall Enclave, 15/8 Egmore,
B
Chennai but the guard told him that the said house had been
vacated alongwith the two children. Thereafter, he also
checked at the Respondent No.2’s parental home i.e. the
Respondent no.5’s house at No.5, State Bank Colony, A.A
Road, Virudhunagar, Tamil Nadu however, the children were
not even found here. The Respondent No. 2 has therefore, C
fled the US with the minor children and has been moving
around the country completely unknown to the Petitioner
mother and to the complete detriment to the minor children
who have been missing their school and their home in the
US. The Respondent No. 2 and his family have been hand in
D
glove in keeping the Petitioner Ex-Wife deprived of the
company of the minor children. That the Petitioner’s father
fearing for the safety and welfare of the minor children has
made a complaint to the Superintendent of Police, Collectorate
Complex, Virudhunagar, Tamil Nadu on 13.09.2021 requesting
him to investigate into the case of searching for the minor E
children who have been illegally removed from their parent
nation.
27. That on 21.9,2021 in furtherance to the complaint made
by the Petitioner Ex-Wife’s father, the Virudhanagar Police,
Chennai informed the Petitioner’s father that the minor F
children could not be found neither at the residence of the
Respondent No.4 at Tripti Apartments, Egmore, Chennai nor
at the residence of the grandfather i.e. the Respondent No.5.
Further now the Petitioner Ex-Wife has also found out through
the Police Authorities in Ohio, USA that the Respondent No.2
is planning to shift to Maharashtra and shifted his job in G
Perrigo, Allegan, ‘Michigan, USA to Maharashtra, India. The
Petitioner is thus at a complete loss is absolutely unaware of
the whereabouts of the minor children and of the Respondent
no. 2.
H
246 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 28. The minor children are being kept away from the
Petitioner Ex-Wife who has equal parental rights and
responsibilities qua the minor children as laid out in Settlement
Agreement dated 30.07.2021. The Respondent no. 2
Ex-Husband is willfully disobeying the Orders of the US Court
by detaining the minor children somewhere in India not just
B
contrary to the Settlement Agreement but also against the
wishes and interest of the minor children who have been
plucked out of their society based on the Respondent
Ex-Husband’s whim. The US Court is the ONLY Court having
jurisdiction over the minor children as the children are
C permanent citizens of the USA and the minor son Bhavin Sai
Ganesh is a citizen of the USA and holds an American
Passport. The children’s education is suffering as they were
abducted from the USA mid-term and despite the Petitioner
Ex-Wife’s incessant efforts to make the Respondent No.2
understand the implications of his actions, the Respondent
D
No.2 Ex-Husband has become unresponsive and untraceable
alongwith the children.”
38. It would not be out of place to state over here that the shared
parenting plan referred to above by us in paragraph 26 ultimately came
to be terminated by the Court at Ohio vide order dated 9th February
E 2022 at the instance of the petitioner-mother. We quote few relevant
observations made by the Court at Ohio as under :
“33. Defendant/Father’s failure to return the children from
India was a clear violation of the consent order, as follows :
“a. Defendant/Father failed to honor Part I(C)(1) of the
F Shared Parenting Plan, whereby he pledged to “provide
the children with an emotional environment in which the
children are free to continue to love the other Parent and
spend time with them.”
b. Defendant/Father failed to honor Part I(C)(3) of the
G Shared Parenting Plan, whereby he pledged to “allow the
children to telephone on a reasonable basis.”
c. Defendant/Father failed to honor Part I(C)(4) of the
Shared Parenting Plan, whereby he pledged to
“communicate with the other Parent openly, honestly, and
H
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 247
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
regularly to avoid misunderstandings which are harmful A
to the children.”
d. Defendant/Father failed to honor Part I(C)(7) of the
Shared Parenting Plan, whereby he pledged “not to
withhold time with the other Parent as a punishment to the
children or the other Parent.” B
e. Defendant/Father failed to honor Part I(C)(10)(a) of
the Shared Parenting Plan, whereby he pledged to honor
the children’s rights to a continuing relationship with both
parents.
f. Defendant/Father failed to honor Part I(C)(g) of the C
Shared Parenting Plan, whereby he pledged to honor the
children’s rights to “experience regular and consistent
contact with both Parents and the right to know the reason
for any cancellation or change of plans.”
g. Defendant/Father has withheld parenting time from D
Plaintiff/Mother, as specified above. :
h. Defendant/Father never provided the children’s
passports to the Plaintiff/Mother.
34. It is in the best interests of both children to be returned
immediately to the jurisdiction of the United States. E
35. The children are familiar with and acclimated to the culture
of the United States and have thrived while studying in schools
in the United States. In addition, the minor children have
friends in the United States, and are acclimated to the
surroundings of the United States.
F
36. Defendant/Father violated the Shared Parenting Plan by
failing to provide three weeks prior notice of the itinerary.
37. Defendant/Father violated the Shared Parenting Plan by
failing to place the passports with Plaintiff/Mother
38. Defendant/Father took the children surreptitiously to G
India, a country of which the children had little familiarity.
39. One of the major components of the Shared Parenting
Plan is that the Plaintiff and Defendant consistently
communicate regarding the best interests of their children.
H
248 SUPREME COURT REPORTS [2022] 5 S.C.R.
A Defendant/Father has failed to communicate with Plaintiff/
Mother. Plaintiff/Mother does not know where her minor
children are living or if Defendant/Father ever intends to
return them to the United States.
40. A change of circumstances exists in the children’s situation,
B they being surreptitiously removed to India without notice to
Plaintiff/Mother and without any plans to return.
41. It is in the children’s best interest for the Shared Parenting
Plan to be terminated.
42. It is in the children’s best interest for Plaintiff/Mother to
C be named as residential parent and legal custodian.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED
that:
1. Plaintiff/Mother ’s Motion to Terminate the Shared
Parenting Plan and Designate Plaintiff as Residential Parent
D and Legal Custodian (No. 444481) is GRANTED in the best
interests of the minor children.
2. Plaintiff/Mother, Rajeswari Chandresekar is hereby
designated as the residential parent and legal custodian of
daughter Lakshaya Ganesh, DOB 10/7/2009, and son
E Babvinsai Ganesh, DOB 7/20/2013.
3. Defendant/Father shall make the children immediately
available to communicate with Plaintiff/Mother and allow for
daily communication between the children and their mother
until the children are in her custody.
F 4. Defendant/Father shall immediately return the children’s
passports to Plaintiff/Mother, or in the alternative arrange
for and surrender the children’s passports to the Indian Court
or a US Consulate in India. Plaintiff/Mother may apply for
replacement passports for the minor children without consent
of Defendant/Father.
G
5. Defendant/Father shall incur all transportation costs for
the return of the children to the United States of America, per
an itinerary to be determined by Plaintiff/Mother.
6. Defendant/Father shall submit to an independent
psychological evaluation at DeBalzo, Elugdin, Levine, Risen
H
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 249
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
LLC, with Dr.Mark Lovinger for the determination of A
Defendant/Father’s ability to appropriately care for and co-
parent the minor children, which shall include psychological
and chemical evaluation as deemed appropriate, at Defendant/
Father’s costs.
7. Defendant/Father’s visitation with the minor children is B
suspended until this Court can determine if visitation is
appropriate.
8. Plaintiff/Mother shall be responsible for all non-emergency
medical decisions, emergency medical decisions, and
educational decisions regarding the minor children. C
9. For school purposes, Plaintiff/Mother’s residence shall
dictate school enrollment for the children.
10. This order is enforceable by any and all law enforcement
agencies, including, but not limited to the Federal Bureau of
Investigation, State Departments, and Immigration Authorities D
in both the United States of America and India.
11. This matter shall be set for further hearing upon Plaintiff/
Mother’s Motion to Show Cause, filed September 27, 2021
(No. 444480), and the request of Plaintiff/Mother for
attorney’s fees pursuant to ORC §3105.73 for the change of
E
custody motion.”
39. In such circumstances referred to above, the petitioner-mother
is here before this Court with the present petition under Article 32 of the
Constitution of India seeking a Writ of Habeas Corpus.
40. Vide order dated 28th September 2021, this Court issued notice
F
to the respondents, making it returnable within two weeks.
41. On 8th December 2021, time was prayed for on behalf of the
respondents nos.2, 4 and 5 respectively to file counter-affidavit. Three
days’ time was granted to the respondents to file their counter affidavit.
42. On 28th January 2022, this Court passed the following order : G
“List this matter on 04.02.2022, as in the meantime, learned
counsel for the respondent no.2 has expressed hope that she
would be able to impress upon respondent no.2 to take
appropriate measures for finding amicable solution between
the parties themselves.”
H
250 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 43. On 28th February 2022, this Court passed the following order:
“The Mediator’s Report does indicate that the parties were
unable to arrive at an amicable settlement.
Nevertheless, in deference to the observation made by this
Court, learned counsel for the respondent(s) prays for some
B more time to find out some workable arrangement between
the parties.
As the respondent(s) has shown willingness in this regard, by
way of indulgence, we defer the hearing of this matter till
04.04.2022.”
C 44. On 8th April 2022, this Court passed the following order :
“Learned counsel for respondent no.2 on instructions submits
that respondent no.2 is seeking one week’s more time to
interact with the petitioner and try to work out amicable
arrangement, if possible.
D As a result, we give one more chance to respondent no.2, as
prayed.
List this matter on 02.05.2022.”
45. On 2nd May 2022, this Court passed the following order :
E “By way of indulgence and on the insistence of learned
counsel for the private respondents, we defer the hearing of
this matter till 13th May 2022.
We make it amply clear that no further request for
adjournment will be entertained at the instance of the private
respondents on future date.”
F
46. Thus, as the parties were not able to arrive at an amicable
settlement, the matter was finally heard on 13th May 2022.
STANCE OF THE RESPONDENT NO.2 :
47. According to the respondent no.2, the present petition filed by
G the petitioner seeking custody of her minor children so as to repatriate
them to the USA is nothing but an abuse of the process of law and not
maintainable. According to the respondent no.2, the present petition is
not maintainable as India is not a signatory to the Hague Convention.
The terms of the Hague Convention are not binding on the Indian parties
and courts.
