Case: Prateek Gupta Vs. Shilpi Gupta & Others


Decision:
1[ds]By the verdict impugned, the High Court directed thetherein to produce the minor child and to comply with an earlier order passed by the High Court of Justice, Family Division, Principal Registry, United Kingdom within three weeks or in the alternative to handover the custody of the daughter to thetherein within that time. The proceeding in which the Court in the UK had passed the order dated 08.01.2016 had been initiated by the respondent/father after the appellant/mother had returned to India with theimputed by the wife, the father however,total indifference to the daughters health condition. Finally on 02.07.2015, thereturned to India along with the daughter because of alleged violent behavior of the respondent and also informed the school that the ward would not be returning to U.K. for herhe fact that India not being a signatory to the Hague Convention intended to prevent parents from abducting children across the borders, the principle of comity of courts did not merit precedence over the welfare of the child, an aspect overlooked by the High Court, was underlined. It was asserted that the impugned order did also disregard the parens patriae jurisdiction of the Indian court within whose jurisdiction the child was located as well as the welfare of the child in question in mechanically applying the principle of comity ofwas underlined as well that the High Court in passing the impugned direction had also overlooked that the respondent had defaulted in the discharge of his parental duty towards the child, who was suffering from serious health problems, thus compromising in all respects the supervening consideration of overallhat there was no material to suggest that the return of the child to U.K. would result in psychological, physical or cultural harm to her or that the U.K. Court was incompetent to take a decision in the interest and welfare of the child, was underlined. It was insisted as well that there was no compelling reason for the High Court to ignore the principle of comity of courts and that as acknowledged by the High Court, better medical facilities were available in U.K. to treat the child. The steps taken by the respondent towards the childs boarding and travelling expenses together with the expenditure incurrable for the school and other incidental aspects and his undertaking not to pursue any criminal proceeding against the appellant for kidnapping the child with the avowed desire of reinstating his home was highlighted to demonstrate his bona fides. That there was no delay on the part of the respondent in filing the writ petition, which he did immediately after coming to learn that the appellant was disinclined to return the child to U.K., was stressed upon aswas expounded in the alternative, that the Court might as well think of conducting an elaborate enquiry on merits and have regard to the other facts of the case and the time that has elapsed after the removal of the child and consider, if it would be in the interest of the child not to have it returned from the country to which it had been removed, so much so that in such an eventuality, the unauthorized removal of the child from the native country would not come in the way of the court in the country to which the child has been removed, to ignore the removal and independently consider whether the sending back of the child to its native country would be in the paramount interest of theabove excerpt would in no uncertain terms underscore the predication that the courts in India, within whose jurisdiction the minor has been brought "ordinarily" while examining the question on merits, would bear in mind the welfare of the child as of paramount and predominant importance while noting the preexisting order of the foreign court, if any, as only one of the factors and not get fixated therewith and that in either situation, be it a summary enquiry or elaborate enquiry, the welfare of the child is of preeminent and preponderant consideration, so much so that in undertaking this exercise, the courts in India are free to decline the relief of repatriation of the child brought within its jurisdiction, if it is satisfied that it had settled in its new environment or that it would be exposed thereby to physical harm or otherwise, if it is placed in an intolerable or unbearable situation or environment or if the child in a given case, if matured, objects to its return.Thus the state of law as approved in Nithya Anand Raghavan is that if a child is brought from a foreign country, being its native country to India, the court in India may conduct (a) summary enquiry, or (b) an elaborate enquiry on the question of custody, if called for. In the case of a summary enquiry, the court may deem it fit to order the return of the child to the country from where he/she has been removed unless such return is shown to be harmful to the child. Axiomatically thus, even in case of a summary enquiry, it is open to the court to decline the relief of return of the child to the country from where he/she has been removed irrespective of apreexisting order ofreturn of a child by a foreign court, in case it transpires that its repatriation would be harmful to it. On the other hand, in an elaborate enquiry, the court is obligated to examine the merits as to where the paramount interest and welfare of the child lay and take note of thepreexisting order ofthe foreign court for the return of the child as only one of the circumstances. As a corollary, in both the eventualities whether the enquiry is summary or elaborate, the court would be guided by theconsideration of welfare of the child