wp 7278-11.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7278 OF 2011 Ms. Revati Sudhir Puranik .. Petitioner Vs Mr. Vikram Vilas Salunkhe .. Respondent Mr. Madhav Jamdar for Petitioner Mr. Mandar Soman i/b Mr. Abhijit Sarwate for Respondent No.1 Mr. A.I. Patel AGP for Respondent No.2 CORAM : D. D. SINHA & SMT. V.K. TAHILRAMANI, JJ RESERVED ON : 28th SEPTEMBER, 2011. PRONOUNCED ON : 13th OCTOBER, 2011. ORAL ORDER [PER SMT. V.K. TAHILRAMANI, J]: 1. Heard the learned counsel for the petitioner Revati i.e. mother of Sharayu and the learned counsel for the respondent Vikram i.e. father of Sharayu. Parties are also present in person before the Court. 2. The brief facts of this case is that the petitioner Revati got married to the respondent Vikram on 28th December, 1991 at Pune as per Hindu Rites and Customs. After marriage, they started residing together as husband and wife at Pune. Two 1 wp 7278-11.doc female issues were born out of the said marriage i.e Bhakti and Sharayu whose ages as on today are about 18 years and 10 years respectively. The petitioner and the respondent could not get along with each other, hence, they started residing separately since about March, 2008. The petitioner then filed petition for divorce before the Family Court at Pune. She also filed a petition for custody of children bearing P.D. No. 151 of 2008 and a separate petition regarding property bearing P.B. No. 38 of 2008. Respondent Vikram filed petition for restitution of conjugal rights bearing P.A. No.387 of 2008 and for custody of children bearing P.D. No. 149 of 2008. However, eventually, both the parties decided to settle the dispute amicably and the marriage between the petitioner and the respondent was dissolved by passing decree of divorce by mutual consent pursuant to the orders of the Family Court Pune dated 23rd July, 2009. 3. The decree of the Family Court specifically states that it is mutually agreed between the parties that by signing the compromise terms, they have withdrawn all allegations against each other and they have mutually decided to dissolve the marriage as well as other issues pending between them as mentioned in the Consent Terms. It is pertinent to note that in the decree, it is specifically stated by the Family Court, Pune that if any problem arises between the parties regarding custody of children upbringing or access of the daughter Sharayu, Indian 2 wp 7278-11.doc Court will have jurisdiction. 4. It was mutually agreed between the parties interalia that custody of daughter Bhakti would remain with the mother and Bhakti would study in U.S.A. and custody of Sharayu would remain with the Respondent father. It was further agreed that for one academic year commencing 1st August, 2009, Sharayu will study in U.S.A. in a school approved by the Respondent. It was further agreed that the decision to continue studies of Sharayu in U.S.A. would be at the sole discretion of the Respondent father which would be taken every August from the year 2010. It was also agreed that both the daughters will spend their long vacations (3 weeks or more) in India / or any other place as mutually agreed upon with Vikram, during which Revati will have access to Sharayu with prior intimation to Vikram. It is also mutually agreed by both parties that it will be as per the wishes of Bhakti to have access at any time with Vikram. For the purpose of facilitating the education, stay and study in USA, medical purposes, or any emergency while in USA, the custody of Sharayu shall be with Revati in USA. The expenses of both the daughters while in USA and for travel to and back from USA to India shall be borne exclusively by Revati. It is further mutually agreed and decided between the parties that during the stay of the daughters in USA, Vikram shall have visitation rights and the same shall be exercised by giving prior intimation to Revati by e-mail and / or fax. 3 wp 7278-11.doc Similarly, Revati shall have access and visitation rights of Sharayu while Sharayu is in India with prior intimation to Vikram. All the expenses of Bhakti while in India shall be borne by Vikram during vacation. In the settlement, Vikram also gave one flat in Pune to Revati. Further it was agreed at point 10 of the decree that in case of any issues in regard to custody, access, upbringing of daughter Sharayu, it shall be the Indian Court that shall have jurisdiction. Accordingly, the decree was drawn 5. Sharayu left India for U.S.A. on 2nd of August, 2009. Though the agreement was that the children would visit the father in India during Christmas, the mother refused to send Sharayu to India in December, 2009 by giving the reason of insufficient holidays during Christmas vacation. Again in summer, the children were to visit their father in June 2010 but the mother enrolled Sharayu in summer school in U.S.A. so Sharayu could not come to India thereby dis-entitling the father to access of Sharayu during that period. 6. As the terms and conditions of the decree passed by the Family Court, Pune were not complied with by the mother, the father filed execution proceedings bearing D.K.T. No. 87 of 2010 on 7th June, 2010 before Family Court, Pune. The father sought the return and custody of Sharayu. It was only then that the 4 wp 7278-11.doc mother finally sent Sharayu and Bhakti to India on 14th of July, 2010 i.e 40 days later. Bhakti left for U.S.A. on 12th August 2010 and Sharayu continued to stay with her father. 