(Delivered by Vikram Nath, J.) After courtship of seven years, appellant no.3 Anupma Malhotra and respondent no.1. Pankaj Malhotra tied their knots in December, 1995, in India. At the time of their marriage they were both Indian Citizens. On 19.11.1996 while in India they were blessed with a girl child Hena. In search of better career, the couple along with their daughter Hena, shifted to New Zealand on April 10, 1997. While working in New Zealand in November, 1999 they surrendered their Indian Passport and accepted the citizenship of New Zealand. While in New Zealand, they were blessed with another daughter Pooja on 3.10.2000 and a son Krish on 13.06.2006. Both Pooja and Krish were born in New Zealand, as such they were natural citizens of New Zealand by birth. Entire family of five are thus citizens of New Zealand. They have not surrendered their citizenship of New Zealand and even till date are continuing to be its citizens. The family is also registered as overseas citizens of India after the insertion of Section 7A by Act No.32 of 2005 in the Citizenship Act, 1955. The Indian Embassy at New Zealand has also issued 'OCI' Card 'as it is called' to the entire family to continue to live and work in New Zealand.
In March, 2008, in order to explore chances of settlement in India, the family came to India. On 14.02.2011 the appellant no.3 Anupma Malhotra along with her three children went back to New Zealand apparently on account of certain discord having arisen with her husband respondent no.1. Today both the parents are not even willing to see each other and are not even willing to pay for the other's coffee when they were requested by the Court to spend some time together. The children are divided. The eldest daughter Hena is with her mother whereas the two younger ones are with their father. They are all confused and lost. We were pained to see how a settled family breaks up. Both the parents are financially independent. They are well educated coming from decent families. Children are torn mentally and emotionally between the parents. They are confused.
While in New Zealand the mother filed an application for the custody of the children in June, 2011, before the Family Court at Wellington. On the said application notices were issued to the respondent no.1, the husband who filed his objections. Thereafter the Family Court at Wellington on 12.08.2011, passed a Parenting Order by consent under Section 40 (3), 48 and 55 of the Care of Children Act, 2004. The said order along with the terms and conditions contained therein are reproduced below-
"Applicant Anupma Malhotra of Wellington NEW ZEA LAND Respondent Pankaj Malhotra of Noida INDIA On an application made to it, the Court by consent orders that
1. Anupma Malhotra ("Mrs Malhotra") have the role of providing day-to-day care for Hena Malhotra ("Hena") born 19 November 1996 Krish Malhotra ("Krish") born 13 June 2006 Pooja Malhotra ("Pooja") born 03 October 2000 ("the children") Until the children reach the age of 16 years While exercising the role of providing day-to-day care for children, you have exclusive responsibility for the children's day-to-day living arrangements, subject to any conditions stated below and to any Court order.
If you are a guardian, unless your role or another guardian's role is modified by a Court order, you must at jointly (e.g. consulting whenever practicable with an aim of reaching agreement) when making guardianship decisions for a child.
2. The children's nationality is to remain as New Zealanders. Neither parent will seek to change their nationality.
3. The Family Court of New, Zealand will retain jurisdiction for the children whilst their primary care remains in New Zealand.
4. Pankaj Malhotra ("Mr Malhotra") agrees that the will return the children to the care of Mrs. Malhotra in New Zealand at the end of each agreed contact period in terms of this order.
5. The children are to spend each school holiday period in India with Mr. Malhotra. For the 2011/12 Christmas holidays the children will leave New Zealand on the day the holidays start and return 7 days before school starts.
6. Mr. Malhotra will exercise contact with all three children in India during the New Zealand October school holidays.
7. For shorter school holiday periods the children will leave New Zealand two or three days prior to each term ending and return two to three days after the new term has commenced. The parents agree to some flexibility around this for Hena, taking into account her academic requirements.
8. Mr. Malhotra will be responsible for arranging and paying for the transport of the children for contact visits. Mr. Malhotra will accompany Pooja and Krish to and from New Zealand on their travel for the October 2011 and December 2011 holidays.
9. The parents agree to re-negotiate in good faith the care arrangements for Pooja and Krish. The dates for re-visiting the care arrangements for Pooja will be February 2012 and for Krish will be February 2015.
10. Any other time Mr. Malhotra is in New Zealand he is to have as much contact with the children as fits in with the children's schedules.
11. If the children express a high Degree of distress during the long Christmas holiday contact, the parents will discuss the situation and endeavour to resolve matters for the children. If the children's distress remains high, Mr. Malhotra will use his best endeavours to return the children to New Zealand early.
12. For the time being neither parent will introduce the children to any new partner without the consent of the other parent.
VARIATION OR DISCHARGE OF THIS ORDER Any person affected by this order or a person acting for a child who is the subject of this order may apply to the Court to vary or discharge this order.
CONSEQUENCES OF NON-COMPLIANCE If you do not comply with this order there are a number of things that may happen, such as requiring you to attend counselling, or enter a bond (see also the information sheet accompanying this order). The Court taken non-compliance very seriously.
Han Kristono Deputy Registrar 12 August 2011"
Note This order may include terms of an agreement between parents or guardians of a child, relating to-
(a) the role of providing day-to-day care for the child; or
(b) contact with the child' or
(c)the upbringing of the child' or
(d) any combination of (a) to (c) See section 40 of the Care of Children Act 2004 for the circumstances in which agreement terms may be included GENERAL INFORMATION TO ACCOMPANY PARENTING ORDERS (as required by section 55(1)(b) of the Care of Children Act 2004) Obligations created by a parenting order This parenting order requires you to conform with its conditions.
If you do not do so, another party may apply to the Court to enforce the order. The family Court may choose from a variety of tools to remedy the non-compliance. For example, you may be required to enter into a bond to ensure you do not contravene the parenting order again, or to meet reasonable costs incurred by another party because of your contravention. The Court might admonish you, or vary the order, for example, by reducing the amount of time you have with the child.
You or another party to the order or a person acting for a child who is the subject of this order may apply to the Court, asking for the order to be varied or discharged.
If you and another party or parties to the order are unable to agree about how to exercise guardianship or you are in a dispute arising from one of you contravening, or appearing to contravene, the order, you may request the Court to arrange counselling to assist you in resolving the dispute.
It is also an offence to, without reasonable excuse and with the intention of preventing compliance with a parenting order, contravene a parenting order. The penalty for this offence is imprisonment for a term not exceeding 3 months or a fine not exceeding $2,500."
As per the terms agreed upon between the parties, as the children were to spent school holidays in India with the father (clause 5), the appellant no.3 permitted all the three children to come to India during holidays in the month of October, 2011. The father (respondent no.1) went to New Zealand and on 4.10.2011, accompanied all the three children to India along with the commitment to return on 28.10.2011 for which the return tickets had also been purchased. The respondent no.1 decided, while in India, not to send the children back to New Zealand. Apparently the eldest child Hena, who was almost 15 years of age at that time, did not appreciate the decision of her father and as such she alone was allowed to travel to New Zealand on the return ticket on 28.10.2011. The two younger ones, Pooja and Krish (appellant nos.1 & 2) were retained in India. The mother (appellant no.3) thereafter approached High Court of New Zealand at Wellington under Section 31 of the Care of Children Act, 2004 whereupon an interlocutory order was passed on 7.11.2011, directing the respondent no.1 to make immediate arrangements for return of Pooja and Krish. The said order is reproduced-
"INTERLOCUTORY ORDER To the Respondent PANKAJ MALHOTRA
1. The Interlocutory Application made by ANUPMA MALHOTRA on 4 November 2011, was determined by The Honourable Justice Mallon on 7 November 2011.
