Case: MRS. KANIKA GOEL Vs. THE STATE OF DELHI THRU SHO

to USA without any loss of time. Given the fact that the parties performed a civil marriage on 19th March, 2011 in the USA and cohabited in the native country and gave birth to minor child M who grew up in that environment for at least three years, coupled with the fact that the father and minor child M are US citizens and mother is a permanent resident of USA, the closest contact and jurisdiction is possibly that of the Circuit Court of Cook County, Illinois, USA. However, we may not be understood to have expressed any final opinion in this regard. At the same time, it is indisputable that the appellant and respondent No.2 first got married on 31 October, 2010 as per Sikh rites, i.e. Anand Karaj ceremony, and Hindu Vedic rites and that marriage was solemnised in New Delhi at which point of time the appellant was admittedly a citizen of India. Presently, she is only a Green Card holder (permanent resident) of the US. It is, therefore, debatable whether the Family Court at New Delhi, where the appellant has already filed a petition for dissolution of marriage, has jurisdiction in that behalf including to decide on the question of custody and guardianship in respect of the minor child M. For that reason, it may be appropriate that the said proceedings are decided with utmost promptitude in the first place before the appellant is called upon to appear before the US Court and including to produce the minor child M before that Court.26. It is not disputed that the appellant and minor child are presently in New Delhi and the appellant has no intention to return to her matrimonial home in the U.S.A. The appellant has apprehensions and serious reservations on account of her past experience in respect of which we do not think it necessary to dilate in this proceedings. That is a matter to be considered by the Court of Competent Jurisdiction called upon to decide the issue of dissolution of marriage and/or grant of custody of the minor child, as the case may be. For the time being, we may observe that the parties must eschew from pursuing parallel proceedings in two different countries. For, the first marriage between the parties was performed in New Delhi as per Anand Karaj Ceremony and Hindu Vedic rites on 31 October, 2010 and the petition for dissolution of marriage has been filed in New Delhi. Whereas, the civil marriage ceremony on 19March, 2011 at Circuit Court of Cook County, Illinois, USA, was performed to complete the formalities for facilitating the entry of the appellant into the US and to obtain US Permanent Resident status. It is appropriate that the proceedings pending in the Family Court at New Delhi are decided in the first place including on the question of jurisdiction of that Court. Depending on the outcome of the said proceedings, the parties will be free to pursue such other remedies as may be permissible in law before the Court of Competent Jurisdiction.27. As aforesaid, it is true that both respondent No.2 and also the minor child M are US citizens. The minor girl child has a US Passport and has travelled to India on a tenure Visa which has expired. That does not mean that she is in unlawful custody of her biological mother. Her custody with the appellant would nevertheless be lawful. The appellant has already instituted divorce proceedings in the Family Court at Patiala House, New Delhi. The respondent No.2 has also filed proceedings before the Court in the US for custody of the minor girl child, directing her return to her natural environment in the US. In such a situation, the arrangement directed by this Court in the case of Nithya Anand Raghavan (supra), as exposited in paragraphs 70-71, may be of some help to pass an appropriate order in the peculiar facts of this case, instead of directing the biological mother to return to the US along with the minor girl child, so as to appear before the competent court in the US. In that, the custody of the minor girl child M would remain with the appellant until she attains the age of majority or the Court of competent jurisdiction, trying the issue of custody of the minor child, orders to the contrary, with visitation and access rights to the biological father whenever he would visit India and in particular as delineated in the interim order passed by us reproduced in paragraph 11 (eleven) above.28. A fortiori, dependant on the outcome of the proceedings, before the Family Court at New Delhi, the appellant may then be legally obliged to participate in the proceedings before the US Court and must take all measures to effectively defend herself in the said proceedings by engaging solicitors of her choice in the USA to espouse her cause before the Circuit Court of Cook County, Illinois, USA. In that event, the respondent No.2 shall bear the cost of litigation and expenses to be incurred by the appellant to pursue the proceedings before the Courts in the native country. In addition, the respondent No.2 will bear the air fares or purchase the tickets for the travel of the appellant and the minor child M to the USA and including their return journey for India, as may be required. The respondent No.2 shall also make all suitable arrangements for the comfortable stay of the appellant and her companions at an independent place of her choice, at a reasonable cost. Further, the respondent No.2 shall not initiate any coercive/penal action against the appellant and if any such proceeding initiated by him in that regard is pending, the same shall be withdrawn and not pursued before the concerned Court any further. That will be the condition precedent to facilitate the appellant to appear before the Courts in the USA to effectively defend herself on all matters relating to the matrimonial dispute and including custody and guardianship of the minor child.29.