H
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 251
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
48. The respondent no.2 had given prior notice to the petitioner A
about his travel to India with children for a period of two weeks via
email dated 28th July 2021. The respondent no.2 had also informed the
petitioner about the travel date, i.e. 19th August 2021, via email dated
15th August 2021. The respondent no.2 had, via email dated 16th August
2021, informed the petitioner about the address where they would be
B
staying in India. However, owing to the pandemic, there were changes
in the international travel norms. The transit locations of travel, i.e. the
Middle East countries, were removed from the safety green list and a
stay of 14 days in a transit location was made necessary before flying to
the home country. According to the respondent no.2, it is on account of
such unforeseen circumstances that he had to make prompt changes in C
the travel plan, get the RTPCR test, etc. and then travel to India to avoid
a 14 days’ stopover in the Middle East, which would have caused lot of
inconvenience to the children including the financial burden for three
persons.
49. It is the case of the respondent no.2 that the custody of the D
children with him cannot be said to be unlawful in any manner. The
custody of the minor children with the father can never be termed as
unlawful or illegal. According to the respondent no.2, the holiday was
planned with the express consent of the petitioner-mother and both the
children had a talk with their mother, i.e. the petitioner, on 17th August
2021 before leaving for India. Thereafter also, the children spoke to the E
petitioner-mother on 22nd August 2021 on arrival in India. All throughout,
the petitioner was kept informed about the whereabouts of the minor
children.
50. According to the respondent no.2, this litigation is nothing but
an outcome of several mental health issues on the part of the petitioner. F
The respondent no.2 has levelled serious allegations against the petitioner
that she has been diagnosed with several mental health issues and has
been on medication for several issues for treatment of depression, bipolar
disorder, schizophrenia, obsessive compulsive disorder, etc. According
to the respondent no.2, it is the erratic behaviour of the petitioner that
G
has resulted in his loss of job. It is alleged that the petitioner had
approached the employer of the respondent no.2, namely Perrigo, Allegan,
Michigan, USA, and created a distressing seen, thereby resulting in
termination of the respondent no.2’s employment with immediate effect.
As the respondent no.2 is not an American citizen nor is he a Green
H
252 SUPREME COURT REPORTS [2022] 5 S.C.R.
A Card holder, the loss of job means that he cannot go back to the US
without the work permit.
51. It is the case of the respondent no.2 that it is the petitioner
who created a situation beyond repair, which ultimately led to the
cancellation of visa.
B 52. According to the respondent no.2, he is not in a position to go
back to the US as he has no means to reach the US and start a living
without a steady job. According to him, he cannot allow his children to
go back to their mother, i.e. the petitioner, having regard to the alleged
mental disorder of the petitioner. According to the respondent no.2, the
C mental illness of the petitioner may increase the risk of the minor
children’s emotional and developmental growth. It is the case of the
respondent no.2 that both the children are very happy residing in India
with their grandparents. Both the children have been admitted in a very
good school at Chennai. Their education is being taken care of in the
best possible manner. All other allegations levelled in the memorandum
D of the writ petition have been denied.
53. According to the respondent no.2, he was to return to Chicago
on 2nd September with the children. He had confirmed tickets of Etihad
Airways, but for the unnecessary hue and cry raised by the petitioner, a
situation was brought around by which the respondent no.2 lost his job
E and consequently, the work permit came to be cancelled.
54. In such circumstances, it is the case of the respondent no.2
that the present petition under Article 32 of the Constitution of India
seeking a Writ of Habeas Corpus is not maintainable. It is not maintainable
as the father, being the natural guardian of his children, the custody of
F the father cannot be termed as illegal or unlawful restrain on the minor
children. In that context, no writ of Habeas Corpus can be issued. It is
the case of the respondent no.2 that before a writ of Habeas Corpus
can be issued, it has to be shown that there is either unlawful detention
or custody or there is an imminent or serious danger to the person
detained, particularly if he or she is a minor.
G
55. We take notice of the fact that a rejoinder has also been filed
to the reply of the respondent no.2. Few additional affidavits have also
been filed by the respondent no.2, by and large reiterating what has
been referred to above.
H
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 253
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
SUBMISSIONS ON BEHALF OF THE PETITIONER : A
56. Mr. Prabhjit Jauhar, the learned counsel appearing for the
petitioner, vehemently submitted that both the children are not residents
of India. The minor daughter Lakshaya came to the USA at the age of
2 in the year 2012 and started her schooling from Findlay, Ohio, USA.
She is well entrenched in the social and cultural milieu of the USA and B
could be said to have been plucked out of the same without ascertaining
her wishes. The minor daughter Lakshaya, as on date, is 12 years of age
and can well express her desires. The minor daughter is a permanent
resident of the USA and has been residing, studying and socializing in
the USA. The custody of the minor daughter Lakshaya with her father,
i.e. the respondent no.2, could be termed as illegal as the same is against C
the settlement agreement dated 30th July 2021 that had been mutually
arrived at by and between the parties before the US court. The respondent
no.2 – father has managed to keep the custody of the children by flouting
various orders passed by the US courts. He cannot be a beneficiary of
his own wrongs. D
57. The minor son Bhavin Sai Ganesh is an American citizen holding
an American passport and, therefore, he is ordinarily a resident of the
USA. The minor son Ganesh Sai is 8 years of age and has been in the
USA since his birth. His custody with the respondent no.2 at Chennai
could also be said to be illegal, more particularly, could be said to be in
E
contravention of the settlement agreement dated 30th July 2021.
58. The allegations levelled by the respondent no.2 that the
petitioner is suffering from various mental disorders are reckless, far
from being true. If the petitioner had any mental issues and the respondent
no.2 was so much concerned about the interest and welfare of his two
minor children, then there was no good reason for him to go for the F
settlement agreement dated 30th July 2021. The respondent no.2 could
be said to be in gross and blatant contempt of the various orders passed
by the US court. He could be said to have kept the custody of the custody
of the minor children illegally. His act has deprived the petitioner as a
mother to take care of her minor children in accordance with the shared G
parenting plan and allocation of parental rights and responsibilities.
59. Mr. Jauhar, the learned counsel appearing for the petitioner,
submitted that even with all that the respondent no.2 has done, the
petitioner is still ready and willing to abide by the shared parenting plan
and allocation of parental rights and responsibilities. The respondent no.2
H
254 SUPREME COURT REPORTS [2022] 5 S.C.R.
A should, at the earliest, return to the USA with both the minor children
and abide by the various orders passed by the US courts, more particularly,
the shared parenting plan.
60. The learned counsel would submit that the respondent no.2
should be asked to apply for a fresh visa at the earliest pointing out to the
B authorities concerned that he is duty-bound in law to go back to the USA
with both the minor children so as to abide by the shared parenting plan
and the order that may be passed by this Court.
61. Mr. Jauhar, the learned counsel, has placed strong reliance, in
support of his submissions, on the following case-law:
C (1) Elizabeth Dinshaw v. Arvand M. Dinshaw,
(1987) 1 SCC 42;
(2) V. Ravi Chandran v. Union of India and others,
(2010) 1 SCC 174;
D (3) Shilpa Aggarwal v. Aviral Mittal,
(2010) 1 SCC 591;
(4) Lahari Sakhamuri v. Sobhan Kodali,
(2019) 7 SCC 311;
(5) Surinder Kaur Sandhu v. Harbax Singh Sandhu,
E
(1984) 3 SCC 698.
SUBMISSIONS ON BEHALF OF THE RESPONDENT
NO.2 :
62. Ms. Meenakshi Arora, the learned senior counsel appearing
F for the respondent nos. 2, 4 and 5, on the other hand, has vehemently
opposed this writ petition substantially on the ground that the same seeking
for a Writ of Habeas Corpus is not maintainable as the custody of the
two minor children with their father, i.e. the respondent no.2, cannot be
termed as illegal or unlawful.
63. Ms. Arora would submit that both the minor children, as on
G
date, are well-settled at Chennai. They are being taken care of in the
best possible manner. They have been admitted in a very good school at
Chennai. Both the minor children are now well-settled and to take them
back to the USA all of a sudden will take a very heavy toll on them both;
physically and mentally.
H
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 255
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
64. According to Ms. Arora, when a party is seeking a discretionary A
relief under Article 32 of the Constitution of India, the court must look
into the bona fide and the overall conduct of such party.
65. The learned senior counsel would submit that it is the petitioner
who has brought around a situation whereby the respondent no.2 is now
not in a position to go back to the USA and start a new life. The respondent B
no.2 has no work permit as his employment has been terminated. It is
the petitioner who is responsible for the termination of services of the
respondent no.2 from the company where he was serving earlier. She
would submit that, as on date, if the respondent no.2-father is asked to
go back to the USA with his two minor children and if the respondent
no.2 is not in a position to settle down in the USA, then he may have to C
come back to India. In such circumstances, it would be too dangerous to
leave behind both the minor children all alone with their mother who is
suffering from various mental disorders. The argument of the learned
senior counsel is that in such circumstances why should the father be
deprived of his love and affection towards his own children and also D
supervision.
66. It is submitted that it is always open for the petitioner-mother
to travel to India and spend some time with her minor children rather
than insisting that both the minor children should come back to the USA.
67. The learned senior counsel submitted that it is a well-settled E
position of law, more particularly, after the decision of this Court in the
case of Nithya Anand Raghavan v. State (NCT of Delhi) and another,
(2017) 8 SCC 454, that the paramount consideration in cases like the
one on hand, should be the welfare of the minor child – in respect of
whom the Habeas Corpus writ petition is preferred by one or the other
parent. The other considerations – like comity of courts; orders passed F
by foreign courts having jurisdiction in the matter regarding custody of a
minor child; citizenship of the parents and the child; the ‘intimate connect’;
the manner in which the child is brought in India, i.e. even if it is in
breach of order of competent court in foreign jurisdiction, cannot override
the consideration of child’s welfare, since it is the responsibility of a G
court, which exercises parens patriae jurisdiction, to ensure that the
exercise of extraordinary writ jurisdiction is in the best interest of the
child, and the direction to return the child to a foreign jurisdiction does
not result in any physical, mental, psychological, or other harm to the
child.