2. The determination was made without a hearing.
3. The following Orders were made.
a. An interim Order pursuant to S.31 of the Care of Children Act placing the children Poojah Malholtra (DOB:3October 200) and Krish Malhotra (DOB: 13 June, 2006) under the guardianship of the High Court of New Zealand pending further Order of the Court.
b. That the Respondent, Pankaj Malhotra, make immediate arrangements to ensure that Poojah Malhotra and Krish Malhotra are returned to the jurisdiction of New Zealand straightaway.
c. That upon return to New Zealand the children, Hena Malhotra (DOB: 19 November 1996), Poojah Malhotra and Krish Malhotra are to reside with the Applicant, their mother, in the Wellington area until further order of this Court of the Family Court.
d. That upon the return to New Zealand of the children, Poojah Malhotra and Krish Malhotra, their passports and travel documents are to be handed to the Applicant for safe keeping until further Order of this court or of the Family Court.
e. That there be a direction pursuant to Rule 18.4 (1) of the High Court Rules to the effect that if the Respondent does intend to make an application to vary or discharge the current Parenting Order made in the Wellington Family Court on 12 August 2011, then he be permitted to do so only once the children have been returned back into the Applicant's care in New Zealand.
4. Additionally, all juridical and administrative bodies in the Republic of India are respectfully invited to render assistance in ensuring that the two children, Pooja Malhotra and Krish Malhotra, are returned as soon as possible to the jurisdiction of New Zealand."
It may be interesting to mention here that Lt. Col. Raj Malhotra (Vr C) father-in-law of the appellant no.3 was the Power of Attorney holder of the appellant no.3 and has throughout been supporting his daughter-in-law. A Habeas Corpus petition registered as Writ Petition No.10530 of 2012 was filed through the father-in-law of the appellant no.3 for production of the corpus of Pooja and Krish. The said petition was dismissed by the learned Single Judge vide judgment and order dated 27.2.2012.
Special Appeal No.523 of 2012, Pooja Malhotra and others versus Pankaj Malhotra and another has been filed assailing the correctness of the order of the learned Single Judge dated 27.2.2012 along with further relief to allow the writ petition and direct the respondents to produce the two minor children (appellants 1 & 2) and their custody be given to the mother (appellant 3).
In the meantime Pankaj Malhotra Respondent no.1 filed a petition before the Civil Court at Gautam Budh Nagar under Section 25 of The Guardians and Wards Act, 1890 (hereinafter referred to as the 1890 Act) claiming title of guardian of all his three children, which was registered as Case No.11 of 2011 and was being heard by the Court of 4th Additional District and Sessions Judge. On the said petition notices were issued to the mother, appellant no.3, who filed objections whereupon the 4th Addl. District and Sessions Judge, Gautam Budh Nagar by a detailed judgment and order dated 4.2.2012, dismissed the petition on the ground of lack of jurisdiction.
The husband preferred appeal before this Court, under section 47 of the 1890 Act against the judgment and order dated 04.02.2012 of the 4th Addl. District Judge, Gautam Budh Nagar, which has been registered as F.A.F.O. No.804 of 2012, Pankaj Malhotra versus Anupma Malhotra.
When the special appeal was placed before us, the learned counsel for the appellant informed that against the order dated 4.2.2012, passed by the Additional District Judge, Court No.4, Gautam Budh Nagar in the petition under Section 25 of the 1890 Act, the husband had preferred a First Appeal From Order before this Court under Section 47 of the 1890 Act. He further informed that Sri H.N. Singh, Advocate was appearing in the said appeal. We adjourned the matter to enable the learned counsel for the appellant to inform Sri H.N. Singh, Advocate in order to facilitate the service of notice on the husband as it would save time and expenses both. Sri H.N. Singh, Advocate appeared before the Court and upon instructions from his client, the husband, made a statement that he was accepting the notice. He was thereupon requested to ensure the presence of the husband along with two minor children Pooja and Krish before the Court on 2.4.2012. Both the parents appeared before the Court along with two minor children on 2.4.2012.
The Court considering the gravity of the issue and also considering the aspect of exploring an amicable and healthy reunion of the family which would be in the best interest of the minor children, called upon the husband and the wife to have a dialogue with the Court in Chambers. The Court had independent conversation with both, the husband and the wife.
In the conversation held, initially with the parents, in Chambers, the Court could not find any discrete or any strong reason for either of the parties for giving up on the other. The only allegations made against each other were of immorality, basically carrying on some extra marital relationship which was denied by the other side. The Court found that both the parents were educated and were earning reasonably well to afford decent living and provide quality education for their children. Both the parents were emotional and very strongly attached to all their children.
In view of the foregoing opinion formed by us, the Court tried to persuade them to arrive at an amicable solution to reunite and jointly take care of the children so that the children could not be deprived of the love, affection and care of any one of the parents. The children would be most benefited if they live in a healthy environment under the joint guardianship and supervision of both their parents. The Court was conscious of the fact that minor children living with single parent would be deprived of the care, affection and guidance of the other parent. At times minor children living with single parent often lose their emotional and sentimental balance adversely affecting their career and their personality. For such considerations the Court permitted the mother to meet the children in the evening for about two hours and also requested both the parents to spent some time alone and have a dialogue with regard to the reunion of their relationship. The matter was posted for the next day. The Court on the next day again had an independent dialogue with the parents but found that there was apparently no ray of hope of their arriving at an amicable solution.
The matter was thereafter posted for hearing. The appeal arising from the proceedings under Section 25 of the 1890 Act was also clubbed with the intra court appeal arising from the habeas corpus petition. The records of court below as also of the proceedings before the learned Single Judge were summoned urgently. Thus with the consent of the counsel for the parties both the appeals were heard finally under the Rules of the Court.
We have heard Sri V.K. Singh, learned Senior Advocate assisted by Sri S. Shekhar, learned counsel for the wife and Sri H.N. Singh, learned counsel for the husband in both the appeals and have perused the material on record of both the appeals.
The hearing of the appeal commenced from Thursday 5th April, 2012. During the course of hearing the husband moved an application praying that the Court may record the statement/wish of the minor children before taking any final decision in the matter.
Sri H.N. Singh, learned counsel for the husband submitted that the Court has to watch and protect the welfare and the interest of the minor children. He further submitted that this should be the paramount consideration in taking a final decision in the matter and therefore, it was necessary to interact with the children so as to derive their preference. He further submitted that in all cases of custody of the children, the preference of the minor child is a relevant fact to be considered by the Court.
Sri V.K. Singh, learned senior counsel for the wife appellant opposed the said application on the ground that as Pooja and Krish have been in the exclusive company of the father from 4th October, 2011 till date and during this period they were not even allowed to either meet the mother or to talk to her on the phone, their statement/wish at this stage would be predominantly influenced by him who has already poisoned their mind against their mother. It is further submitted that any statement/wish of the children would be tutored. It would neither be independent or fair. He further submitted that as Km. Pooja is about 11 years and Master Krish is little more than 5 years, they would not be in a position to make an intelligent preference of either of the parents and therefore it would be a futile exercise interacting with the children.
