NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI & Anr.

#3. In a habeas corpus petition, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person (private respondent named in the writ petition). For considering that issue, in a case such as the present one, it is D enough to note that the private respondent was none other thap the natural guardian of the minor being her biological mother: Once that fact is ascertained, it can be presumed that the c.ustody of the minor with his/her mother is lawful. In such a case, only in exceptionable situation, the custody of the minor (girl child) may be ordered to be taken away from her mother for being given to E any other person including the husband (father of the child), in exercise of writ jurisdiction. Instead, the other parent can be asked to resort to a substantive prescribed remedy for getting custody of the child. [Para 30)[311-C-E)

#4. The next question to be considered by the High Court would be whether an order passed by the foreign court, directing the mother to produce the child before it, would render the custody of the minor unlawful? F

4.1 Merely because such an order is passed by the foreign court, the custody of the minor would not become unlawful per G se. The order passed by the High Court of Justice, Family Division London on s•b January, 2016 for obtaining a Wardship order is an ex parte order passed against the mother after recording prima facie satisfaction that the minor (a girl born on 07/08/2009) was as on 2•d July, 2015, habitually resident in the jurisdiction of H . ... 286 SUPREME COURT REPORTS [2017] 7 S.C.R. B A England and Wales and was wrongfully removed from England on 2•d July, 2015 and was wrongfully retained in India since then. Further, the Courts of England and Wales have jurisdiction in the matters of parental responsibility over the child pursuant to Articles 8 and 10 of BIIR. For which reason, it was ordered that the minor shall remain a Ward of that Court during her minority or until further order; and the mother (appellant) shall return or cause the return of the minor forthwith to England and Wales in any event not later than 22 January, 2016. Indeed, this order was not challenged by the appellant so far nor the appellant applied for modification thereof before the concerned court (foreign court). C Even on a fair reading of this order, it is not possible to hold that the custody of the minor with her mother. was declared to be unlawful. [Para 31)(311-F; 315-C-F] D

4.2 The High Court in such a situation may then examine whether the return of the minor to his/her native state would be in the interests of the minor or would be harmful. While doing so, the High Court would be well within its jurisdiction if satisfied, that having regard to the totality of the facts and circumstances, it would be in the interests and welfare of the minor child to decline return of the child to the country from where he/she had been removed; then such an order must be passed without being fixated E with the factum of an order of the foreign Court directing return of the child within the stipulated time, since the order of the foreign Court must yield to the welfare of the child. For answering this issue, there can be no strait jacket formulae or mathematical exactitude. Nor can the fact that the other parent had already F approached the foreign court or was successful in getting an order from the foreign court for production of the child, be a decisive factor. Similarly, the parent having custody of the minor has not resorted to any substantive proceeding for custody of the child, cannot whittle down the overarching principle of the best interests and welfare of the child to be considered by the Court.[Para G 32](315-H; 316-A-C]