7. During the dialogue between the Respondent and the petitioner and for the betterment of Sharayu, it was agreed that she will continue her schooling in U.S.A. for additional academic year 2010-11 and would come to India in December, 2010. Based on this understanding the father sent Sharayu back to U.S.A. on 9th of September, 2010. However, thereafter the mother refused to abide by the understanding. Though the mother herself travelled to India in December 2010, she left the children in U.S.A. and did not bring them to India. 8. Though Sharayu was to visit India in December 2009, June 2010 and December 2010, the petitioner mother did not send Sharayu. The respondent father felt that it was evident that the mother was not willing to comply with the decree and understanding of sending Sharayu to India and it appeared that Sharayu was illegally detained in U.S.A, the Respondent father hence, sought necessary relief from the Family Court No.4, Pune. Inspite of the petitioner's lawyer's presence in India, the decree could not be executed and the petitioner mother refused to send Sharayu to India. 5 wp 7278-11.doc 9. In June 2010 and December 2010, the mother was to send Sharayu to Vikram in India during the holiday period. The mother refused to send Sharayu to India. On account of this, the father filed an enforcement action in Fort Bend County Court, Texas, U.S.A. because the mother was not presenting herself before the Indian Courts and he prayed for execution of the order of the Family Court. Prior to that as it was mandatory, the father filed an application on 11th March 2011 for registration of the decree of the Family Court, Pune which was numbered as Cause No. 11 - DCV 188416. This was necessary as a decree passed by the Indian Court is not executable in U.S.A. as not being a reciprocating country and it is necessary to make an application for registration of foreign judgment which the father made before the Hon'ble Dist. Court of Fort Bend County, Texas, U.S.A. bearing Cause No. 11 - DCV 188416. As the Law in USA is such that a decree which is passed by a foreign country would be initially registered and then executed. The mother gave her no objection to the same. Thereafter, the father moved an application for execution of Family Court, Pune decree. The mother then in the same proceedings moved an application on 8th April, 2011 for clarification, modification of the order of the Family Court, Pune. 10. The mother sought to modify the decree passed by the Family Court in Pune in the Court in U.S.A. for all subsequent years and submitted new demands. Though the father gave consent 6 wp 7278-11.doc for Sharayu to study in U.S.A. for the year 2010 to 2011, the mother insisted before the Court in U.S.A. that the decree passed by the Family Court, Pune be modified by providing her with the permanent custody of Sharayu and that Sharayu would stay in U.S.A. and complete schooling in U.S.A. 11. As stated earlier, the mother had also moved the District Court Fort Bend County, Texas, U.S.A. in the same proceedings i.e Cause No. 11 - DCV 188416 seeking modification of the decree of the Family Court, Pune which was drawn up pursuant to order of the Family Court dated 23rd July, 2009. By consent, both the petitioner and respondent in the Court in U.S.A. reached an agreement and arrived at clarifying terms, which are as under:- The parties agreed to the following terms to clarify the decree. 1. Summer 2011: From June 6 through August 12, 2011, Sharayu will remain in the possession of Vikram in India during her Summer holidays. Sharayu will be returned to Revathi's possession on August, 12, 2011 in India. 2. Thanksgiving 2011: By October 1, 2011, Vikram shall provide written notice of his intention to exercise possession of Sharayu during her Thanksgiving vacation, beginning one day after school is excused and returning one day prior to school resuming. 3. Christmas 2011 : By October 1, 2011, Vikram shall have 7 wp 7278-11.doc purchased airline tickets for his possession of Sharayu during her Christmas vacation, beginning one day after school is excused and returning two days prior to school resuming. 4. Spring Break 2012 : By Feb 1, 2012, Vikram shall provide written notice of his intention to exercise possession of Sharayu during her Spring Break vacation, beginning one day after school is excused and returning one day prior to school resuming. 5. Summer 2012: By April 1, 2012, Vikram shall have purchased airline tickets for his possession of Sharayu during her Summer vacation, beginning June 6, 2012 through August 15, 2012. 6. The Amicus Attorney for Sharayu, CINDY Aguirre, shall have full email and phone access to Sharayu and may file any documents to change the terms herein if the amicus determines it is in the best interest of the child. Amicus Attorney can request Passport of the child to hold from either party or Attorney and passport of the child shall be delivered to Amicus Attorney within five days of the request. 7. As periods of possession change, the possessory parent shall hand over Sharayu's passport to the parent who is beginning their possessory period. 