IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated :11.4.2011 C O R A M The Honourable Mr. Justice C.NAGAPPAN and The Honourable Mr. Justice P.R.SHIVAKUMAR Habeas Corpus Petition No. 2367 of 2010 Chandrashekar Mungerveli Puttappa .. Petitioner Vs. 1. The Commissioner of Police Chennai Suburban, Chennai 16. 2. State Rep by the Inspector of Police (L & O) T-14 Mangadu Police Station, Chennai 602 101. 3. Vishala Venkata Thiagarajan 4. Thimmaji Rao .. Respondents PRAYER : Petition under Article 226 of the Constitution of India seeking to issue a Writ of Habeas Corpus directing the respondents to produce the minor child Akshara Puttappa, aged 1 ½ years, D/o. Chandrashekar Mungerveli Puttappa and handover the child to the petitioner. For Petitioner : Mr. R.Shanmugasundaram, Sr.Counsel for Ms. A.Arulmozhi For R1 & R2 : Mr. A.D.Jagadish Chandira Addl. Public Prosecutor For R3 & R4 : Mr. R.S.Jeevarathinam, Sr. Counsel for J.Sundarakanchani – for R3 and for T.D.K.Govindarajan – for R4 O R D E R (Order of the Court was made by C.NAGAPPAN, J.) Akshara Puttappa is a baby girl born on 12.5.2008 to Indian parents in Boston, United States of America. She is an American citizen by birth and her father Chandrashekar Mungerveli Puttappa has filed the Habeas Corpus Petition praying for her production and handing-over the child to him. https://hcservices.ecourts.gov.in/hcservices/ 2. The petitioner is a native of Karnataka State and he went to U.S.A. in the year 1992, completed M.S. Computer Science in 1994 and was employed in Ford Motors Co., in 1995. The third respondent Vishala, after completing M.A. Decree at Chennai, went to U.S.A. in 1996 and after acquaintance, she married the petitioner on 30.12.1997 before the Marriage Registrar of White Plains District in New York State. Afterwards, their marriage was also celebrated in India in accordance with Hindu Rites and Customs on 12.5.1999. Both, the petitioner and the third respondent, resided together as husband and wife in the States of New York, Virginia and New Hampshire. 3. On the pregnancy of the third respondent, her mother and maternal aunt visited U.S.A. and stayed with them. The third respondent Vishala delivered a female baby Akshara on 12.5.2008 in Boston, United States of America. The petitioner resigned his job and helped the third respondent Vishala for nursing the baby. The petitioner has alleged that the third respondent Vishala's mother and aunt started poisoning her mind by saying that the petitioner was unemployed and he was looting the earnings of the third respondent Vishala in I.B.M. According to the third respondent Vishala, the petitioner was very cruel to her and child Akshara and he also ill-treated and tortured her mother and aunt as a result of which she called Salem Police, New Hampshire on 13.9.2008 for the protection of their lives and the petitioner was arrested and remanded to judicial custody for three hours on 13.9.2008 and was also served with the Court Notice of Physical abuse with the Protection Order obtained by the third respondent Vishala in the Court of New Hampshire, Salem Family Division. The petitioner filed a petition for divorce and child custody in the said Court. 4. The third respondent Vishala returned to India on 8.10.2008 along with child Akshara and informed the same to the petitioner through e-mail. The petitioner moved urgent ex parte motion before the Court of the State of New Hampshire Judicial Branch in Case No.673:2008:DM:231 and the Court ordered thus, on 10.10.2008: " (i) Respondent has wrongfully removed the parties' minor child Akshara Puttappa, Date of birth May 12, 2008, from the United States of America to India. (ii) Petitioner is awarded sole decision making authority over the parties'. (iii) Petitioner is awarded sole residential responsibility over the parties' minor child. https://hcservices.ecourts.gov.in/hcservices/ (iv) Petitioner is awarded temporary full and sole legal and physical custody, care and control over the parties' minor child." 5. The third respondent Vishala lodged a police complaint with the Commissioner of Police, Greater Chennai, on 15.11.2008 against the petitioner herein for the alleged threat made by him. The third respondent Vishala also filed a petition under Sections 7, 8, 9, 10 & 12 of the Guardians and Wards Act, 1890 in G.W.O.P.No.178 of 2008 before the District Court, Thiruvallur, on 4.12.2008, for appointing her as guardian to the person of the minor child Akshara and notice was ordered to the petitioner herein. The petitioner received the Summons from the Court of the Principal District Judge, Thiruvallur, in December, 2008, informing him to appear on 19.1.2009 but he did not appear and the learned Principal District Judge, Thiruvallur, allowed the petition on 19.6.2009 and appointed the third respondent Vishala as 'Guardian' to minor Akshara. 6. The petitioner further moved the Court in the State of New Hampshire for immediate transfer of Parental rights and responsibilities in the case No.673:2008:DM:00231. The petitioner also complained to the American Consulate General in Chennai on the whereabouts of child Akshara and on enquiry, the child was shown to them by the third respondent Vishala. The petitioner in May, 2010, filed a writ petition under Article 32 of the Constitution of India in W.P. (Criminal) No.62 of 2010 before the Supreme Court and later, withdrew the same with liberty to move the High Court under Article 226 of the Constitution of India. In the Meanwhile, the State of New Hampshire, Judicial Branch, Family Division at SALEM, granted divorce in the petition filed by the petitioner on the grounds of irreconcilable differences causing the irremediable breakdown of the marriage and the Final ex parte Decree dated 22.10.2010 provided for Parenting Plan and Uniform Support Order. Thereafter, the petitioner has filed the present writ petition on 21.12.2010 against the third respondent Vishala and her cousin brother Thimmaji Rao, who is the fourth respondent herein, besides respondents 1 and 2, the Police Authorities. 