Case: Kanika Goel Vs. State of NCT of Delhi and Ors

dated 20th August, 2018, merely takes note of the factual error committed in the judgment dated 20th July, 2018 in recording about the pendency of custody proceedings before the Family Court at New Delhi. That factual error has been ordered to be corrected vide the order dated 20th August, 2018 by deletion of the following words-"that the custody proceedings are pending before the Family Court at Patiala House, New Delhi" and also-"both parties shall cooperate for disposal of the case". That, however, does not mean that this Court has restrained the Appellant from reviving the proceedings for grant of custody of the minor girl child to her, being the mother. No such meaning can be deduced from the order dated 20th August, 2018. Whether such proceedings deserve to be entertained in law, is a matter to be decided by the concerned Court. The Respondent No. 2 cannot be heard to say that he is not liable to participate in such proceedings. 11. Suffice it to observe that no direction had been issued to the Appellant to return to the US along with the minor child M or, for that matter, to refrain from instituting fresh proceedings for reliefs as may be permissible by law, including in the Courts in India. We say no more lest it may influence the proceedings between the parties. 12. In our opinion, the principal relief claimed in these applications is based on the misplaced assumption that a direction has since been issued against the Appellant to return to the US along with the minor girl child M, and which the Appellant has failed to comply with. This assumption is a complete misreading of the decision rendered by this Court in the criminal appeals. For, no such direction has been given by this Court. On the contrary, the parties have been granted liberty to pursue proceedings against each other as may be permissible in law before the jurisdictional Court. 13. Be it noted that the dictum in the opening part of paragraph 39 of the judgment of this Court had been made in the backdrop of the discussion in the earlier part of the judgment, which clearly predicates that the proceedings before the Family Court at New Delhi should be taken to their logical and natural conclusion, expeditiously, in the first place and that the parties must eschew from pursuing parallel proceedings in two different countries for custody of the minor girl child. Thus understood, the main relief as claimed in the present applications must fail. 14. Reverting to the further relief claimed in the second part of prayer Clause (a) of the subject applications, the same must also fail, being intrinsically linked to the main prayer, which itself cannot be countenanced for the reasons already alluded hitherto. Furthermore, issuing such a direction in the disposed-of appeal is not only impermissible but would also be in conflict with the view expressed in paragraph 33, about the factum of the best interests and welfare of the minor girl child M. Paragraph 33 reads thus: 33. 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 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 grandparents and other relatives since her arrival in New Delhi. If she returns to US as per the relief claimed by Respondent 2, she would inevitably be under the care of a nanny as Respondent 2 will be away during the daytime 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 Respondent 2 nor is her stay in the company of her mother, along with maternal grandparents and extended family at New Delhi, prejudicial to her in any manner, warranting her return to the US. 15. Taking any view of the matter, therefore, the relief as articulated in these applications in prayer Clause (a), cannot be countenanced. As a result, these applications must fail. 16. The counsel for Respondent No. 2 had also argued other issues including about the conduct of the Appellant in filing of a fresh petition for custody of the minor child Under Section 26 of the Hindu Marriage Act before the Family Court, Patiala. House, New Delhi on 28th August, 2018. In our opinion, it is unnecessary to dilate on those contentions in the present applications. First, because this Court has become functus officio after the disposal of the criminal appeals and in any case, those issues have no bearing on the matter in issue under consideration. Second, this Court has not denuded the parties of their right to pursue remedies as may be permissible in law. Whether the stand taken in the pending proceedings or the fresh instituted, including the question of jurisdiction of the concerned Court in India, will have to be examined on its own merits and in accordance with law. We say no more.

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

Explanation:
0[ds]On a fair reading, the order dated 20th August, 2018, merely takes note of the factual error committed in the judgment dated 20th July, 2018 in recording about the pendency of custody proceedings before the Family Court at New Delhi. That factual error has been ordered to be corrected vide the order dated 20th August, 2018 by deletion of the following words-"that the custody proceedings are pending before the Family Court at Patiala House, New Delhi" and also-"both parties shall cooperate for disposal of the case". That, however, does not mean that this Court has restrained the Appellant from reviving the proceedings for grant of custody of the minor girl child to her, being the mother. No such meaning can be deduced from the order dated 20th August, 2018. Whether such proceedings deserve to be entertained in law, is a matter to be decided by the concerned Court. The Respondent No. 2 cannot be heard to say that he is not liable to participate in such proceedings11. Suffice it to observe that no direction had been issued to the Appellant to return to the US along with the minor child M or, for that matter, to refrain from instituting fresh proceedings for reliefs as may be permissible by law, including in the Courts in India. We say no more lest it may influence the proceedings between the parties12. In our opinion, the principal relief claimed in these applications is based on the misplaced assumption that a direction has since been issued against the Appellant to return to the US along with the minor girl child M, and which the Appellant has failed to comply with. This assumption is a complete misreading of the decision rendered by this Court in the criminal appeals. For, no such direction has been given by this Court. On the contrary, the parties have been granted liberty to pursue proceedings against each other as may be permissible in law before the jurisdictional Court13. Be it noted that the dictum in the opening part of paragraph 39 of the judgment of this Court had been made in the backdrop of the discussion in the earlier part of the judgment, which clearly predicates that the proceedings before the Family Court at New Delhi should be taken to their logical and natural conclusion, expeditiously, in the first place and that the parties must eschew from pursuing parallel proceedings in two different countries for custody of the minor girl child. Thus understood, the main relief as claimed in the present applications must fail14. Reverting to the further relief claimed in the second part of prayer Clause (a) of the subject applications, the same must also fail, being intrinsically linked to the main prayer, which itself cannot be countenanced for the reasons already alluded hitherto. Furthermore, issuing such a direction in the disposed-of appeal is not only impermissible but would also be in conflict with the view expressed in paragraph 33, about the factum of the best interests and welfare of the minor girl child M15. Taking any view of the matter, therefore, the relief as articulated in these applications in prayer Clause (a), cannot be countenanced. As a result, these applications must failIn our opinion, it is unnecessary to dilate on those contentions in the present applications. First, because this Court has become functus officio after the disposal of the criminal appeals and in any case, those issues have no bearing on the matter in issue under consideration. Second, this Court has not denuded the parties of their right to pursue remedies as may be permissible in law. Whether the stand taken in the pending proceedings or the fresh instituted, including the question of jurisdiction of the concerned Court in India, will have to be examined on its own merits and in accordance with law. We say no more.