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256 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 68. The learned senior counsel would submit that if it is not in the
best interest and welfare of the minor child that he/she should return to
the foreign jurisdiction, and giving of such direction would harm his/her
interest in the welfare, the other considerations and principles which
may persuade this Court to take a view in favour of directing the return
of the minor child to the foreign court jurisdiction shall stand relegated
B
and the court would not direct the return of the child to the place falling
within the jurisdiction of the foreign court.
69. In such circumstances referred to above, Ms. Arora, the
learned senior counsel appearing for the respondent nos. 2, 4 and 5
respectively prays that there being no merit in the present writ petition,
C the same may be rejected.
ANALYSIS :
70. Having heard the learned counsel appearing for the parties
and having gone through the materials on record, the only question that
falls for our consideration is, whether the petitioner is entitled to any of
D the reliefs prayed for ?
PRINCIPLES OF LAW GOVERNING THE RIGHTS OF
THE PARTIES :
71. The Guardians and Wards Act, 1890, was primarily enacted
to consolidate the various Acts then in force keeping in view the personal
E
law of diverse communities in India. It, however, did not encroach upon
the jurisdiction of the Courts of Wards and did not take away any powers
vested in the High Courts or the Supreme Court. A ‘minor’ under the
Act has been defined as a person who, under the provisions of the Indian
Majority Act, 1875, is to be deemed not to have attained his majority. A
F ‘guardian’ has been defined as a person having the care of the person of
a minor or of his property or of both his person and property. Section 6
of the Act provides that no provision in the Act shall be construed to take
away or derogate from any power to appoint a guardian of a minor’s
person or property, or both, which is valid by the law to which the minor
is subject. Section 7 gives power to the Court that if it is satisfied that it
G
is for the welfare of a minor that an order should be made, it may make
an order appointing a guardian of his person or property, or both, or
declaring a person to be such a guardian. Section 8 lays down that no
order under Section 7 will be made except on the application of the
person desirous of being, or claiming to be, the guardian of the minor or
H any relative or friend of the minor or the Collector of the district in which
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 257
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
the minor ordinarily resides or in which he has property or the Collector A
having authority with respect to the class to which the minor belongs.
Section 9 deals with the territorial jurisdiction of the court. Section 10
lays down the manner in which an application is to be made and what is
to be stated in the application. Section 11 provides for the procedure on
admission of such an application. Section 12 gives power to the court to
B
make interlocutory order for production of a minor and interim protection
of his person and property. Section 17 enjoins upon the court to have due
regard to the personal law of the minor and specially take note of the
circumstances which point towards the welfare of the minor in either
appointing a guardian or declaring a guardian. If the minor is old enough
to form an intelligent preference, the court may be justified to consider C
that preference also in coming to the final conclusion. Further, no person
can be appointed as a guardian against his own will.
72. The Hindu Minority and Guardianship Act, 1956 was enacted
as a law complementary to the Guardians and Wards Act, 1890. This
defines a ‘minor’ to be a person who has not completed the age of D
eighteen years. ‘Guardian’ has been defined as a person having the care
of the person of a minor or of his property or of both his person and
property and includes - (i) a natural guardian, (ii) a guardian appointed
by the will of the minor’s father or mother, (iii) a guardian appointed or
declared by a Court, and (vi) a person empowered to act as such by or
under any enactment relating to any court of wards. ‘Natural guardian’, E
according to this Act, means any of the guardians mentioned in Section
6. Section 6 says that the natural guardians of a Hindu minor, in respect
of the minor’s person as well as in respect of the minor’s property
(excluding his or her undivided interest in the joint family property) are -
(a) in the case of a boy or an unmarried girl, the father, and after him, the F
mother, provided that the custody of a minor who has not completed the
age of five years shall ordinarily be with the mother. Section 8 lays down
that the natural guardian of a Hindu minor has power, subject to the
provisions of this section, to do all acts which are necessary or reasonable
and proper for the benefit of the minor or for the realization, protection
or benefit of the minor’s estate but the guardian can, in no case, bind the G
minor by a personal covenant. Sub-section (5) of Section 8 lays down
that the Guardians and Wards Act, 1890, shall apply in certain
circumstances. Section 13 of the Act lays down that in the appointment
or declaration of any person as guardian of Hindu minor by a Court, the
welfare of the minor shall be the paramount consideration. Indeed sub- H
258 SUPREME COURT REPORTS [2022] 5 S.C.R.
A section (2) of Section 13 lays down that no person shall be entitled to the
guardianship by virtue of the provisions of the Act or of any law relating
to guardianship in marriage among Hindus, if the Court is of opinion that
his or her guardianship will not be for the welfare of the minor. This
section is complementary to Section 17 of the Guardians and Wards
Act, 1890 which lays down that in appointing or declaring the guardian
B
of a minor the Court shall be guided by what, consistently with the law to
which the minor is subject, appears in the circumstances to be for the
welfare of the minor.
73. A mere reading of the provisions of the two Acts referred to
above makes it obvious that the welfare of the minor predominates to
C such an extent that the legal rights of the persons claiming to be the
guardians or claiming to be entitled to the custody will play a very
insignificant role in the determination by the court.
74. Ms. Arora does not really contest the above proposition. What
she contends is that the father being the natural guardian of his two
D minor children, the custody of the father cannot be termed as illegal or
unlawful restraint on the minor. In that context no writ of Habeas Corpus
can issue. Her contention is that before a writ of Habeas Corpus can
issue, it has to be shown that there is either unlawful detention or custody
or there is imminent or serious danger to the person detained, particularly
if he or she is minor.
E
WRIT OF HABEAS CORPUS :
75. In a petition seeking a writ of Habeas Corpus in a matter
relating to a claim for custody of a child, the principal issue which should
be taken into consideration is as to whether from the facts of the case, it
F can be stated that the custody of the child is illegal.
76. The writ of Habeas Corpus has always been given due
signification as an effective method to ensure release of the detained
person from prison. In P. Ramanatha Aiyar’s Law Lexicon (1997 edition),
while defining ‘habeas corpus’, apart from other aspects, the following
has been stated :
G
“The ancient prerogative writ of habeas corpus takes its name
from the two mandatory words habeas. corpus, which it
contained at the time when it, in common with all forms of
legal process, was framed in Latin. The general purpose of
these writs, as their name indicates, was to obtain the
H production of an individual.”
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 259
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
77. In Secretary of State for Home Affairs v. O’Brien reported A
in (1923) AC 603 (609), it has been observed that it is perhaps the most
important writ known to the constitutional law of England, affording as it
does a swift and imperative remedy in all cases of illegal restraint or
confinement. It is of immemorial antiquity, an instance of its use occurring
in the thirty-third year of Edward I. It has through the ages been jealously
B
maintained by the Courts of Law as a check upon the illegal usurpation
of power by the Executive at the cost of the liege.
78. The writ of Habeas Corpus is a prerogative writ and an
extraordinary remedy. It is a writ of right and not a writ of course and
may be granted only on reasonable ground or probable cause being shown,
as held by this Court in Mohd. Ikram Hussain v. State of Uttar Pradesh C
and others, AIR 1964 SC 1625 and Kanu Sanyal v. District
Magistrate, Darjeeling, (1973) 2 SCC 674. The observations made
by a Constitution Bench in the case of Kanu Sanyal (supra) with regard
to the nature and scope of a writ of Habeas Corpus are being extracted
below : D
“4. It will be seen from this brief history of the writ of habeas
corpus that it is essentially a procedural writ. It deals with
the machinery of justice, not the substantive law. The object
of the writ is to secure release of a person who is illegally
restrained of his liberty. The writ is, no doubt, a command
E
addressed to a person who is alleged to have another person
unlawfully in his custody requiring him to bring the body of
such person before the Court, but the production of the body
of the person detained is directed in order that the
circumstances of his detention may be inquired into, or to put
it differently, “in order that appropriate judgment be rendered F
on judicial enquiry into the alleged unlawful restraint”. The
form of the writ employed is “We command you that you have
in the King’s Bench Division of our High Court of Justice-
immediately after the receipt of this our writ, the body of A.B.
being taken and detained under your custody-together with
G
the day and cause of his being taken and detained to undergo
and receive all and singular such matters and things as our
court shall then and there consider of concerning him in this
behalf”. The italicized words show that the writ is primarily
designed to give a person restrained of his liberty a speedy
and effective remedy for having the legality of his detention H
260 SUPREME COURT REPORTS [2022] 5 S.C.R.
A enquired into and determined and if the detention is found to
be unlawful, having himself discharged and freed from such
restraint. The most characteristic element of the writ is its
peremptoriness and, as pointed out by Lord Halsbury, L.C. in
Cox v. Hakes (supra), “the essential and leading theory of
the whole procedure is the immediate determination of the
B
right to the applicant’s freedom and his release, if the detention
is found to be unlawful. That is the primary purpose of the
writ; that is its substance and end.”
79. The exercise of the extraordinary jurisdiction for issuance of
a writ of Habeas Corpus would, therefore, be seen to be dependent on
C the jurisdictional fact where the applicant establishes a prima facie case
that the detention is unlawful. It is only where the aforementioned
jurisdictional fact is established that the applicant becomes entitled to
the writ as of right.
80. The object and scope of a writ of Habeas Corpus in the context
D of a claim relating to the custody of a minor child fell for the consideration
of this Court in Nithya Anand Raghavan (supra) and it was held that
the principal duty of the court in such matters should be to ascertain
whether the custody of the child is unlawful and 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.
