Custody of minor Child Under Indian Law

 

“In Laxmi Kant Pandey, this Court duly noted the provisions of the Convention on the Rights of the Child, but in the general context of adoption of children and, in particular, regarding the necessity to involve the natural parents in the consequent guardianship/custody proceedings. The provisions of the Convention which we have extracted indeed reiterate the settled legal position that the welfare of the child is of paramount consideration vis a vis the perceived rights of parents not only so far as the law in India is concerned, but preponderantly in all jurisdictions across the globe. We are mindful of the fact that we are presently not confronted with a custody conflict and, therefore, there is no reason whatsoever to even contemplate the competence or otherwise of the Appellant as custodian of the interests and welfare of her child. However, we would be loathe to lose perspective of our parens patriae obligations, and in that regard we need to ensure that the child’s right to know the identity of his parents is not vitiated, undermined, compromised or jeopardised. In order to secure and safeguard this right, we have interviewed the Appellant and impressed upon her the need to disclose the name of the father to her son. She has disclosed his name, along with some particulars to us; she states that she has no further information about him. These particulars have been placed in an envelope and duly sealed, and may be read only pursuant to a specific direction of this Court.  “

 

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IN THE SUPRME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. …….. OF 2015

[Arising out of SLP (Civil) No. 28367 of 2011]

ABC                                                …     Appellant

Versus

The State (NCT of Delhi)                                 …       Respondent

J U D G M E N T

VIKRAMAJIT SEN, J.

 

  1. A legal nodus of seminal significance and of prosaic procedural origination presents itself before us. The conundrum is whether it is imperative for an unwed mother to specifically notify the putative father of the child whom she has given birth to of her petition for appointment as the guardian of her child. The common perception would be that three competing legal interests would arise, namely, of the mother and the father and the child. We think that it is only the last one which is conclusive, since the parents in actuality have only legal obligations. A child, as has been ubiquitously articulated in different legal forums, is not a chattel or a ball to be shuttled or shunted from one parent to the other. The Court exercises paren patrae jurisdiction in custody or guardianship wrangles; it steps in to secure the welfare of the hapless child of two adults whose personal differences and animosity has taken precedence over the future of their child.
  1. Leave granted. This Appeal is directed against the Judgment dated 8.8.2011 delivered by the High Court of Delhi, which has dismissed the First Appeal of the Appellant, who is an unwed mother, holding that her guardianship application cannot be entertained unless she discloses the name and address of the father of her child, thereby enabling the Court to issue process to him. As per the Appellant’s request, her identity and personal details as well as those of her son have not been revealed herein.
  1. The Appellant, who adheres to the Christian faith, is well educated, gainfully employed and financially secure. She gave birth to her son in 2010, and has subsequently raised him without any assistance from or involvement of his putative father. Desirous of making her son her nominee in all her savings and other insurance policies, she took steps in this direction, but was informed that she must either declare the name of the father or get a guardianship/adoption certificate from the Court. She thereupon filed an application under Section 7 of the Guardians and Wards Act, 1890 (the Act) before the Guardian Court for declaring her the sole guardian of her son. Section 11 of the Act requires a notice to be sent to the parents of the child before a guardian is appointed. The Appellant has published a notice of the petition in a daily newspaper, namely Vir Arjun, Delhi Edition but is strongly averse to naming the father. She has filed an affidavit stating that if at any time in the future the father of her son raises any objections regarding his guardianship, the same may be revoked or altered as the situation may require. However, the Guardian Court directed her to reveal the name and whereabouts of the father and consequent to her refusal to do so, dismissed her guardianship application on 19.4.2011. The Appellant’s appeal before the High Court was dismissed in limine, on the reasoning that her allegation that she is a single mother could only be decided after notice is issued to the father; that a natural father could have an interest in the welfare and custody of his child even if there is no marriage; and that no case can be decided in the absence of a necessary party.
  1. Ms. Indu Malhotra, learned Senior Counsel for the Appellant, has vehemently argued before us that the Appellant does not want the future of her child to be marred by any controversy regarding his paternity, which would indubitably result should the father refuse to acknowledge the child as his own.

This is a brooding reality as the father is already married and any publicity as to a declaration of his fathering a child out of wedlock would have pernicious repercussions to his present family. There would be severe social complications for her and her child. As per Section 7 of the Act, the interest of the minor is the only relevant factor for appointing of a guardian, and the rights of the mother and father are subservient thereto. In this scenario, the interest of the child would be best served by immediately appointing the Appellant as the guardian. Furthermore, it is also pressed to the fore that her own fundamental right to privacy will be violated if she is compelled to disclose the name and particulars of the father of her child. Ms. Malhotra has painstakingly argued this Appeal, fully cognizant that the question that arises is of far reaching dimensions. It is this very feature that convinced us of the expediency of appointing amicus curiae, and Mr. Sidharth Luthra has discharged these onerous duties zealously, for which we must immediately record our indebtedness.

  1. It would be pertinent to succinctly consider the Guardians and Wards Act, 1890. The Act, which applies to Christians in India, lays down the procedure by which guardians are to be appointed by the Jurisdictional Court. Sections 7, 11 and 19 deserve extraction, for facility of reference.

“7. Power of the court to make order as to guardianship (1) Where the court is satisfied that it is for the welfare of a minor that an order should be made-

(a) appointing a guardian of his person or property, or both, or

(b) declaring a person to be such a guardian,  the court may make an order accordingly.

(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the court.

(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act.” The details of the form of application are contained in Section 10 and the procedure that applies to a guardianship application is prescribed in Section 11.

  1. Procedure on admission of application (1) If the Court is satisfied that there is ground for proceeding on the application, it shall fix a day for the hearing thereof, and cause notice of the application and of the date fixed for the hearing-

(a) to be served in the manner directed in the Code of Civil Procedure,1882(14 of 1882)11 on-

(i) the parents of the minor if they are residing in any State to which this Act extends;

(ii) the person, if any, named in the petition or letter as having the custody or possession of the person or property of the minor;

(iii) the person proposed in the application or letter to be appointed or declared guardian, unless that person is himself the applicant; and

(iv) any other person to whom, in the opinion of the court special notice of the applicant should be given; and

(b) to be posted on some conspicuous part of the court-house and of the residence of the minor, and otherwise published in such manner as the court, subject to any rules made by the High Court under this Act, thinks fit.

(2) The State Government may, by general or special order, require that when any part of the property described in a petition under section 10, sub- section (1), is land of which a Court of Wards could assume the superintendence, the court shall also cause a notice as aforesaid to be served on the Collector in whose district the minor ordinarily resides and on every Collector in whose district any portion of the land is situate, and the Collector may cause the notice to be published in any manner he deems fit.

(3) No charge shall be made by the court or the Collector for the service or publication of any notice served or published under sub-section (2).

 

Section 19 is of significance, even though the infant son does not independently own or possess any property, in that it specifically alludes to the father of a minor. It reads thus:

 

  1. Guardian not to be appointed by the court in certain cases Nothing in this Chapter shall authorise the court to appoint or declare a guardian of the property of a minor whose property is under the superintendence of a Court of Wards or to appoint or declare a guardian of the person-

(a) of a minor who is a married female and whose husband is not, in the opinion of court, unfit to be guardian of her person; or

(b) of a minor whose father is living and is not in the opinion of the court, unfit to be guardian of the person of the minor; or

(c) of a minor whose property is under the superintendence of a Court of Wards competent to appoint a guardian of the person of the minor.

We must immediately underscore the difference in nomenclature, i.e. ‘parents’ in Section 11 and ‘father’ in Section 19, which we think will be perilous to ignore.

  1. It is contended on behalf of the State that Section 11 requires a notice to be given to the ‘parents’ of a minor before a guardian is appointed; and that as postulated by Section 19, a guardian cannot be appointed if the father of the minor is alive and is not, in the opinion of the court, unfit to be the guardian of the child. The impugned judgment is, therefore, in accordance with the Act and should be upheld. It seems to us that this interpretation does not impart comprehensive significance to Section 7, which is the quintessence of the Act. However, before discussing the intendment and interpretation of the Act, it would be helpful to appreciate the manner in which the same issue has been dealt with in other statutes and spanning different legal systems across the globe.
  1. Section 6(b) of the Hindu Minority and Guardianship Act, 1956 makes specific provisions with respect to natural guardians of illegitimate children, and in this regard gives primacy to the mother over the father. Mohammedan law accords the custody of illegitimate children to the mother and her relations. The law follows the principle that the maternity of a child is established in the woman who gives birth to it, irrespective of the lawfulness of her connection with the begetter. However, paternity is inherently nebulous especially where the child is not an offspring of marriage. Furthermore, as per Section 8 of the Indian Succession Act, 1925, which applies to Christians in India, the domicile of origin of an illegitimate child is in the country in which at the time of his birth his mother is domiciled. This indicates that priority, preference and pre- eminence is given to the mother over the father of the concerned child.
  1. In the United Kingdom, the Children Act 1989 allocates parental responsibility, which includes all rights, duties, powers, responsibilities and authority of a parent over the child and his/her property. According to Section 2(2) of that Act, parental custody of a child born of unwed parents is with the mother in all cases, and additionally with the father provided he has acquired responsibility in accordance with the provisions of the Act. To acquire responsibility, he would have to register as the child’s father, execute a parental responsibility agreement with the mother or obtain a Court order giving him parental responsibility over the child. In the U.S.A., each State has different child custody laws but predominantly the mother has full legal and physical custody from the time the child is born. Unless an unmarried father establishes his paternity over the child it is generally difficult for him to defeat or overwhelm the preferential claims of the mother to the custody. However, some States assume that both parents who sign the child’s Birth Certificate have joint custody, regardless of whether they are married. In Ireland, Section 6(4) of the Guardianship of Infants Act, 1964 ordains – “The mother of an illegitimate infant shall be guardian of the infant.” Unless the mother agrees to sign a statutory declaration, an unmarried father must apply to the Court in order to become a legal guardian of his child. Article 176 of the Family Code of the Philippines explicitly provides that “illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code.” This position obtains regardless of whether the father admits paternity. In 2004, the Supreme Court of the Philippines in Joey D. Briones vs. Maricel P. Miguel et al, G.R. No. 156343, held that an illegitimate child is under the sole parental authority of the mother. The law in New Zealand, as laid out in Section 17 of the Care of Children Act, 2004, is that the mother of a child is the sole guardian if she is not married to, or in civil union with, or living as a de facto partner with the father of the child at any time during the period beginning with the conception of the child and ending with the birth of the child. In South Africa, according to the Children’s Act No. 38 of 2005, parental responsibility includes the responsibility and the right (a) to care for the child; (b) to maintain contact with the child; (c) to act as guardian of the child; and (d) to contribute to the maintenance of the child. The biological mother of a child, whether married or unmarried, has full parental responsibilities and rights in respect of the child. The father has full parental responsibility if he is married to the mother, or if he was married to her at the time of the child’s conception, or at the time of the child’s birth or any time in between, or if at the time of the child’s birth he was living with the mother in a permanent life-partnership, or if he (i) consents to be identified or successfully applies in terms of Section 26 to be identified as the child’s father or pays damages in terms of customary law; (ii) contributes or has attempted in good faith to contribute to the child’s upbringing for a reasonable period; and (iii) contributes or has attempted in good faith to contribute towards expenses in connection with the maintenance of the child for a reasonable period. This conspectus indicates that the preponderant position that it is the unwed mother who possesses primary custodial and guardianship rights with regard to her children and that the father is not conferred with an equal position merely by virtue of his having fathered the child. This analysis should assist us in a meaningful, dynamic and enduring interpretation of the law as it exists in India.
  1. It is thus abundantly clear that the predominant legal thought in different civil and common law jurisdictions spanning the globe as well as in different statutes within India is to bestow guardianship and related rights to the mother of a child born outside of wedlock. Avowedly, the mother is best suited to care for her offspring, so aptly and comprehensively conveyed in Hindi by the word ‘mamta’. Furthermore, recognizing her maternity would obviate the necessity of determining paternity. In situations such this, where the father has not exhibited any concern for his offspring, giving him legal recognition would be an exercise in futility. In today’s society, where women are increasingly choosing to raise their children alone, we see no purpose in imposing an unwilling and unconcerned father on an otherwise viable family nucleus. It seems to us that a man who has chosen to forsake his duties and responsibilities is not a necessary constituent for the wellbeing of the child. The Appellant has taken care to clarify that should her son’s father evince any interest in his son, she would not object to his participation in the litigation, or in the event of its culmination, for the custody issue to be revisited. Although the Guardian Court needs no such concession, the mother’s intent in insisting that the father should not be publically notified seems to us not to be unreasonable.
  1. We feel it necessary to add that the purpose of our analysis of the law in other countries was to arrive at a holistic understanding of what a variety of jurisdictions felt would be in the best interest of the child. It was not, as learned Counsel suggested, to understand the tenets of Christian law. India is a secular nation and it is a cardinal necessity that religion be distanced from law. Therefore, the task before us is to interpret the law of the land, not in light of the tenets of the parties’ religion but in keeping with legislative intent and prevailing case law.
  1. It is imperative that the rights of the mother must also be given due consideration. As Ms. Malhotra, learned Senior Counsel for the Appellant, has eloquently argued, the Appellant’s fundamental right of privacy would be violated if she is forced to disclose the name and particulars of the father of her child. Any responsible man would keep track of his offspring and be concerned for the welfare of the child he has brought into the world; this does not appear to be so in the present case, on a perusal of the pleading as they presently portray. Furthermore, Christian unwed mothers in India are disadvantaged when compared to their Hindu counterparts, who are the natural guardians of their illegitimate children by virtue of their maternity alone, without the requirement of any notice to the putative fathers. It would be apposite for us to underscore that our Directive Principles envision the existence of a uniform civil code, but this remains an unaddressed constitutional expectation.
  1. We recognize that the father’s right to be involved in his child’s life may be taken away if Section 11 is read in such a manner that he is not given notice, but given his lack of involvement in the child’s life, we find no reason to prioritize his rights over those of the mother or her child. Additionally, given that the Appellant has already issued notice to the public in general by way of a publication in a National Daily and has submitted an affidavit stating that her guardianship rights may be revoked, altered or amended if at any point the father of the child objects to them, the rights, nay duty of the father have been more than adequately protected.
  1. The issue at hand is the interpretation of Section 11 of the Act. As the intention of the Act is to protect the welfare of the child, the applicability of Section 11 would have to be read accordingly. In Laxmi Kant Pandey vs. Union of India 1985 (Supp) SCC 701, this Court prohibited notice of guardianship applications from being issued to the biological parents of a child in order to prevent them from tracing the adoptive parents and the child. Although the Guardians and Wards Act was not directly attracted in that case, nevertheless it is important as it reiterates that the welfare of the child takes priority above all else, including the rights of the parents. In the present case we do not find any indication that the welfare of the child would be undermined if the Appellant is not compelled to disclose the identity of the father, or that Court notice is mandatory in the child’s interest. On the contrary, we find that this may well protect the child from social stigma and needless controversy.
  1. Even in the absence of Laxmi Kant Pandey, we are not like mariners in unchartered troubled seas. The observations of a three Judge Bench of this Court in Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228 are readily recollected. The RBI had refused to accept an application for a fixed deposit in the name of the child signed solely by the mother. In the context of Section 6 of the Hindu Minority and Guardianship Act as well as Section 19 of the Guardians and Wards Act, this Court had clarified that “in all situations where the father is not in actual charge of the affairs of the minor either because of his indifference or because of an agreement between him and the mother of the minor (oral or written) and the minor is in the exclusive care and custody of the mother or the father for any other reason is unable to take care of the minor because of his physical and/or mental incapacity, the mother can act as natural guardian of the minor and all her actions would be valid even during the life time of the father who would be deemed to be “absent” for the purposes of Section 6(a) of the HMG Act and Section 19(b) of the GW Act.” This Court has construed the word ‘after’ in Section 6(a) of the Hindu Minority and Guardianship Act as meaning “in the absence of – be it temporary or otherwise or total apathy of the father towards the child or even inability of the father by reason of ailment or otherwise.” Thus this Court interpreted the legislation before it in a manner conducive to granting the mother, who was the only involved parent, guardianship rights over the child.
  1. In a case where one of the parents petitions the Court for appointment as guardian of her child, we think that the provisions of Section 11 would not be directly applicable. It seems to us that Section 11 applies to a situation where the guardianship of a child is sought by a third party, thereby making it essential for the welfare of the child being given in adoption to garner the views of child’s natural parents. The views of an uninvolved father are not essential, in our opinion, to protect the interests of a child born out of wedlock and being raised solely by his/her mother. We may reiterate that even in the face of the express terms of the statute, this Court had in Laxmi Kant Pandey directed that notice should not be sent to the parents, as that was likely to jeopardize the future and interest of the child who was being adopted. The sole factor for consideration before us, therefore, is the welfare of the minor child, regardless of the rights of the parents. We should not be misunderstood as having given our imprimatur to an attempt by one of the spouses to unilaterally seek custody of a child from the marriage behind the back of other spouse. The apprehensions of Mr. Luthra, learned amicus curiae, are accordingly addressed.