#5. For considering the factum of interests of the child, the court must take into account all the attending circumstances and totality of the situation. That will have to be decided on case to case basis. In the instant case, the father as well as mother of the H child are of Indian origin. They were married in Chennai in India NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI 287 according to Hindu rites and customs. The father, an Indian A citizen, had gone to the U.K. as a student in 2003 and was working there since 2005. After the marriage, the couple shifted to the U.K. in early 2007 and stayed in Watford. The mother got an employment in London in 2008, but had to come to her parents' house in Delhi in June 2009, where she gave birth to baby girl. B Thus, the child is an Indian citizen by birth. She did not give up her Indian citizenship. Indeed, the appellant, along with the daughter, returned to the U.K. in March 2010. But from August 2010 till December 2011, because of matrimonial issues between the appellant and respondent no.2, the appellant and her daughter remained in India. It was only after the intervention of and C mediation by the family members, the appellant and her daughter went back to England in December 2011, more than a year after they had come to India. After returning to the U.K., the daughter was admitted to a nursery school in January 2012. An application for grant of U.K. citizenship was made on behalf of daughter in D September 2012 which was subsequently granted in December 2012. The father (respondent no.2) then acquired the citizenship of the U.K. in January, 2013. After grant of citizenship of the U.K., daughter was admitted to a primary school in the U.K. in September 2013 and studied there only till July, 2015. Since daughter had acquired British citizenship, the U.K. Court could exercise jurisdiction in respect of her custody issues. Significantly, till daughter returned to India along with her mother on 2•d July, 2015, no proceeding of any nature came to be filed in the U.K. Court, either in relation to the matrimonial dispute between the appellant and respondent no.2 or for the custody of daughter. Further, daughter is staying in India along with the appellant, her grandparents and other family members and relatives unlike in the UK she lived in a nuclear family of the three with no extended family. She has been schooling here for the past over one year and has spent equal time in both the countries out of the first six years. She would be more comfortable and feel secured to live G with her mother here, who can provide her love, understanding, care and guidance for her complete development of character, personality and talents. Being a girl child, the guardianship of the mother is of utmost significance. Ordinarily, the custody of a "girl" child who is around seven years of age, must ideally be F E H 288 SUPREME COURT REPORTS [2017] 7 S.C.R. D B A with her mother unless there are circumstances to indicate that it would be harmful to the girl child to remain in custody of her mother. No such material is forthcoming in this case except the fact that the appellant (mother) has violated the order of the U.K. Court directing her to return the child to the U.K. before the stipulated date. Admittedly, when the daughter was in the U.K., no restraint order was issued by any court or authority in the U.K. in that behalf. She had travelled along with her mother from the U.K. to India on official documents. It is a different matter that respondent no.2 alleges that he was not informed before daughter was removed from the U.K. and brought to India by his C wife (appellant). It is common ground that daughter is suffering from cardiac disorder and needs periodical medical reviews and proper care and attention. That can be given only by her mother. The respondent no.2 (father) is employed and may not be in a position to give complete attention to his daughter. There is force in the stand taken by the appellant that if her daughter returns to the U.K., she may not be able to get meaningful access to provide proper care and attention. Further, she has no intention to visit the U .K. Admittedly, the appellant has acquired the status of only a permanent resident of the U.K., as she was staying with respondent no.2 who is gainfully employed there. The appellant has alleged and has produced material in support of her case that during her stay with respondent no.2 in the U.K., she was subjected to physical violence and mental torture. She has also alleged that if she goes back to the U.K., she may suffer the same ignominy. Further, the proceeding in the UK Court instituted by the husband is a counter blast to the complaint filed by her in Delhi about the violence inflicted on her by the husband and his family members. Indeed, respondent no.2 has vehemently denied and rebutted these allegations. Thcsi: are disputed questions of facts. Taking the totality of the facts and circumstances into account, it would be in the interests of daughter to remain in G custody of her mother and it would cause harm to her if she returns to the U.K. That does not mean that the appellant must disregard the proceedings pending in the U.K. Court against her or for custody of daughter, as the case may be. The instant appeal arises from a writ petition filed by respondent no.2 for issuance of a writ of habeas corpus and not to decide the issue of grant or non-grant E F H NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI 289 B of custody of the minor as such. In a substantive proceeding for A custody of the minor before the Court of competent jurisdiction including in India if permissible, all aspects will have to be considered on their own merit without being influenced by any observations in this judgment. [Para 33)(316-D-H; 317-A-H; 318- A-FJ

#6. Whether it is a case of a summary inquiry or an elaborate inquiry, the paramount consideration is the interests and welfare of the child. Further, a pre-existing order of a foreign Court can be reckoned only as one of the factor to be taken into consideration. It is not relevant as to which party first approached the Court or so to say "first strike". The invocation of first strike C principle as a decisive factor would undermine and whittle down the wholesome principle of the duty of the Court having jurisdiction to consider the best interests and welfare of the child, which is of paramount importance. If the Court is convinced in that regard, the fact that there is already an order passed by a foreign Court D in existence may not be so significant as it must yield to the welfare of the child. That is only one of the factors to be taken into consideration. The Courts in India are not denuded from declining the relief to return the child to the native state merely because of a pre-existing order of the foreign Court of competent jurisdiction. In the present case, taking the totality of the facts and circumstances of the case into account, it would be in the best interests of the minor to remain in custody of her mother (appellant) else she would be exposed to harm if separated from the mother. The High Court was unjustly impressed by the principle of comity of courts and the obligation of the Indian Courts to comply with a pre-existing order of the foreign Court for return of the child and including the "first strike" principle referred to in Surya Vadanan's case. [Paras 38-42)(321-E-F, G; 322-G-H; 323-A, D, E-F) E F