E
81. Taking a similar view in the case of Syed Saleemuddin v.
Dr. Rukhsana and others, (2001) 5 SCC 247, it was held by this Court
that in a Habeas Corpus petition seeking transfer of custody of a child
from one parent to the other, the principal consideration for the court
would be to ascertain whether the custody of the child can be said to be
F unlawful or illegal and whether the welfare of the child requires that the
present custody should be changed. It was stated thus :
“11…it is clear that in an application seeking a writ of Habeas
Corpus for custody of minor children the principal
consideration for the Court is to ascertain whether the custody
G of the children can be said to be unlawful or illegal and
whether the welfare of the children requires that present
custody should be changed and the children should be left in
care and custody of somebody else. The principle is well settled
that in a matter of custody of a child the welfare of the child
is of paramount consideration for the court…”
H
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 261
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
82. The question of maintainability of a Habeas Corpus petition A
under Article 226 of the Constitution of India for the custody of a minor
was examined by this Court in Tejaswini Gaud and others v. Shekhar
Jagdish Prasad Tewari and others, (2019) 7 SCC 42, and it was held
that the petition would be maintainable where the detention by parents
or others is found to be illegal and without any authority of law and the
B
extraordinary remedy of a prerogative writ of Habeas Corpus can be
availed in exceptional cases where the ordinary remedy provided by the
law is either unavailable or ineffective. The observations made in the
judgment in this regard are as follows :
“14. Writ of habeas corpus is a prerogative process for
securing the liberty of the subject by affording an effective C
means of immediate release from an illegal or improper
detention. The writ also extends its influence to restore the
custody of a minor to his guardian when wrongfully deprived
of it. The detention of a minor by a person who is not entitled
to his legal custody is treated as equivalent to illegal detention D
for the purpose of granting writ, directing custody of the minor
child. For restoration of the custody of a minor from a person
who according to the personal law, is not his legal or natural
guardian, in appropriate cases, the writ court has jurisdiction.
x x x x
E
19. Habeas corpus proceedings is not to justify or examine
the legality of the custody. Habeas corpus proceedings is a
medium through which the custody of the child is addressed
to the discretion of the court. Habeas corpus is a prerogative
writ which is an extraordinary remedy and the writ is issued
where in the circumstances of the particular case, ordinary F
remedy provided by the law is either not available or is
ineffective; otherwise a writ will not be issued. In child custody
matters, the power of the High Court in granting the writ is
qualified only in cases where the detention of a minor by a
person who is not entitled to his legal custody. In view of the G
pronouncement on the issue in question by the Supreme Court
and the High Courts, in our view, in child custody matters,
the writ of habeas corpus is maintainable where it is proved
that the detention of a minor child by a parent or others was
illegal and without any authority of law.
H
262 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 20. In child custody matters, the ordinary remedy lies only
under the Hindu Minority and Guardianship Act or the
Guardians and Wards Act as the case may be. In cases arising
out of the proceedings under the Guardians and Wards Act,
the jurisdiction of the court is determined by whether the minor
ordinarily resides within the area on which the court exercises
B
such jurisdiction. There are significant differences between
the enquiry under the Guardians and Wards Act and the
exercise of powers by a writ court which is of summary in
nature. What is important is the welfare of the child. In the
writ court, rights are determined only on the basis of affidavits.
C Where the court is of the view that a detailed enquiry is
required, the court may decline to exercise the extraordinary
jurisdiction and direct the parties to approach the civil court.
It is only in exceptional cases, the rights of the parties to the
custody of the minor will be determined in exercise of
extraordinary jurisdiction on a petition for habeas corpus.”
D
83. In the case of Anjali Kapoor v. Rajiv Baijal, (2009) 7 SCC
322, where the custody of a minor child was being claimed by the father
being the natural parent from the maternal grandmother, the mother having
died in child birth, it was held that taking proper care and attention in
upbringing of the child is an important factor for granting custody of
E child, and on facts, the child having been brought up by the grandmother
since her infancy and having developed emotional bonding, the custody
of the child was allowed to be retained by the maternal grandmother.
While considering the competing rights of natural guardianships vis-a-
vis the welfare of the child, the test for consideration by the Court was
F held to be; what would best serve the welfare and interest of the child.
Referring to the earlier decisions in Sumedha Nagpal v. State of Delhi,
(2000) 9 SCC 745; Rosy Jacob v. Jacob A. Chakramakkal, (1973)
1 SCC 840; Elizabeth Dinshaw v. Arvand M. Dinshaw, (supra) and
Muthuswami Chettiar v. K.M. Chinna Muthuswami Moopanar, AIR
1935 Mad 195, it was also held that the welfare of child prevails over the
G legal rights of the parties while deciding the custody of minor child. The
observations made in the judgment in this regard are as follows :
“14. The question for our consideration is, whether in the
present scenario would it be proper to direct the appellant to
hand over the custody of the minor child Anagh to the
H respondent.
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 263
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
15. Under the Guardians and Wards Act, 1890, the father is A
the guardian of the minor child until he is found unfit to be
the guardian of the minor female child. In deciding such
questions, the welfare of the minor child is the paramount
consideration and such a question cannot be decided merely
based upon the rights of the parties under the law. (See
B
Sumedha Nagpal vs. State of Delhi.” (2000) 9 SCC 745 (SCC
p. 747, paras 2 & 5).
84. In Rosy Jacob v. Jacob A. Chakramakkal (supra), this Court
has observed that :
“7…the principle on which the court should decide the fitness C
of the guardian mainly depends on two factors: (i) the father’s
fitness or otherwise to be the guardian, and (ii) the interests
of the minors.”
85. This Court considering the welfare of the child also stated
that : (SCC p. 855, para 15)
D
“15….The children are not mere chattels: nor are they mere
playthings for their parents. Absolute right of parents over
the destinies and the lives of their children has, in the modern
changed social conditions, yielded to the considerations of
their welfare as human beings so that they may grow up in a
normal balanced manner to be useful members of the E
society….”
86. In Elizabeth Dinshaw (supra), this Court has observed that
whenever a question arises before a court pertaining to the custody of
the minor child, the matter is to be decided not on consideration of the
legal rights of the parties but on the sole and predominant criterion of F
what would best serve the interest and welfare of the child.
87. The question as to how the court would determine what is
best in the interest of the child was considered In Re: McGrath
(Infants), [1893] 1 Ch. 143 C.A., and it was observed by Lindley L.J.,
as follows : G
“…The dominant matter for the consideration of the Court is
the welfare of the child. But the welfare of a child is not to be
measured by money only, nor by physical comfort only. The
word welfare must be taken in its widest sense. The moral and
religious welfare of the child must be considered as well as its
H
264 SUPREME COURT REPORTS [2022] 5 S.C.R.
A physical well-being. Nor can the ties of affection be
disregarded.”
88. The issue as to the welfare of the child again arose In re “O”
(An Infant), [1965] 1 Ch. 23 C.A., where Harman L.J., stated as follows:
“It is not, I think, really in dispute that in all cases the
B paramount consideration is the welfare of the child; but that,
of course, does not mean you add up shillings and pence, or
situation or prospects, or even religion. What you look at is
the whole background of the child’s life, and the first
consideration you have to take into account when you are
C looking at his welfare is : who are his parents and are they
ready to do their duty?”
89. The question as to what would be the dominating factors while
examining the welfare of a child was considered in Walker v. Walker
& Harrison, 1981 New Ze Recent Law 257 and it was observed that
while the material considerations have their place, they are secondary
D matters. More important are stability and security, loving and
understanding care and guidance, and warm and compassionate
relationships which are essential for the development of the child’s
character, personality and talents. It was stated as follows :
“Welfare is an all-encompassing word. It includes material
E welfare; both in the sense of adequacy of resources to provide
a pleasant home and a comfortable standard of living and in
the sense of an adequacy of care to ensure that good health
and due personal pride are maintained. However, while
material considerations have their place they are secondary
F matters. More important are the stability and the security, the
loving and understanding care and guidance, the warm and
compassionate relationships that are essential for the full
development of the child’s own character, personality and
talents.”
90. In the context of consideration of an application by a parent
G
seeking custody of a child through the medium of a Habeas Corpus
proceeding, it has been stated in American Jurisprudence, 2nd Edn. Vol.
39 as follows :
“…An application by a parent, through the medium of a habeas
corpus proceeding, for custody of a child is addressed to the
H
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 265
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
discretion of the court, and custody may be withheld from the A
parent where it is made clearly to appear that by reason of
unfitness for the trust or of other sufficient causes the
permanent interests of the child would be sacrificed by a
change of custody. In determining whether it will be for the
best interest of a child to award its custody to the father or
B
mother, the court may properly consult the child, if it has
sufficient judgment.”
91. Thus, it is well established that in issuing the writ of Habeas
Corpus in the case of minors, the jurisdiction which the Court exercises
is an inherent jurisdiction as distinct from a statutory jurisdiction conferred
by any particular provision in any special statute. In other words, the C
employment of the writ of Habeas Corpus in child custody cases is not
pursuant to, but independent of any statute. The jurisdiction exercised
by the court rests in such cases on its inherent equitable powers and
exerts the force of the State, as parens patriae, for the protection of its
minor ward, and the very nature and scope of the inquiry and the result D
sought to be accomplished call for the exercise of the jurisdiction of a
court of equity. The primary object of a Habeas Corpus petition, as
applied to minor children, is to determine in whose custody the best
interests of the child will probably be advanced. In a Habeas Corpus
proceeding brought by one parent against the other for the custody of
their child, the court has before it the question of the rights of the parties E
as between themselves, and also has before it, if presented by the
pleadings and the evidence, the question of the interest which the State,
as parens patriae, has in promoting the best interests of the child.
92. The general principle governing the award of custody of a
minor is succinctly stated in the following words in Halsbury's Laws of F
England, Fourth Edition, Vol. 24, Article 511 at page 217 :
“… Where in any proceedings before any court the custody
or upbringing of a minor is in question, then, in deciding that
question, the court must regard the minor's welfare as the
first and paramount consideration, and may not take into G
consideration whether from any other point of view the father's
claim in respect of that custody or upbringing is superior to
that of the mother, or the mother's claim is superior to that of
the father.”
H
266 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 93. In the American Jurisprudence, Vol. 39, Second Edition, Para
148 at pages 280-281, the same principle is enunciated in the following
words :
“..... a court is not bound to deliver a child into the custody
of any claimant or of any person, but should, in the exercise
B of a sound discretion, after careful consideration of the facts,
leave it in such custody as its welfare at the time appears to
require.”