 

  1. Section 11 is purely procedural; we see no harm or mischief in relaxing its requirements to attain the intendment of the Act. Given that the term “parent” is not defined in the Act, we interpret it, in the case of illegitimate children whose sole caregiver is one of his/her parents, to principally mean that parent alone. Guardianship or custody orders never attain permanence or finality and can be questioned at any time, by any person genuinely concerned for the minor child, if the child’s welfare is in peril. The uninvolved parent is therefore not precluded from approaching the Guardian Court to quash, vary or modify its orders if the best interests of the child so indicate. There is thus no mandatory and inflexible procedural requirement of notice to be served to the putative father in connection with a guardianship or custody petition preferred by the natural mother of the child of whom she is the sole caregiver.
  1. Implicit in the notion and width of welfare of the child, as one of its primary concomitants, is the right of the child to know the identity of his or her parents. This right has now found unquestionable recognition in the Convention on the Rights of the Child, which India has acceded to on 11th November, 1992. This Convention pointedly makes mention, inter alia, to the Universal Declaration of Human Rights. For facility of reference the salient provisions are reproduced –

Article 1 For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.

Article 3

  1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
  1. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
  1. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.

Article 7

  1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.

Article 9

  1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child’s place of residence.

 

  1. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known.
  1. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.

Article 12

  1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
  1. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Article 18

  1. States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.

Article 21 States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall:

(a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child’s status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary;

Article 27

  1. The parent(s) or others responsible for the child have the primary responsibility to secure, within their abilities and financial capacities, the conditions of living necessary for the child’s development.
  1. States Parties shall take all appropriate measures to secure the recovery of maintenance for the child from the parents or other persons having financial responsibility for the child, both within the State Party and from abroad. In particular, where the person having financial responsibility for the child lives in a State different from that of the child, States Parties shall promote the accession to international agreements or the conclusion of such agreements, as well as the making of other appropriate arrangements.
  1. In Laxmi Kant Pandey, this Court duly noted the provisions of the Convention on the Rights of the Child, but in the general context of adoption of children and, in particular, regarding the necessity to involve the natural parents in the consequent guardianship/custody proceedings. The provisions of the Convention which we have extracted indeed reiterate the settled legal position that the welfare of the child is of paramount consideration vis a vis the perceived rights of parents not only so far as the law in India is concerned, but preponderantly in all jurisdictions across the globe. We are mindful of the fact that we are presently not confronted with a custody conflict and, therefore, there is no reason whatsoever to even contemplate the competence or otherwise of the Appellant as custodian of the interests and welfare of her child. However, we would be loathe to lose perspective of our parens patriae obligations, and in that regard we need to ensure that the child’s right to know the identity of his parents is not vitiated, undermined, compromised or jeopardised. In order to secure and safeguard this right, we have interviewed the Appellant and impressed upon her the need to disclose the name of the father to her son. She has disclosed his name, along with some particulars to us; she states that she has no further information about him. These particulars have been placed in an envelope and duly sealed, and may be read only pursuant to a specific direction of this Court.
  1. We are greatly perturbed by the fact that the Appellant has not obtained a Birth Certificate for her son who is nearly five years old. This is bound to create problems for the child in the future. In this regard, the Appellant has not sought any relief either before us or before any of the Courts below. It is a misplaced assumption in the law as it is presently perceived that the issuance of a Birth Certificate would be a logical corollary to the Appellant succeeding in her guardianship petition. It may be recalled that owing to curial fiat, it is no longer necessary to state the name of the father in applications seeking admission of children to school, as well as for obtaining a passport for a minor child. However, in both these cases, it may still remain necessary to furnish a Birth Certificate. The law is dynamic and is expected to diligently keep pace with time and the legal conundrums and enigmas it presents. There is no gainsaying that the identity of the mother is never in doubt. Accordingly, we direct that if a single parent/unwed mother applies for the issuance of a Birth Certificate for a child born from her womb, the Authorities concerned may only require her to furnish an affidavit to this effect, and must thereupon issue the Birth Certificate, unless there is a Court direction to the contrary. Trite though it is, yet we emphasise that it is the responsibility of the State to ensure that no citizen suffers any inconvenience or disadvantage merely because the parents fail or neglect to register the birth. Nay, it is the duty of the State to take requisite steps for recording every birth of every citizen. To remove any possible doubt, the direction pertaining to issuance of the Birth Certificate is intendedly not restricted to the circumstances or the parties before us.
  1. We think it necessary to also underscore the fact that the Guardian Court as well as the High Court which was in seisin of the Appeal ought not to have lost sight of the fact that they had been called upon to discharge their parens patriae jurisdiction. Upon a guardianship petition being laid before the Court, the concerned child ceases to be in the exclusive custody of the parents; thereafter, until the attainment of majority, the child continues in curial curatorship. Having received knowledge of a situation that vitally affected the future and welfare of a child, the Courts below could be seen as having been derelict in their duty in merely dismissing the petition without considering all the problems, complexities and complications concerning the child brought within its portals.
  1. The Appeal is therefore allowed. The Guardian Court is directed to recall the dismissal order passed by it and thereafter consider the Appellant’s application for guardianship expeditiously without requiring notice to be given to the putative father of the child.

 

 

(VIKRAMAJIT SEN) ………………………………..J

(ABHAY MANOHAR SAPRE) …….J

custody of foreign national child order in India

custody of foreign national child order in India

IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRL.) NO.112/2007
Dr. V. Ravi Chandran ..Petitioner
Versus
Union of India & Ors. ..Respondents
JUDGMENT
R.M. LODHA, J.
Adithya is a boy of seven, born on July 1, 2002, in the
United States of America. He is a foreign national. The petition before
us is by the father – Dr. V . Ravi Chandran–praying for a writ of
habeas corpus for the production of his minor son Adithya and for
handing over the custody and his passport to him.
2. On August 28, 2009, this Court passed an order
requesting Director, Central Bureau of Investigation (CBI) to trace
minor Adithya and produce him before this Court. The necessity of
such order arose as despite efforts made by the police officers and 
officials of different states, Adithya and his mother – respondent
no. 6–Vijayasree Voora–could not be traced and their whereabouts
could not be found for more than two years since the notice was
issued by this Court. In pursuance of the order dated August 28,
2009, CBI issued look out notices on all India basis through heads of
police of States, Union Territories and Metropolitan Cities and also
alert notices through Deputy Director, Bureau of Immigration
(Immigration), Ministry of Home Affairs, New Delhi and flashed
photographs of the child Adithya and his mother Vijayasree Voora.
Ultimately with its earnest efforts, CBI traced Adithya and his mother
Vijayashree Voora in Chennai on October 24, 2009 and brought them
to Delhi and produced the child along with his mother at the
residential office of one of us (Tarun Chatterjee, J.) on October 25,
2009. On that day, the CBI authorities were directed to keep the child
under their custody and produce him before the Court on October 27,
2009. Respondent no. 6 was also directed to be produced on that
date. On October 27, 2009, the matter was adjourned for November
4, 2009 since respondent no.6 wanted to engage a lawyer and file a
counter affidavit. On November 4, 2009, matter was adjourned to
November 10, 2009 and then to November 12, 2009. The petitioner
2

was permitted to meet the child for one hour on November 10, 2009
and November 12, 2009. In the meanwhile, respondent no. 6 has
filed counter affidavit in opposition to the habeas corpus petition and
petitioner has filed rejoinder affidavit to the counter affidavit filed by
respondent no.6.
3. We heard Ms. Pinky Anand, learned senior counsel for
the petitioner and Mr. T.L.V. Iyer, learned senior counsel for
respondent no. 6. Now since minor Adithya has been produced, the
only question that remains to be considered is with regard to the
prayer made by the petitioner for handing over the custody of minor
Adithya to him with his passport.
4. But before we do that, it is necessary to notice few
material facts. Dr. V. Ravi Chandran – petitioner – is an American
citizen. He and respondent no. 6 got married on December 14, 2000
at Tirupathi, Andhra Pradesh according to Hindu rites. On July 1,
2002, Adithya was born in United States of America. In the month of
July 2003, respondent no. 6 approached the New York State
Supreme Court for divorce and dissolution of marriage. A consent
order governing the issues of custody and guardianship of minor
3

Adithya was passed by the New York State Supreme Court on April
18, 2005. 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.
On July 28, 2005, a Separation Agreement was entered between the
petitioner and respondent no.6 for distribution of marital property,
spouse maintenance and child support. As regards custody of the
minor son Adithya and parenting time, the petitioner and respondent
no. 6 consented to the order dated April 18, 2005. On September 8,
2005, the marriage between the petitioner and respondent no.6 was
dissolved by the New York State Supreme Court. Child custody order
dated April 18, 2005 was incorporated in that order.
5. Upon the petition for modification of custody filed by the
petitioner and the petition for enforcement filed by him and upon the
petition for enforcement filed by respondent no.6 before the Family
Court of the State of New York, on June 18, 2007, upon the consent
of both parties, inter – alia, the following order came to be passed:
"ORDERED, the parties shall share joint legal and physical custody of the minor child; and it is further
4