Having considered the submissions and the material on record, we decided to have an exclusive meeting with the two minor children in the Chambers. To make the children comfortable we offered them Chocolates and Ice creams. We spent about an hour with them. We found that both the children were quite open and willing to talk. Throughout the conversation we found them to be honest and fair. They answered all our questions to the best of their understanding and knowledge.
Little Krish loved both his parents but wanted to stay with his father as his father would give him gifts, take him out for shopping, buy things of his choice, would never scold him and always try to keep him happy and fulfil his desires. He had nothing to say against his mother. In fact he admitted of missing his mother.
Pooja is quite intelligent and matured for her age. She liked India more than New Zealand. She also made an honest confession that when she came to India in 2008 after having lived in New Zealand for 8 years she initially did not like India and wanted to return to New Zealand but with the passage of time she started liking India so much so that now she does not want to return to New Zealand. The only reason why she did not wish to stay with her mother, according to her, was that her mother used to take alcohol occasionally. However she could not express any untoward incident of her mother under influence of alcohol. She also could not relate any incident of misbehaviour on her mothers part whether with or without alcohol. She also admitted that her mother was very caring and affectionate and would take good care of all her children. She also expressed her wish that both the parents should stay together. She also stated that she missed her elder sister Hena who according to her was a good friend and would also guide her in studies as also in her relationship with friends.
Sri V.K. Singh, learned Senior Counsel appearing for the appellant (wife) referred to various provisions contained under the Citizenship Act, 1955, the subsequent amendment brought out in the year 2005 by inserting Section 7A to 7D on the Statute Book. These provisions relate to the status of overseas citizenship of India, the grant and cancellation of such certificates and the rights conferred upon grant of such certificate to the people of Indian origin living abroad. He has then referred to the well known principle of Comity of Courts and has strongly contended that in view of the orders passed by the Family Court at Wellington and the High Court at Wellington New Zealand, this Court should relegate the parties to the Courts at New Zealand which alone have the jurisdiction to deal with the custody of the minor children, being citizens of New Zealand.
He then referred to doctrine of 'parens patriae'. According to which the guardian of the two minor children, being citizens of New Zealand, would be the Courts at New Zealand or in other words the two minor children would be wards of the Court of New Zealand and to that effect the order has already been passed by the High Court of New Zealand on 18.11.2011. He then referred to the other important aspect to be considered in the present case i.e. welfare and interest of the minor children. According to him, considering the age of Pooja who was about 11 years and was entering into puberty/maturity, the mother would be the best guardian and it is only in her supervision that Pooja would be best taken care of. With regard to Krish, he is of very tender age being less than six years and as such would need love, affection and care of his mother. He then relied upon the judgment of the Apex Court in the case of V. Ravi Chandran (Dr.) Vs. Union of India and others reported in 2010 (1) SCC 174 as also the judgment in the case of Shilpa Agrawal (Ms) vs. Aviral Mittal and others reported in 2010 (1) SCC 591 in support of the submissions advanced. Sri Singh on all the above counts prayed that the two minor children be directed to be handed over in lawful custody of their mother being natural guardian to be taken to New Zealand where the Court would decide their question of custody.
On the other hand Sri H.N. Singh, learned counsel for the respondent husband has submitted that the children are receiving the best of education in an International School at Delhi/Noida. Both the children are happily settled here and do not wish to return to New Zealand, the life in New Zealand is very hard and the children have to study in a Government School in New Zealand. The mother does not make enough money to provide decent living to the children and to educate them in a private institution. The mother is addicted to alcohol and is therefore not fit to take care of the minor children.
He further submitted that both the children are ordinary residents of India and have been living in district Gautam Budh Nagar for the last more than three years and would therefore be deemed to be ordinary residents within the jurisdiction of the Courts at Gautam Budh Nagar. The petition filed for their custody under the provisions of 1890 Act has been wrongly and illegally dismissed by the Court below. The appeal filed against the said order has merits and is liable to be allowed. We have dealt with the F.A.F.O. separately in this order.
Sri H.N. Singh has further submitted that the orders passed by the Court at New Zealand have no binding effect. He further submitted that it is the welfare of the child which is predominant aspect to be taken into consideration and if the Court is satisfied that the minor children's' best interest and welfare would be served by retaining them in India with their father then merely because there is an order passed by a Foreign Court, the Courts of this Country will not compel the minor children to go to the said Country, contrary to their welfare and interest. In support of his submissions he has placed reliance upon a judgment of the Apex Court in the case of Ruchi Majoo versus Sanjeev Majoo reported in 2011 (6) SCC 479.
Having heard the submissions advanced we are of the view that the question for consideration in these two appeals, on the facts and circumstances of the case, is whether the welfare and the interest of the minor children would be best served if they are allowed to remain with their father in this country? or they should be sent to New Zealand and leave it to the Courts at New Zealand to deal with the custody and parenting of the minor children?
In considering the said questions the Court will have to balance the principle of Comity of Nations, i.e. the effect of the orders passed by the Courts at New Zealand as against the welfare and the interest of the minor children.
Under the Private International Law, there is no binding force of the orders passed by a Foreign Court. Hague Convention on 'Parental Responsibility and Protection of Children' held on 18.10.1996 was made effective from 1.1.2002. Three Hague Children's Convention have been developed over the last 25 years. The fundamental purpose being to provide practical machinery to enable States which share a common interest in protecting the children to cooperate together to do so. The resolutions passed in the Hague Convention do not have binding force. The resolution are actually to be understood to extent mutual respect and due importance to the orders passed by courts of one country by the courts of other countries.
We cannot have any issue with regard to the proposition that the interest and welfare of the minor children is to be given utmost importance in deciding the matters relating to their custody.
FIRST APPEAL FROM ORDER No. - 804 of 2012 We first proceed to decide the appeal under Section 47 of the 1890 Act.
Under the terms of the consent order dated 12.08.2011 the husband accompanied all the three children to India on 4.10.2011. The children were to return to New Zealand on 28.10.2011 for which they had return tickets. However the husband apparently had reservations of sending the children back to New Zealand and accordingly got an application prepared under Section 25 of the Guardian and Wards Act, 1890 to be filed before the Civil Court at Gautam Budh Nagar for retaining the custody of the children. He decided not to send the children to New Zealand, on 28.10.2011. It appears that the eldest daughter Hena did not agree to her father's decision and insisted that she should be allowed to go, however, the other two children Pooja and Krish agreed to stay back. Hena left India for New Zealand on 28.10.2011 as per schedule and ever since then she is in New Zealand. On the very next day i.e. 29.10.2011 the husband presented the application under Section 25 of the 1890 Act before the District Court at Gautam Budh Nagar which was registered as Misc. Case (GW) No.94 of 2011.
The following five questions were raised in the said petition, for being adjudicated by the Court, as contained in paragraph II of the petition-
A. Whether for a healthy growth of minor children and development of their personality, it is conducive for them to be in the custody of the respondent mother when she is suffering from compulsive leanings toward men outside her marriage and alcoholism. The minor children (whilst two of them are young girls) being taken away from their own home where they were earlier comfortably living & studying before their disruption & relocation to a foreign country.
B. Whether the petitioner being the natural guardian is entitled to have the custody of three minor children when they were unilaterally relocated from their residence in Noida by their mother to a foreign country after her extra marital relationship was discovered to the petitioner.
C.Whether an order passed by a foreign court having no jurisdiction at the outset would be binding on the petitioner particularly when the habitual/ordinary residence of the minor children was Noida (India), & when the said order was obtained under duress and in the backdrop of changed scenario. The respondent now is in continuing breach of representation made by her before the petitioner vis a viz her alcoholism and extra marital relationship.