7. We heard Mr. R.Shanmugasundaram, learned Senior counsel appearing for the petitioner, and Mr. R.S.Jeevarathnam, learned Senior Counsel appearing for respondents 3 and 4 and Mr. A.D. Jagadish Chandira, learned Additional Public Prosecutor appearing for respondents 1 and 2. Now since baby Akshara has been produced by the respondents, the question to be considered is with regard to the prayer of the petitioner for handing over the custody of minor Akshara to him. 8. The Supreme Court in the decision in SMT. SURINDER KAUR SANDHU v.. HARBAX SINGH SANDHU AND ANOTHER [(1984) 3 SCC 698] was concerned with the custody of a child – British citizen by birth – https://hcservices.ecourts.gov.in/hcservices/ born 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 working in the factory and brought him to India. The wife obtained an Order under Section 41 (English) of the Supreme Court Act, whereby the husband was directed to hand over 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 in the High Court praying for production and custody of the child. The High Court dismissed the writ petition against which the wife preferred appeal to the Supreme Court. Therein it has been held that the modern theory of conflict of laws recognises and prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case; that the spouses in the said case had made England their home where the boy was born to them and that the father could not deprive the English court of its jurisdiction to decide upon the custody of the boy 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. 9. Subsequently, the Supreme Court in the decision MRS. ELIZABETH DINSHAW v.. ARVAND M. DINSHAW AND ANOTHER [(1987) 1 SCC 42] considered a case in which the father secretly brought the child to India against the express orders of the American court and the mother filed a habaes corpus petition before the Supreme Court of India for restoration of the child's custody and in the background of the said facts, the Apex Court held that the mother of the child was entitled to the child's custody, with liberty to take the child to USA and that the father could pursue the matter before the US Court for restoration of the visitation rights which had earlier been granted in his favour. The decision was made not only because of the principle of Comity but also because, on facts, it was in the interests of the child to be sent back to the native State. 10. The Supreme Court in the decision in DHANWANTI JOSHI v.. MADHAV UNDE [(1988) 1 SCC 112] was again concerned with the matter relating to the removal of a child from one country to another contrary to the custody order of the court from where the child was removed and the claim of the father for custody of the child on the ground of his having superior financial capacity to give his child immediate American education was negated and it was held that having superior financial capacity could not be the sole consideration for change of custody from mother to father. In the said decision, the Supreme Court considered English decisions, inter alia, McKee v.. McKee; H. (Infants), In re and also noticed its decision in ELIZABETH DINSHAW (stated supra) and also the Hague Convention of 1980 and observed as follows: "29. However, there is an apparent contradiction between the above view and the one expressed in H. https://hcservices.ecourts.gov.in/hcservices/ (infants), In Re[(1966) 1 All ER 886] and in E (D) (An infant), In Re [(1967) 2 All ER 881 (CA)] to the effect that the court in the country to which the child is removed will send back the child to the country from which the child has been removed. This apparent conflict was explained and resolved by the Court of Appeal in 1974 in L. (Minors), In Re [(1974) 1 All ER 913, (CA)] and in R. (Minors), In Re [(1981) 2 FLR 416 (CA)]. It was held by the Court of Appeal in L.(Minors), In Re [(1974) 1 All ER 913, (CA)] that the view in McKee v. McKee [1951 A.C. 352 : (1951) All ER 942] is still the correct view and that the limited question which arose in the latter decisions was whether the court in the country to which the child was removed could conduct (a) a summary inquiry or (b) an elaborate inquiry on the question of custody. In the case of (a) a summary inquiry, the court would return custody to the country from which the child was removed unless such return could be shown to be harmful to the child. In the case of (b) an elaborate inquiry, the court could go into the merits as to where the permanent welfare lay and ignore the order of the foreign court or treat the fact of removal of the child from another country as only one of the circumstances. The crucial question as to whether the Court (in the country to which the child is removed) would exercise the summary or elaborate procedure is to be determined according to the child's welfare. The summary jurisdiction to return the child is invoked, for example, if the child had been removed from its native land and removed to another country where, maybe, his native language is not spoken, or the child gets divorced from the social customs and contacts to which he has been accustomed, or if its education in his native land is interrupted and the child is being