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]e shall first advert to the analysis made by the High Court in respect of the contentious issues. That can be discerned from paragraph 102 onwards of the impugned judgment. The High Court was conscious of the fact that it must first examine the issue regarding the welfare and best interest of the minor child. It noted that the minor girl child was about 3 years when the writ petition for habeas corpus was preferred on 1 February, 2017. It then noted that the respondent No.2 – father of the minor girl child had acquired citizenship of the USA in 2005 and holds an American Passport. He is living in the USA since 1994 and is thus domiciled in the USA. He had acquired a Bachelors? degree in Economics and obtained MBA qualification from the University of Chicago. He was an Education Software Entrepreneur. The appellant wife is the biological mother of the minor child M, who has acquired permanent resident status of the USA i.e. Green Card and had also applied for American citizenship on 2 December, 2016. The respondent No.2 and appellant were classmates during their schooling and revived their contacts in 2000. Eventually, they decided to get married and thereafter reside in USA where the respondent No.2 had his work place and home. The marriage was solemnized in New Delhi in India on 31 October, 2010 as per Anand Karaj ceremony, and Hindu Vedic rites in the presence of the elders of both the families. After the appellant arrived in USA, they performed civil marriage before the competent Court in USA on 19 March, 2011.16. The High Court adverted to the accomplishment of the appellant in her education and occupation. The High Court noted that the couple started their matrimonial life in the United States and lived as a couple in that country. They made the United States their home and their entire married life, except the duration during which they were on short visits to India, had been spent in the USA. They gave birth to a girl child M in USA on 15 February, 2014 at North Western Memorial Hospital, Chicago, Illinois, USA. The minor child M is a US citizen by birth and grew up there until she was clandestinely removed by the appellant to India on 25December, 2016. The minor child had, in fact, started attending pre-school in Chicago and had a full time schedule at school from August, 2016. Thus, the mental development of M while she was in USA till the end of 2016, had taken place to such an extent that she was very well aware and conscious of her surroundings. She was perceiving and absorbing from her surroundings and communicated not only with her parents, but also with her other relatives, her peers at the pre- school, her instructors, teachers and other care givers. The American way of life and systems were already in the process of being learnt and experienced by M when she came to India in December, 2016. The environment which M was experiencing during her growth was the natural environment of Chicago, USA. Both her parents were looking after her proper upbringing. The Court also noted that the paternal grandparents of the minor child M were visiting and interacting with her. The Court then adverted to the decisions in Surinder Kaur Sandhu Vs. Harbax Singh Sandhu andAviral Mittal Vs.Shilpa Aggarwal Vs. Aviral Mittal andDr. V. Ravi Chandran Vs. Union of India &and Nithya Anand Raghavan (supra), to opine that the Court in the US seemed to be the most appropriate Court to decide the issue of custody of M, considering that it had intimate contact with the parties and the child. It went on to observe that it was neither inclined nor in a position to undertake a detailed enquiry into aspects of custody, visitation and co-parenting of the minor child in the facts and circumstances of the case, considering all the events unfolded in, circumstances developed in and evidences were located in the USA. After having said this, it examined the compelling reasons disclosed by the appellant to dissuade the Court from issuing directions for return of M to her native country and the environment where she was born and being brought up. That analysis has been done in paragraph 114 onwards.After having said this, the High Court considered the argument of the appellant that she was the primary care giver qua M but disregarded the same by observing that that alone cannot be made the basis to reject the prayer for return of the minor girl child to her native country, and more so, when the minor girl child deserves love, affection and care of her father as well. The Court found that nothing prevents the appellant from returning to the USA if she so desires. Further, the fact that the minor girl child would make new friends and have new care givers and teachers in India at a new school, cannot be the basis to deny her the love and affection of her biological father or parenting of grandparents which was equally important for the grooming and upbringing of the child. The Court then went on to notice that the expression ?best interest of child? is wide in its connotation and cannot be limited only to love and care of the primary care giver i.e. the mother. It then adverted to the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2015, while making it clear that it was conscious of the fact that the said Act may not strictly apply to the case on hand for examining