D.Whether the respondent who had an illegal custody of minor children after having them relocated unilaterally and disrupting their daily schedule at school & at home can continue to have the custody of minor children under the garb of an order of a foreign court having no jurisdiction at the threshold.
E. Whether Whether the respondent mother could be said to a responsible guardian when the entire family (respondent, petitioner & minor children) once living together was broken into pieces only because the respondent mother & a married woman instead of correcting herself proceeded to live a reckless life and to continue with her extra marital affairs."
The relief sought by means of the said petition is reproduced below-
Prayer The Petition, therefore, humbly prays that the present Hon'ble court be pleased-
Along with the petition under Section 25 of the 1890 Act, the husband filed an application seeking exparte ad interim order restraining the mother from taking or resorting to such method or measure for taking the minor children out of the jurisdiction of the Court and also restraining the mother from taking the minor children from the custody of the husband during the pendency of the said petition.
Notices were issued to the mother, whereupon she appeared and filed objections and also an application praying for a direction that she may be permitted to meet the children at the week ends and spend a night with them and also for a direction to the husband to allow the children to speak to her over webcam or mobile phone. It would be pertinent to mention here that at that time as the mother was in New Zealand, Col. R.K. Malhotra (father of the husband) had filed the said application supported by an affidavit being duly constituted attorney of the mother.
One of the objections raised was with regard to the jurisdiction of the Court to entertain the application under section 25 of the 1890 Act. The Court of IV Addl. District Judge, Gautam Budh Nagar which was hearing the matter after considering the pleadings of the respective parties, and the material placed on record, recorded the following specific findings in its order dated 4.2.2012-
The children were not normally residing within the jurisdiction of the Court.
They were ordinary residents of New Zealand.
The Court had no jurisdiction to entertain the petition under Section 9 of the 1890 Act.
There was already an order by consent of the parties dated 12.8.2011, passed by the Parenting Family Court, Wellington by which the parties were bound.
The husband had not approached the Court with clean hands and had in fact concealed material facts and had also misrepresented before the Court.
It is against the said order that the present appeal under section 47 of the Act has been filed.
The basic grounds for challenge to the said order dated 04.02.2012 as per the submissions advanced by Sri H.N. Singh, learned counsel for the husband are:
Both the children had been residing in India since 2008 continuously till 14.02.2011, when they were taken away by their mother without the consent of the father, as such they should be deemed to be ordinary residents within the jurisdiction of the Court at Gautam Budh Nagar Pooja and Krish were studying in Lotus Valley International School, Noida, District Gautam Budh Nagar.
Both the parents of the children were of Indian origin, in order to earn their livelihood, they went to New Zealand on a temporary basis but finally returned to India.
The parenting order passed upon consent of the parties by the Family Court Wellington at New Zealand was under compelling circumstances.
According to the judgement of the Apex Court in the case of Ruchi Majoo versus Sanjeev Majoo reported in (2011) 6 SCC 479, the ordinary place of residence of the minor children was within the jurisdiction of the Court at Gautam Budh Nagar.
The petition under Section 25 of the 1890 Act would be maintainable in view of Section 9 of the 1890 Act.
Counter and rejoinder affidavits have been exchanged in the appeal (appellant) and we have perused the same.
In support of his submission reliance has been placed upon the following judgments:-
(I) Smt. Sunita Malik versus Dharam Veer Singh Malik and another reported in 1992 ACR Vol.(16) 138.
(2) Dhanwanti Joshi versus Madhav Unde, reported in (1998) 1 Supreme Court Cases 112.
(3) Sarita Sharma versus Sushil Sharma reported in (2000)3 Supreme Court Cases 14.
(4) Syed Saleemuddin versus Dr. Rukhsana and others reported in (2001) 5 Supreme Court Cases 247.
(5) Mamta Alias Anju versus Ashok Jagannath Bharuka reported in (2005) 12 Supreme Court Cases 452.
(6) Mausami Moitra Ganguli versus Rayant Ganguli reported in (2008)7 Supreme Court Cases 673.
(7) Nil Ratan Kundu and another versus Abhijit Kundu reported in (2008)9 Supreme Court Cases 413.
(8) Vikram Vir Vohra versus Shalini Bhalla reported in (2010) 4 Supreme Court Cases 409.
On the other hand Sri V.K. Singh, learned Senior counsel appearing for the mother has submitted that-
all the three children along with both the parents are citizens of New Zealand. They never surrendered their citizenship of New Zealand to reacquire the citizenship of India;
right from 1997, for a period of almost 11 years, the entire family had been residing in New Zealand uptill 2008.
The visit to India in 2008 was only on experimental basis. It was for compelling reasons that the mother had to take her children to New Zealand to keep them away from the ill shadow of their father.
From February 2011 till October 2011 all the three children were in New Zealand and were studying there.
It was under the terms of the consent order dated 12.8.2011 passed by the New Zealand Court that the children had come to India for visiting their father during vacations.
Merely because the father has retained them beyond 28.10.2011, when they were to return to New Zealand, it cannot be accepted by any stretch of imagination that the children were ordinary residents within the jurisdiction of the Court at Gautam Budh Nagar.
The father did not file any petition claiming custody of guardianship of the children right from 14.2.2011, the date on which the children left India, for New Zealand but it is only after they came to India in October, 2011 under terms of the consent order dated 12.8.2011, that the father filed the petition under Section 25 of the 1890 Act.
The application was not maintainable; any orders passed on it would be in direct conflict with the orders passed by the Courts at New Zealand.
In support of his submissions he has relied upon the following judgments:-
(1) V. Ravi Chandran (Dr.) versus Union of India and others reported in (2010)1 Supreme Court Cases 174.
(2) Shilpa Aggarwal (Ms) versus Aviran Mittal and another reported in (2010)1 Supreme Court Cases 591 (3) Ruchi Majoo versus Sanjeev Majoo reported in (2011)6 Supreme Court Cases 479.
Counsels for both the parties have placed strong reliance upon the judgments of the Apex Court in the case of V. Ravi Chandran (Dr) (supra), Shilpa Aggarwal (supra) and Ruchi Majoo (supra). From the side of the wife the reliance is upon the first two cases and further submission is to the effect that even the third case is not adverse to her interest. However, on behalf of the husband the reliance is upon the third judgment referred to above.
Before proceeding to discuss the said authorities, in our opinion no judgment of the higher court or a Bench of larger strength can be said to be binding until and unless the facts of the case of the alleged precedent can be applied to the facts of the case in which it is relied upon. Needless to say that a decision is only an authority for what it actually decides. It is the ratio decidendi laid down in the said judgment which has the binding force. Even such ratio is to be appreciated and applied in the facts of each case. It would be apt to refer to the ratio with regard to the applicability and binding force of a precedent as enunciated in the judgment of the Apex Court in the case of Union of India vs. Dhanwanti Devi and others (1996) 6 SCC 44. The relevant extract from the aforesaid report as contained in paragraphs 9 and 10 thereof is reproduced below :
"9.............It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well settled theory of precedents, every decision contain three basic postulates - (i) findings of material facts, direct and inferential. An inferential finding of facts is the interference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. A deliberate judicial decision arrived at after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, no matter for what reason, and the precedent by long recognition may mature into rule of stare decisis. It is the rule deductible from the application of law to the facts and circumstances of the case which constitutes its ratio decidendi.