8. Whenever the possessory parent takes Sharayu out of the state of Texas or Maharashtra, that parent must give prior written notice to the non-possessory parent of the dates of travel and itinerary. 8 wp 7278-11.doc These clarifying terms were signed on 22nd June, 2011. 12. Meanwhile on 7th July, 2011, the father moved Petition PA No. 676 of 2011 before the Family Court, Pune wherein he interalia prayed for modification of decree passed by the Family Court in PA No.242/08 dated 30th July, 2009. The mother moved an application dated 8th August, 2011, Exhibit 12 in PA No. 676 of 2011 before the Family Court, Pune for personal interview of child and to allow Sharayu to go to U.S.A. for studies. The Family Court by order dated 16th August, 2011 rejected the Application Exhibit 12 preferred by the mother for personal interview of child. In PA No. 676 of 2011 the father preferred application Exh. 5 before the Family Court seeking certain reliefs. Exh. 5 was partly allowed by order dated 18.7.2011 and the mother was restrained from taking Sharayu outside the jurisdiction of Pune as well as India, till Revati appeared before the Family Court and filed reply. The petitioner has prayed that both these orders be quashed. The petitioner has also prayed that the proceedings in PA No. 676 of 2011 be stayed. She further prayed that the passport of Sharayu be handed over to her and she be allowed to take Sharayu to USA for studies. It was also prayed that Sharayu be produced in Court and Sharayu be interviewed. 13. In P.A. No. 676/2011 by the father before Family Court, Pune which was for modification of the order dated 30th July, 2009 of the Family Court, he interalia prayed that :- 9 wp 7278-11.doc a. interim order be passed modifying the decree passed by the Family Court No. 5, Pune in P.A. No. 242/2008 dt. 30/7/2009. b. interim order be passed modifying the decree passed in regards to child Sharayu, and access of Sharayu be given to the Respondent in India. c. interim order be passed modifying the decree passed and it be directed that the Respondent shall not be allowed to take Sharayu out of India. d. interim order be passed during the pendency of the litigation and the Respondent be injuncted from moving taking daughter Sharayu outside the jurisdiction of the Pune Court........... g. that interim order be passed during the pendency of litigation, thereby preventing and injuncting the Respondent mother from filing any other suit, proceedings in regards to daughter Sharayu before any Court outside the territory of India / Pune. 14. At this stage, it may be stated that PA No. 676 of 2011 has been disposed of by the Family Court by order dated 8.9.2011. Thus, most of the prayers are infructuous. It may also be stated that the said order has been challenged before this Court by filing appeal. That order is not the subject matter of this petition, hence, we cannot go into the same. As far as seeking orders 10 wp 7278-11.doc regarding Sharayu's passport and the petitioner being allowed to take her now to USA for studies is concerned, it would be a violation of the condition of the consent terms reflected in order dated 23.6.2009 of the Family Court Pune, which gave the father the right to take the decision for continuation of the studies of Sharayu from August 2010 onwards i.e. the father can decide whether Sharayu studies in USA or India and in a school of his choice. 15. The father also moved an application before the Commissioner of Police, Pune, regarding intimidation and attempt by one Mr. Kantak to kidnap Sharayu. According to the Respondent, the mother is in a live in relationship with Mr. Kantak who was married thrice earlier, however, according to the petitioner Revathi, she has got married to Kantak and is hence, staying with him. 16. It is pertinent to note that in the Court in U.S.A., an Amicus Attorney was appointed to represent Sharayu. According to the Amicus Attorney where there are simultaneous proceedings, (a)except as otherwise provided in Section 152.204, a court of this state may not exercise its jurisdiction under this sub chapter if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with this chapter, unless the proceeding has been terminated or is stayed by the Court of the other state because a court of this state is a more convenient forum under Section 11 wp 7278-11.doc 152.207.......... (b)....... If the Court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with this chapter, the court of this state shall stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction substantially in accordance with this chapter does not determine that the court of this state is a more appropriate forum, the court of this state shall dismiss the proceeding. (c) In a proceeding to modify a child custody determination, a court of this state shall determine whether a proceeding to enforce the determination has been commenced in another state. If a proceeding to enforce a child custody determination has been commenced in another state, the court may :(1) stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying, or dismissing the proceeding for enforcement; (2) enjoin the parties from continuing with the proceeding for enforcement; or (3) proceed with the modification under conditions it considers appropriate. 