THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO Writ Petition No.23732 of 2008 Date: 01-12-2009 (On being mentioned) Date: 03-12-2009 Between Padi Trigunsen Reddy and 2 others … Petitioners and Jyothi Reddy and 5 others … Respondents THE HON’BLE SRI JUSTICE D.S.R.VARMA AND THE HON’BLE SRI JUSTICE R.KANTHA RAO Writ Petition No.23732 of 2008 Date: 01-12-2009 (On being mentioned) Date: 03-12-2009 Oral Order: (per D.S.R.Varma, J.) Though the original order was passed on 01-12-2009, the matter has been posted under the caption ‘For Being Mentioned’, hence the original order shall be read as follows: 2. Heard Sri K.Vivek Reddy, learned Counsel, representing Sri K.Sai Krishna Mohan Rao, learned Counsel appearing for the petitioners; Sri D.Prakash Reddy, learned Senior Counsel, representing Sri A.Prabhakar Rao, learned Counsel appearing for respondents 1 to 4; and the learned Assistant Government Pleader, representing the learned Advocate General, appearing for respondents 5 and 6. 3. This writ petition is filed by the father and paternal grandparents of the alleged detenues, namely, Kum. Aanchal R.Padi and Kum. Kajal R.Padi, seeking a Writ of habeas corpus directing the respondents 1 to 4 to produce Kum. Aanchal R.Padi and Kajal R.Padi before this Court and the said minor girls be forthwith handed over to the petitioners 2 and 3 to enable them to be returned to petitioner No.1 so that they go back to the United States of America (‘the USA’, for brevity) i.e. the country of their habitual and permanent residence and to issue appropriate directions to respondent No.5 to provide all appropriate necessary and requisite help to aid and assist in the recovery of Kum. Aanchal and Kum. Kajal from illegal custody of the respondents 1 to 4 and further direct the respondents 5 and 6 to provide police assistance to the petitioners to enable them to have a safe and secure passage to the USA. 4. Petitioner No.1 is the father and respondent No.1 is the mother of the alleged detenues, by name Kum. Aanchal R.Padi and Kum. Kajal R.Padi. 5. For convenience, petitioner No.1, respondent No.1 and the alleged detenues are being referred to as the father, mother and children, respectively. 6. The facts shorn of and relevant that led to the filing of this writ petition are as under: The parents of the children were married about 19 years ago and started their living in the USA. In the year 1998, the first child, by name Aanchal had born and three years after the birth of the girl, she was moved to Hyderabad in India with the consent of both the parents. The other girl, by name Kajal was born in the year 2003 and even when the child was very young, she also was moved to Hyderabad with the consent of both the parents. Thereafter, the children and the mother were frequently moving between India and the USA. After some time, there were differences of opinion between the spouses, which are not relevant for the purpose of the present case and owing to the said squabbles, they approached a competent court in the USA and obtained a decree for divorce. It also is not in dispute that though the second child initially was sent back to India with the consent of the parents, upon the subsequent visit to the USA, the mother wanted to get back to India due to the differences between the spouses along with her child, which was opposed by the father. However, the second child was brought back to India much against the wish and will of the father and has been since then staying at Hyderabad in India. Since then the father has no access to his children. Therefore, the present writ petition came to be filed seeking a Writ of habeas corpus. 7. What is to be noted, at the outset, is that the father and both the children are citizens of the USA, whereas the mother is a domicile of the USA and therefore, she alone is governed by the laws of India. 8. It is also not in dispute that despite the fact that the Passports issued by the USA Government and the Visas issued by the Government of India have expired long back, the children are very much in the care and custody of the mother, prosecuting their studies at Hyderabad in India. 9. In view of the said fact, the incidental question that falls for consideration is as to whether the children, who are the citizens of the USA, can stay in India beyond the time prescribed in the Passports and Visas ? If so, what are the consequences ? 10. As already pointed out by us, since this is only an incidental question, we are not proposing to go deep into this matter for the present nor there is much need for us to probe into this question. 11. The learned Counsel for petitioner No.1-father raised primarily two questions – firstly; whether a Writ of habeas corpus is maintainable when the custody of a foreign citizen is with the parent in India ? secondly; what should follow when the parent abducts a child contrary to the orders of a foreign court ? 12. At this juncture, it is relevant to note another important factor i.e., after the parents obtained a decree for divorce from the competent court in the USA, they also obtained an order regarding the custody of the children to the effect that both the parents shall share the custody of the children. The period was also carved out by the said court as 1½ months in a calendar year with the father and rest of the period with the mother. But, despite the decree for divorce and respective rights of the custody of the children, the mother all through has the custody of the children at Hyderabad in India. 13. As already noticed, the eldest child from the age of three months has been in the association of the mother and grandparents only in India. Subsequently, the mother came back to India forever, whereas the other daughter, barring short spells in the USA and the period during the visits of the mother to the USA, all through has been in the custody of the mother. 