10.Therefore, in order to understand and appreciate the binding force of a decision it is always necessary to see what were the facts in the case in which the decision was given and what was the point which had to be decided. No judgment can be read as if it is a statute. A word or a clause or a sentence in the judgment cannot be regarded as a full exposition of law. Law cannot afford to be static and therefore, Judges are to employ an intelligent in the use of precedents..............."
In the case of Ruchi Majoo (supra), on which reliance is placed by Sri H.N. Singh, learned counsel for the husband while pressing his appeal under Section 47 of 1890 Act, although the parents of the child were ordinary American Citizens, but they had come to India in July, 2008 and ever since then mother and the son had stayed in India whereas the father had left for United States. The mother and son continued their stay in India with the consent of the father.
The Apex Court has recorded that from time to time the father had given his consent for their stay in India and therefore son continued to study in India in the Indian Schools. In the meantime both the parents filed separate cases for the custody and the guardianship of the children in their country of residence. The father filed a petition before the Court at California, USA whereas the mother filed petition for the custody and guardianship in India. The trial court upon an objection being taken to the question of jurisdiction held that the minor would be the ordinary resident of the jurisdiction of this Court. On appeal by the father the Delhi High Court reversed the order of the trial court for the reasons that the parents and the child were American citizens ; that there was an order by the Court at California, USA ; applying principle of comity of Courts held that petition for guardianship and custody were not maintainable. The matter was agitated before the Apex Court by the mother. The Apex Court in the facts and circumstances of the said case was of the view that the minor was an ordinary resident within the jurisdiction of the Court at Delhi and accordingly provided that the said proceedings would go on and disposed of on merits expeditiously. While dealing with the question as to what is the ordinary resident as mentioned in Section 9 of the 1890 Act the Apex Court referred to large number of the decisions but as stated above it was in the facts of that case that it held that minor child was an ordinary resident within the jurisdiction of the Court at New Delhi.
In the present case at the time when the petition under Section 25 of the 1890 Act was filed on 29.10.2011 before the Court at Gautam Buddha Nagar, the children were on vacation visiting their father in India under the terms and conditions contained in the consent parenting order dated 12.8.2011 passed by the Family Court at Wellington, New Zealand. From 14.2.2011 the children were residing in New Zealand along with their mother. The father did not file any petition in India although he was residing in India after 14.2.2011 till 29.10.2011. Although the father alleges that the children were taken to New Zealand on 14.2.2011 by the mother without his consent but he did not take any steps to claim the custody of his children. On the contrary the father participated in the proceedings initiated by the mother before the Family Court at Wellington, New Zealand and filed his objections and thereafter agreed to the parenting order dated 12.8.2011. Further the children had come to India along with their father under the terms and conditions of the consenting order dated 12.8.2011. It was only when the time came to return the children to New Zealand as per the terms and conditions of the parenting order dated 12.8.2011 that the father committed breach of the terms and conditions and retained the two minor children beyond 28.10.2011. Admittedly the eldest daughter Hena protested for continuance of her stay in India beyond 28.10.2011 and as such she was allowed to return to New Zealand. The conduct of the father clearly indicates that he had some ill design in his mind to retain the children contrary to the consent parenting order and thereafter to initiate legal proceedings in India to complicate the situation and to ensure the continuance of the stay of the children in India. The father could not be allowed to approbate and reprobate. On the one hand he acquiesced to the consent parenting order and accompanied the children to India but thereafter committed its breach. All the three children along with their parents were citizens of New Zealand till today.
The argument of Sri H.N. Singh that as the children had stayed in India from March, 2008 till February, 2011 and again after 4.10.2011, as such they should be treated to be ordinary residents of India conferring the jurisdiction on the Court at Gautam Buddha Nagar under Section 25 of the 1890 Act cannot be sustained. We are not impressed by the said submission for the facts and reasons recorded above. The facts of the case of Ruchi Majoo (supra) were quite different as recorded above and we do not find any similarity with the facts of the present case.
Even in the judgment in the case of Ruchi Majoo (supra) the Apex Court had followed the view taken by the Apex Court in the earlier decision in the cases of V. Ravi Chandran (Dr.)(supra) and Shilpa Aggarwal (supra) and had held that the orders passed by the foreign courts cannot be completely ignored and had to be given due respect and importance on the principles of comity of nations.
Another finding recorded by the Apex Court in the case of Ruchi Majoo (supra) was to the effect that the best interest and welfare of the child would be served by retaining the minor child in India along with the mother for the reasons that both the parents had divorced ; the father was an extreme case of the addiction of alcohol ; the father had remarried ; the age of the minor child was very tender and his interest could be better watched by mother ; his growth and development would be well taken care of under the control and supervision of the mother.
In the present case we have recorded separate findings while dealing with the special appeal arising out of the habeas corpus petition that the interest and welfare at this stage for both the minor children could be well taken care of by the mother and there was nothing adverse or detrimental to the interest of the children in their being sent to the New Zealand. .
In view of above discussions we are of the view that the learned court below rightly arrived at the conclusion that it had no jurisdiction under Section 9 of the 1890 Act to entertain the petition. The First Appeal From Order No.804 of 2012 therefore is liable to be dismissed and it is accordingly dismissed.
SPECIAL APPEAL No. - 523 of 2012 We now proceed to deal with the appeal arising out of habeas corpus petition dismissed by the learned Single Judge The sheet anchor of the argument on behalf of the appellants is the judgment of the Apex Court in the case of V. Ravi Chandran (Dr.) (supra) by a Bench comprising of three Hon'ble Judges viz. Hon. Tarun Chatterjee, Hon. R.M. Lodha and Hon. B.S. Chauhan, JJ. According to Sri V.K. Singh, learned Senior Counsel appearing for the appellants the facts of the present case, if not identical, are quite similar to the facts in the case of V. Ravi Chandran (Dr.) (supra).
In the case of V. Ravi Chandran (Dr.) (supra), the minor boy Adithya was born out of the wedlock of V. Ravi Chandran (Dr.) and Vijayasree Voora on 1.7.2002 in the United States of America (USA). The father was an American citizen. The marriage had taken place on 14.12.2000 at Tirupati (Andhra Pradesh). While living in USA the wife Vijayasree Voora had instituted a petition for divorce and dissolution of marriage before the New York State Supreme Court. A consent order was passed regarding custody and guardianship of the minor boy Adithya on 18.4.2005 by the New York State Supreme Court whereby joint custody of the minor child was given to the both the parents. Later on a separation agreement was entered into between the parties. However, with regard to the custody of the minor boy Adithya, the parties consented to the order dated 18.4.2005. Later on the New York State Supreme Court by order dated 8.9.2005 dissolved the marriage of Dr. V. Ravi Chandran and Vijayasree Voora. After about two years the Family Court of the State of New York upon a petition for modification of the custody of the minor boy Adithya filed by Dr. V. Ravi Chandran and further on petition for enforcement filed by both the parents, upon consent of both the parties, passed a detailed order on 18.6.2007 laying down the terms and conditions as agreed.
Under the terms and conditions as incorporated in the order dated 18.6.2007 passed by the Family Court of the State of New York, the mother Vijayasree Voora brought the minor boy Adithya to India but did not return him to the father resulting into filing of the petition for modification by the father for custody and a violation petition for custody before the Family Court of the State of New York. Appropriate orders were passed by the Family Court of the State of New York granting temporary sole legal and physical custody of Adithya to the father along with the directions to the mother to immediately turn over the minor child and his passport to the father. Other conditions were also put in the order, which included that the issue of custody of the minor boy Adithya would be heard in the jurisdiction of the Courts of the United States in particular the Albany County Family Court.
