Lahari Sakhamuri vs Sobhan Kodali

2. Both the appeals although arise from two separate orders passed by the High Court of Hyderabad for the State of Telangana and State of Andhra Pradesh dated 8 th February 2018 in a Habeas Corpus Petition filed at the instance of the respondent (Sobhan Kodali) and by the appellant (Lahari Sakhamuri) under the 1 Guardians & Wards Act, 1890 primarily for the custody of the two minor children who were born in the United States on 14 th March, 2012 and 13th October, 2014 and are US citizens and holding US passports. For the custody of children, a tussle was going on between the parents who are residing in US since 2004­2005. Their marriage was solemnized on 14th March 2008 in Hyderabad and both are green card holders and not only highly educated but well placed. It appears that some differences cropped up which can be a misunderstanding or failing to understand each other, various efforts were made through conciliation and after the matter came to this Court through the process of mediation, the orders of this Court indicate that lot of efforts were made for reconciliation and at one point of time, it reached to a final stage but unfortunately could not reach to its logical end for various reasons and factors.

3. The persons who are affected are the minor children who have been directly impacted because of the fact that their parents have not been able to resolve their differences. Children are very sensitive and due to the conflict of their parents if could not be resolved at the earliest, the minor children became the victim of 2 time for which they are not at fault but indeed the sufferers. It has to be examined in different perspective also that rights of the child as a progressive approach to the best interest of the child and what is needed in the best interest of the child is the one which has to be deciphered by us in the instant proceedings through the manifold arguments being advanced from both sides keeping in view the principles of law on the subject but still remain a guess work.

5. The brief facts of the case which manifests from the voluminous record placed before us are that the appellant (Lahari Sakhamuri) and respondent (Sobhan Kodali) are the parents of the minor children. Appellant (Lahari Sakhamuri) went to USA for her masters in September, 2004 and thereafter started working in USA. She is a Biomedical Engineer by profession. Respondent (Sobhan 3 Kodali) is also highly qualified and went to USA in July 2005 and is presently a Cardiologist by profession. Their marriage was solemnized according to Hindu rites in Hyderabad on 14 th March, 2008. From this wedlock, son, namely, Arthin and daughter Neysa were born on 14th March, 2012 and 13th October, 2014 and both are US citizens and also hold US passports. The couple purchased house in Pennsylvania on 29th January, 2016 in their joint names and moved to their new home. The son started going to a school in September 2014 and a daughter in December, 2016. Both the children being there in US from their birth, the social and cultural value of US certainly was embedded in both of them.

8. It reveals from the record that on the date of filing of the petition for divorce and custody of minor children by the appellant (Lahari Sakhamuri), i.e. 21st December, 2016 in US, the order came 5 to be passed on the petition directing respondent (Sobhan Kodali) to appear for conciliation conference on 20 th January, 2017 and both the parties were directed not to change the residence of the children which would affect the other party’s ability to exercise custodial rights. It may be appropriate to quote the extract of the order which came to be passed on the application filed by the appellant (Lahari Sakhamuri) which reads as under:

9. It reveals from the record that efforts were going on in the process of conciliation and the same were held on 21 st March, 2017 and since the parties could not arrive to any consensus regarding the custody of their children, another conference was scheduled as agreed for 25th March, 2017.

10. By the time parties could reach to a final consensus by the intervention of the trained conciliators which indisputedly play a very pivotal role in matrimonial matters, there was a sad demise of the maternal grandmother of the appellant (Lahari Sakhamuri) and in providing strength and support to the family, the appellant travelled to India with both the minor children on 23 rd March, 2017 with return tickets of 24th April, 2017 and within 20 days of coming to Hyderabad(India) where her family reside, filed a petition in the Family Court, Hyderabad on 12th April, 2017 seeking custody of minor children and injunction against respondent (Sobhan Kodali) under the Guardians and Wards Act, 1890 and she was able to 8 succeed in getting ex­parte interim injunction on 12th April, 2017. It would be appropriate to quote the extract of the ex­parte injunction order passed by the learned Family Court, Hyderabad dated 12th April, 2017 which is as follows:­ “AD INTERIM INJUNCTION IN THE COURT OF JUDGIGE ADDITIONAL FAMILY COURT :

11. After few days, she also filed a FIR against respondent (Sobhan Kodali) and his family members for offence under Section 498A IPC i.e. on 21st April, 2017 but after investigation, the police filed closure report on 1st November, 2017. The fact to be noticed here at this stage is that the very appellant (Lahari Sakhamuri) filed a petition for divorce and custody of minor children in US on 21 st December, 2016, there was no whisper or an averment that there 10 was any domestic violence or abuse either subjected upon her or the minor children by respondent (Sobhan Kodali) and he was informed on 23rd April, 2017, twelve hours before her flight that she would not be returning and does not have a travel date in mind. Respondent (Sobhan Kodali) and his counsel in the US were orally informed of the ex­parte order which was received by respondent (Sobhan Kodali) on 29th April, 2017 through e­mail from the counsel for appellant (Lahari Sakhamuri) in India.