14. On the contrary, the learned Senior Counsel for the mother contended that the children virtually have all through been in the custody of the mother only and that the children are very much acclimatized to the Indian conditions and have been prosecuting their studies in a good school. Therefore, the children being minor girls, are desirable to be in the custody of the mother only. 15. The learned Senior Counsel further contended that the judgment or order or decree, as the case may be, passed by a competent court in the USA does not really take away the right of the mother to have the custody of the children. It is the further contention that the major concern should be the welfare of the children only and as a matter of fact, the children are very much attached to the mother as well as their maternal grandparents and they are very much used to the Indian conditions in all respects and therefore, it is not absolutely desirable to send them back to the USA merely on the ground that they are the citizens of the USA. 16. In other words, as between the citizenship of the children and their welfare. it is only the welfare that should be given primacy, in matters like the present one. Hence, the learned Senior Counsel contends that having regard to the over all facts and circumstances, particularly the conditions and the circumstances that the children are presently placed in, it is imperative for the children to stay with the mother only back in India. 17. Insofar as the first contention that was pointed out by the learned Counsel for the petitioners as regards the maintainability of a Writ of habeas corpus, it has been fairly conceded by the learned Senior Counsel for the mother that there is no controversy as regards the maintainability of the Writ of habeas corpus, even though the issue involved is regarding a foreign citizen. Therefore, there is no necessity for us to go into this aspect nor there is any need to address this question and record our findings. 18. The other question is relating to a mixed question of fact and law as regards the rights of the parents to have the custody of the children. 19. In the present case, the custody undisputedly is with the mother in India and further that the children are having foreign nationality and the mother is only a domicile of a foreign nation. This is the only peculiar area in the present set of facts. 20. In the light of the above peculiar facts, the question is as to whether the decree passed by the competent court in the USA regarding the custody of the children is to prevail or an Indian mother can claim the custody of the children having a foreign nationality, by birth. 21. Reliance is placed by the learned Counsel for the petitioners on the judgment rendered by the apex Court in Writ Petition (Crl.) No.112 of 2007 [Dr. V.Ravi Chandran Versus Union of India & Ors.][1] (Reportable). In this case also, the apex Court had dealt with elaborately various judgments of the apex Court rendered earlier and also a catena of judgments rendered by various courts in the USA, the United Kingdom and Canada. 22. Before we enter into further discussion on the judgments relied on by the learned Counsel for the petitioners, we would like to point out an observation that was made by the Privy Council in 1951, in McKee v. McKee[2] that, “Comity of courts demanded not its enforcement, but its grave consideration”. The said principle had been followed in various cases arising from Canada and the United Kingdom consistently, subsequently. The said view was also prevalent in the USA and Australia, as could be seen from the above judgment referred to. 23. As already pointed out, we have to bear in mind that after the decree for the first time was passed by the competent court in the USA, since the children were not sent back to the USA by the mother even after the expiration of their Passports and Visas, an application had been made by the father before the competent court in the USA seeking appropriate orders. Accordingly, a modified order had been passed by the said court taking stock of the whole situation, particularly, it appears, in the light of the fact that the mother has not been obeying its orders, giving complete custody of the children to the father. In other words, the father had been recognized as the sole custodian. 24. Now, the question is -- whether the earlier order or the modified order passed by the competent court in the USA can be enforced in India and the children be brought back to the USA ? 25. No specific law or procedure has been coming forth from either side as regards the enforceability and the method and manner of such enforcement. 26. Perhaps, that is one among the reasons for the father to file the present writ petition seeking intervention of this Court by issuing a Writ of habeas corpus. 27. As already pointed out, even while considering the Writ of habeas corpus the prime consideration for any court in India is - - the welfare of the child or children, as the case may be. This aspect has been dealt with, in the judgment above referred to, as under: “21. 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 appropriate forum in this country in this regard? In our judgment, this is not required. 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 United States of America. As a matter of fact, keeping in view the welfare and happiness of the child and in his best interest, the parties have obtained series of consent orders concerning his custody/parenting rights, maintenance etc. from the competent courts of jurisdiction in America. Initially, on April 18, 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 no.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 July 28, 2005, the consent order dated April 18, 2005 regarding custody of minor son Adithya continued. In September 8, 2005 order whereby the marriage between the petitioner and respondent no.6 was dissolved by the New York State Supreme Court, again the child custody order dated April 18, 2005 was incorporated. Then the petitioner and respondent no.6 agreed for modification of the custody order and, accordingly, the Family Court of the State of New York on June 18, 2007 ordered that the parties shall share joint legal and physical custody of the minor Adithya and, in this regard, a comprehensive arrangement in respect of the custody of the child has been made. 