Despite the above conditions when the mother Vijayasree Voora did not comply with the orders, the father Dr. V. Ravi Chandran was compelled to approach the Courts in India by preferring a Habeas Corpus Petition under Article 32 of the Constitution of India before the Supreme Court which was registered as Writ Petition (Crl.) No.112 of 2007. Initially the notices were issued to the mother Vijayasree Voora but the same were returned unserved at the address informed by her while bringing the minor boy Adithya to India. The Supreme Court thereafter required the Police Administration of the different States to trace out and produce the corpus of the minor boy Adithya along with the mother Vijayasree Voora but all went in vain. Ultimately the Supreme Court was compelled to take help from the Central Bureau of Investigation (CBI), which launched search on all-India basis by issuing lookout notices to the heads of police of States, Union Territories and Metropolitan Cities and also alert notices through the Bureau of Immigration, Ministry of Home Affairs, New Delhi and also flashed photographs of minor child Adithya and his mother Vijayasree Voora. It took about two months to the CBI to trace Adithya and his mother in Chennai and accordingly they were produced before the court.
Sufficient opportunity was given to the parties to exchange pleadings. The Supreme Court after considering the respective arguments advanced on behalf of the parties and material placed on record was faced with the problem as to what should be the appropriate order in the facts and circumstances keeping in mind the principle of custody of the child and the orders of the courts of the country of which the child is a national. In other words, what would prevail : the welfare and custody of the minor child or the orders passed by the foreign courts keeping in mind the comity of nations. The Apex Court also considered as to how to balance the two propositions without hurting the other. Before arriving at a conclusion, the Supreme Court considered the law as had been developed over the period of time by referring to various judgments of this country and also of American and English courts. We will not refer to all the cases referred to by the Supreme Court but would definitely like to refer to a few of them.
In paragraph 25 of the report of the case of V. Ravi Chandran (Dr.) (supra), the Supreme Court dealt with the case of Surinder Kaur Sandhu v. Harbax Singh Sandhu (1984) 3 SCC 698 : 1984 SCC (Cri) 464, which is reported herein under :
25.This Court in Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu and Another was concerned with the custody of a child--British citizen by birth--to the parents of Indian citizens, who after their marriage settled in England. The child was removed by the husband from the house when the wife was in the factory where she was working and brought him to India. The wife obtained an order under Section 41(English) Supreme Court Act, 1981 whereby the husband was directed to handover the custody of the boy to her. The said order was later on confirmed by the High Court in England. The wife then came to India and filed a writ petition under Article 226 in the High Court praying for production and custody of the child. The High Court dismissed her writ petition against which the wife appealed before this Court. Y.V. Chandrachud, C.J. (as he then was) speaking for the Court held thus : (SCC p.703, para 10) "10. ...The modern theory of Conflict of Laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum-shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offsprings of marriage. The spouses in this case had made England their home where this boy was born to them. The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing him to India, not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the peace of that home. The fact that the matrimonial home of the spouses was in England, establishes sufficient contacts or ties with that State in order to make it reasonable and just for the courts of that State to assume jurisdiction to enforce obligations which were incurred therein by the spouses. (See International Shoe Company v. State of Washington which was not a matrimonial case but which is regarded as the fountainhead of the subsequent developments of jurisdictional issues like the one involved in the instant case.) It is our duty and function to protect the wife against the burden of litigating in an inconvenient forum which she and her husband had left voluntarily in order to make their living in England, where they gave birth to this unfortunate boy."
In paragraph 26 of the report the Supreme Court dealt with the case of Elizabeth Dinshaw v. Arvand M. Dinshaw (1987) 1 SCC 42 : 1987 SCC (Cri) 13, which is reproduced herein under :
26. In Elizabeth Dinshaw v. Arvand M. Dinshaw this Court held that it was the duty of courts in all countries to see that a parent doing wrong by removing children out of the country does not gain any advantage by his or her wrongdoing. In para 9 of the report, this Court considered the decision of the Court of Appeal in H. (Infants), In re (1966) 1 WLR 381 (Ch & CA) : (1966 1 All ER 886 (CA) and approved the same in the following words: (SCC p. 47, paras 9-10)
9. In Re H. (infants), In re 1966) 1 WLR 381 (Ch & CA) : (1966 1 All ER 886 (CA) the Court of Appeal in England had occasion to consider a somewhat similar question. That case concerned the abduction to England of two minor boys who were American citizens. The father was a natural-born American citizen and the mother, though of Scottish origin, had been resident for 20 years in the United States of America. They were divorced in 1953 by a decree in Mexico, which embodied provisions entrusting the custody of the two boys to the mother with liberal access to the father. By an amendment made in that order in December 1964, a provision was incorporated that the boys should reside at all times in the State of New York and should at all times be under the control and jurisdiction of the State of New York. In March 1965, the mother removed the boys to England, without having obtained the approval of the New York court, and without having consulted the father; she purchased a house in England with the intention of remaining there permanently and of cutting off all contacts with the father. She ignored an order made in June 1965, by the Supreme Court of New York State to return the boys there. On a motion on notice given by the father in the Chancery Division of the Court in England, the trial Judge Cross, J. directed that since the children were American children and the American court was the proper court to decide the issue of custody, and as it was the duty of courts in all countries to see that a parent doing wrong by removing children out of their country did not gain any advantage by his or her wrongdoing, the court without going into the merits of the question as to where and with whom the children should live, would order that the children should go back to America. In the appeal filed against the said judgment in the Court of Appeal, Willmer, L.J. while dismissing the appeal extracted with approval the following passage from the judgment of Cross, J. [H. (Infants), In re (1996) 1 WLR 381 (Ch. & CA) : (1995) 3 All ER 906 (Ch), All ER at p. 912] :
The sudden and unauthorised removal of children from one country to another is far too frequent nowadays, and as it seems to me, it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing.' (Ch p. 389 B) The courts in all countries ought, as I see it, to be careful not to do anything to encourage this tendency. [This] substitution of self-help for due process of law in this field can only harm the interests of wards generally, and a Judge should, as I see it, pay regard to the orders of the proper foreign court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child. (Ch p. 289 D-E) With respect we are in complete agreement with the aforesaid enunciation of the principles of law to be applied by the courts in situations such as this.
Having dealt with the law on the question the Supreme Court was of the view that as there was nothing on record which may even remotely suggest that it would be harmful to the child to return to his native country and giving due importance to the principles of comity of nations / comity of courts directed that the minor child Adithya be returned to USA. It would be relevant to quote paragraphs 34, 35, 36 and 37 of the report of V. Ravi Chandran (Dr.) (supra) :
34. The fact that all orders concerning the custody of the minor child Adithya have been passed by American courts by consent of the parties shows that the objections raised by respondent no. 6 in counter affidavit about deprivation of basic rights of the child by the petitioner in the past; failure of petitioner to give medication to the child; denial of 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 the respondent no. 6 in the counter affidavit that the American courts which passed the order/decree had no jurisdiction and being inconsistent to Indian laws cannot be executed in India also prima facie does not seem to have any merit since despite the fact that the respondent no. 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 void and without jurisdiction. Rather it transpires from the counter affidavit that initially respondent no. 6 initiated the proceedings under Guardianship and Wards Act 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 brought to India by respondent no. 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 removed and enable the parties to establish the case before the courts in the native State of the child, i.e. 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.