94. In the footnote 14 at page 281, the following extracts from
two American cases are set-out which also emphasise this point :
C “The employment of the forms of habeas corpus in a child
custody case is not for the purpose of testing the legality of a
confinement or restraint as contemplated by the ancient
common law writ, or by statute, but the primary purpose is to
furnish a means by which the court, in the exercise of its
judicial discretion, may determine what is best for the welfare
D of the child, and the decision is reached by a consideration
of the equities involved in the welfare of the child, against
which the legal rights of no one, including the parents, are
allowed to militate.” Howarth v. Northcott, 152 Conn 460,
208 A 2d and 540, 17 ALR3d 758.
E PRECEDENTS ON THE SUBJECT :
95. As Mr. Jauhar, the learned counsel appearing for the petitioner,
has placed strong reliance on the decision of this Court in the case of
V. Ravi Chandran (supra), we must look into the same. This Court, in
V. Ravi Chandran (supra), held as follows :
F “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
G the Court could conduct an elaborate enquiry on the question
of custody or by dealing with the matter summarily order a
parent to return custody of the child to the country from which
the child was removed and all aspects relating to the child’s
welfare be investigated in a Court in his own country. Should
the Court take a view that an elaborate enquiry is necessary,
H
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 267
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
obviously the Court is bound to consider the welfare and A
happiness of the child as the paramount consideration and
go into all relevant aspects of welfare of the child including
stability and security, loving and understanding care and
guidance and full development of the child’s character,
personality and talents. While doing so, the order of a foreign
B
Court as to his custody may be given due weight; the weight
and persuasive effect of a foreign judgment must depend on
the circumstances of each case.
30. However, in a case where the Court decides to exercise its
jurisdiction summarily to return the child to his own country,
keeping in view the jurisdiction of the Court in the native C
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 that
could be in the best interests of the child. The indication given D
in McKee v. McKee [1951 AC 352 : (1951) 1 All ER 942
(PC)] that there may be cases in which it is proper for a Court
in one jurisdiction to make an order directing that a child be
returned to a foreign jurisdiction without investigating the
merits of the dispute relating to the care of the child on the
ground that such an order is in the best interests of the child E
has been explained in L (Minors), In re [(1974) 1 WLR 250 :
(1974) 1 All ER 913 (CA)] and the said view has been
approved by this Court in Dhanwanti Joshi [(1998) 1 SCC
112] . Similar view taken by the Court of Appeal in H. (Infants),
In re [(1966) 1 WLR 381 (Ch & CA) : (1966) 1 All ER 886 F
(CA)] has been approved by this Court in Elizabeth Dinshaw,
(1987) 1 SCC 42 : 1987 SCC (Cri) 13]”.
96. This Court then proceeded to consider the issue, whether the
facts of the case before it warranted an elaborate inquiry into the question
of custody of the minor and should the parties be relegated to the said
G
procedure before an appropriate forum in India. This Court concluded in
its judgment that it was not necessary to relegate the parties to an elaborate
procedure in India. Its reasons are found in paras 32 to 35, which read
as follows :
H
268 SUPREME COURT REPORTS [2022] 5 S.C.R.
A “32. Admittedly, Adithya is an American citizen, born and
brought up in the United States of America. He has spent his
initial years there. The natural habitat of Adithya is in the
United States of America. As a matter of fact, keeping in view
the welfare and happiness of the child and in his best interests,
the parties have obtained a series of consent orders
B
concerning his custody/parenting rights, maintenance, etc.
from the competent Courts of jurisdiction in America. Initially,
on 18.4.2005, a consent order governing the issues of custody
and guardianship of minor Adithya was passed by the New
York State Supreme Court whereunder the Court granted joint
C custody of the child to the petitioner and Respondent 6 and it
was stipulated in the order to keep the other party informed
about the whereabouts of the child. In a separation agreement
entered into between the parties on 28.7.2005, the consent
order dated 18.4.2005 regarding custody of minor son Adithya
continued.
D
33. In 8.9.2005 order whereby the marriage between the
petitioner and Respondent 6 was dissolved by the New York
State Supreme Court, again the child custody order dated
18.4.2005 was incorporated. Then the petitioner and
Respondent 6 agreed for modification of the custody order
E and, accordingly, the Family Court of the State of New York
on 18.6.2007 ordered that the parties shall share joint legal
and physical custody of the minor Adithya and, in this regard,
a comprehensive arrangement in respect of the custody of
the child has been made.
F 34. The fact that all orders concerning the custody of the
minor child Adithya have been passed by the American Courts
by consent of the parties shows that the objections raised by
Respondent 6 in the counter-affidavit about deprivation of
basic rights of the child by the petitioner in the past; failure
of the petitioner to give medication to the child; denial of
G
education to the minor child; deprivation of stable
environment to the minor child; and child abuse are hollow
and without any substance. The objection raised by
Respondent 6 in the counter-affidavit that the American
Courts which passed the order/decree had no jurisdiction and
H being inconsistent with Indian laws cannot be executed in
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 269
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
India also prima facie does not seem to have any merit since A
despite the fact that Respondent 6 has been staying in India
for more than two years, she has not pursued any legal
proceeding for the sole custody of the minor Adithya or for
declaration that the orders passed by the American Courts
concerning the custody of minor child Adithya are null and
B
void and without jurisdiction. Rather it transpires from the
counter-affidavit that initially Respondent 6 initiated the
proceedings under the Guardians and Wards Act, 1890 but
later on withdrew the same.
35. The facts and circumstances noticed above leave no
manner of doubt that merely because the child has been C
brought to India by Respondent 6, the custody issue
concerning minor child Adithya does not deserve to be gone
into by the Courts in India and it would be in accord with
principles of comity as well as on facts to return the child
back to the United States of America from where he has been D
removed and enable the parties to establish the case before
the Courts in the native State of the child i.e. the United States
of America for modification of the existing custody orders.
There is nothing on record which may even remotely suggest
that it would be harmful for the child to be returned to his
native country.” E
97. Despite the fact that the minor child Adithya had remained in
India for over two years, this Court concluded that it could not be said
that the he had developed his roots in India. This Court directed the
respondent mother to take the child, of her own, to the USA and to
report before the Family Court of the State of New York. This Court F
also imposed the condition on the petitioner that he shall bear all the
travelling expenses of the mother and the minor child and make
arrangements for their residence in the USA till further orders are passed
by the competent Court. He was also directed to request the authorities
that the warrants issued against the mother be dropped and he was
G
directed not to file or pursue any criminal charge for violation by the
mother of the consent order in USA.
98. In Surya Vadanan v. State of Tamil Nadu, (2015) 5 SCC
450, the husband and wife both were of the Indian origin but the husband
became a resident and citizen of the UK. The parties got married in
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270 SUPREME COURT REPORTS [2022] 5 S.C.R.
A India and had two daughters in the UK. The wife had acquired the
British citizenship and the British passport as well. Both the parties were
working for gain in the UK. The parties started having some matrimonial
problems, as a result of which the wife came back to India with her two
daughters. The wife filed a petition under Section 13(1)(i-a) of the Hindu
Marriage Act, 1955 seeking divorce in the Family Court, Coimbatore.
B
Subsequently, the husband filed a petition in the High Court of Justice in
the UK for making the children wards of the Court. The High Court
made the children wards of the Court during their minority, or until further
orders of the Court and the wife was directed to return the children to
the jurisdiction of the foreign Court. As the wife failed to obey the orders
C of the foreign Court, the husband filed a writ petition of Habeas Corpus
seeking production of his children and their return to the UK, in the
Madras High Court. The High Court dismissed the petition. This Court
discussed the law on the custody of the children and observed the
following :
D “46. The principle of the comity of Courts is essentially a
principle of self-restraint, applicable when a foreign Court is
seized of the issue of the custody of a child prior to the
domestic Court. There may be a situation where the foreign
Court though seized of the issue does not pass any effective
or substantial order or direction. In that event, if the domestic
E Court were to pass an effective or substantial order or
direction prior in point of time then the foreign Court ought
to exercise self-restraint and respect the direction or order of
the domestic Court (or vice versa), unless there are very good
reasons not to do so.
F 47. From a review of the above decisions, it is quite clear that
there is complete unanimity that the best interests and welfare
of the child are of paramount importance. However, it should
be clearly understood that this is the final goal or the final
objective to be achieved — it is not the beginning of the
exercise but the end.
G
48. Therefore, we are concerned with two principles in a case
such as the present. They are:
(i) the principle of comity of Courts; and
(ii) the principle of the best interests and the welfare of the
H child.
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 271
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
These principles have been referred to as “contrasting A
principles of law” [Shilpa Aggarwal v. Aviral Mittal, (2010)
1 SCC 591 : (2010) 1 SCC (Civ) 192] but they are not
“contrasting” in the sense of one being the opposite of the
other but they are contrasting in the sense of being different
principles that need to be applied in the facts of a given case.
B
49. What then are some of the key circumstances and factors
to be taken into consideration for reaching this final goal or
final objective? First, it must be appreciated that the ‘most
intimate contact’ doctrine and the ‘closest concern’ doctrine
of Surinder Kaur Sandhu v. Harbax Singh Sandhu, (1984) 3
SCC 698 : 1984 SCC (Cri) 464 are very much alive and cannot C
be ignored only because their application might be
uncomfortable in certain situations. It is not appropriate that
a domestic Court having much less intimate contact with a
child and having much less close concern with a child and
his or her parents (as against a foreign Court in a given case) D
should take upon itself the onerous task of determining the
best interests and welfare of the child. A foreign Court having
the most intimate contact and the closest concern with the
child would be better equipped and perhaps best suited to
appreciate the social and cultural milieu in which the child
has been brought up rather than a domestic Court. This is a E
factor that must be kept in mind.
x x x x
52. What are the situations in which an interim or an
interlocutory order of a foreign Court may be ignored? There
are very few such situations. It is of primary importance to F
determine, prima facie, that the foreign Court has jurisdiction
over the child whose custody is in dispute, based on the fact
of the child being ordinarily resident in the territory over which
the foreign Court exercises jurisdiction. If the foreign Court
does have jurisdiction, the interim or interlocutory order of G
the foreign Court should be given due weight and respect. If
the jurisdiction of the foreign Court is not in doubt, the ‘first
strike’ principle would be applicable. That is to say that due
respect and weight must be given to a substantive order prior
in point of time to a substantive order passed by another Court
(foreign or domestic). H
272 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 53. There may be a case, as has happened in the present
appeal, where one parent invokes the jurisdiction of a Court
but does not obtain any substantive order in his or her favour
and the other parent invokes the jurisdiction of another Court
and obtains a substantive order in his or her favour before
the first Court. In such an event, due respect and weight ought
B
to be given to the substantive order passed by the second
Court since that interim or interlocutory order was passed
prior in point of time.
x x x x
C 55. Finally, this Court has accepted the view [L. (Minors), In
re, (1974) 1 WLR 250 : (1974) 1 All ER 913 (CA)] that in a
given case, it might be appropriate to have an elaborate inquiry
to decide whether a child should be repatriated to the foreign
country and to the jurisdiction of the foreign Court or in a
given case to have a summary inquiry without going into the
D merits of the dispute relating to the best interests and welfare
of the child and repatriating the child to the foreign country
and to the jurisdiction of the foreign Court.”