 ORDERED, that commencing during August 2007,
Adithya shall reside in Allen, Texas; and it is further
ORDERED, that the parties acknowledge that it is the intention of the parties to reside within the same community. As such, it is the mother’s current intention to relocate to Texas, within a forty (40) mile radius of the father’s residence. If the mother does relocate to a forty (40) mile radius of the father’s residence (which shall be within a twenty (20) mile radius from the child’s school),, the parties shall equally share physical custody of Adithya. The parties shall alternate physical custody on a weekly basis, with the exchange being on Friday, at the end of the School day, or at the time when school would ordinarily let out in the event that there is no school on Friday; ……………. …………………………………………………………… ……………………………………………………………
ORDERED, that in the event that the mother does not relocate within forty (40) miles from the father’s residence located in Allen, Texas (and within twenty (20) miles of Adithya’s school), the mother shall have custodial time with the minor child, as follows:
A. On Alternating weekends from Friday, at the end of the school day until Monday, prior to the beginning of school, commencing during the first week of September, 2007. Such periods of custodial time shall take place within forty (40) miles from the father’s residence located in Allen, Texas. In the event that there is no school on the Friday of the mother’s weekend, she shall have custodial time with the child beginning at 7.00 a.m. on Friday morning, and, in the event that there is no school on Monday of the mother’s custodial weekend, she shall have custodial time until 5.00 p.m. on Monday, and
B. For ten (10) consecutive days during Spring vacation from school; and
C. For the entirety of the Christmas recess from School, except for Christmas Eve and Christmas day, which shall be with the father. In the event that the school recess is prior to Christmas Eve, the mother shall have the right to have custodial time during those recessed
5

 days to long as she produces the child at the father’s residence for Christmas Eve and Christmas day ; and
D. During the following holidays:
i) Mother’s birthday, which is on April 25;
ii) Mother’s Day;
iii) Hindu Festival of Diwali and Deepavali;
iv) Adithya’s birthday (July 1) in alternating years;
v) Thanks giving in alternating years (so that the mother has custodial time during even –
numbered years and the father has custodial
time during odd – numbered years);
vi) New Year’s Day in alternating years (so that the mother has custodial time during even –
numbered years and the father has custodial
time during odd -numbered years) ;………… ……………..
…………………………………………………… ORDERED, that the parties shall share the
summer recess from school so that the mother has custodial time for a total of up to fifty (50) days on a schedule so that each party has custodial time for 4 consecutive weeks, with the mother’s custodial time commencing on the Monday following the final day of school……….
ORDERED, for the summer of 2007, the
mother shall have custodial time from June 18 until June 20; the father shall have custodial time from June 20 until June 24; the mother shall have custodial time from June 25 until July 1; the father shall have custodial time from July 1 until July 6; and the mother shall then have custodial time from July 6 until August 3 and she shall be solely responsible for transporting the child to the father’s residence in Allen, Texas on August 3. The father shall have custodial time until the commencement of school. Thereafter the father shall continue to have custodial time until such time as the mother either a) returns from India and/or begins her alternating weekly
6

 schedule as set froth herein, or b) moves within 40 miles of the father’s residence in Allen, Texas and commences her custodial time during alternating weeks;………………………………
……………………………………………………. …………………………………………………….
ORDERED, that each party agrees that they
shall provide the other parent with a phone number and address where the child will be located at all time, and that the other parent shall have reasonable and regular telephone communication with the minor child; and it is further
ORDERED, that each party agrees to provide
the other party with the child’s passport during each custodial exchange of the minor child, and that each party shall sign and deliver to the other, whatever written authorization may be necessary for travel with the child within the Continental United States or abroad;"……………………………………….
6. On June 28, 2007 respondent no.6 brought minor Adithya
to India informing the petitioner that she would be residing with her
parents in Chennai. On August 08, 2007, the petitioner filed the
petition for modification (Custody) and Violation Petition (Custody)
before the Family Court of the State of New York on which a show
cause notice came to be issued to respondent no.6. On that very
day, the petitioner was granted temporary sole legal and physical
custody of Adithya and respondent no. 6 was directed to immediately
turn over the minor child and his passport to the petitioner and further
her custodial time with the minor child was suspended and it was
7

ordered that the issue of custody of Adithya shall be heard in the
jurisdiction of the United States Courts, specifically, the Albany
County Family Court.
7. It transpires that the Family Court of the State of New
York has issued child abuse non-bailable warrants against
respondent no.6.
8. In the backdrop of the aforenoticed facts, we have to
consider–now since the child has been produced–what should be
the appropriate order in the facts and circumstances keeping in mind
the interest of the child and the orders of the courts of the country of
which the child is a national.
9. In re B–‘s Settlement,1 Chancery Division was concerned
with an application for custody by the father of an infant who had
been made a ward of court. The father was a Belgian national and
the mother a British national who took Belgian nationality on marriage
to him. The infant was born in Belgium. The mother was granted a
divorce by a judgment of the Court in Belgium, but the judgment was
reversed and the father became entitled to custody by the common
1
{1940} Ch. 54
8

law of Belgium. The mother, who had gone to live in England, visited
Belgium and was by arrangement given the custody of the infant for
some days. She took him to England and did not return him. The
infant had been living with mother in England for nearly two years.
The father began divorce proceedings in Belgium, and the Court
appointed him guardian. Pending the proceedings, the Court gave
him the custody and ordered the mother to return the infant within
twenty-four hours of service of the order on her. She did not return
the infant. The Correctional Court in Brussels fined her for
disobedience and sentenced her to imprisonment should the fine be
not paid. The Correctional Court also confirmed the custody order.
In the backdrop of these facts, the summons taken out by the father
that custody of the infant be given to him came up before Morton, J.
who after hearing the parties and in view of the provisions of the
Guardianship of Infants Act, 1925 observed thus:
"…At the moment my feeling is very strong that, even assuming in the father’s favour that there is nothing in his character or habits which would render him unfitted to have the custody of the child, the welfare of the child requires, in all the circumstances as they exist, that he should remain in England for the time being…………………………
9

 In the present case the position is that nearly two years ago, when the child was already in England, an interlocutory order was made by the Divorce Court in Belgium giving the custody of the child to the father I do not know how far, if at all, the matter was considered on the footing of what was best for the child at that time, or whether it was regarded as a matter of course that the father, being the guardian by the common law of Belgium and the applicant in the divorce proceedings and the only parent in Belgium, should be given the custody. I cannot regard that order as rendering it in any way improper or contrary to the comity of nations if I now consider, when the boy has been in this country for nearly two years, what is in the best interests of the boy. I do not think it would be right for the Court, exercising its jurisdiction over a ward who is in this country, although he is a Belgian national, blindly to follow the order made in Belgium on October 5, 1937. I think the present case differs from Nugent v. Vetzera {FN10}, the case that was before Page Wood V.-C., and it is to be observed that even in that case, and in the special circumstances of that case, the Vice-Chancellor guarded himself against anything like abdication of the control of this Court over its wards. It does not appear what the Vice-Chancellor’s view would have been if there had been evidence, for example, that it would be most detrimental to the health and well-being of the children if they were removed from England and sent to Austria…………………………………………..
……..I ought to give due weight to any views formed by the Courts of the country whereof the infant is a national. But I desire to say quite plainly that in my view this Court is bound in every case, without exception, to treat the welfare of its ward as being the first and paramount consideration, whatever orders may have been made by the Courts of any other country."……………… ……………… ………….
10. In Mark T. Mc.Kee vs. Eyelyn McKee2, the Privy Council
was concerned with an appeal from the Supreme Court of Canada.
That was a case where the parents of the infant were American
2
{1951} A.C. 352
10

citizens. They were married in America and to whom a son was born
in California in July 1940. They separated in December 1940 and on
September 4, 1941, executed an agreement which provided,
inter- alia, that neither of them should remove the child out of the
United States without the written permission of the other. By a
judgment of December 17, 1942, in divorce proceedings before the
Superior Court of the State of California, the custody of the child was
awarded to the father. On August 1, 1945, following applications by
the father and the mother, the previous order as to custody was
modified to provide full custody of the child to the mother with right of
reasonable visitation to the father. Thereafter, and without the
consent or knowledge of the mother, the father went from the
United States of America with the child into the Province of Ontario.
The mother thereupon instituted habeas corpus proceedings in the
Supreme Court of Ontario seeking to have the child delivered to her.
Wells, J., before whom the matter came held that infant’s best
interests would be served in the custody of his father. The Court of
Appeal for Ontario dismissed the appeal preferred by the mother.
However, the Supreme Court of Canada by majority judgment
allowed the appeal of the mother and set aside the order of custody
11

of child to the father. On appeal from the Supreme Court of Canada
at the instance of the father, the Privy Council held as follows:
"……….For, after reaffirming "the well established general rule that in all questions relating to the custody of an infant the paramount consideration is the welfare of the infant", he observed that no case had been referred to which established the proposition that, where the facts were such as he found them to exist in the case, the salient features of which have been stated, a parent by the simple expedient of taking the child with him across the border into Ontario for the sole purpose of avoiding obedience to the judgment of the court, whose jurisdiction he himself invoked, becomes "entitled as of right to have the whole question retried in our courts and to have them reach a anew and independent judgment as to what is best for the infant". and it is, in effect, because he held that the father had no such right that the judge allowed the appeal of the mother, and that the Supreme Court made the order already referred to. But with great respect to the judge, this was not the question which had to be determined. It is possible that a case might arise in which it appeared to a court, before which the question of custody of an infant came, that it was in the best interests of that infant that it should not look beyond the circumstances in which its jurisdiction was invoked and for that reason give effect to the foreign judgment without further inquiry. But it is the negation of the proposition, from which every judgment in this case has proceeded, namely, that the infant’s welfare is the paramount consideration, to say that where the trial judge has in his discretion thought fit not to take the drastic course above indicated, but to examine all the circumstances and form an independent judgment, his decision ought for that reason to be overruled. Once it is conceded that the court of Ontario had jurisdiction to entertain the question of custody and that it need not blindly follow an order made by a foreign court, the consequence cannot be escaped that it must form an independent judgment on the question, though in doing so it will give proper weight to the foreign judgment. What is the proper weight will depend on the circumstances of each case. It may be that, if the matter comes before the court of Ontario within a very short time of the foreign judgment and there is no new circumstance to be considered, the weight may be
12

 so great that such an order as the Supreme Court made in this case could be justified. But if so, it would be not because the court of Ontario, having assumed jurisdiction, then abdicated it, but because in the exercise of its jurisdiction it determined what was for the benefit of the infant.
It cannot be ignored that such consequences might follow as are suggested by Cartwright, J. The disappointed parent might meet stratagem by stratagem and, taking the child into the Province of Manitoba, invoke the protection of its courts, whose duty it would then be to determine the question of custody. That is a consideration which, with others, must be weighed by the trial judge. It is not, perhaps, a consideration which in the present case should have weighed heavily.
It has been said that the weight or persuasive effect of a foreign judgment must depend on the circumstances of each case. In the present case there was ample reason for the trial judge, in the first place, forming the opinion that he should not take the drastic course of following it without independent inquiry and, in the second place, coming to a different conclusion as to what was for the infant’s benefit."……………………………..
11. The aforesaid two cases came up for consideration in
Harben vs. Harben3, wherein Sachs J. observed as follows:
"It has always been the practice of this court to ensure that a parent should not gain advantage by the use of fraud or force in relation to the kidnapping of children from the care of the other spouse, save perhaps where there is some quite overwhelming reason in the children’s interest why the status quo should not be restored by the court before deciding further issues. In the present case I am concerned with three young children, two of whom are girls and the youngest is aged only three. It is a particularly wicked thing to snatch such children from the care of a mother, and, in saying that, I have in mind not merely the mother’s position but the harm that can be done 3
{1957} 1. W.L.R. 261
13

 to the children. No affidavit of the husband tendering either his regrets or any vestige of excuse for his action has been proffered. Further, as I have already mentioned, when first I asked Mr. Syms what was the nature of the case which he might wish to make, if so minded, for depriving these children of a mother’s care, he only spoke of her association with a certain man and never suggested that she had in any way whatsoever failed to look after the children properly."
12. In Kernot vs. Kernot4 , the facts were thus: In May 1961,
the plaintiff mother, an Italian lady, married an English man in Italy
where both were residents. A boy was born there on March 29, 1962.
On October 19, 1963, they obtained in Italian Court a separation
order by consent providing therein that custody of the child would
remain with father, with rights of access to the mother . On October
29, 1963, the father brought the infant to England with intention to
make England his home. The mother commenced wardship
proceedings in which she brought a motion for an order that the
father return the infant to her in Italy. She also prayed for restraint
order against him from taking the infant out of her care. Buckley, J. in
these facts held thus:
"So that even where a foreign court has made an order on the merits – which is not the present case, because the only order which has been made was a consent order without any investigation of the merits by the Italian court – that domestic court before whom the matter comes (the Ontario 4
{1965} Ch.217
14