12. Immediately, on receiving the oral information, on 26 th April, 2017, emergency petition for interim orders in petition for divorce and custody filed at the instance of the appellant (Lahari Sakhamuri) was filed by respondent (Sobhan Kodali). The said application was contested by the appellant (Lahari Sakhamuri) through Attorney and in defence stated that she had only temporarily relocated to India for attending her grandmother’s funeral and providing emotional support to her mother. After hearing the parties, the US Court passed order on 22 nd May, 2017 for continuing the jurisdiction over the custody matter and granted temporary physical custody of the children to respondent (Sobhan 11 Kodali) with a further direction that children be returned to the jurisdiction of the Court in US by 2 nd June, 2017. It would be appropriate to quote the extract of the order passed by US Court on the emergency custody petition filed by respondent Sobhan Kodali on 22nd May, 2017:­ “IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA CIVIL DIVISION Lahari Sakhamuri ) Plaintiff ) File No.2016­FC­1641 Vs ) Sobhan Kodali ) in custody Defendant ) ORDER AND NOW, this 22nd May, 2017 upon consideration of the Emergency Petition for Relief Requesting an Interim order of custody filed 26.04.2017, by defendant and hearing conducted on 22.05.2017 attended by the defendant / petitioner Sobhan Kodali represented by his legal counsel, Mark B. Dischell, Esquire and plaintiff/respondent, Lahari Sakhamuri having failed to appear for said hearing, but represented by her legal counsel, Mary J B. Eidelman Esquire;

13. Thereafter, the respondent (Sobhan Kodali) moved an application under Order 7 Rule 11 CPC in the proceedings instituted in the Family Court, Hyderabad asserting that the Family Court, Hyderabad has no jurisdiction to decide the application for the custody of minor children as they are not the ordinary resident of Hyderabad but that came to be rejected vide order dated 15 th September, 2017 holding that the Family Court, Hyderabad is competent to exercise jurisdiction to examine the application filed at the instance of the appellant (Lahari Sakhamuri) on merits.

14. At this stage, respondent (Sobhan Kodali) preferred appeal to the High Court under Section 19(1) of the Family Courts Act against the order dated 15th September, 2017 passed by the learned Family Court, Hyderabad holding jurisdiction to examine the application filed by the appellant (Lahari Sakhamuri) regarding custody of the minor children under Guardians and Wards Act, 1890. 14 Simultaneously, without any loss of time, respondent (Sobhan Kodali) also filed a writ petition seeking Writ of Habeas Corpus for producing the minor children in the custody of the US Court taking note of the earlier order passed dated 21 st December, 2016 followed with order dated 22nd May, 2017. The appeal and the writ petition were clubbed but were decided by the High Court by separate orders dated 8th February, 2018 holding that the Family Court, Hyderabad has no jurisdiction as the children are not ordinarily residing within the jurisdiction of the Family Court, Hyderabad as provided under Section 9 of the Guardians and Wards Act, 1890. In consequence thereof, application filed by the appellant (Lahari Sakhamuri) stood rejected. At the same time, in the Habeas Corpus Petition, Order came to be passed dated 8th February, 2018. The Court finally ordered as under:­ “36. In view of the above discussion and the legal position, we are of the considered opinion that it would be in the best interest of the minor children to return to the US so that they can enjoy there in the natural environment, receive the love, care and attention of their father and paternal grandparents, resume their school and be with their teachers, peers and friends.

37. Accordingly, we hereby direct the 5th respondent to return the children to the petitioner in India within four (04) weeks from the date of receipt of a copy of this order failing which, 15 the Consulate General of the US at Hyderabad shall take the custody and handover the custody of the children to the petitioner in India or in the US by making their comfortable journey to US.

45. Indisputedly, the appellant (Lahari Sakhamuri) and respondent (Sobhan Kodali) both were residing in US since 2004­ 2005 and are well educated as the appellant (Lahari Sakhamuri) did Biomedical Engineering and the respondent (Sobhan Kodali) is a Cardiologist by profession. Their marriage was solemnized on 14 th March, 2008 and two loving children namely, Arthin and Neysa, were born from this wedlock in US on 14 th March, 2012 and 13th October 2014. Both have started going to school. They purchased a house in their joint name and moved to the new house in January, 2016. Something must have been gone wrong between them which compelled the appellant (Lahari Sakhamuri) in filing a 47 divorce and custody petition of the minor children in the Court of Common Pleas of Lehigh County, Pennsylvania Civil Division on 21st December, 2016, seeking divorce, equitable distribution of marital property, primary physical and shared legal custody of the minor children. In the divorce petition, the appellant (Lahari Sakhamuri) made a specific averment about the permanent residence in US for both the parties and securing children’s custody and also admitted that both the minor children were residing in US. It was also admitted that both the children were in joint custody of the appellant (Lahari Sakhamuri) and respondent (Sobhan Kodali) and they resided at 2085, Bellflower Lane, Canter Valley, Pennsylvania 18034.