99. Thus, it is evident that while the paragraph 49 referred to
above recognised the well-settled principle/doctrine of the ‘most intimate
E contact’ and the ‘closest concern’ doctrine, the paragraphs 47, 52 & 53
respectively emphasized the doctrine of comity of Courts and the first
strike principle. Even before stating the aforesaid principles, in paragraph
47, the Court observed that there is complete unanimity that the best
interests and welfare of the child are of paramount importance.
F 100. The Court allowed the appeal on the ground that the UK
Court had passed an effective and substantial order declaring the children
of the parties as wards of that Court and also that the UK Court has the
most intimate contact with the welfare of the children.
101. In Nithya Anand Raghavan (supra), this Court struck
altogether a different note and gave a new dimension. In that case, the
G
couple married on 30.11.2006 at Chennai and shifted to the UK in the
early 2007. Disputes between the spouses arose. The wife having
conceived in December 2008, came to New Delhi in June 2009 and
stayed with her parents and gave birth to a girl child - Nethra on 07.08.2009
at Delhi. After the husband arrived in India, the couple went back to the
H UK in March, 2010 and following certain unsavoury events, the wife
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 273
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
and the daughter returned to India in August 2010. After exchange of A
legal correspondence, the wife and her daughter went back to London
in December, 2011, and in January 2012 the daughter was admitted in a
nursery in the UK. In December, 2012, the child was granted the UK
citizenship and the husband was also granted the UK citizenship in January
2013. They bought a home in the UK to which they shifted their family.
B
In September, 2013 the child was admitted in a primary school in the UK
and she was around four years old. In July, 2014 the wife returned to
India along with her daughter. She again returned to the UK along with
the child. Between late 2014 and early 2015 the child became ill and
was diagnosed with cardiac disorder. On 02.07.2015, the wife returned
to India with her daughter due to the alleged violent behaviour of her C
husband. On 16.12.2015, the wife filed a complaint against the husband
at the CAW Cell, New Delhi, and in spite of the notices to the husband
and her parents, neither of them appeared. The husband filed a custody/
wardship petition on 08.01.2016 in the UK to seek return of the child.
On 23.1.2016, he also filed a Habeas Corpus petition in the Delhi High
D
Court which was allowed on 08.07.2016. The wife carried the case to
this Court. This Court strongly relied upon its earlier judgment in
Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112, which in turn,
referred to Mckee v. McKee, 1951 AC 352 : (1951) 1 All ER 942 (PC),
where the Privy Council held that the order of the foreign court would
yield to the welfare of the child and that the comity of courts demanded E
not its enforcement, but its grave consideration. While taking note of the
fact that India is not a signatory to the Hague Convention of 1980, on the
“Civil Aspects of International Child Abduction”, this Court, inter alia,
held as under :
“40. … As regards the non-Convention countries, the law is F
that the court in the country to which the child has been
removed must consider the question on merits bearing the
welfare of the child as of paramount importance and reckon
the order of the foreign court as only a factor to be taken
into consideration, unless the court thinks it fit to exercise
summary jurisdiction in the interests of the child and its prompt G
return is for its welfare. In exercise of summary jurisdiction,
the court must be satisfied and of the opinion that the
proceeding instituted before it was in close proximity and filed
promptly after the child was removed from his/her native state
and brought within its territorial jurisdiction, the child has H
274 SUPREME COURT REPORTS [2022] 5 S.C.R.
A not gained roots here and further that it will be in the child's
welfare to return to his native state because of the difference
in language spoken or social customs and contacts to which
he/she has been accustomed or such other tangible reasons.
In such a case the court need not resort to an elaborate inquiry
into the merits of the paramount welfare of the child but leave
B
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 in spite of a pre-existing order of the
foreign court in that behalf, if it is satisfied that the child's
C 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
D
fixated therewith. In either situation—be it a 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 of return of the
child brought within its jurisdiction, if it is satisfied that the
E 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. We are in respectful agreement
with the aforementioned exposition.”
F 102. This Court also relied upon the judgment in V. Ravi Chandran
(supra) and inter alia held that 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 jurisdiction of the
court. It has held that the High Court while dealing with the petition for
issuance of Habeas Corpus concerning a minor child in a given case,
G may direct return of the child or decline to change the custody of the
child keeping in mind all the attending facts and circumstances including
the settled legal position discussed therein. It has further added that the
decision of the court, in each case, must depend on the totality of the
facts and circumstances of the case brought before it while considering
H the welfare of the child which is of paramount consideration and that the
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 275
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
order of the foreign court must yield to the welfare of the child and the A
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 court. It
has further observed that the writ petitioner can take recourse to such
other remedy as may be permissible in law for enforcement of the order
B
passed by the foreign court or resort to any other proceedings as may be
permissible in law before the Indian Court for the custody of the child, if
so advised. This Court has disapproved paragraph 56(a) to (d) in Surya
Vadanan (supra) which reads as follows:
“56. However, if there is a pre-existing order of a foreign
court of competent jurisdiction and the domestic court decides C
to conduct an elaborate inquiry (as against a summary
inquiry), it must have special reasons to do so. An elaborate
inquiry should not be ordered as a matter of course. While
deciding whether a summary or an elaborate inquiry should
be conducted, the domestic court must take into D
consideration:
(a) The nature and effect of the interim or interlocutory order
passed by the foreign court.
(b) The existence of special reasons for repatriating or not
repatriating the child to the jurisdiction of the foreign court. E
(c) The repatriation of the child does not cause any moral or
physical or social or cultural or psychological harm to the
child, nor should it cause any legal harm to the parent with
whom the child is in India. There are instances where the order
of the foreign court may result in the arrest of the parent on F
his or her return to the foreign country. [Arathi Bandi v. Bandi
Jagadrakshaka Rao, (2013) 15 SCC 790: (2014) 5 SCC (Civ)
475]. In such cases, the domestic court is also obliged to
ensure the physical safety of the parent.
(d) The alacrity with which the parent moves the foreign court
G
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.”
H
276 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 103. As regards (a) to (c) of paragraph 56 above, this Court termed
the same as tending to drift away from the exposition in Dhanwanti
Joshi (supra) and V. Ravi Chandran (supra) and with regard to clause
(d), the Court disagreed with the same. For better appreciation, paragraphs
62, 63 and 66 respectively of the report are extracted herein below :
B “62. As regards clauses (a) to (c) above, the same, in our
view, with due respect, tend to drift away from the exposition
in Dhanwanti Joshi case, which has been quoted with
approval by a three-Judge Bench of this Court in V. Ravi
Chandran case. In that, the nature of inquiry suggested therein
inevitably recognises giving primacy to the order of the foreign
C court on the issue of custody of the minor. That has been
explicitly negated in Dhanwanti Joshi 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
D reckoned only as one of the factor to be taken into
consideration. We have elaborated on this aspect in the earlier
part of this judgment.
63. As regards the fourth factor noted in clause (d) of para
56, Surya Vadanan v. State of T.N., (2015) 5 SCC 450: (2015)
3 SCC (Civ) 94], we respectfully disagree with the same. The
E
first part gives weightage to the “first strike” principle. As
noted earlier, it is not relevant as to which party first
approached the court or so to say “first strike” referred to in
para 52 of the judgment. Even the analogy given in para 54
regarding extrapolating that principle to the courts in India,
F 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.
x x x x
G 66. 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
H
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 277
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
order passed by a foreign court in existence may not be so A
significant as it must yield 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
in Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112, in
B
relation to non-Convention countries 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 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 C
the child was abducted from his or her country of habitual
residence but the court's overriding consideration must be
the child's welfare.”
104. Finally this Court, in Nithya Anand Raghavan (supra),
concluded as under : D
“69. We once again reiterate that the exposition in Dhanwanti
Joshi v. Madhav Unde, (1998) 1 SCC 112 is a good law and
has been quoted with approval by a three-Judge Bench of
this Court in V. Ravi Chandran. We approve the view taken in
Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112, inter
E
alia, in para 33 that so far as non-Convention countries are
concerned, the law is that the court in the country to which
the child is removed while considering the question must bear
in mind the welfare of 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 F
return the child be exercised in cases where the child had
been removed from its native land and removed to another
country where, may be, his native language is not spoken, or
the child gets divorced from the social customs and contacts
to which he has been accustomed, or if its education in his
G
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 moved promptly and quickly. The
H
278 SUPREME COURT REPORTS [2022] 5 S.C.R.
A overriding consideration must be the interests and welfare of
the child.”
105. The essence of the judgment in Nithya Anand Raghavan
(supra) is that the doctrines of comity of courts, intimate connect, orders
passed by foreign courts having jurisdiction in the matter regarding the
B custody of the minor child, the citizenship of the parents and the child,
etc. cannot override the consideration of the best interest and the welfare
of the child, and that the direction to return the child to the foreign
jurisdiction must not result in any physical, mental, psychological, or other
harm to the child.
C 106. As observed by this Court in Vivek Singh v. Romani Singh,
(2017) 3 SCC 231, in cases of this nature, where a child feels tormented
because of the strained relations between her parents and ideally needs
the company of both of them, it becomes, at times, a difficult choice for
the court to decide as to whom the custody should be given. However,
even in such a dilemma, the paramount consideration is the welfare of
D the child. However, at times the prevailing circumstances are so puzzling
that it becomes difficult to weigh the conflicting parameters and decide
on which side the balance tilts.