 court in the case to which I have just referred, or this court in the case before me) is bound to consider what is in the best interests of the infant; and although the order of the foreign court will be attended to as one of the circumstances to be taken into account it is not conclusive one way or the other. How much stronger must the duty of this court be to entertain the case where the foreign court has not made any order based on any investigation of the case on its merits."
13. In re H. (Infants)5, the Court of Appeal was concerned
with two American boys whose divorced parents were both citizens
of United States of America. On December 11, 1964, the Supreme
Court of New York State made a consent order directing that the
two boys whose custody had been given to the mother should be
maintained in her apartment in New York and not be removed from
a 50 miles’ radius of Peekskill without the prior written consent of
the father. However, the mother in March 1965 brought these boys
to England and bought a house for herself and children in June
1965. On June 15, 1965, the New York Court ordered the children
to be returned to New York. The mother started wardship
proceedings in the English court. The father took out motion asking
the mother that the two children should be delivered into his care,
that he should be at liberty to convey them to New York and that the
wardship of the children should be discharged. The Trial Judge held 5
(1966) 1 W.L.R. 381 = (1966) 1 All.E.R. 886
15

that the justice of the case required the children to be returned
without delay to the jurisdiction of the New York court, so that the
question of where and with whom they should live might be decided
as soon as possible by that court. The mother appealed to the Court
of Appeal. Willmer L.J. and Harman L.J. by their separate judgments
affirmed the view of the Trial Judge and held that the proper order
was to send these two boys back to their State of New York, where
they belong (and where the Supreme Court is already seized of their
case), and more especially so having regard to the fact that they
have been kept in flagrant contempt of New York Court’s order.
Willmer L.J. agreed with the remark of Cross J. where he said:
"The sudden and unauthorized removal of children from one country to another is far too frequent nowadays, and as it seems to me it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing."
Willmer L.J. went on to hold:
"The judge took the view (and I think it was the right view) that in a case such as the present it was not necessary to go into all the disputed questions between the parents, but that he ought to send these boys back to their own country to be dealt with by the court of their own country, provided that he was satisfied (as he was satisfied, having seen the father himself, and having had the benefit of the view expressed on behalf of the Official Solicitor) that they would come to no harm if the father took them back to the United States; and that this was so, even though it might
16

 subsequently turn out, after all the merits of the case had been thoroughly thrashed out in the court in New York, that it would perhaps be better after all for the boys to reside in England and see little or nothing of their father."
Harman L.J. in his separate judgment held thus:
"…….But if he chose to take the course which the judge here took in the interests of the children , as he thought, of sending them back to the United States with no more inquiry into the matter than to ensure, so far as he could, that there was no danger to their moral or physical health in taking that course, I am of opinion that he was amply justified, and that that was the right way in which to approach the issue.
These children had been the subject of an order (it is true made by consent) made in the courts of their own country in December, 1964. It was only three months later that the mother flouted that order, deceived her own advisers and deceived the court , and brought the children here with the object of taking them right out of their father’s life and depriving him altogether of their society. The interval is so short that it seems to me that the court inevitably was bound to view the matter through those spectacles; that is to say, that the order having been made so shortly before, and there being no difference in the circumstances in the three months which had elapsed , there was no justification for the course which the mother had taken, and that she was not entitled to seek to bolster her own wrong by seeking the assistance of this court in perpetuating that position, and seeking to change the situation to the father’s disadvantage."
14. In re. L (minors)6, the Court of Appeal was
concerned with the custody of the foreign children who were
removed from foreign jurisdiction by one parent. That was a
case where a German national domiciled and resident in
Germany married an English woman. Their matrimonial home 6
(1974) 1 All ER 913
17

was Germany and the two children were born out of the
wedlock and brought up in Germany. The lady became
unhappy in her married life and in August, 1972, she brought
her children to England with an intention of permanently
establishing herself and the children in England. She obtained
residential employment in the school in England and the
children were accommodated at the school. The children not
having returned to Germany, the father came to England to find
them. On October 25, 1972, the mother issued an originating
summons making them wards of court. The trial judge found
that the children should be brought up by their mother and
treating the case as a `kidnapping’ class of case, approached
the matter by observing that in such a case where the children
were foreign children, who had moved in a foreign home, their
life should continue in what were their natural surroundings,
unless it appeared to the court that it would be harmful to the
children if they were returned. He concluded that in view of the
arrangements which their father could make for them, the
children would not be harmed by being returned. He,
accordingly, ordered that they be returned to Germany and that
18

they remain in their father’s custody until further order. The
mother appealed, contending that in every case the welfare of
the child was the first and paramount consideration and that the
welfare of the children would be best served by staying with
their mother in England. Buckley, LJ in his detailed
consideration of the matter, wherein he referred to the
aforenoticed decisions and few other decisions as well, held as
follows :
"…….Where the court has embarked on a full-scale investigation of that facts, the applicable principles, in my view, do not differ from those which apply to any other wardship case. The action of one party in kidnapping the child is doubtless one of the circumstances to be taken into account, any may be a circumstance of great weight; the weight to be attributed to it must depend on the circumstances of the particular case. The court may conclude that notwithstanding the conduct of the `kidnapper’ the child should remain in his or her care (McKee v. McKee, Re E (an infant) and Re. T.A. (infants), where the order was merely interim); or it may conclude that the child should be returned to his or her native country or the jurisdiction from which he or she has been removed. Where a court makes a summary order for the return of a child to a foreign country without investigating the merits, the same principles, in my judgment apply, but the decision must be justified on somewhat different grounds.
…………………………………………………………………… ………..The judge may well be persuaded that it would be better for the child that those merits should be investigated in a court in his native country than that he should spend in this country the period which must necessarily elapse before all the evidence can be assembled for adjudication here. Anyone who has had experience of the exercise of this delicate jurisdiction knows what complications can result from a child developing roots in new soil, and what conflicts this can occasion in the child’s own life. Such roots can grow rapidly. An order that the child should be returned forthwith to the country from which he has been removed in the expectation that any dispute about his custody will be satisfactorily
19

 resolved in the courts of that country may well be regarded as being in the best interests of the child……"
15. In re. L. (minors)6, the Court of Appeal has made a
distinction between cases, where the court considers the facts and
fully investigates the merits of a dispute, in a wardship matter in
which the welfare of the child concerned is not the only consideration
but is the first and paramount consideration, and cases where the
court do not embark on a full-scale investigation of the facts and
make a summary order for the return of a child to a foreign country
without investigating the merits. In this regard, Buckley, L.J. noticed
what was indicated by the Privy Council in McKee v. McKee2 that
there may be cases in which it is proper for a court in one jurisdiction
to make an order directing that a child be returned to a foreign
jurisdiction without investigating the merits of the dispute relating to
the care of the child on the ground that such an order is in the best
interest of the child.
16. This Court in Smt. Surinder Kaur Sandhu v. Harbax Singh
Sandhu and Another7 was concerned with the custody of a child–
British citizen by birth–to the parents of Indian citizens, who after
7
(1984) 3 SCC 698
20

their marriage settled in England. The child was removed by the
husband from the house when the wife was in the factory where she
was working and brought him to India. The wife obtained an order
under Section 41(English) Supreme Court Act, 1981 whereby the
husband was directed to handover the custody of the boy to her. The
said order was later on confirmed by the High Court in England. The
wife then came to India and filed a writ petition under Article 226 in
the High Court praying for production and custody of the child. The
High Court dismissed her writ petition against which the wife
appealed before this Court. Y.V. Chandrachud, C.J. (as he then was)
speaking for the Court held thus :
"The modern theory of Conflict of Laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum-shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offsprings of marriage. The spouses in this case had made England their home where this boy was born to them. The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing him to India, not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the peace of that home. The fact that the matrimonial home of the spouses was in England, establishes sufficient contacts or ties with that State in order to make it reasonable and just for the courts of that State to assume jurisdiction to enforce obligations which were
21

 incurred therein by the spouses. (See International Shoe Company v. State of Washington which was not a matrimonial case but which is regarded as the fountainhead of the subsequent developments of jurisdictional issues like the one involved in the instant case.) It is our duty and function to protect the wife against the burden of litigating in an inconvenient forum which she and her husband had left voluntarily in order to make their living in England, where they gave birth to this unfortunate boy."
17. In Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and
Another8, this Court held that it was the duty of courts in all countries
to see that a parent doing wrong by removing children out of the
country does not gain any advantage by his or her wrongdoing. In
para 9 of the report, this Court considered the decision of the Court of
Appeal in re H.5 and approved the same in the following words:
"9. In Re H. (infants) [(1966) 1 All ER 886] the Court of Appeal in England had occasion to consider a somewhat similar question. That case concerned the abduction to England of two minor boys who were American citizens. The father was a natural- born American citizen and the mother, though of Scottish origin, had been resident for 20 years in the United States of America. They were divorced in 1953 by a decree in Mexico, which embodied provisions entrusting the custody of the two boys to the mother with liberal access to the father. By an amendment made in that order in December 1964, a provision was incorporated that the boys should reside at all times in the State of New York and should at all times be under the control and jurisdiction of the State of New York. In March 1965, the mother removed the boys to England, without having obtained the approval of the New York court, and without having consulted the father; she purchased a house in England with the intention of remaining there permanently and of cutting off all contacts with the father. She ignored an order made in June 1965, by the Supreme Court of New York State to return the boys there. On a motion on notice given by the father in the Chancery Division of the Court in England, the trial Judge Cross, J. directed that since the children were American children and the 8
(1987) 1 SCC 42
22

 American court was the proper court to decide the issue of custody, and as it was the duty of courts in all countries to see that a parent doing wrong by removing children out of their country did not gain any advantage by his or her wrongdoing, the court without going into the merits of the question as to where and with whom the children should live, would order that the children should go back to America. In the appeal filed against the said judgment in the Court of Appeal, Willmer, L.J. while dismissing the appeal extracted with approval the following passage from the judgment of Cross, J. [(1965) 3 All ER at p. 912. (Ed. : Source of the second quoted para could not be traced.)]:
"The sudden and unauthorised removal of children from one country to another is far too frequent nowadays, and as it seems to me, it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing.
The courts in all countries ought, as I see it, to be careful not to do anything to encourage this tendency. This substitution of self-help for due process of law in this field can only harm the interests of wards generally, and a Judge should, as I see it, pay regard to the orders of the proper foreign court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child."
10. With respect we are in complete agreement with the aforesaid enunciation of the principles of law to be applied by the courts in situations such as this."
18. In the case of Dhanwanti Joshi v. Madhav Unde9, this
Court was again concerned with the matter relating to removal of a
child from one country to another contrary to custody order of the
court from where the child was removed. This court considered
English decisions, inter alia, McKee v. McKee2 and H. (infants), re.5
and also noticed the decision of this Court in Mrs. Elizabeth Dinshaw8
and observed as follows :
9
(1998) 1 SCC 112
23
 "28. The leading case in this behalf is the one rendered by the Privy Council in 1951, in McKee v. McKee [(1951) AC 352]. In that case, the parties, who were American citizens, were married in USA in 1933 and lived there till December 1946. But they had separated in December 1940. On 17-12-1941, a decree of divorce was passed in USA and custody of the child was given to the father and later varied in favour of the mother. At that stage, the father took away the child to Canada. In habeas corpus proceedings by the mother, though initially the decisions of lower courts went against her, the Supreme Court of Canada gave her custody but the said Court held that the father could not have the question of custody retried in Canada once the question was adjudicated in favour of the mother in the USA earlier. On appeal to the Privy Council, Lord Simonds held that in proceedings relating to custody before the Canadian Court, the welfare and happiness of the infant was of paramount consideration and the order of a foreign court in USA as to his custody can be given due weight in the circumstances of the case, but such an order of a foreign court was only one of the facts which must be taken into consideration. It was further held that it was the duty of the Canadian Court to form an independent judgment on the merits of the matter in regard to the welfare of the child. The order of the foreign court in US would yield to the welfare of the child. "Comity of courts demanded not its enforcement, but its grave consideration". This case arising from Canada which lays down the law for Canada and U.K. has been consistently followed in latter cases. This view was reiterated by the House of Lords in J v. C (1970 AC 668). This is the law also in USA (see 24 American Jurisprudence, para 1001) and Australia. (See Khamis v. Khamis [(1978) 4 Fam LR 410 (Full Court) (Aus)].
29. However, there is an apparent contradiction between the above view and the one expressed in H. (infants), Re[(1966) 1 All ER 886] and in E. (an infant), Re [(1967) 1 All ER 881] to the effect that the court in the country to which the child is removed will send back the child to the country from which the child has been removed. This apparent conflict was explained and resolved by the Court of Appeal in 1974 in L. (minors) (wardship : jurisdiction), Re [(1974) 1 All ER 913, CA] and in R. (minors) (wardship : jurisdiction), Re [(1981) 2 FLR 416 (CA)]. It was held by the Court of Appeal in L., Re [(1974) 1 All ER 913, CA] that the view in McKee v. McKee [1951 A.C. 352 : (1951) All ER 942] is still the correct view and that the limited question which arose in the latter decisions was whether the court in the country to which the child was removed could conduct (a) a summary inquiry or (b) an elaborate inquiry on the question of custody. In the case of (a) a summary inquiry, the court would return custody to the country from which the child was
24