46. It was her own admission in the declaration form annexed to the application that no mode of domestic violence or abuse was ever subjected upon her or upon the minor children by the respondent (Sobhan Kodali). The respondent (Sobhan Kodali) had purchased to and fro tickets of the appellant (Lahari Sakhamuri) and of minor children as also of his mother in law who was staying together in their matrimonial home, US with return tickets of 24th April, 2017 48 but after coming to India on 23rd March, 2017, because of the alleged death of her maternal grandmother, the appellant (Lahari Sakhamuri) refused to return back and was advised to file a Guardianship Petition before the Family Court, Hyderabad on 12 th April, 2017 and took the ex­parte order concealing the material facts from the Family Court that such a petition is pending in US filed at her instance and there was an order passed on 21 st December, 2016 restraining both the parties not to change residence of the children which would affect the other parties ability to exercise custodial rights.

40. We also direct the petitioner that if children are in India and 5th respondent happens to be in India, the children shall remain with 5th respondent. He shall give all access to 5 th respondent to chat with the children on whatsapp and video conference etc.”

We stay all the pending cases between Mrs. Lahari Sakhamuri and Sobhan Kodali, both civil and criminal.

We also restrain them from instituting any case against each other or the members of their family or filing any petition/complaint against each other or their family members, without express permission from this Court.

Once such issues are cleared, we direct the petitioner to travel to U.S. along with her husband and children within a week of obtaining such clearances.

(b) The existence of special reasons for repatriating or not repatriating the child to the jurisdiction of the foreign court.

41. The essence of the judgment in Nithya Anand Raghavan’s case(supra) is that the doctrines of comity of courts, intimate connect, orders passed by foreign courts having jurisdiction in the matter regarding custody of the minor child, citizenship of the parents and the child etc. cannot override the consideration of the best interest and the welfare of the child and that the direction to return the child to the foreign jurisdiction must not result in any physical, mental, psychological, or other harm to the child.

44. We shall now consider as to whether the facts and circumstances of the present case warrant summary enquiry into the question of custody of minor children, namely, Arthin and Neysa (as no legal proceedings between the parties remain pending in India) or whether an elaborate enquiry procedure will be necessary for entrustment of custody of the two minor children to the appellant (Lahari Sakhamuri) until they are produced before the US Court.

55. In the present case, there is every possibility that the parties may reconcile and start over their relationship afresh, at least for the sake of happiness of their own off­spring if for no other reason. The parties are indeed mature and sensible enough to understand that the ordinary wear and tear of married life has to be put up in within the larger interests of their own happiness and of the healthy, normal growth and development of their offspring, whom destiny has entrusted to their joint parental care. Spouses must come over the temperamental disharmony which usually exists in every marriage, rather than magnifying it with impulsive desires and passions. Parents are not only caretakers, but they are instrumental in the development of their child’s social, emotional, cognitive and physical well­being and work harmoniously to give their children a happy home to which they are justly entitled to. We hope and trust that the parties will forget and forgive their differences and join hands together in providing the congenial atmosphere which may be good not for themselves but also for the development of their minor children.

56. In our view, the best interest of the children being of paramount importance will be served if they return to US and enjoy their natural environment with love, care and attention of their parents including grandparents and to resume their school and be with their teachers and peers.

57. We accordingly direct the appellant (Lahari Sakhamuri) to return to US along with both the children, namely, Arthin and Neysa, within a period of six weeks from today. We further direct respondent (Sobhan Kodali) to make all arrangements of stay and travel expenses(including air tickets) of the appellant (Lahari Sakhamuri) and both the children as well as her companion, if any, in their own house or if she is not willing to stay for any personal reasons, make all arrangements for stay at the place of her choice at reasonable cost. In case the appellant (Lahari Sakhamuri) reports that she is not inclined to travel to US along with the minor children, or do not show any interest to accompany the children, the respondent (Sobhan Kodali) shall deposit a sum of Rs. 15 lakhs in the bank account of the appellant (Lahari Sakhamuri) and proof of deposit shall be placed in the Registry of the High Court of 56 Andhra Pradesh who shall thereupon call upon the Consulate General of the US at Hyderabad to take the custody of the minor children, namely, Arthin and Neysa, along with their passports and other travel documents from the appellant (Lahari Sakhamuri) and hand over the same to the respondent (Sobhan Kodali) with a condition for taking the custody of the minor children (Arthin and Neysa) for being taken to US and hand over to the jurisdictional Court in US until further orders are passed in the pending proceedings by the US Court. The appellant (Lahari Sakhamuri) will be at liberty to utilize the money deposited by the respondent (Sobhan Kodali) in connection with her visit to US, if so desired, in future and the respondent (Sobhan Kodali) shall not take any coercive steps against her which in any manner may result in adverse consequences.

58. It is further made clear that the observations which has been made by us are only for the limited purpose of engaging in summary inquiry for consideration in the petition of Habeas Corpus and will be of no assistance to either party in the custody 57 proceedings pending in the US Court which indeed will be decided on its own merits.

60. Consequently, Civil Appeals arising out of SLP(Civil) Nos. 15892­15893 of 2018 are dismissed. No costs.

61. The Criminal Appeal arising out of SLP(Crl.) No. 2316 of 2018 stands disposed of in the above terms.

62. Pending application(s), if any, stand disposed of.