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. 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.” 28. It has been further pointed out in the said judgment as under: “22. It is true that child Adithya has been in India for almost two years since he was removed by the mother – resp0ondent 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. 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. … … … … …” 29. From the above judgment, it is obvious that the apex Court had taken into consideration the theory of Comity of a foreign judgment in matters like this, particularly while dealing with the writ petitions for habeas corpus. 30. In another judgment in Sarita Sharma v. Sushil Sharma[3], it has been observed by the apex Court, which is extracted for ready reference to the extent relevant, as under: “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 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. … … … … …” 31. From the above observations, it is absolutely obvious that the decree passed by the competent court in the USA is a relevant factor, still, the welfare of the minor child cannot be ignored. 32. In other words, these two aspects i.e., the order passed by the competent court in the USA and the welfare of the children are to be reconciled carefully, basing on the various facts and circumstances of each case. 33. If slightly put in a different way, it is something like -- USA Law vs. Indian Law ? or the Law vs. the welfare of the children ? 34. If the above aspect is to be considered, the ultimate consideration should be -- the welfare of the child only, notwithstanding the kind of judgment or order or decree passed by the competent court in the USA. When the children are living in the association of either of the parent in a particular country, other than the country to which they are the nationals, the courts of such country of their residence have the jurisdiction to pass appropriate orders keeping in view the best interest of the child and while giving such preference to the welfare of the child, the aspect of enforceability of a judgment passed by a competent court in a foreign country also gets faded or becomes secondary. Nevertheless, the concept of Comity cannot be overlooked in toto, for the simple reason that a judgment passed by a competent court of a nation with the law of that land, cannot be slighted in any manner and due regard to such judgments have to be accorded by another country, but certainly not at the cost of the welfare of the child. 35. For the sake of enforcement of the judgment passed by a competent court in a foreign country, the welfare of the child or the children, as the case may be, cannot be subjected to sacrifice. The reason is very simple i.e., the children are not parties to the differences of their parents. It is not the children, who ignited such differences, which ultimately led to the estrangement of their parents nor they are parties to the lis before any court of law. The children, in our considered view, are a distinct class by itself, who have all rights without any obligations. The obligations are on the parents. 36. In the instant case, the children who have been moved to India when they were months’ old or a year old, cannot, in fact, shall not be the subject matter of any controversy between the parents. But, unfortunately, quite often in matrimonial disputes it is only the children who are unnecessarily being roped into the legal controversies. Therefore, undoubtedly, as between the law and the welfare of the child, the ultimate successor would always be the welfare of the child, inasmuch as the society in its entirety owes an obligation to the child but not the other way round. 37. Therefore, having regard to the facts and circumstances, particularly in the light of the views expressed by the apex Court and the other views referred to in the above paragraphs, we are of the considered view that the contention of the father that he is entitled to the care and custody of the children pursuant to the judgment rendered by a competent court in the USA cannot be sustained. 38. Fortunately, the mother is still an Indian having domicile of the USA. Therefore the children, since are being associated with the mother and grandparents, are desirably to have the same comfort and solace with the mother and the present situation, which has been in existence since many years, is inexpedient to be disturbed at this length of time. Any deviation or disturbances from the comfort that the children have been enjoying would only amount to disturbing or interfering, some times may be violently, with the welfare and comfort of the children. 39. Another undisputed fact is that after obtaining divorce statutorily from the competent court in the USA, the father got remarried and in such a situation, in normal course, the children cannot find themselves in a comfortable in the association of a new person and consequently, it will take considerable time for them to get adjusted with new persons and new family atmosphere. 40. Therefore, having regard to the facts and circumstances, we only hope that the custody of the children be remained with the mother, however, since it is not totally desirable to wipe of the passion, emotion, love and affection to the children for all time to come. 41. Therefore, we only feel that the father also is entitled to have the access to his children. 42. In view of the above circumstances, we feel it appropriate to leave the further course of action of their choice, if any, to the parents themselves. In other words, it is for the mother to explore the possibilities and feasibilities to have the orders passed by the competent court in the USA, whereby the father was made sole custodian of the children modified and till such time, in the best interest of the children, particularly having regard to the