removed unless such return could be shown to be harmful to the child. In the case of (b) an elaborate inquiry, the court could go into the merits as to where the permanent welfare lay and ignore the order of the foreign court or treat the fact of removal of the child from another country as only one of the circumstances. The crucial question as to whether the Court (in the country to which the child is removed) would exercise the summary or elaborate procedure is to be determined according to the child’s welfare. The summary jurisdiction to return the child is invoked, for example, if the child had been removed from its native land and removed to another country where, maybe, his native language is not spoken, or the child gets divorced from the social customs and contacts to which he has been accustomed, or if its education in his native land is interrupted and the child is being subjected to a foreign system of education, — for these are all acts which could psychologically disturb the child. Again the summary jurisdiction is exercised only if the court to which the child has been removed is moved promptly and quickly, for in that event, the Judge may well be persuaded that it would be better for the child that those merits should be investigated in a court in his native country on the expectation that an early decision in the native country could be in the interests of the child before the child could develop roots in the country to which he had been removed. Alternatively, the said court might think of conducting an elaborate inquiry on merits and have regard to the other facts of the case and the time that has lapsed after the removal of the child and consider if it would be in the interests of the child not to have it returned to the country from which it had been removed. In that event, the unauthorised removal of the child from the native country would not come in the way of the court in the country to which the child has been removed, to ignore the removal and independently consider whether the sending back of the child to its native country would be in the paramount interests of the child. (See Rayden & Jackson, 15th Edn., 1988, pp. 1477-79; Bromley, Family law, 7th Edn., 1987.) In R. (minors) (wardship : jurisdiction), Re [(1981) 2 FLR 416 (CA)] it has been firmly held that the concept of forum conveniens has no place in wardship jurisdiction.
30. We may here state that this Court in Elizabeth Dinshaw v. Arvand M. Dinshaw [(1987) 1 SCC 42 : 1987 SCC (Crl.) 13] while dealing with a child removed by the father from USA contrary to the custody orders of the US Court directed that the child be sent back to USA to the mother not only because of the principle of comity but also because, on facts, — which were independently considered — it was in the interests of the child to be sent back to the native State. There the removal of the child by the father and the mother’s
25

 application in India were within six months. In that context, this Court referred to H. (infants), Re which case, as pointed out by us above has been explained in L. Re as a case where the Court thought it fit to exercise its summary jurisdiction in the interests of the child. Be that as it may, the general principles laid down in McKee v. McKee and J v. C and the distinction between summary and elaborate inquiries as stated in L. (infants), Re are today well settled in UK, Canada, Australia and the USA. The same principles apply in our country. Therefore nothing precludes the Indian courts from considering the question on merits, having regard to the delay from 1984 — even assuming that the earlier orders passed in India do not operate as constructive res judicata."
However, in view of the fact that the child had lived with his
mother in India for nearly twelve years, this Court held that it would
not exercise a summary jurisdiction to return the child to United
States of America on the ground that its removal from USA in 1984
was contrary to orders of U.S. Courts. It was also held that whenever
a question arises before a court pertaining to the custody of a minor
child, matter is to be decided not on considerations of the legal rights
of the parties but on the sole and predominant criterion of what would
best serve the interest of the minor.
19. In the case of Sarita Sharma v. Sushil Sharma10, this
Court was seized with a matter where the mother had removed the
children from U.S.A. despite the order of the American Court. It was
held :
10
(2000) 3 SCC 14
26
 "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 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. Ordinarily, a female child should be allowed to remain with the mother so that she can be properly looked after. It is also not desirable that two children are separated from each other. If a female child has to stay with the mother, it will be in the interest of both the children that they both stay with the mother. Here in India also proper care of the children is taken and they are at present studying in good schools. We have not found the appellant wanting in taking proper care of the children. Both the children have a desire to stay with the mother. At the same time it must be said that the son, who is elder then the daughter, has good feelings for his father also. Considering all the aspects relating to the welfare of the children, we are of the opinion that in spite of the order passed by the Court in U.S.A. it was not proper for the High Court to have allowed the habeas corpus writ petition and directed the appellant to hand over custody of the children to the respondent and permit him to take them away to U.S.A. What would be in the interest of the children requires a full and thorough inquiry and, therefore, the High Court should have directed the respondent to initiate appropriate proceedings in which such an inquiry can be held. Still there is some possibility of the mother returning to U.S.A. in the interest of the children. Therefore, we do not desire to say anything more regarding entitlement of the custody of the children. The chances of the appellant returning to U.S.A. with the children would depend upon the joint efforts of the appellant and the respondent to get the arrest warrant cancelled by explaining to the Court in U.S.A. the circumstances under which she had left U.S.A. with the children without taking permission of the Court. There is a possibility that both of them may thereafter be able to approach the Court which passed the decree to suitably modify the order with respect to the custody of the children and visitation rights."
27

20. While dealing with a case of custody of a child removed
by a parent from one country to another in contravention to the orders
of the court where the parties had set up their matrimonial home, the
court in the country to which child has been removed must first
consider the question whether the court could conduct an elaborate
enquiry on the question of custody or by dealing with the matter
summarily order a parent to return custody of the child to the country
from which the child was removed and all aspects relating to child’s
welfare be investigated in a court in his own country. Should the court
take a view that an elaborate enquiry is necessary, obviously the
court is bound to consider the welfare and happiness of the child as
the paramount consideration and go into all relevant aspects of
welfare of child including stability and security, loving and
understanding care and guidance and full development of the child’s
character, personality and talents. While doing so, the order of a
foreign court as to his custody may be given due weight; the weight
and persuasive effect of a foreign judgment must depend on the
circumstances of each case. However, in a case where the court
decides to exercise its jurisdiction summarily to return the child to his
own country, keeping in view the jurisdiction of the Court in the native
28

country which has the closest concern and the most intimate contact
with the issues arising in the case, the court may leave the aspects
relating to the welfare of the child to be investigated by the court in
his own native country as that could be in the best interest of the
child. The indication given in McKee v. McKee2 that there may be
cases in which it is proper for a court in one jurisdiction to make an
order directing that a child be returned to a foreign jurisdiction without
investigating the merits of the dispute relating to the care of the child
on the ground that such an order is in the best interest of the child
has been explained in re. L (minors)6 and the said view has been
approved by this Court in Dhanwanti Joshi9. Similar view taken by the
Court of Appeal in re. H5 has been approved by this Court in
Elizabeth Dinshaw8.
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
29

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
30

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
31

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.
22. It is true that child Adithya has been in India for almost
two years since he was removed by the mother–respondent 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
32

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. Moreover, the present habeas corpus petition
has been filed by the petitioner promptly and without any delay, but
since the respondent no. 6 has been moving from one State to
another and her whereabouts were not known, the notice could not
be served and child could not be produced for more than two years.
23. In a case such as the present one, we are satisfied that
return of minor Adithya to United States of America, for the time
being, from where he has been removed and brought here would be
33

in the best interest of the child and also such order is justified in view
of the assurances given by the petitioner that he would bear all the
traveling expenses and make living arrangements for respondent no.
6 in the United Sates of America till the necessary orders are passed
by the competent court; that the petitioner would comply with the
custody/parenting rights as per consent order dated June 18, 2007 till
such time as the competent court in United States of America takes a
further decision; that the petitioner will request that the warrants
against respondent no. 6 be dropped; that the petitioner will not file or
pursue any criminal charges for violation by respondent no. 6 of the
consent order in the United States of America and that if any
application is filed by respondent no. 6 in the competent court in
United States of America, the petitioner shall cooperate in expeditious
hearing of such application. The petitioner has also stated that he has
obtained confirmation from Martha Hunt Elementary School, Murphy,
Texas, 75094, that minor son Adithya will be admitted to school
forthwith.
24. The learned Senior Counsel for respondent no. 6 sought
to raise an objection regarding the maintainability of habeas corpus
petition under Article 32 of the Constitution before this Court but we
34

are not persuaded to accept the same. Suffice it to say that in the
peculiar facts and circumstances of the case which have already
been noticed above and the order that we intend to pass, invocation
of jurisdiction of this Court under Article 32 cannot be said to be
inappropriate.
25. We record our appreciation for the work done by the
concerned officers/officials of CBI in tracing the minor child Adithya
and producing him in less than two months of the order passed by
this Court, although, the Police Officers and Officials of different
States failed in tracing the child Adithya and respondent no. 6 for
more than two years. But for the earnest efforts on the part of the CBI
authorities, it would not have been possible for this Court to hear and
decide this habeas corpus petition involving the sensitive issue
concerning a child of seven years who is a foreign national.
26. In the result and for the reasons stated, we pass the
following order :
(i) The respondent no. 6 shall act as per the consent
order dated June 18, 2007 passed by the Family Court of the
State of New York till such time any further order is passed on
35

the petition that may be moved by the parties henceforth and,
accordingly, she will take the child Adithya of her own to the
United States of America within fifteen days from today and
report to that court.
(ii) The petitioner shall bear all the traveling expenses
of the respondent no. 6 and minor child Adithya and make
arrangements for the residence of respondent no. 6 in the
United States of America till further orders are passed by the
competent court.
(iii) The petitioner shall request the authorities that the
warrants against respondent no. 6 be dropped. He shall not file
or pursue any criminal charges for violation by respondent no. 6
of the consent order in the United States of America.
(iv) The respondent no. 6 shall furnish her address and
contact number in India to the CBI authorities and also inform
them in advance the date and flight details of her departure
along with child Adithya for United States of America.
(v) In the event of respondent no. 6 not taking the child
Adithya of her own to United States of America within fifteen
days from today, child Adithya with his passport shall be
36

 restored to the custody of the petitioner to be taken to United
States of America. The child will be a ward of the concerned
court that passed the consent order dated June 18, 2007. It will
be open to respondent no. 6 to move that court for a review of
the custody of the child, if so advised.
(vi) The parties shall bear their own costs.
………………
……J (Tarun Chatterjee)
……………….
…..J
(R. M. Lodha)
……………………J
(Dr. B.S. Chauhan)
New Delhi
November 17, 2009