assuredly on an overall consideration on all attendant facts and circumstances. In other words, the principle of comity of courts is not to be accorded a yielding primacy or dominance over the welfare andof the child which unmistakeably is of paramount and decisivethe facts of the case also, noting the supervening fact that the appellant was the biological mother and natural guardian of the minor child, the remedy of writ of habeas corpus invoked for enforcement of the directions of the foreign court was declined, however leaving the respondent/father to take recourse to such other remedy as would be available in law for the enforcement of the order passed by the foreign court for securing the custody of the child. It was held that the appellant being the biological mother and natural guardian of the child, it could be presumed that its custody with her wasCourt noticed most importantly, that the child was suffering from cardiac disorder, which warranted periodical medical reviews and appropriate care and attention, which it felt could be provided only by the mother as the respondent/father being employed would not be in a position to extend complete and full attention to his daughter. That the appellant/mother had neither any intention to return to UK nor according to her if the child returns to UK, she would be able to secure the desired access to her to the child to provide care and attention was noted in express terms. On an evaluation of the overall facts and circumstances, this Court thus was of the unhesitant opinion that it would be in the interest of the child to remain in the custody of her mother and that her return to UK would prove harmful to her. While concluding thus, it was stated that this arrangement notwithstanding the appellant/mother ought to participate in the proceedings before the UK Court so long as it had the jurisdiction to adjudicate the matter before it. It was observed as well that, as the scrutiny involved with regard to the custody had arisen from a writ petition filed by the respondent/father for issuance of writ of a habeas corpus and not to decide the issue of grant or otherwise of the custody of the minor, all relevant aspects would have to be considered on their own merit in case a substantive proceeding for custody is made before any court of competent jurisdiction, including in India, independent of any observation made in the judgment.In Shilpa Aggarwa, the minor girl child involved was born in England having British citizenship and was only 3½ years of age at the relevant time. The parents had also acquired the status of permanent residents of U.K. In the facts and circumstances of the case, this Court expressed its satisfaction that in the interest of the minor child, it would be proper to return her to U.K. by applying the principle of comity of courts. The Court was also of the opinion that the issue regarding custody of the child should be decided by the foreign court from whose jurisdiction the child was removed and brought to India. A summary enquiry was resorted to in the facts of the case.The dialectics and determinations in Nithya Anand Raghavan have been alluded to in pervasive details as the adjudication therein by a Bench of larger coram has forensically analyzed all the comprehensible facets of the issue, to which we deferentially subscribe.30. The decisions cited at the Bar and heretofore, traversed present fact situations with fringe variations, the common and core issue being the justifiability or otherwise factually and/or legally, of the relocation of a child removed from its native country to India on the basis of the principle of comity of courts and doctrines of "intimate contact" and "closest concern".The gravamen of the judicial enunciation on the issue of repatriation of a child removed from its native country is clearly founded on the predominant imperative of its overallthe principle of comity of courts, and the doctrines of "intimate contact and closest concern" notwithstanding. Though the principle of comity of courts and the aforementioned doctrines qua a foreign court from the territory of which a child is removed are factors which deserve notice in deciding the issue of custody and repatriation of the child, it is no longer res integra that the ever overriding determinant would be the welfare and interest of the child. In other words, the invocation of these principles/doctrines has to be judged on the touchstone of myriad attendant facts and circumstances of each case, the ultimate live concern being the welfare of the child, other factors being acknowledgeably subservient thereto. Though in the process of adjudication of the issue of repatriation, a court can elect to adopt a summary enquiry and order immediate restoration of the child to its native country, if the applicant/parent is prompt and alert in his/her initiative and the existing circumstances ex facie justify such course again in the overwhelming exigency of the welfare of the child, such a course could be approvable in law, if an effortless discernment of the relevant factors testify irreversible, adverse and prejudicial impact on its physical, mental, psychological, social, cultural existence, thus exposing it to visible, continuing and irreparable detrimental and nihilistic attentuations. On the other hand, if the applicant/parent is slack and there is a considerable time lag between the removal of the child from the native country and the steps taken for its repatriation thereto, the court would prefer an elaborate enquiry into all relevant aspects bearing on the child, as meanwhile with the passage of time, it expectedly had grown roots in the country