the issue of best interest of the child.r these decisions, it is not open to contend that the custody of the female minor child with her biological mother would be unlawful, for there is presumption to the contrary. In such a case, the High Court whilst exercising jurisdiction under Article 226 for issuance of a writ ofed not make any further enquiry but if it is called upon to consider the prayer for return of the minor female child to the native country, it has the option to resort to a summary inquiry or an elaborate inquiry, as may be necessary in the fact situation of the given case. In the present case, the High Court noted that it was not inclined to undertake a detailed inquiry. The question is, having said that whether the High Court took into account irrelevant matters for recording its conclusion that the minor female child, who was in custody of her biological mother, should be returned to her native country. As observed inNithya Anand Raghavan?s case(supra), the Court must take into account the totality of the facts and circumstances whilst ensuring the best interest of the minor child. In Prateek Gupta?s case (supra), the Court noted that the adjudicative mission is the obligation to secure the unreserved welfare of the child as the paramount consideration. Further, the doctrine of ?intimate 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. The High Court in the present case focused primarily on the grievances of the appellant and while rejecting those grievances, went on to grant relief to respondent No.2 by directing return of the minor girl child to her native country. On the totality of the facts and circumstances of the present case, in our opinion, there is nothing to indicate that the native language (English) is not spoken or the child has been divorced from the social customs to which she has been accustomed. Similarly, the minor child had just entered pre-school in the USA before she came to New Delhi along with her mother. In that sense, there was no disruption of her education or being subjected to a foreign system of education likely to psychologically disturb her. On the other hand, the minor child M is under the due care of her mother and maternal grand-parents and other relatives since her arrival in New Delhi. If she returns to US as per the relief claimed by the respondent No.2, she would inevitably be under the care of a Nanny as the respondent No.2 will be away during the day time for work and no one else from the family would be there at home to look after her. Placing her under a trained Nanny may not be harmful as such but it is certainly avoidable. For, there is likelihood of the minor child being psychologically disturbed after her separation from her mother, who is the primary care giver to her. In other words, there is no compelling reason to direct return of the minor child M to the US as prayed by the respondent No.2 nor is her stay in the company of her mother, along with maternal grand-parents and extended family at New Delhi, prejudicial to her in any manner, warranting her return to the US.23.As expounded in the recent decisions of this Court, the issue ought not to be decided on the basis of rights of the parties claiming custody of the minor child but the focus should constantly remain on whether the factum of best interest of the minor child is to return to the native country or otherwise. The fact that the minor child will have better prospects upon return to his/her native country, may be a relevant aspect in a substantive proceedings for grant of custody of the minor child but not decisive to examine the threshold issues in a habeas corpus petition. For the purpose of habeas corpus petition, the Court ought to focus on the obtaining circumstances of the minor child having been removed from the native country and taken to a place to encounter alien environment, language, custom etc. interfering with his/her overall growth and grooming and whether continuance there will be harmful. This has been the consistent view of this Court as restated in the recent three- Judge Bench decision inNithya Anand Raghavan (supra),and the two-Judge Bench decision in). It is unnecessary to multiply other decisions on the same aspect.24.In the present case, the minor child M is a US citizen by birth. She has grown up in her native country for over three years before she was brought to New Delhi by her biological mother (appellant) in December 2016. She had joined a pre- school in the USA. She had healthy bonding with her father (respondent No.2). Her paternal grand-parents used to visit her in the USA at some intervals. She was under the care of a Nanny during the day time, as her parents were working. Indeed, the work place of her father is near the home. The biological father (respondent No.2) of the minor child M has acquired US citizenship. Both father and mother of the minor child M were of Indian origin but domiciled in the USA after marriage. The mother (appellant) is a permanent resident of the USA-Green Card holder and has also applied for US citizenship. In her affidavit filed before the Delhi High Court datedNovember, 2017, she admits that her legal status was complicated as she has ceased to be an Indian citizen and her status of citizenship of the USA is in limbo.25.Be that as it may, the father filed a writ petition before the Delhi High Court for issuance of a writ of Habeas Corpus for production of the minor child and for directions for her return to USA without any loss of time. Given the fact that the parties performed a civil marriage onMarch, 2011 in the USA and cohabited