interim order of child custody

interim custody of child

“In this view of the matter, the trial Court has clearly acted in improper exercise of its jurisdiction in granting interim custody of the minor child to the respondent for a period of 10 days from 15th May, 1998 to 25th May, 1998 and, therefore, the same cannot be sustained and is liable to be set aside”
Smt. Naseema Shaikh vs Shri Jainuddin M. Shaikh on 22 May, 1998
Equivalent citations: 1998 (4) BomCR 225
Author: R Khandeparkar
Bench: R Khandeparkar
ORDER
R.M.S. Khandeparkar, J.
1. Admit. Heard forthwith by consent.
2. This is a revision application against the Order dated 14th May, 1998 passed in Special Civil Suit No. 55/96/B by the Additional Civil Judge, Senior Division at Vasco-da-Gama. By the impugned order, the trial Court had directed that during the first half of the summer vacation with effect from 15th May, 1998 to 25th May, 1998 the interim custody of the minor child of the parties by name Saniya, be given to the respondent herein.
3. The facts in brief relevant for the decision are that the petitioner and the respondent were married on 10th May 1985 and out ot the said wedlock the said child by name Saniya was born on 14th December 1987. The petitioner and the respondent lived together till November 1993 and since December 1993 the petitioner herein started residing at her parental house alongwith her daughter Saniya. Sometime in July 1996 the respondent herein filed Special Civil Suit No. 55/96/B in the trial Court praying for custody of the minor child Saniya. Pending the hearing and disposal of the suit, the respondent herein also prayed for interim custody of the child. It was the case of the respondent that the petitioner had been leading an adulterous and characterless life and the same may affect their daughter Saniya if she is allowed to continue to reside with the petitioner. It was the further case of the respondent that the child was being brought up by the petitioner in an unhealthy atmosphere and further that the child was being deprived of motherly love and affection and, therefore, the respondent wanted to bring up the child in a healthier manner and for that reason the interim custody of the child was required to be given to him.
4. The claim of the respondent was disputed by the petitioner and it was contended by her that the respondent was an alcoholic person and used to ill-treat her and that therefore she had to leave her matrimonial house. She further denied that the child was being brought up in an unhealthy atmosphere and that no motherly love and affection was given to the child.
5. The trial Court after hearing the parties by its order dated 15th February 1997 dismissed the interim application for custody filed by the respondent. The trial Court however, observed that the respondent being the father of the minor child was equally entitled to spend time with his minor daughter and to bestow his love and affection on her and, therefore, it was just and proper to allow the respondent to meet the child Saniya in the school premises during the recess time of 1st and 4th Saturdays of every month.
6. It appears that prior to the Diwali vacation of the year 1997 an attempt was made by the respondent to file an application for interim custody of the minor child during the period of half of the Diwali Vacation. However, the same application was rendered infructuous being not disposed of in time. Thereafter, on 21st March 1998 the respondent herein filed another application seeking the relief of interim custody of the minor child Saniya for half of the period of summer vacation in the year 1998. The trial Court after hearing the parties by the impugned order allowed the said application directing interim custody of the minor child Saniya to be given to the respondent during the period from 15th May 1998 to 25th May 1998. It is this order that is being impugned in the present revision application.
7. Shri S.S. Kantak, learned Advocate appearing for the petitioner, while assailing the impugned order, submitted that the trial Court ought to have considered that the application under consideration was barred by the principles of res judicata in as much as the trial Court had, by its Order dated 15th February, 1997, already rejected the relief of interim custody ot the minor child to the respondent and, therefore, the trial Court should not have entertained a fresh application for similar type of relief. In that regard he placed reliance upon the judgment of the Apex Court in the matter of Arjun Singh v. Mohindra Kumar and others, . He
further submitted that the respondent did not disclose any change in the circumstances to warrant any alteration or modification in the Order dated 15th February 1997 as regards the interim custody of the minor child Saniya. He further submitted that the fact that there is de facto separation between the petitioner and the respondent since December 1993 is not in dispute. Nevertheless there was no attempt by the respondent to seek the custody of the minor child for a period of 3 years and the application for custody was filed only in July 1996. An attempt in the said suit to obtain interim custody on the part of the respondent had failed when the Order dated 15th February 1997 was passed and yet the respondent did not react against the same by filing any appeal. In these circumstances, according to the learned Advocate, there was no justification for any modification in the said Order on the basis of the application filed by the respondent on 21st March 1998. According to the learned advocate, the facts on record do not in any manner justify the custody of the minor child with the respondent even for a period of 10 years.
8. As against this Shri S.M. Makandar, the learned Advocate appearing for the respondent, submitted that the earlier application which was disposed of by Order dated 15th February 1997 was on the basis of certain facts disclosed in the application which was the subject matter of the Order whereas the impugned Order is based on different set of facts disclosed in the application dated 21st March 1998 and in that view the principle of res judicata will have no application to the matter in hand. According to the learned advocate, the fact regarding the summer vacation was not at all an issue between the parties while the matter was being dealt with by the trial Court and disposed of by Order dated 15th February 1997 whereas that was the sole issue for consideration while disposing the application under consideration by the impugned Order. He further submitted that this Court in the matter of Agnelo Rasquinha v. Maria Cynthia Luiza de Piedae Colaco Rasquinha, reported in 1989 (1) G.L.T. 28 has already held that though the courts are at liberty to interview children, the Court is not bound to follow the wishes of the children if it is found that the children are immature and incapable of forming their opinion. Placing reliance upon the said judgment of this Court, the learned Advocate submitted that undisputedly the child Saniya is hardly 10 years old and cannot be considered to be capable to form her own opinion regarding her own welfare and well being. He further submitted that the father is always the natural guardian of minor children. Being so, and placing reliance upon the judgment of the Delhi High Court in the matter of Dr. Mrs. Manglesh Aneja v. State and another, reported in 1988(24) Reports Del. 345 submitted that the welfare of the minor child should be of paramount consideration for the Court while deciding the issue of custody of the minor child and for that purpose all the relevant facts having bearing on the health, maintenance and education of the minor should be taken into consideration by the Court. Taking this into consideration, according to the learned Advocate, no fault can be found with the impugned order and it cannot be said that any illegality has been committed by the trial Court in ordering the interim custody of the minor child Saniya for 10 days to the respondent. He further submitted that it is in the interest of the child that the child should also be bestowed with fatherly love alongwith motherly love and in that view of the matter no interference is called for by this Court in its revisional jurisdiction.
9. Upon hearing the advocates for the parties and on perusal of the records, it is seen that the trial Court by the impugned order has allowed the application of the respondent for interim custody for 10 days during the summer vacation merely on the ground that the question of summer vacation raised in the application under consideration was not before the trial Court while deciding the matter on 15th February 1997 and secondly on the ground that the predecessor Judge of the trial Court had found that the father of the minor child Saniya, being a natural guardian, could not be deprived to spend some time with his own daughter and to bestow his love and affection on her. The relevant portion of the Order reads thus :-
“Perusal of the application in the said Civil Miscellaneous Application No. 128/ 96 and the affidavit filed in support of it shows that the question of summer vacation was not raised in the said application nor the same was considered in the said order. The petitioner being the father of the minor-child-Saniya is a natural guardian of the said child, he cannot be deprived to spend some time with his own daughter and to bestow his love and affection on her. The application of the petitioner, therefore, deserves to be allowed to the following effects.”
Before arriving at the said finding the trial Court has also quoted a paragraph from the order dated 15th February 1997 in order to justify the said findings. Moreover, it appears that the trial Court completely overlooked that the paragraph quoted from the order dated 15th February 1997 was preceded by two other relevant paragraphs which read thus :-
” 10. It is also pertinent to note that the respondent is living with her parents, sisters and brothers. Thus, it is evident that even in the absence of the respondent there are elderly family members in the house who can look after the child. The applicant is admittedly working and there is nothing on record to prove that he has any family member specially grown up female family member who is genuinely interested in the welfare of the child and who can guide and give motherly advice to the child Saniya.
11. In my opinion, the differences, discord and bitterness between the parents should not affect the healthy normal growth of the child the least that the child deserves and expects from their parents.”
It is only after arriving at these findings that the trial Court in its Order dated 15th February 1997 had observed that considering all these facts and without going into the merits of the allegations made by either parties, there were no compelling circum stances warranting interference of the Court to grant interim custody to the respondent. Nevertheless the trial Court had also observed that the respondent being father of the minor child was equally entitled to spend time with his minor child and to bestow his love and affection on his daughter. In other words, the observation of the trial Court in its order dated 15th February 1997 regarding the necessity or entitlement of the father to spend some time with his minor daughter was in the facts and circumstances disclosed in paragraph 10 and 11 of the said order which clearly disclose that the materials on record do not suggest in any manner that there were any compelling circumstances warranting interference of the Court to grant interim custody to the respondent. At this stage it is pertinent to note that absolutely nothing has been brought on record by the respondent to show that there has been any change in the said situation after passing the Order dated 15-2-97. In other words, the facts that the respondent is not having any elderly person to look after the child in his absence when he goes to attend his job and that no compelling circumstances warranting interim custody of the child Saniya for 10 days with the respondent has been disclosed by the respondent at this stage are not in dispute and therefore there is no change in the said situation which was prevailing as on 15-2-97. The impugned order did not refer to any such material having been brought on record and rightly so, because there is no such materials placed on record.
10. The observation of the trial Court that “question of summer vacation was not raised in the said application nor the same was considered in the said order” clearly shows non-application of mind of the trial Court to the matter in issue. Summer vacation is not a new thing which occurred only in March, 1998. Every educational year is followed by summer vacation. In that view of the matter it cannot be said that the respondent was unaware of the fact that his minor daughter Saniya would be enjoying summer vacation in the year 1998 after answering her examination of Standard VI having started in the said Standard in the academic year 1997-1998. The respondent cannot be said to have been unaware of this fact at the time the matter was heard and decided by Order dated 15-2-97. Though the principle of res judicata may not be strictly applicable here, nevertheless the principle incorporated in Explanation IV of section 11 cannot be completely overlooked. Considering this fact the observation of the trial Court that the question of summer vacation was not raised in the earlier application and was not considered by the trial Court while passing the order dated 15th February 1997 not only discloses non-application of the mind to the matter in issue and the law applicable thereto but clearly discloses improper exercise of its jurisdiction while disposing of the application.
11. Moreover the matter pertains to the custody of the minor child and cannot be disposed of merely because there was a jurisdictional error on the part of the trial Court and the matter requires to be considered on the merits of the case. The trial Court while disposing the earlier application for interim custody has clearly observed as already held above that there is no elderly female member available in the family of the respondent to look after the minor child in the absence of the respondent when he goes to attend his job. The trial Court also observed that for the healthy growth of the minor child the differences between the parents should not be taken into consideration and no fault can be found with such observation of the trial Court. As already observed above the respondent has not brought on record any material to show or to justify any change in the circumstance at the residence of the respondent or that any member of the family is available to look after the child in his absence at his residence since 15-2-97 or any time thereafter. The trial Court in its Order dated 15th February 1997 after taking into consideration all the pros and cons had decided to reject the interim custody of the child to the respondent. There was no reaction by the respondent against the said order. In these circumstances it cannot be said even on merits that there is any case made out by the respondent for any modification or change in the Order dated 15th February 1997 and to permit the custody of the minor child even for 10 days to the respondent.
12. The decision of the Delhi High Court relied upon by the learned Advocate for the respondent lays down broad principles of law to be followed while deciding the matter relating to the custody of the minor child. Moreover, the judgment is clearly distinguishable on facts. In the said case the Delhi High Court has clearly observed that the father is a natural guardian of the children and the burden of proving that he is incapable of looking after the welfare of the children was on the petitioner mother particularly when the children are not in a position to make an intelligent preference. Undisputedly in the instant case the trial Court in its Order dated 15th February 1997 has dearly held that in the facts and circumstances the respondent will not be in a position to look after the minor child Saniya and, therefore, the interim custody of minor child Saniya to the respondent was rejected. That observation remains undisturbed. The respondent never even thought of challenging that decision of the trial Court in its Order dated 15-2-97. In this background the judgment of the Delhi High Court has no application to the case in hand.
13. As regards the decision of our High Court in the matter of Agnelo Rasquinha (supra), there is absolutely no difficulty in placing reliance upon the same, not to justify the impugned order but to justify the interference therein by the High Court. This Court has held in the said decision of Agnelo Rasquinha (supra) that though the Court is at liberty to interview children, the Court is not bound to follow the wishes of the children, if it is found that the children are immature and incapable of forming their opinion. This proposition only speaks about the discretion of the Court to be exercised in the matter of custody of the minor child. In fact, I have personally interviewed the minor child in the presence of both the parents after hearing the arguments by the Counsel for both the parties. After thorough interview with her, I found that she fares comfortably well in her studies and has secured second rank. Besides, she has sufficient interest in extracurricular activities and games. She has already completed 10 years of age. Though she is immature and incapable to form her own opinion, from whatever that was disclosed by her in the course of the interview, I do not see any justification for confirming the order of interim custody of 10 days in favour of the respondent or for any such interim custody of the minor child Saniya with the respondent pending the final disposal of the suit. Moreover, my decision is not based on merely what has transpired from the interview but is based on entire materials on record. Certainly what has been disclosed by the child in the course of the interview cannot be discarded as totally irrelevant.
14. The decision of the Apex Court relied upon by the learned advocate for the petitioner in the matter of Arjun Singh (supra) is of relevancy to the matter in issue. In the said case the Apex Court has held that the scope of principle of res judicata is not confined to what is contained in section 11 but is of more general application. Again the principle of res judicata could be as very much applicable to different stages of the same suit. It has further held that where the principle of res judicata is invoked in the case of the different stages of proceedings in the same suit, the nature of the proceedings, the scope of the enquiry which the adjectival law provides for the decision being reached, as well as the specific provisions made on matters touching such decision are some of the material and relevant factors to be considered before the principle is held applicable. In the instant case the issue before the trial Court while deciding the matter on 15th February 1997 was pertaining to interim custody of the minor child Saniya. The issue before the trial Court while deciding the application under consideration by the impugned order was not different from the interim custody of the minor child. Only difference was that while deciding the matter on 15th February 1997 the Court was concerned about the interim custody of the minor child during the entire pendency of the suit whereas while deciding the application by the impugned order, the Court was concerned with half the period of the summer vacation of 1998. Once the trial Court had considered all the pros and cons and had arrived at the finding that it was not in the interest of the child to grant the interim custody to the respondent during the pendency of the suit, question of granting interim custody during the summer vacation of 1998 could not have been reconsidered by the trial Court unless the respondent had reacted in a lawful manner against the finding arrived at by the trial Court in its Order dated 15-2-97 or the respondent had been able to bring on record the change in the circumstances from those were prevailing on 15-2-97, warranting disturbance in the custody of the minor child Saniya.
15. In this view of the matter, the trial Court has clearly acted in improper exercise of its jurisdiction in granting interim custody of the minor child to the respondent for a period of 10 days from 15th May, 1998 to 25th May, 1998 and, therefore, the same cannot be sustained and is liable to be set aside.
16. In the result, therefore, the revision application succeeds and the impugned order is set aside. However, there shall be no order as to costs.
17. Application succeed.