36.It is true that child Adithya has been in India for almost two years since he was removed by the mother--respondent no. 6 --contrary to the custody orders of the U.S. court passed by consent of the parties. It is also true that one of the factors to be kept in mind in exercise of summary jurisdiction in the interest of child is that application for custody/return of the child is made promptly and quickly after the child has been removed. This is so because any delay may result in child developing roots in the country to which he has been removed. From the counter affidavit that has been filed by respondent no. 6, it is apparent that in last two years child Adithya did not have education at one place.
He has moved from one school to another. He was admitted in school at Dehradun by respondent no. 6 but then removed within few months. In the month of June, 2009, the child has been admitted in some school at Chennai.
37.As a matter of fact, the minor child Adithya and respondent no. 6 could not be traced and their whereabouts could not be found for more than two years since the notice was issued by this Court. The respondent no. 6 and the child has been moving from one State to another. The parents of respondent no. 6 have filed an affidavit before this Court denying any knowledge or awareness of the whereabouts of respondent no. 6 and minor child Adithya ever since they left in September, 2007. In these circumstances, there has been no occasion for the child developing roots in this country. Moreover, the present habeas corpus petition has been filed by the petitioner promptly and without any delay, but since the respondent no. 6 has been moving from one State to another and her whereabouts were not known, the notice could not be served and child could not be produced for more than two years.
Further in paragraph 41 the necessary directions were issued which are also reproduced below :
41. In the result and for the reasons stated, we pass the following order :
(i) The respondent no.6 shall act as per the consent order dated June 18, 2007 passed by the Family Court of the State of New York till such time any further order is passed on the petition that may be moved by the parties henceforth and, accordingly, she will take the child Adithya of her own to the United States of America within fifteen days from today and report to that court.
(ii) The petitioner shall bear all the traveling expenses of the respondent no. 6 and minor child Adithya and make arrangements for the residence of respondent no. 6 in the United States of America till further orders are passed by the competent court.
(iii) The petitioner shall request the authorities that the warrants against respondent no. 6 be dropped. He shall not file or pursue any criminal charges for violation by respondent no. 6 of the consent order in the United States of America.
(iv) The respondent no. 6 shall furnish her address and contact number in India to the CBI authorities and also inform them in advance the date and flight details of her departure along with child Adithya for United States of America.
(v) In the event of respondent no. 6 not taking the child Adithya of her own to United States of America within fifteen days from today, child Adithya with his passport shall be restored to the custody of the petitioner to be taken to United States of America. The child will be a ward of the concerned court that passed the consent order dated June 18, 2007. It will be open to respondent no. 6 to move that court for a review of the custody of the child, if so advised.
(vi) The parties shall bear their own costs.
In the case of Shilpa Aggarwal (supra), where also the facts were quite similar to the present case, the Supreme Court approved the order passed by the Delhi High Court directing the mother who had detained the child in India, to appear before the United Kingdom (UK) Court and it was left for the UK Court to take appropriate decision with regard to the custody of the minor child. In the said case the marriage had taken place in India on 4.11.2003. The husband was already working in UK and both husband and wife acquired the status of permanent residents of UK in 2004 before the birth of the girl child Elina on 20.2.2006. By birth the child Elina acquired British citizenship and was holder of a British passport.
Later on, as some disagreement arose between the parents, the mother along with the minor child came to India on 12.9.2008. The husband also followed and visited India for four days in October, 2008 but things did not improve. The mother was supposed to leave for UK along with the minor child on 9.11.2008 but she got the tickets cancelled and continued to reside in India.
At this stage the father initiated proceedings on 25.11.2008 before the High Court of Justice, Family Division, UK praying for an order that the minor girl be made a ward of the court and for a direction to the mother to return the minor child to the jurisdiction of the said court. The UK Court passed an order directing the mother to return the minor child to the jurisdiction of the said court and also to handover the passport and other international travelling documents of the minor child to the solicitors of the husband.
Thereafter the husband through his attorney (his father) filed a petition before the Delhi High Court for a direction that the custody of the minor child be handed over to him. The Delhi High Court relegated the parties to the Mediation Centre of the DelhI High Court to explore the possibility of settlement but ultimately the mediation could not be materialized. Later on the Delhi High Court vide order dated 7.8.2009 disposed of the petition with the directions, as contained in paragraph 8 of the report of the case of Shilpa Aggarwal (supra), which is extracted herein under :
"At the first instance, a period of 14 days be granted to Respondent 2 (the petitioner herein) to take the child of her own to England and join the proceedings before the courts of England and Wales, failing which the child be handed over to the petitioner to be taken to England as a measure of interim custody and thereafter it is for the courts of England and Wales to determine which parent would be best suited to have the custody of the child."
It was against the said directions of the Delhi High Court that the mother appealed before the Supreme Court. The Supreme Court after taking into consideration the arguments advanced by the parties and the material placed on record and in particular the order passed by the High Court of Justice, Family Division, UK on 26.11.2008 was of the view that the High Court did not commit any error in issuing the necessary directions. The relevant extract from the judgment in the case of Shilpa Aggarwal (supra) as contained in paragraphs 33, 34, 35 and 36 is reproduced herein under :
33.It is evident from the aforesaid order that except for insisting that the minor be returned to its jurisdiction, the English Court did not intend to separate the child from the appellant until a final decision was taken with regard to the custody of the child. The ultimate decision in that regard has to be left to the English Courts having regard to the nationality of the child and the fact that both the parents had worked for gain in the U.K. and had also acquired permanent resident status in the U.K.
34.The High Court has taken note of the fact that the English Court has not directed that the custody of the child should be handed over to the respondent father but that the child should be returned to the jurisdiction of the Courts in the U.K. which would then proceed to determine as to who would be best suited to have the custody of the child. In our view, the approach of the High Court takes into consideration both the questions relating to the Comity of Courts as well as the interest of the minor child, which, no doubt, is one of the most important considerations in matters relating to custody of a minor child. It has been rightly observed by the High Court following the decision in Surinder Kaur's case that it was the English Courts which had the most intimate contact with the issue in question to decide the same.
35. The fact that the minor child has been declared a ward of the English Court till she attains majority, is also a matter of considerable importance in considering whether the impugned order of the High Court should be interfered with or not.
36.We are satisfied from the materials produced before us and the submissions made on behalf of the parties that the High Court did not commit any error in relying on the doctrine of Comity of Courts since the question of what is in the interest of the minor still has to be considered by the U.K. Court and the interim order passed in the proceedings initiated by the Respondent No.1 is only of an interim nature with a view to return the child to the jurisdiction of the said Court.