FINAL ANALYSIS :
107. Keeping in mind the principles of law as explained by this
E Court in Nithya Anand Raghavan (supra), we now proceed to consider,
whether it will be in the paramount interest and welfare of both the
minor children to go back to the USA ? To put it in other words, whether
we should direct the respondent no.2 to go back to the USA with both
the minor children and abide by the shared parenting plan as ordered by
F the Court of Common Pleas, Division of Domestic Relations, Cuyahoga
County, Ohio, or handover the custody of both the minor children to the
petitioner-mother ?
108. We take notice of the following circumstances emerging from
the materials on record so far as the two minor children are concerned:
G (1) Both the minor children are residents of the USA.
(2) The son is a natural citizen and the daughter is a permanent
resident of the USA.
(3) Both the children have been brought up in the social and cultural
milieu of the USA. They are accustomed to the lifestyle, language,
H customs, rules and regulations, etc. of that country.
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 279
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
(4) The children are residents of the USA. One of whom is a A
natural citizen and will have better future prospects if goes back to the
USA.
As observed by this Court in the case of Vasudha Sethi and
others v. Kiran V. Bhaskar and another, (2022) SCC OnLine SC 43,
the natural process of grooming in the environment of the native country B
is indispensable for comprehensive development. We quote the relevant
observations made by this Court in the case of Vivek Singh (supra)
thus :
“9. We have given our utmost serious consideration to the
respective submissions which a case of this nature deserves C
to be given. In cases of this nature, where a child feels
tormented because of the strained relations between her
parents and ideally needs the company of both of them, it
becomes, at times, a difficult choice for the court to decide as
to whom the custody should be given. No doubt, paramount
consideration is the welfare of the child. However, at times D
the prevailing circumstances are so puzzling that it becomes
difficult to weigh the conflicting parameters and decide on
which side the balance tilts.
10. The Hindu Minority and Guardianship Act, 1956 lays
down the principles on which custody disputes are to be E
decided. Section 7 of this Act empowers the Court to make
order as to guardianship. Section 17 enumerates the matters
which need to be considered by the Court in appointing
guardian and among others, enshrines the principle of welfare
of the minor child. This is also stated very eloquently in
Section 13 which reads as under : F
“13. Welfare of minor to be paramount consideration. (1)
In the appointment or declaration of any person as
guardian of a Hindu minor by a court, the welfare of the
minor shall be the paramount consideration.
G
(2) No person shall be entitled to the guardianship by virtue
of the provisions of this Act or of any law relating to
guardianship in marriage among Hindus, if the court is of
opinion that his or her guardianship will not be for the
welfare of the minor.”
H
280 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 11. This Court in the case of Gaurav Nagpal v. Sumedha
Nagpal stated in detail, the law relating to custody in England
and America and pointed out that even in those jurisdictions,
welfare of the minor child is the first and paramount
consideration and in order to determine child custody, the
jurisdiction exercised by the Court rests on its own inherent
B
equality powers where the Court acts as 'Parens Patriae'. The
Court further observed that various statutes give legislative
recognition to the aforesaid established principles. The Court
explained the expression 'welfare', occurring in Section 13
of the said Act in the following manner :
C “51. The word “welfare” used in Section 13 of the Act has
to be construed literally and must be taken in its widest
sense. The moral and ethical welfare of the child must also
weigh with the court as well as its physical well-being.
Though the provisions of the special statutes which govern
D the rights of the parents or guardians may be taken into
consideration, there is nothing which can stand in the way
of the court exercising its parens patriae jurisdiction
arising in such cases.
52. The trump card in the appellant's argument is that the
child is living since long with the father. The argument is
E
attractive. But the same overlooks a very significant factor.
By flouting various orders, leading even to initiation of
contempt proceedings, the appellant has managed to keep
custody of the child. He cannot be a beneficiary of his
own wrongs. The High Court has referred to these aspects
F in detail in the impugned judgments.”
12. We understand that the aforesaid principle is aimed at
serving twin objectives. In the first instance, it is to ensure
that the child grows and develops in the best environment.
The best interest of the child has been placed at the vanguard
G of family/custody disputes according the optimal growth and
development of the child primacy over other considerations.
The child is often left to grapple with the breakdown of an
adult institution. While the parents aim to ensure that the child
is least affected by the outcome, the inevitability of the
uncertainty that follows regarding the child’s growth lingers
H
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 281
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
on till the new routine sinks in. The effect of separation of A
spouses, on children, psychologically, emotionally and even
to some extent physically, spans from negligible to serious,
which could be insignificant to noticeably critical. It could
also have effects that are more immediate and transitory to
long lasting thereby having a significantly negative
B
repercussion in the advancement of the child. While these
effects don’t apply to every child of a separated or divorced
couple, nor has any child experienced all these effects, the
deleterious risks of maladjustment remains the objective of
the parents to evade and the court’s intent to circumvent. This
right of the child is also based on individual dignity. C
13. Second justification behind the 'welfare' principle is the
public interest that stand served with the optimal growth of
the children. It is well recognised that children are the supreme
asset of the nation. Rightful place of the child in the sizeable
fabric has been recognised in many international covenants, D
which are adopted in this country as well. Child- centric
human rights jurisprudence that has been evolved over a
period of time is founded on the principle that public good
demands proper growth of the child, who are the future of the
nation. It has been emphasised by this Court also, time and
again, following observations in Bandhua Mukti Morcha vs. E
Union of India & Ors. :
“4. The child of today cannot develop to be a responsible
and productive member of tomorrow's society unless an
environment which is conducive to his social and physical
health is assured to him. Every nation, developed or F
developing, links its future with the status of the child.
Childhood holds the potential and also sets the limit to the
future development of the society. Children are the greatest
gift to humanity. Mankind has the best hold of itself. The
parents themselves live for them. They embody the joy of
G
life in them and in the innocence relieving the fatigue and
drudgery in their struggle of daily life. Parents regain
peace and happiness in the company of the children. The
children signify eternal optimism in the human being and
always provide the potential for human development. If
H
282 SUPREME COURT REPORTS [2022] 5 S.C.R.
A the children are better equipped with a broader human
output, the society will feel happy with them. Neglecting
the children means loss to the society as a whole. If children
are deprived of their childhood — socially, economically,
physically and mentally — the nation gets deprived of the
potential human resources for social progress, economic
B
empowerment and peace and order, the social stability and
good citizenry. The Founding Fathers of the Constitution,
therefore, have emphasised the importance of the role of
the child and the need of its best development.”
14. Same sentiments were earlier expressed in Rosy Jacob vs.
C Jacob A. Chakramakkal in the following words:
“15. ...The children are not mere chattels : nor are they
mere play-things for their parents. Absolute right of parents
over the destinies and the lives of their children has, in the
modern changed social conditions, yielded to the
D considerations of their welfare as human beings so that
they may grow up in a normal balanced manner to be useful
members of the society...”
15. It hardly needs to be emphasised that a proper education
encompassing skill development, recreation and cultural
E activities has a positive impact on the child. The children are
the most important human resources whose development has
a direct impact on the development of the nation, for the child
of today with suitable health, sound education and
constructive environment is the productive key member of the
society. The present of the child links to the future of the nation,
F and while the children are the treasures of their parents, they
are the assets who will be responsible for governing the nation.
The tools of education, environment, skill and health shape
the child thereby moulding the nation with the child equipped
to play his part in the different spheres aiding the public and
G contributing to economic progression. The growth and
advancement of the child with the personal interest is
accompanied by a significant public interest, which arises
because of the crucial role they play in nation building.
x x x x
H
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 283
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
17. While coming to the conclusion that the respondent as A
mother was more appropriate to have the custody of the child
and under the given circumstances the respondent herein was
fully competent to take care of the child, the High Court
proceeded with the following discussion:
“31. The role of the mother in the development of a child's B
personality can never be doubted. A child gets the best
protection through the mother. It is a most natural thing
for any child to grow up in the company of one's mother.
The company of the mother is the most natural thing for a
child. Neither the father nor any other person can give
the same kind of lover, affection, care and sympathies to a C
child as that of a mother. The company of a mother is more
valuable to a growing up female child unless there are
compelling and justifiable reasons, a child should not be
deprived of the company of the mother. The company of
the mother is always in the welfare of the minor child. D
32. It may be noticed that the stand of the appellant is that
since August 04, 2010 she had been pursuing for the
custody of her child. She had also visited the police station
and approached the CAW Cell. It is also admitted position
that within 22 days, i.e., on August 26, 2010 the petition
E
for the grant of custody of child was filed by her. Had she
abandoned the child of her own she would not have
pursued continuously thereafter for getting the custody of
the child. Even she had requested the learned Principal
Judge, Family Court for interim custody of the child which
was given to her in the form of visitation rights thrice in a F
month and she and her family had been meeting the child
during that period. After filing the appeal, the appellant
has been taking the interim custody of the child as is stated
above. In these circumstances, it cannot be said that the
appellant has not care for the child. Further, respondent
G
is any army Officer. During the course of his service he
will be also getting non- family stations and it will be
difficult for him to keep the child. Further, even though as
per him his parents are looking after the child but when
the natural mother is there and has knocked the door of
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284 SUPREME COURT REPORTS [2022] 5 S.C.R.
A the court without any delay and has all love and affection
for the child and is willing to do her duty with all love and
affection and since the birth of the child she has been
keeping the child. In these circumstances, she should not
be deprived of her right especially considering the tender
age and child being a girl child. The grandparents cannot
B
be a substitute for natural mother. There is no substitute
for mother’s love in this world. The grandparents are old.
Old age has its own problems. Considering the totality of
facts and circumstances, the welfare of the child lies with
the mother, i.e, appellant who is educated, working and
C earning a good salary and after school hours has ample
time to spend with the child. In these circumstances,
impugned order is set aside and the request of the appellant
for the grant of custody of the said child to her being
natural mother is allowed and the appellant is also
appointed as guardian of her child being a natural
D
guardian/mother.”