17. The Amicus Attorney specifically stated before the Court in U.S.A. that it is absolutely necessary for the court to communicate with the Court in India, however no such step appears to have been taken. 18. Ultimately, the Amicus Attorney prayed to protect the best interest of Sharayu. It is pertinent to note that the Amicus 12 wp 7278-11.doc Attorney stated that the Court in Texas would have temporary emergency jurisdiction to protect the child and in the best interest of the child and the Court in Texas shall immediately communicate with the Court in the other State already having jurisdiction to resolve the emergency. Thus, even according to the Amicus Attorney, the Texas Court could at the most exercise temporary emergency jurisdiction and could not decide the matter finally. 19. By order dated 30th July, 2011, the Court in Texas passed an order in respect of passport of Sharayu and passed order of injunctions against the father as well as the mother. These injunctions were common to both the father and mother. 20. It is not in dispute that the original decree was passed by the family Court in Pune and order passed by the Court in Texas, U.S.A. was only an order mainly giving certain clarifications of temporary nature in relation to access to Sharayu. The order of the Family Court that the decision for continuation of study of Sharayu in USA will be taken every August following 2010, by final say of the respondent father, still remains. 21. The learned counsel for the petitioner mother relied on the decision of the Supreme Court in Ruchi Majoo Vs Sanjeev Majoo reported in 2011(5) Mh. L. J. 316 wherein it is observed 13 wp 7278-11.doc that in case of a minor, where recognition of decrees and orders passed by Foreign Courts is concerned, welfare of the minor is of paramount consideration. He pointed out that in the interview Sharayu expressed her wish to go to U.S.A, hence, Sharayu should be forthwith sent with her mother to U.S.A. 22. The learned counsel for the respondent father has relied on the decision of the Supreme Court in the case of V Ravi Chandran Vs Union of India reported in 2010 SCC(1) 174. In the said case, Dr. V. Ravi Chandran, father of minor child Aditya had prayed for writ of habeas corpus for production of his minor son Aditya and for handing over the custody and his passport to him. Aditya was born in USA and he was a foreign national. On the petition preferred by the father, the Supreme Court passed order dated 28th August requesting C.B.I. to trace Aditya and produce him before the Court. Ultimately, C.B.I. traced Aditya who was with his mother in Chennai on 24th October, 2009. 23. In that case, Dr. V Ravi Chandran was an American citizen but he had got married to respondent no. 6 in India as per Hindu rites. Aditya was born in U.S.A.. Respondent no. 6 in the month of July 2003 approached the New York State State Supreme Court for divorce and dissolution of marriage. The consent order governing the issues of custody and guardianship of Aditya was passed by the New York State Supreme Court on 18th April, 2005. The Court 14 wp 7278-11.doc granted joint custody of child to the petitioner and respondent no. 6 and it was stipulated in the order to get the other party informed about whereabouts of the child. On June 28, 2007, respondent no. 6 brought Aditya to India informing the petitioner father that she would be residing with her parents in Chennai. The petitioner filed a petition for modification in relation to custody on 8th August, 2007 before the Family Court of the State of New York in which show cause notice was issued to respondent no. 6. The Family Court in the state of New York issued child abuse non-bailable warrant against respondent no. 6. In this backdrop, the Supreme Court here was called upon to consider that since the child has been produced, what would be an appropriate order in the facts and circumstances keeping in mind the interest of child and orders of the Court of the country of which minor Aditya is a national. 24. Our Supreme Court observed that 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 15 wp 7278-11.doc 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. 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. Similarly in the present case the part of the original order being passed by consent by the Family Court which has not been touched by any court especially relating to the father taking a decision regarding Sharayu's studies remains and the Family Court only can make changes in relation 16 wp 7278-11.doc to the same. 25. Our Supreme Court after hearing both the sides observed that : "In a case such as the present one, we are satisfied that return of minor Adithya to United States of America, for the time being, from where he has been removed and brought here would be in the best interest of the child and also such order is justified in view of the assurances given by the petitioner that he would bear all the traveling expenses and make living arrangements for respondent no. 6 in the United Sates of America till the necessary orders are passed by the competent court; that the petitioner would comply with the custody/parenting rights as per consent order dated June 18, 2007 till such time as the competent court in