custody of child given to mother

custody of child given to mother

Custody of child given to mother
“On a careful consideration of respective contentions, this Court is of the considered view that ‘the order passed by this Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 directing the revision petitioner/wife to hand over the minor child Shreya to the respondent/husband (father) on the first and third Sunday of every month at 9.00 a.m. at a common place agreed to by both parties and that the respondent/husband is directed to hand over the child to the revision petitioner/wife on the same day at 4.00 p.m. so that it will have an influence on the mental faculty of the minor child to develop for being a grown-up personality in the near future’ is a valid one and the same does not suffer from any mistake much less an error on the face of record and the same is not an erroneous one and further this Court opines that the petitioner/husband is not entitled to file the present review application as an appeal in disguise and viewed in that perspective, rehearing of the matter is not permissible under the guise of review and resultantly, the Review Application is dismissed to prevent an aberration of justice. It is open to the petitioner/husband to seek remedy before the learned First Additional Judge, Family Court, Chennai (where the O.P.No.3556 of 2007 is pending) by establishing the proof of change of circumstances if any in regard to the custody/ visitation rights of the child Shreya (if the welfare of the ward requires variation since there is no aspect of an estoppel in such a case) in the manner known to law if so advised.”
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
Review Application No.51 of 2009
R.Swaminathan … petitioner
Vs.
Sivagowri … Respondent
Review Application filed under Order XLVII Rule 1 of the Civil Procedure Code r/w.114 of C.P.C., reviewing the order passed in C.R.P.(PD).No.4091 of 2008 dated 20.1.2009.
For petitioner : Mr.I.Subramanian, S.C.
For M/s.Uma Vijayakumar
For respondent : Mrs.Sudha Ramalingam
ORDER
The petitioner/respondent/husband has filed this Review Application praying this court to review its order dated 20.01.2009 made in CRP.(PD).No.4091 of 2008.
2.Earlier, the respondent/petitioner/wife has filed C.R.P.(PD).No.4091 of 2008 before this Court as against the order dated 14.11.2008 in I.A.No.1420 of 2008 in O.P. No.3556 of 2007 passed by the learned First Additional Judge, Family Court, Chennai in directing the respondent/ wife to hand over the child to the petitioner/respondent/ husband on every Sunday at 9.00 a.m. at a common place agreed to by both and the petitioner/husband has been directed to hand over the child to the respondent/wife on the same day at 5.00 p.m. at the same place etc.
3.This court on 20.01.2009 in C.R.P.(PD).No.4091 of 2008 has passed the following order:
"One cannot ignore an important fact that a proceeding in regard to the grant of interim custody of a minor child is a proceeding indeed for the welfare of a child and not a litigation between the parties, in the considered opinion of this Court and viewed in this perspective, a direction issued by the trial Court ordering the revision petitioner/ wife to hand over the child to the respondent/husband on every Sunday at 9.00 a.m. at a common place agreed to by both and that the respondent/husband is directed to hand over the child to the revision petitioner/wife on the same day at 5.00 p.m. at the same place etc., is not for the welfare of the child. However, the visiting right of the respondent/husband (as a father of the child being an interested person) cannot be totally curtailed and therefore, this Court, looking into the facts and appreciating the social conditions and other natural conditions and on overall assessment of the cumulative circumstances of the case and considering the interest of the welfare of the child, in modification of the order passed by the trial Court as an equitable remedy, directs the revision petitioner/wife to hand over the minor child Shreya to the respondent/husband (father) on the first and third Sunday of every month at 9.00 a.m. at a common place agreed to by both parties and that the respondent/husband is directed to hand over the child to the revision petitioner/ wife on the same day at 4.00 p.m. so that it will have an influence on the mental faculty of the minor child to develop for being a grown-up personality in the near future."
4.In the grounds of review, the petitioner/husband has averred that this Court has erred in modifying the order of the Family Court passed in I.A.No.1420 of 2008 much detriment of the petitioner/review applicant’s right to visit his daughter/child for one day in a week and that the petitioner suffered both physical and mental torture at the hands of respondent/wife since the marriage has been a turbulent one and the torture so inflicted on the petitioner by the respondent/wife has been to such an extent that it traumatised the child a great deal and further that he is keen that the child must be brought up in a peaceful, serene and calm environment and the daughter has developed a parental alienation syndrome and the previous school in which she has been studying has advised the petitioner/father to take the child for a professional counseling and moreover, the petitioner’s belongings such as certificates, laptop etc. are all in respondent/wife’s custody and she has refused to give it back to the petitioner and that the child has been shifted from Vidyodaya Matriculation Academy without consulting the petitioner/husband and that the petitioner/husband has been forced to pay the donation of Rs.65,000/- for admission in the Chettinad Vidyashram School and also that the respondent/wife in order to have total control over the child has got a job as a Teacher in the same school and that the petitioner/husband is neither allowed to meet the child nor the school authorities to enquire about the child’s progress and well being and as a matter of fact, the correspondent of Vidyodaya Schools Society (the previous school where the child has been studying) has now given the petitioner a letter dated 09.2.2009 which has not been available when the order has been passed in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 and the order of the Family Court dated 14.11.2008 in I.A.No.1420 of 2008 in O.P.No.3556 of 2007 satisfied the parties who have been benefited by the same and this Court has declined to set aside the order of the Family Court in toto while passing orders in C.R.P.(PD).No.4091 of 2008 but reduce the number of times the petitioner/father can visit his daughter and the contents of the letter dated 09.02.2009 given by the Vidyodaya Schools Society may warrant review of the order passed by this Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 and restore the visitation rights of the petitioner/husband as initially granted by the Family Court etc.
5.The further pleas of the petitioner/husband are that the letter dated 09.2.2009 of the Headmistress of Vidyodaya Schools Society that the petitioner/husband has visited the school only during lunch break and that too only on the insistence of the Teacher and not as stated by the respondent/wife in her affidavit and indeed the parents have equal rights to the child/daughter and neither parties rights are superior to that of the other and that the plight of the petitioner has been deprived of the company of his precious daughter.
6.According to the learned counsel for the petitioner that the order passed in matrimonial proceedings are interlocutory orders and not the final orders and even in compromise orders a modification order can be filed and as far as the petitioner/husband is concerned, he is not interested in initiating the contempt proceedings against the respondent/wife and as per Section 6 of the Hindu Minority and Guardianship Act, the father viz., the petitioner is the natural guardian of the Hindu minor and that the statute mandates that the father is the natural guardian and in the present case before us, the child/ daughter is 8 years and there is nothing to indicate that the petitioner/father is disqualified and when the respondent/wife has floated the orders passed by this Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009, she cannot avail the benefit of the said order.
7.In support of the contention that custody orders passed by the Court in matrimonial proceedings are an interlocutory one, the learned counsel for the petitioner cites the decision in B.Suresh Babu V. Nithya 2009 (1) CTC 402 wherein this Court has held that ‘revision under Article 227 of the Constitution could be maintainable only if there is no alternative remedy available to prevent abuse of process of Court and to meet ends of justice under the supervisory power of the High Court and further it is the settled proposition of law that in case of custody of minor child, welfare of child is paramount and even orders passed on compromise has to be treated as an Interlocutory Order subject to modification and that the revision petitioner/father of the child is entitled to place all his defence to substantiate his visiting right as per compromise decree and Court below is empowered to decide the same on merits and that the respondent has to establish alleged change of circumstance warranting filing of an application and justify the relief sought for and taht the Court is not an functus officio.’
8.He also relies on the decision of Hon’ble Supreme Court in Jai Prkash Khadria V. Shyam Sunder Agarwalla and another in (2000) 6 Supreme Court Cases 598 at page 599 wherein it is held that ‘orders relating to custody of children are by their very nature not final but are interlocutory in nature and subject to modification at any future time upon proof of change of circumstances requiring change of custody but such change in custody must be proved to be in the paramount interest of the child.’
9.The learned counsel for the petitioner/husband brings it to the notice of this Court in the decision of Hon’ble Supreme Court in Nil Ratan Kundu and another V. Abhijit Kundu (2008) 9 SCC 413 wherein the Hon’ble Supreme Court has inter alia observed that ‘in regard to the issues pertaining to the custody of minor the same should be handled with love, affection, sentiments and applying human touch to the problem.’
10.It is to be borne in mind that as a general rule, the Court will appoint the father as a guardian of the minor and will not deprive him of the custody of minor if it is satisfied that having regard to the facts and circumstances of the case, the father must have the custody of the minor. In all such cases, the vital consideration in appointing the guardian ought to be the welfare of the minor child and the Court may not give custody of the minor to the father. In the decision Mohini V. Veerendrakumar AIR 1977 S.C., it is held that ‘the mother is entitled to guardianship and custody of minor son 11 years old.’
11.When the father is alive, he is the natural guardian and it is only after him the mother becomes the natural guardian. However, there can be an exceptional case where the minor can be legally represented by the mother as the natural guardian, even though the father may be alive. Where the father of the minor has been alive, but the father and mother has fallen down and the mother with whom the minor has been living and has been managing the affairs of the minor daughter for over 20 years it is held that a lease executed by the mother on behalf of the minor has been valid and binding on the minor, the mother being recorded as a natural guardian of the minor in the particular circumstances as per decision Jijabai Vithalrao Gajre V. Pathankhan AIR 1971 SC 315.
12.The learned counsel for the petitioner/husband submits that he is not seeking a review of the order passed in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 but prays for an issuance of an order to modify the order passed in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009.
13.In response, the learned counsel for the respondent/wife submits that the review application is not maintainable before this Court since there is no error apparent on the face of record in the order passed in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 and the review jurisdiction is an extraordinary remedy in limited cases and that is not similar to an appeal and under the guise of review, the petitioner ought not to be permitted to re-agitate the pleas and in fact, the petitioner has not made out a case that the order passed by this Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 suffers from an error apparent on the face of record and as such, the review application is liable to be dismissed.
14.In support of the contention that rehearing the matter for deducting an error in the earlier decision and then correcting the same do not fall within the purview of review jurisdiction, the learned counsel for the respondent /wife cites the decision of Hon’ble Supreme Court in Parsion Devi and others V. Sumitri Devi and others (1997) 8 SCC 715 at page 716 wherein it is inter alia observed as follows: "Under Order 47, Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47, Rule 1 CPC. In exercise of the jurisdiction under Order 47, Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise".
15.Also reliance is placed on the decision in Meera Bhanja V. Nirmala Kumari Choudhury (1995) 1 SCC 170 wherein it is laid down that ‘review must be confined to error apparent on the face of the record and error must be such as would be apparent on mere looking of the record without requiring any long-drawn process of reasoning and reappraisal of the entire evidence on record for finding the error would amount to exercise of appellate jurisdiction which is permissible etc.’
16.In the additional affidavit of the petitioner/ husband it is among other things mentioned that ‘for 8 months he has been denied access to his daughter and finally the Family Court in I.A.No.1420 of 2007 granted him two hours visitation rights of Thursdays and after his daughter’s school reopened this has been reduced to one hour a week on the request of the respondent/wife before the Court and the Family Court passed final orders in I.A.No.1420 of 2007 on 14.11.2008 granting him visitation rights on all Sundays from 9.00 a.m. to 5.00 p.m. and when this has been challenged in C.R.P.(PD).No.4091 of 2008 orders have been passed reducing the visitation rights to the first and third Sundays in a month and pending adjudication of the review application, a changed circumstance has occurred and on 04.06.2009 Mr.Dilip, the junior of his wife’s counsel called and told him to pay the child’s school fees and when the authorities of the school wanted him to furnish the roll number of the child which he is not aware and the authorities after verifying the records has come back and informed him that he cannot pay the fees as they have been instructed by his wife not to entertain him at any cost or to give any access to the child or information about her progress in the school and the school authorities refuse to allow him to pay the fees and asked him to leave the school premises and he has an equal right to the welfare of the child.
17.In the counter filed (in the review application) by the respondent/wife, it is among other things stated that it is the husband who volunteered to pay school fees and donation to Chettinad Vidyashram School before the Family Court Judge and he enjoyed visitation rights on Thursdays in the child care centre at the Family Court premises and there is no need for him to visit the child in the school and disturb her in the presence of her other classmates and schoolmates and she has obeyed the orders of the Family Court and this Court except on two occasions, when her daughter has been sick and when her family has gone on a pilgrimage and even on such occasions, she informed the husband duly through the Family Court counsellor Ms.Lalitha, in whose house the child is generally handed over during visitation hours and in fact, on her instruction, her counsel’s junior has requested the husband to pay the school fees as he has already volunteered to pay for it in the Family Court and that he has not paid the fees and therefore, she has paid the same and when the child is in her custody and the husband has only visitation rights on alternative Sundays, disturbing the child at any other time violates the rights of the child and that of her to live in peace and harmony and the review petitioner/ husband has no new circumstances to substantiate his claim for review and has been engaging in vexatious litigation purely to harass her and her family.
18.In the decision of this Court in K.Jagannathan V. A.M.Vasudevan Chettiar and others (2001) 1 M.L.J. 614 it is held that ‘Admittedly the mother has not alienated the property of the minor. Under the document joint family properties were divided and the minor was represented by his mother as guardian. Though father is a natural guardian as per Sec.6, it was the father who permitted the mother to act as the guardian of the minor and he did not raise any objection.’
19.It is not out of place to point out that as per Section 26 of the Hindu Marriage Act, the Court, pending the matrimonial proceedings from time to time, may pass orders as to the interim custody of the minor child.
20.This Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 by directing the revision petitioner/wife to hand over the child Shreya to the respondent/husband (review petitioner/father) on the first and third Sunday of every month at 9.00 a.m. at a common place agreed to by both parties and that the respondent/husband is directed to hand over the child to the revision petitioner/wife on the same day at 4.00 p.m. etc. has not denied a complete access to the review petitioner/husband.
21.The power of review under Order 47 Rule 1 constitute an exception to the general rule to the effect that once a judgment is signed and delivered it cannot afterwards be altered. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for a patent error as per decision in Saravana Pillai V. A.S.Mariappan 2003 1 MLJ 693. Indeed, the ambit of review is for review of ‘error apparent’ only and not to review the judgment/order, even if the parties are placed in a situation to satisfy the Court that the order under review is an erroneous one as per decision Ahmedabad Electricity Company Limited V. State of Gujarat AIR 2003 Guj 157 (159) D.B. The aim is not to enable a Judge to write a second judgment because the first one was wrong as per decision in Krishnan V. Narayanan AIR 1951 Madras at page 660.
22.Even if a decision or an order is erroneous in law or on merits it cannot be accepted that it is an error apparent on the face of the record. Where there are two possible views regarding the interpretation or application of law vis-a-vis the particular facts of a case, taking one view, even if it is erroneous cannot be said to be an error apparent on the face of the record. There exist a distinction between a mere erroneous decision and an error apparent on the face of the record. An error can be said to be apparent on the face of record only when such an error is patent and can be found out without any detail argument without any scope for any controversy in regard to such error, which as if at a glance stares at the face. But if there is no error apparent on the face of record review petition is not maintainable as per decision Kailash Talkies V. State of Rajesthan 1998 AIHC 2401. Moreover, if a view adopted by the Court in the original order is a possible view, it cannot be an error apparent on the face of record even though another view is also possible as per decisionC.N.Ramachandra V. State AIR 1997 Kant 181, 183. In short, a review cannot repair the verdict once given if it is not an error on the face of it as per decision in Sabad Ch Deka V. Naomai Deka AIR 1985 NOC 19 (Gau).
23.A review petition has to be entertained only on the face of the error apparent on the face of record but not on any other reason in the considered opinion of this Court. The limitation of the power of a Court of law under Order 47 Rule 1 C.P.C. is akin to the jurisdiction available to the High Court while seeking review of the orders under Article 226 of the Constitution as per decisionMeera Bhanja V. Nirmal Kumar Choudhury (1995) 1 SCC at page 170. Mere possibility of two views is not a ground for review, the review Court cannot said as an Appellate Court therefore, reassessing the evidence and pointing out the defects in the order of the Court is not proper as per decision Santhosh Kumar V. Nageshwar Prasad AIR 2001 All 187. Admittedly, the power of review the hedged in by the restrictions specified in Order 47 it can be exercised on the application of an individual on the discovery of new matter of evidence which, after the exercise of due diligence has not been within its knowledge or could not be produced by him at the time when the order has been made. Suffice it for this Court to point out that a review cannot be claimed or asked for merely for a fresh hearing or an argument, or a correction on an erroneous view taken earlier, that is to say, the power of review can be exercised only for the correction of a patent error of law or fact which stares in the face without any detail arguments being required for establishing the same. The expression ‘any other sufficient reason’ employed in Order 47 Rule 1 means a reason sufficiently analogous to those mentioned in the rule.
24.Mere discovery of vital new matter or evidence is not sufficient ground for a review. A party seeking review has also to establish that such additional material has not been within its knowledge and even after the exercise of due diligence could not be produced any Court earlier. An error contemplated under Order 47 Rule 1 C.P.C. must be such which is an apparent on the face of record and not an error which has to be fished out and searched in the considered opinion of this Court A reappraisal of the evidence on record for finding out the error will amount to an exercise of appellate jurisdiction which is not permissible by the constitute.
25.The learned counsel for the respondent/wife cites the decision in Mohan Lal Bagla V. Board of Revenue AIR 2005 All 308 wherein it is held as follows:
"To argue same details as a question of fact in second inning of the matter cannot be permitted. It is under very exceptional circumstances where it can be demonstrated that on the finding and reasoning so given, there is error apparent on the face of record which can be termed to be mistake within the meaning of error apparent as that can be discovered without any argument, it may be filed by a new advocate but that too after obtaining no objection from earlier counsel. If a case is to be argued on the same set of facts by change of counsel, at several occasions, it may be possible that with imminence of the counsel, a new dimension to the augment may come on same set of facts. Skill in the argument and advocacy is to vary always from counsel to counsel. Although earlier two senior advocates of this Court namely Sri R.N. Singh and Sri V.B. Upadhyaya argued the matters on behalf of applicant at length with full vehemence at their command but now Sri V.B. Singh, learned senior advocate wants to argue the matter in his own way by placing the same record and same pleadings. On the facts of present case, this Court is of the view that filing of review petition on the ground so taken in the application cannot be said to be just and proper so as to entitle Sri Saran, learned advocate and Sri Singh, learned senior advocate to file and argue this review petition. It is thus established that change of counsel during review proceedings is a deprecated practice that is actively discouraged by the Courts. Such practice acts as a backdoor to abuse of review proceedings. With changed counsel, pleas are re-agitated as though in appeal, thereby obliterating the distinct differences in the nature of appellate and review proceedings. The present case suffers from the same malady where the Petitioner is attempting to disguise his appeal in the cloak of review proceedings complete with change of counsel."
26.The learned counsel for the petitioner/husband submits that the Correspondent of Vidyodaya Schools Society, Chennai-600 017 in her letter dated 09.02.2009 addressed to the petitioner herein inter alia stating that the petitioner has come to Vidyodaya School only during lunch time at the insistence of her teacher who felt that she has been missing you and her impression that Shreya has been happy and relieved to see him and enjoyed the treats that you have brought and further the students of Standard I being only 5 years old neither understood nor commented on any family problem and it is her impression that Shreya enjoyed being a student of Vidyodaya Matriculation Academy and access to her has always only with the permission of the school authorities and only during the lunch interval and counselling for her has been recommended because of her behaviour in class room etc. and as such, the averments of the respondent/wife in her affidavit are false which in turn is a good ground for this Court to reconsider its order passed in the main civil revision petition. However, the learned counsel for the respondent/wife contends that the letter of the school Correspondent dated 09.02.2009 addressed to the petitioner/husband cannot be relied upon as it is contrary to facts and the same has been given solely to please him and further the Correspondent is not competent or qualify to enter a judgment in regard to the mental state of the child, apart from the fact that the said letter has been issued more than a year after the child has been transferred from the said school. In effect, the letter dated 09.02.2009 of the Correspondent of the Vidyodaya Schools Society addressed to the petitioner/ husband is very much disputed on the side of the respondent /wife. In this connection, it is apt for this Court to cite the decision of Hon’ble Supreme Court in Union of India V. Paul Manickam AIR 2003 SC 4622, 4629 wherein it is held that ‘the Court will not entertain a review petition with an entirely new substratum of issues or where there is suppression of facts.’ In the decision Bahadur V. Bachai AIR 1963 All. 186 it is observed that ‘the High Court cannot set aside or recall its own decision on a review application under Order 47 of C.P.C. but it can set right the wrong committed by it in exercise of its inherent jurisdiction. The learned counsel for the respondent/wife brings it to the notice of this Court that the Delhi High Court in Krishna Bus Service (P) Ltd., V. Satvir Singh, W.P.(C).No.3275/2001 (decided on 19.03.2008) has held as follows: "Discovery of new evidence or material by itself is not sufficient to entitle a party for review of a judgment. A review is permissible on the ground of discovery of new evidence only when such an evidence is relevant and of such a character that if it had been produced earlier it might possibly have altered the judgment, further, it must be established that the applicant had acted with due diligence and that the existence of the evidence, which he has now discovered, was not within his knowledge when the order was passed. If it is found that the petitioner has not acted with the diligence then it is not open to the Court to admit evidence on the ground of sufficient cause. The party seeking a review should prove strictly the diligence he claims to have exercised. In a review application a party cannot be allowed to introduced fresh documents merely to supplement evidence which might possibly have had some effect on the result."
27.Added further, the learned counsel for the respondent/wife relies on the decision of Hon’ble Supreme Court in Tamil Nadu Electricity Board V. N.Raju Reddiar (1997) 9 SCC 736 wherein it is held as follows:
"…. except in rare cases where error of law or fact is apparent on the record, no review can be filed; that too by the advocate on record who neither appeared nor was party in the main case. It is salutary that court spends valuable time in deciding a case. Review petition is not, and should not be, an attempt for hearing the matter again on merits. Unfortunately, it has become, in recent time, a practice to file such review petitions as a routine; that too, with change of counsel, without obtaining consent of the advocate on record at earlier stage. This is not conductive to healthy practice of the Bar which has the responsibility to maintain the salutary practice of profession." Furthermore, in the aforesaid decision it is observed as follows:
"Once the petition for review is dismissed, no application for clarification should be filed, much less with the change of the Advocate-on-Record. This practice of changing the advocates and filing repeated petitions should be deprecated with a heavy hand for purity of administration of law and salutary and healthy practice.
The application is dismissed with exemplary costs of Rs.20,000 as it is an abuse of the process of Court in derogation of healthy practice. The amount should be paid to the Supreme Court Legal Aid Services Committee within four months from the date of judgment."
28.The utmost requirement under Order 47 Rule 1 of C.P.C. is that the order of which review is sought suffers from any error apparent on the face of order and permitting the order to stand will lead to failure of justice as per decision Rajendra Kumar V. Ram Bai AIR 2003 SC 2095 (2096). No wonder, the power of review is not to be confused with the appellate power which enable the appellate Court to correct all errors of Subordinate Court. A review means the act of looking, offer something again with a view to correction or improvement and that the same is also not an appeal in disguise as per decision Lily Thomas V. Union of India AIR 2000 SC 1650 (1652). Also there cannot be a reappraisal of the entire evidence on record for finding an error. It is needless to state that if there is reappraisal, it will amount to exercise of appellate jurisdiction, which is not permissible. The learned counsel for the respondent/wife refers to the decision of Hon’ble Supreme Court in Thungabhadra Industries Limited V. The Government of Andhra Pradesh, 1965 (5) SCR 174 (186) wherein it is held that ‘a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.’ Another decision of this Court in Hindustan Photo Films Company Limited and another V. H.B. Vinobha and others AIR 1998 Madras 358 is relied on the side of the respondent/wife wherein it is held as follows: "the power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made, it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground, It may not be exercised on the ground that the decision was erroneous on merits since that would be the province of Court of Appeal and the same cannot be a ground for review. Where the very same objections were raised in review which were earlier raised and considered on the fact of information furnished by both sides while disposing of the writ petitions, the review applications would be liable to be dismissed."
29.In regard to the contention that the orders pertaining to custody of children are interlocutory in nature and subject to modification at any future time based on proof of change of circumstance and such change in custody ought to be established in the paramount interest of the child, the learned counsel for the petitioner refers to the decision of Hon’ble Supreme Court in Rosy Jacob V. Jacob A. Chakramakkal (1973) 1 SCC 840.
30.On a careful consideration of respective contentions, this Court is of the considered view that ‘the order passed by this Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 directing the revision petitioner/wife to hand over the minor child Shreya to the respondent/husband (father) on the first and third Sunday of every month at 9.00 a.m. at a common place agreed to by both parties and that the respondent/husband is directed to hand over the child to the revision petitioner/wife on the same day at 4.00 p.m. so that it will have an influence on the mental faculty of the minor child to develop for being a grown-up personality in the near future’ is a valid one and the same does not suffer from any mistake much less an error on the face of record and the same is not an erroneous one and further this Court opines that the petitioner/husband is not entitled to file the present review application as an appeal in disguise and viewed in that perspective, rehearing of the matter is not permissible under the guise of review and resultantly, the Review Application is dismissed to prevent an aberration of justice. It is open to the petitioner/husband to seek remedy before the learned First Additional Judge, Family Court, Chennai (where the O.P.No.3556 of 2007 is pending) by establishing the proof of change of circumstances if any in regard to the custody/ visitation rights of the child Shreya (if the welfare of the ward requires variation since there is no aspect of an estoppel in such a case) in the manner known to law if so advised.
31.In fine, the Review Application is dismissed, leaving the parties to bear their own costs. It is open to the petitioner/husband to seek remedy before the learned First Additional Judge, Family Court, Chennai (where the O.P.No.3556 of 2007 is pending) by establishing the proof of change of circumstances if any in regard to the custody/ visitation rights of the child Shreya (if the welfare of the ward requires variation since there is no aspect of an estoppel in such a case) in the manner known to law if so advised. Considering the relationship of the parties and the facts and circumstances of the case, there shall be no order as to costs. 3.08.2009
Index : Yes
Internet : Yes
sgl
To
The I Additional Judge,
Family Court, Chennai.
M.VENUGOPAL, J.