and its characteristic milieu, thus casting its influence on the process of its grooming in its fold.33. The doctrines of "intimate contact" and "closest concern" are of persuasive relevance, only when the child is uprooted from its native country and taken to a place to encounter alien environment, language, custom etc., with the portent of mutilative bearing on the process of its overall growth and grooming.34. It has been consistently held that there is no forum convenience in wardship jurisdiction and the peremptory mandate that underlines the adjudicative mission is the obligation to secure the unreserved welfare of the child as the paramount consideration.35. Reverting to the present facts, the materials as available, do substantiate lingering dissensions between the parties. They are living separately since 2014 with one child each in their company and charge. The children are US citizens by birth. Noticeably, the child Aadvik, who is the subject matter of the lis and custody was barely 2½ years old when he came over to India and had stayed here since then. Today, he is a little over 5 years old. In other words, he has spent half of his life at this age, in India. Considering his infant years of stay in US, we construe it to be too little for the required integration of his with the social, physical, psychological, cultural and academic environment of US to get totally upturned by his transition to this country, so much so that unless he is immediately repatriated, his inherent potentials and faculties would suffer an immeasurable set back. Thealso is not favourably disposed to return to India, she being a working lady in US and is also disinclined to restore her matrimonial home. The younger son is with her. There is no convincing material on record that the continuation of the child in the company and custody of the appellant in India would be irreparably prejudicial to him. Theexchanged by the parties as have been placed on records do suggest that they had been in touch since the child was brought to India and even after the first order dated 28.05.2015 was passed by the court in US. In the saidthey have fondly and keenly referred to both the sons staying in each others company, expressing concern about their illness and generalas well. As has been claimed by the appellant, the child is growing in a congenial environment in the loving company of hisand other relatives. He has been admitted to a reputed school and contrary to the nuclear family environment in US, he is exposed to a natural process of grooming in the association of his elders, friends, peers and playmates, which is irrefutably indispensable for comprehensive and conducive development of his mental and physical faculties. The issue with regard to the repatriation of a child, as the precedential explications would authenticate has to be addressed not on a consideration of legal rights of the parties but on the sole and preponderant criterion of the welfare of the minor. As aforementioned, immediate restoration of the child is called for only on an unmistakable discernment of the possibility of immediate and irremediable harm to it and not otherwise. As it is, a child of tender years, with malleable and impressionable mind and delicate and vulnerable physique would suffer seriousIn Nithya Anand Raghavan as well, this Court while maintaining the custody of the child in favour of the mother in preference to thehad required the mother to participate in the proceeding before the foreign court initiated by thetherein. It was observed that the custody of the child would remain with thetill it attained majority, leaving it at liberty then to choose its parent to reside with. The arrangement approved by this Court was also made subject to the decision with regard to its custody, if made by a competent Court.38. In the overwhelming facts and circumstances, we see no reason to take a different view or course. In view of order dated 03.05.2016 of this Court, the child has remained in the custody of theTo reiterate, no material has been brought on record, persuasive and convincing enough, to take a view that immediate restoration of the custody of the child to thein the native country is obligatorily called for in its interest and welfare. The High Court, as the impugned judgment and order would demonstrate, did not at all apply itself to examine the facts and circumstances and the other materials on record bearing on the issue of welfare of the child which are unmistakably of paramount significance and instead seems to have been impelled by the principle of comity of courts and the doctrines of "intimate contact" and "closest concern" de hors thereto. The appellant being the biological father of Aadvik, his custody of the child can by no means in law be construed as illegal or unlawful drawing the invocation of a superior Courts jurisdiction to issue a writ in the nature of habeas corpus. We are, in the textual facts and on ananalysis of the attendant circumstances, thus of the view that the dislodgment of the child as directed by the impugned decision would be harmful to it. Having regard to the nature of the proceedings before the US Court, the intervening developments thereafter and most importantly the prevailing state of affairs, we are of the opinion that the child, till he attains majority, ought to continue in the custody, charge and care of the appellant, subject to any order to the contrary, if passed by a court of competent jurisdiction in an appropriate proceeding deciding the issue of its custody in accordance with law. The High Court thus, in our estimate, erred in law and on facts in passing the impugned verdict.