18. The aforesaid observations, contained in para 31 of the
order of the High Court extracted above, apply with greater
force today, when Saesha is 8 years' old child. She is at a
crucial phase when there is a major shift in thinking ability
E which may help her to understand cause and effect better
and think about the future. She would need regular and
frequent contact with each parent as well as shielding from
parental hostility. Involvement of both parents in her life and
regular school attendance are absolutely essential at this age
F for her personality development. She would soon be able to
establish her individual interests and preferences, shaped by
her own individual personality as well as experience. Towards
this end, it also becomes necessary for parents to exhibit model
good behaviour and set healthy and positive examples as much
and as often as possible. It is the age when her emotional
G development may be evolving at a deeper level than ever
before. In order to ensure that she achieves stability and
maturity in her thinking and is able to deal with complex
emotions, it is necessary that she is in the company of her
mother as well, for some time. This Court cannot turn a blind
H eye to the fact that there have been strong feelings of
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 285
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
bitterness, betrayal, anger and distress between the appellant A
and the respondent, where each party feels that they are ‘right’
in many of their views on issues which led to separation. The
intensity of negative feeling of the appellant towards the
respondent would have obvious effect on the psyche of Saesha,
who has remained in the company of her father, to the exclusion
B
of her mother. The possibility of appellant's effort to get the
child to give up her own positive perceptions of the other
parent, i.e., the mother and change her to agree with the
appellant’s view point cannot be ruled out thereby diminishing
the affection of Saesha towards her mother. Obviously, the
appellant, during all this period, would not have said anything C
about the positive traits of the respondent. Even the
matrimonial discord between the two parties would have been
understood by Saesha, as perceived by the appellant.
Psychologist term it as ‘The Parental Alienation Syndrome’.
It has at least two psychological destructive effects:
D
(i) First, it puts the child squarely in the middle of a contest
of loyalty, a contest which cannot possibly be won. The
child is asked to choose who is the preferred parent. No
matter whatever is the choice, the child is very likely to
end up feeling painfully guilty and confused. This is
because in the overwhelming majority of cases, what the E
child wants and needs is to continue a relationship with
each parent, as independent as possible from their own
conflicts.
(ii) Second, the child is required to make a shift in assessing
reality. One parent is presented as being totally to blame F
for all problems, and as someone who is devoid of any
positive characteristics. Both of these assertions represent
one parent's distortions of reality.
19. The aforesaid discussion leads us to feel that continuous
company of the mother with Saesha, for some time, is G
absolutely essential. It may also be underlying that the notion
that a child’s primary need is for the care and love of its
mother, where she has been its primary care giving parent, is
supported by a vast body of psychological literature.
Empirical studies show that mother infant “bonding” begins
H
286 SUPREME COURT REPORTS [2022] 5 S.C.R.
A at the child’s birth and that infants as young as two months
old frequently show signs of distress when the mother is
replaced by a substitute caregiver. An infant typically responds
preferentially to the sound of its mother’s voice by four weeks,
actively demands her presence and protests her absence by
eight months, and within the first year has formed a profound
B
and enduring attachment to her. Psychological theory
hypothesizes that the mother is the center of an infant’s small
world, his psychological homebase, and that she “must
continue to be so for some years to come.” Developmental
psychologists believe that the quality and strength of this
C original bond largely determines the child's later capacity to
fulfill her individual potential and to form attachments to other
individuals and to the human community.”
Thus, what has been explained by this Court as aforesaid is the
doctrine of Parental Alienation Syndrome, i.e. the efforts made by one
D parent to get the child to give up his/her own positive perceptions of the
other parent and get him/her to agree with their own viewpoint. It has
two psychological destructive effects :
(1) It puts the child in the middle of a loyalty contest, which cannot
possibly won by any parent;
E (2) It makes the child to assess the reality, thereby requiring to
blame either parent who is supposedly deprived of positive traits.
The intent of the court should be to circumvent such ill effects.
109. The minor daughter has a remarkable high IQ. She has been
identified to be a gifted child. In such circumstances, both the minor
F children were admitted in a special school meant for children with such
remarkably high IQ in the USA. Such schools in the USA are specialized
in providing education to the gifted children which, ultimately, helps in
the overall development of such children. The special education ultimately
enhances the potential of such children. Both the children in the present
case have better prospects of getting refined education that may ultimately
G
enhance their potential they already possess and are already accustomed
to and comfortable with.
110. Both the minor children, in the case on hand, have already
been enrolled in the school in the USA. Therefore, if the minor children
are repatriated to the USA, they will not be subjected entirely to any
H
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 287
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
foreign system of education. It is the fundamental right of the petitioner- A
mother to have the company of her children and not to be deprived of
the same without a reasonable cause.
FACTS SUPPORTING THE STAY OF THE PETITIONER
IN THE USA :
111. The petitioner is a resident of the USA and has acquired B
H1B visa via sponsorship and has a good job at Ranstad, USA. The
petitioner is earning handsome salary and has the resources to provide
for a comfortable life to her children in the USA. The petitioner is
comfortably settled in the USA and is accustomed to different kind of
lifestyle, culture, society, etc. C
112. We take notice of the fact that the petitioner worked very
hard to secure admission in the Cleveland State University and completed
her studies with the GPA of more than 3, while taking care of her children.
This is indicative of the fact that she is a hard working woman and
would be in a position to take good care of her minor children in
accordance with the shared parenting plan. D
113. It would be too much for this Court to tell the petitioner that
she may periodically visit India to meet her children but the children
should not be asked to go back to the USA with their father, i.e. the
respondent no.2.
E
114. In the overall view of the matter, we have reached to the
conclusion that the respondent no.2, at the earliest, should be directed to
go back to the USA with both the minor children and abide by the shared
parenting plan as ordered by the Court at Ohio. Although, the shared
parenting plan as ordered by the Court at Ohio stood terminated at the
instance of the petitioner-mother, yet the same can be revived once F
again by the authorities by going before the concerned court at Ohio. It
is for the parties to take the necessary steps in this regard. The respondent
no.2 shall immediately apply for the visa on the strength of this order. If
the respondent no.2 is in a position to obtain a job in the USA on the
strength of a work permit or any other document, then it is well and
G
good. However, we are sure of one thing that it will be in the interest and
welfare of both the children to go back to the USA for the purpose of
their education, etc. The allegations levelled by the respondent no.2 that
the petitioner suffers from some mental illness appears to be absolutely
wild and reckless. Even otherwise this issue is a highly disputed question
of fact. H
288 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 115. We would therefore hold that in the case at bar the dominant
consideration to which all other considerations must remain subordinate
must be the welfare of the child. This is not to say that the question of
custody will be determined by weighing the economic circumstances of
the contending parties. The matter will not be determined solely on the
basis of the physical comfort and material advantages that may be
B
available in the home of one contender or the other. The welfare of the
child must be decided on a consideration of these and all other relevant
factors, including the general psychological, spiritual and emotional welfare
of the child. It must be the aim of the Court, when resolving disputes
between the rival claimants for the custody of a child, to choose the
C course which will best provide for the healthy growth, development and
education of the child so that he or she will be equipped to face the
problems of life as a mature adult.
FINAL CONCLUSION :
116. We allow this writ petition with the following directions :
D
(1) The respondent no.2-father shall, within one week from today,
apply to the authority concerned for visa to travel to the USA
with the two minor children.
(2) The concerned authority may keep the observations made by
E this Court in the present judgment in mind and, in the larger interest
of the two minor children, consider grant of visa to the respondent
no.2-father. Once the visa is granted, the respondent no.2 shall,
within one week thereafter, proceed to travel to the USA.
(3) Once the two minor children reach the USA, thereafter, it will
F be open for the petitioner-mother to take care of her children.
(4) We leave it open to the respondent no.2-father to chalk out his
own plan.
(5) If the respondent no.2 wants to stay back in the USA, it is
always open for him to do so in accordance with the law of the
G country. If the respondent no.2 decides to come back to India,
then in such circumstances, the petitioner-mother shall make both
the minor children speak to their father on-line at least once every
week.
(6) In any event, if the visa is declined to the respondent no.2,
H then in such circumstances, the petitioner-mother shall travel to
RAJESWARI CHANDRASEKAR GANESH v. THE STATE OF 289
TAMIL NADU & ORS. [J. B. PARDIWALA, J.]
India and pick up her two minor children and go back to the USA. A
In such an eventuality, the respondent no.2 and his family members
are directed to fully cooperate and not create any impediment of
any nature. If it comes to the notice of this Court that the
respondent no.2 or any of his family members have created any
impediment for the petitioner-mother, then the same shall be
B
viewed as the contempt of this Court’s order. In addition, it will be
open to the petitioner-mother to contact the jurisdictional
Commissioner/ Superintendent of Police, who shall thereafter
ensure that the custody of the children is immediately/ forthwith
handed over to the petitioner-mother and submit compliance report
in that regard to this Court. In case of any impediment despite the C
peremptory direction, the petitioner-mother may apply for
appropriate directions from this Court, if so advised.
(7) We leave it open for the parties to go back to the Court at
Ohio and revive the shared parenting plan as was arrived at vide
order dated 12th May 2021. D
117. Before we close this matter, we would like to convey to the
parties that their two minor children are watching them very closely.
Showing the children that their parents can respect each other and resolve
the conflict respectfully will give them a good foundation for the conflict
that may, God forbid, arise in their own lives. The parties should try to do E
their best to remain relaxed and focused. It is critical to maintain
boundaries between the adult problems and children. It is of utmost
interest to protect the innocence of children and allow them to remain
children. They must not be burdened by any adult problem. Minor children
do not have the coping skills or the intellectual ability to understand any
issues like the financial constraints, adult relationship issues or their F
parents unhappiness.
118. We find the observations made by the Delhi High Court, in
the case of K.G. v. State of Delhi and another, dated 16.11.2017 in Writ
Petition (Criminal) No. 374/2017 and Criminal Miscellaneous Application
No. 2007/2017, quite commendable, that the best welfare of the child, G
normally, would lie in living with both his/her parents in a happy, loving
and caring environment, where the parents contribute to the upbringing
of the child in all spheres of life, and the child receives emotional, social,
physical and material support – to name a few. In a disturbed marriage,
H
290 SUPREME COURT REPORTS [2022] 5 S.C.R.
A unfortunately, there is bound to be impairment of some of the inputs
which are, ideally, essential for the best interest of the child.
119. There will be no order as to costs.
120. The Registry shall notify this matter once again after a period
of four weeks to report compliance of our directions.
B
Divya Pandey Writ petition allowed.
(Assisted by : Roopanshi Virang, LCRA)
C
D
E
F
G
H
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