subjected to a foreign system of education, -- for these are all acts which could psychologically disturb the child. Again the summary jurisdiction is exercised only if the court to which the child has been removed is moved promptly and quickly, for in that event, the Judge may well be persuaded that it would be better for the child that those merits should be investigated in a court in his native country on the expectation that an early decision in the native country could be in the interests of the child before the child could develop roots in the country to which he had been removed. Alternatively, the said court might think of conducting an elaborate inquiry on merits and have regard to the other facts of the case and the time that has lapsed after the removal of the child and https://hcservices.ecourts.gov.in/hcservices/ consider if it would be in the interests of the child not to have it returned to the country from which it had been removed. In that event, the unauthorised removal of the child from the native country would not come in the way of the court in the country to which the child has been removed, to ignore the removal and independently consider whether the sending back of the child to its native country would be in the paramount interests of the child. (See Rayden & Jackson, 15th Edn., 1988, pp. 1477-79; Bromley, Family law, 7th Edn., 1987.) In R. (Minors), In re [(1981) 2 FLR 416 (CA)] it has been firmly held that the concept of forum conveniens has no place in wardship jurisdiction. 30. We may here state that this Court in Elizabeth Dinshaw v. Arvand M. Dinshaw [(1987) 1 SCC 42 : 1987 SCC (Crl.) 13] while dealing with a child removed by the father from USA contrary to the custody orders of the US Court directed that the child be sent back to USA to the mother not only because of the principle of comity but also because, on facts, -- which were independently considered -- it was in the interests of the child to be sent back to the native State. There the removal of the child by the father and the mother's application in India were within six months. In that context, this Court referred to H. (Infants), In Re [(1966) 1 All ER 886 (CA)] which case, as pointed out by us above has been explained in L. (Minors), In Re [(1974) 1 All ER 913 (CA)] as a case where the Court thought it fit to exercise its summary jurisdiction in the interests of the child. Be that as it may, the general principles laid down in McKee v. McKee and J v. C [(1969) 1 All ER 788] and the distinction between summary and elaborate inquiries as stated in L. (Minors), In Re [(1974) 1 All ER 913 (CA)] are today well settled in UK, Canada, Australia and the USA. The same principles apply in our country. Therefore nothing precludes the Indian courts from considering the question on merits, having regard to the delay from 1984 -- even assuming that the earlier orders passed in India do not operate as constructive res judicata. 31. ..... 32.In this connection, it is necessary to refer to the Hague Convention of 1980 on "Civil Aspects of International Child Abduction". As of today, about 45 countries are parties to this Convention. India is not https://hcservices.ecourts.gov.in/hcservices/ yet a signatory. Under the convention, any child below 16 years who had been "wrongfully" removed or retained in another contracting State, could be returned back to the country from which the child had been removed, by application to a Central authority...... 33. So far as non-Convention countries are concerned, or where the removal related to a period before adopting the Convention, the law is that the Court in the country to which the child is removed will consider the question on merits bearing the welfare of the child as of paramount importance and consider the order of the foreign court as only a factor to be taken into consideration as stated in McKee vs. McKLee [(1951) 1 All ER 942], unless the Court thinks it fit to exercise summary jurisdiction in the interests of the child and its prompt return is for its welfare, as explained in L., Re [(1974) (1) All ER 193, CA. As recently as 1996- 1997, it has been held in P (A Minor) (Child Abduction: Non Convention Country), Re: [1996 (3) FCR 233 (CA)] by Ward, LJ 1996 [Current Law Year Book, pp. 165-166] that in deciding whether to order the return of a child who has been abducted from his or her country of habitual residence-which was not a party to the Hague Convention, 1980, - the Courts' overriding consideration must be the child's welfare. There is no need for the Judge to attempt to apply the provisions of Article 13 of the Convention by ordering the child's return unless a grave risk of harm was established. See also A (A minor) (Abduction : Non- Convention Country) [Re, The Times 3-7-97 by Ward LJ (CA) (quoted in Current Law, August 1997, P.13]. This answers the contention relating to removal of the child from USA. 11. In the decision in SARITA SHARMA v.. SUSHIL SHARMA [(2000) 3 SCC 14] the Supreme Court was seized of the matter where the mother had removed the children from USA despite the order of the American court and it was held thus - " 6.Therefore, it will not be proper to be guided entirely by the fact that the appellant Sarita had removed the children from U.S.A. despite the order of the Court of that country. So also, in view of the facts and circumstances of the case, the decree passed by the American Court though a relevant factor, cannot override the consideration of welfare of the minor children. We have already stated earlier that in U.S.A. respondent Sushil is staying along with his mother aged https://hcservices.ecourts.gov.in/hcservices/ about 80 years. There is no one else in the family. The respondent appears to be in the habit of taking excessive alcohol. Though it is true that both the children have the American citizenship and there is a possibility that in U.S.A. they may be able to get better education, it is doubtful if the respondent will be in a position to take proper care of the children when they are so young. Out of them one is a female child. She is aged about 5 years. Ordinarily, a female child should be allowed to remain with the mother so that she can be properly looked after. It is also not desirable that two children are separated from each other. If a female child has to stay with the mother, it will be in the interest of both the children that they both stay with the mother. Here in India also proper care of the children is taken and they are at present studying in good schools. We have not found the appellant wanting in taking proper care of the children. Both the children have a desire to stay with the mother. At the same time it must be said that the son, who is elder then the daughter, has good feelings for his father also. Considering all the aspects relating to the welfare of the children, we are of the opinion that in spite of the order passed by the Court in U.S.A. it was not proper for the High Court to have allowed the Habeas Corpus writ petition and directed the appellant to hand over custody of the children to the respondent and permit him to take them away to U.S.A. What would be in the interest of the children requires a full and thorough inquiry and, therefore, the High Court should have directed the respondent to initiate appropriate proceedings in which such an inquiry can be held. Still there is some possibility of the mother returning to U.S.A. in the interest of the children. Therefore, we do not desire to say anything more regarding entitlement of the custody of the children. The chances of the appellant returning to U.S.A. with the children would depend upon the joint efforts of the appellant and the respondent to get the arrest warrant cancelled by explaining to the court in U.S.A. the circumstances under which she had left U.S.A. with the children without taking permission of the Court. There is a possibility that both of them may thereafter be able to approach the Court which passed the decree to suitably modify the order with respect to the custody of the children and visitation rights." 12. In the decision in V. RAVI CHANDRAN (DR.) (2) v.. UNION OF INDIA AND OTHERS [(2010) 1 SCC 174] the Supreme Court was concerned with an American boy named Adithya aged 7 years, born to https://hcservices.ecourts.gov.in/hcservices/ Indian parents, who was brought to India by the mother contrary to the custody orders of the US Court passed by consent of the parties and it held that the case did not warrant an elaborate enquiry into the question of custody of minor Adithya and directed the return of minor to USA. In the said decision, the Supreme Court referred to its earlier decisions, which have been aforenoticed in this order and finally held as follows: " 31. Do the facts and circumstances of the present case warrant an elaborate enquiry into the question of custody of minor Adithya and should the parties be relegated to the said procedure before an appropriate forum in this country in this regard? In our judgment, this is not required. 32. Admittedly, Adithya is an American citizen, born and brought up in United States of America. He has spent his initial years there. The natural habitat of Adithya is in the United States of America. As a matter of fact, keeping in view the welfare and happiness of the child and in his best interests, the parties have obtained a series of consent orders concerning his custody/parenting rights, maintenance etc. from the competent courts of jurisdiction in America. Initially, on 18-4-2005, a consent order governing the issues of custody and guardianship of minor Adithya was passed by the New York State Supreme Court whereunder the court granted joint custody of the child to the petitioner and Respondent 6 and it was stipulated in the order to keep the other party informed about the whereabouts of the child. In a separation agreement entered into between the parties on 28-7-2005, the consent order dated 18-4-2005 regarding custody of minor son Adithya continued. 33. ..... 34. ..... 35. The facts and circumstances noticed above leave no manner of doubt that merely because the child has been brought to India by Respondent 6, the custody issue concerning minor child Adithya does not deserve to be gone into by the courts in India and it would be in accord with principles of comity as well as on facts to return the child back to the United States of America from where he has been removed and enable the parties to establish the case before the courts in the https://hcservices.ecourts.gov.in/hcservices/ native State of the child, i.e. the United States of America for modification of the existing custody orders. There is nothing on record which may even remotely suggest that it would be harmful for the child to be returned to his native country. 36. ...... 37. As a matter of fact, the minor child Adithya and Respondent 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. Respondent 6 and the child has been moving from one State to another. The parents of Respondent 6 have filed an affidavit before this Court denying any knowledge or awareness of the whereabouts of Respondent 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 Respondent 6 has been moving from one State to another and her whereabouts were