In the present case we find that the facts are quite similar to the facts in the case of V. Ravi Chandran (Dr.) (supra). Both the appellants are citizens of New Zealand. The two minor children Pooja and Krish for whom the present habeas corpus petition is filed are also citizens of New Zealand by birth. Even the eldest daughter Hena, who is presently living with her mother in New Zealand is also citizen of New Zealand. Appropriate orders regarding the appellants 1 and 2 being wards of the Court of New Zealand, the parenting order by consent have also been passed by different Courts at New Zealand. The two minor children (appellants 1 and 2) have been detained in India in clear breach of the orders passed by the Courts at New Zealand. Presently there are no orders passed by Indian Courts which may be in conflict with the orders passed by the New Zealand Courts. There is apparently no material which may suggest any harm being caused to the appellants 1 and 2 if they are taken to New Zealand. For the foregoing reasons we are inclined to follow the judgment in the case of V. Ravi Chandaran (Dr.) (supra) and issue appropriate directions accordingly subject to the arguments advanced by learned counsel for the husband which we now proceed to deal with. Sri H.N. Singh, learned counsel for the husband has relied upon various cases mentioned in the earlier part of this judgment on three different propositions. Firstly with regard to the principles of the comity of courts / comity of nations. The submission based upon the said decisions is that the comity of courts cannot be the sole ground for relegating the matter to the courts of foreign nation. He has referred to the three cases on this point namely (i) Dhanwanti Joshi (supra), (ii) Ruchi Majoo (supra) and (iii) Sarita Sharma (supra). We are apparently not in disagreement with the submission advanced by Sri H.N. Singh as we are also of the view that the principle of comity of nations cannot be the sole factor to decide a matter relating to parenting of minor children. The more important factor to be taken into consideration is the interest and welfare of the minor children. Thus if the principle of the comity of nation is to be given its due regard without any violence to the interest and welfare of the minor children, there could be no justification for not honouring the principles of comity of nations or in other words honouring the orders passed by the courts of other countries.
In the present case upon the material placed on record, the submission advanced by the counsel for the parties and the interaction which we had with the parents and the minor children, apparently we do not find any reason to hold back the minor children in this country and not to let them appear before the courts of their nation as there is no material on record to indicate that such exercise would be detrimental or adverse to their interest and welfare in any manner.
The other set of authority relied upon is with regard to the considerations relevant for grant of custody. These cases are (i) Smt. Sunita Malik (supra), (ii) Syed Salimuddin (supra), (iii) Dr. Ashish Ranjan (supra) and (iv) Mausami Moitra Ganguli (supra). We are of the view that it is not necessary for us to go into the details of these decisions as apparently we are not deciding the issue of custody following the judgment in the case of V. Ravi Chandran (supra). We are only relegating the matter to be decided by the courts of the country of which the minor children are nationals and detailed reasons in that regard have already been discussed above. The question of custody would be appropriately dealt with by the Courts at New Zealand upon material being placed before it by the respective parties.
The third set of cases relied upon by Sri H.N. Singh lay emphasis on the proposition that the statement of the children should be recorded in the matter relating to the custody of minor children. In the instant case since we have interacted with the children in chambers as such the following set of cases are not being dealt with in detail:
1.Sarita Sharma (supra)
2.Mamta Alias Anju (supra)
3.Nil Ratan Kundu and another (supra)
4.Vikram Vir Vohra (supra) In view of foregoing discussion, we are of the considered view that the appellants 1 and 2 (the two minor children) should be returned to New Zealand to the jurisdiction of the court in that country for the reasons summarised below :
Km. Pooja Malhotra and Master Krish Malhotra both are citizens of New Zealand being born in that country.
Both the parents, Pankaj Malhotra (father) and Anupma Malhotra (mother) acquired citizenship of New Zealand in 1999 and till date continue to be citizens of New Zealand.
The eldest daughter Hena although born in India is also a citizen of New Zealand since 1999 and till date.
Right from 1997 the family lived in New Zealand till March, 2008 for almost eleven years.
During the stay of the family in India from 2008 to 2011, the citizenship of New Zealand was not surrendered which clearly indicates that there was an intention to move back to New Zealand and the stay in India was only temporary.
From 14.2.2011 till 29.10.2010 the father Pankaj Malhotra did not file any case before the Indian Court for the custody of the children even though the children had been moved to New Zealand by the mother during this period.
The father Pankaj Malhotra participated in the proceedings initiated by the mother in New Zealand and was a party to the consent order dated 12.8.2011 providing for parenting of minor children.
The father Pankaj Malhotra did not file any application for recalling, modifying, varying or discharging the order dated 12.8.2011 passed on the basis of consent, alleging that consent had been obtained by coercion.
The father for the first time alleged coercion with regard to the consent order when he filed the petition under Section 25 of the 1890 Act before the Court at Gautam Buddha Nagar.
Under the terms of the consent order passed by the New Zealand Court on 12.8.2011, the father Pankaj Malhotra went to New Zealand accompanied his three minor children to India on 4.10.2011 with the condition that they would be returned on 28.10.2011 for which the tickets had also been purchased but while the three children were in India, he committed breach of the consent order by not returning the children to New Zealand and retaining them in India.
Apparently the father Pankaj Malhotra had while bringing the children to India on 4.10.2011 decided to retain them in India as he immediately filed the petition for their guardianship.
Both the minor children in their conversation with us could not express any such drastic or serious drawback with the mother which would compel this Court to think of not sending the children to New Zealand.
Both the children expressed that the mother was very caring, loving and affectionate to them.
They also expressed that they were also comfortable with their mother and wanted that both the parents should live together.
They also mentioned, especially Pooja Malhotra, that she used to miss her eldest sister Hena very much.
The comity of courts requires that the proceedings initiated before the New Zealand Court, the nation of which the entire family is a citizen, may proceed with the matter.
Nothing could be brought on record to show that the proceedings before the New Zealand Court or living of the children in New Zealand would in any manner be detrimental to the welfare and interest of the minor.
The educational institutions in this part of the country are normally closed for summer vacations which last for about two months, beginning middle or end of May each year. In case the appellants 1 and 2 are sent to New Zealand to the jurisdiction of courts in that country within the next fifteen days they would not be missing out their schools in case ultimately the Courts of New Zealand handover their custody to the father or permit them to continue their studies in India.
The matter can be decided by the Courts at New Zealand within a reasonable time so that the studies of the children do not get adversely affected whether they pursue the same in New Zealand or in India.
In the result the Special Appeal No.523 of 2012 is allowed. The judgment and order of the learned Single Judge dated 27.2.2012 passed in Habeas Corpus Petition No.10530 of 2012 is hereby set aside and the writ petition stands disposed of with the following directions :
(i)Pankaj Malhotra (respondent no.1) is directed to accompany the children to New Zealand and produce them before the Court at New Zealand within the next fifteen days and it would be for the Courts at New Zealand to pass appropriate orders with regard to the parenting, care and custody of the minor children.
(ii)We leave it open to Pankaj Malhotra (respondent no.1) to apply for modification, variation or discharge of the orders passed by the Courts at New Zealand.
(iii)In case Pankaj Malhotra (respondent no.1) does not accompany the appellants 1 and 2 to New Zealand within fifteen days from today, custody of the appellants 1 and 2 along with their passports and other foreign travelling documents would be handed over to the appellant no.3, the mother Mrs. Anupma Malhotra to accompany the children to be produced before the Courts at New Zealand.
(iv)In case the respondent no.1 accompanies the children to New Zealand within fifteen days as provided in this order, the appellant no.3 may consider not pressing the warrants issued against the respondent no.1. However, if the respondent no.1 fails to accompany the children to New Zealand within the time allowed, this request to appellant no.3 would be treated as nullified.
There shall be no orders as to costs in the facts and circumstances of the present case.
Before parting we may record that any expression in our order touching merit of the case may not be construed to have expressed opinion on merit for the adjudication of the issues subjudice / pending before the Courts at New Zealand.
Order Date :-10th May 2012 RPS/PK (S.R. Alam, C.J.) (Vikram Nath, J.)