in the native country and gave birth to minor child M who grew up in that environment for at least three years, coupled with the fact that the father and minor child M are US citizens and mother is a permanent resident of USA, the closest contact and jurisdiction is possibly that of the Circuit Court of Cook County, Illinois, USA. However, we may not be understood to have expressed any final opinion in this regard. At the same time, it is indisputable that the appellant and respondent No.2 first got married on 31October, 2010 as per Sikh rites, i.e. Anand Karaj ceremony, and Hindu Vedic rites and that marriage was solemnised in New Delhi at which point of time the appellant was admittedly a citizen of India. Presently, she is only a Green Card holder (permanent resident) of the US. It is, therefore, debatable whether the Family Court at New Delhi, where the appellant has already filed a petition for dissolution of marriage, has jurisdiction in that behalf including to decide on the question of custody and guardianship in respect of the minor child M. For that reason, it may be appropriate that the said proceedings are decided with utmost promptitude in the first place before the appellant is called upon to appear before the US Court and including to produce the minor child M before that Court.26.It is not disputed that the appellant and minor child are presently in New Delhi and the appellant has no intention to return to her matrimonial home in the U.S.A. The appellant has apprehensions and serious reservations on account of her past experience in respect of which we do not think itnecessary to dilate in this proceedings. That is a matter to be considered by the Court of Competent Jurisdiction called upon to decide the issue of dissolution of marriage and/or grant of custody of the minor child, as the case may be. For the time being, we may observe that the parties must eschew from pursuing parallel proceedings in two different countries. For, the first marriage between the parties was performed in New Delhi as per Anand Karaj Ceremony and Hindu Vedic rites on 31October, 2010 and the petition for dissolution of marriage has been filed in New Delhi. Whereas, the civil marriage ceremony on2011 at Circuit Court of Cook County, Illinois, USA, was performed to complete the formalities for facilitating the entry of the appellant into the US and to obtain US Permanent Resident status. It is appropriate that the proceedings pending in the Family Court at New Delhi are decided in the first place including on the question of jurisdiction of that Court. Depending on the outcome of the said proceedings, the parties will be free to pursue such other remedies as may be permissible in law before the Court of Competent Jurisdiction.27.As aforesaid, it is true that both respondent No.2 and also the minor child M are US citizens. The minor girl child has a US Passport and has travelled to India on a tenure Visa which has expired. That does not mean that she is in unlawful custody of her biological mother. Her custody with the appellant would nevertheless be lawful. The appellant has already instituted divorce proceedings in the Family Court at Patiala House, New Delhi. The respondent No.2 has also filed proceedings before the Court in the US for custody of the minor girl child, directing her return to her natural environment in the US. In such a situation, the arrangement directed by this Court in the case of Nithya Anand, as exposited in paragraphs 70-71, may be of some help to pass an appropriate order in the peculiar facts of this case, instead of directing the biological mother to return to the US along with the minor girl child, so as to appear before the competent court in the US. In that, the custody of the minor girl child M would remain with the appellant until she attains the age of majority or the Court of competent jurisdiction, trying the issue of custody of the minor child, orders to the contrary, with visitation and access rights to the biological father whenever he would visit India and in particular as delineated in the interim order passed by us reproduced in paragraph 11 (eleven) above.28., dependant on the outcome of the proceedings, before the Family Court at New Delhi, the appellant may then be legally obliged to participate in the proceedings before the US Court and must take all measures to effectively defend herself in the said proceedings by engaging solicitors of her choice in the USA to espouse her cause before the Circuit Court of Cook County, Illinois, USA. In that event, the respondent No.2 shall bear the cost of litigation and expenses to be incurred by the appellant to pursue the proceedings before the Courts in the native country. In addition, the respondent No.2 will bear the air fares or purchase the tickets for the travel of the appellant and the minor child M to the USA and including their return journey for India, as may be required. The respondent No.2 shall also make all suitable arrangements for the comfortable stay of the appellant and her companions at an independent place of her choice, at a reasonable cost. Further, the respondent No.2 shall not initiate any coercive/penal action against the appellant and if any such proceeding initiated by him in that regard is pending, the same shall be withdrawn and not pursued before the concerned Court any further. That will be the condition precedent to facilitate the appellant to appear before the Courts in the USA to effectively defend herself on all matters relating to the matrimonial dispute and including custody and guardianship of the minor child.