Child Visitation right of father

Child Visitation right of father

Child Visitation right to father.
“In the application dated 9.5.2008 filed before the Additional District Judge, Delhi, the mother made it clear in paragraph 12 that she is ready to furnish any undertaking or bond in order to ensure her return to India and to make available to the father, his visitation rights subject to the education of the child. This Court finds that so far as the order which had been passed by the High Court, affirming the order of the Trial Court, the visitation rights of the appellant-father have been so structured as to be compatible with the educational career of the child. This Court finds that in this matter judicial discretion has been properly balanced between the rights of the appellant and those of the respondent.”
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2704 OF 2010
(Arising out of SLP(C) No.19935/2009) Vikram Vir Vohra ..Appellant(s) Versus
Shalini Bhalla ..Respondent(s) J U D G M E N T
GANGULY, J.
1. Leave granted.
2. This appeal by the husband, impugns the judgment and order dated 27.07.09 of Delhi High Court which upheld the judgment and order of the Additional District Judge passed in relation to applications filed by both the parties under Section 26 of the Hindu Marriage Act (hereinafter "the Act"). The impugned judgment 1

 permitted the respondent-wife to take the child with her to Australia.
3. The material facts of the case are that the parties to the present appeal were married as per the Hindu rites on 10.12.2000. A child, Master Shivam, was born to them on 05.08.02. In view of irreconcilable differences between the parties they had agreed for a divorce by mutual consent under Section 13-B of the Act and filed a petition to that effect and on 05.09.06 a decree of divorce on mutual consent was passed by the Additional District Judge, Delhi.
4. As regards the custody of the child there was some settlement between the parties and according to the appellant the same was incorporated in paras 7 and 9 of the petition filed under Section 13-B (2) of the Act. Those paragraphs are as under:
"The parties have agreed that the custody of the minor son Master Shivam shall remain with the mother, petitioner No.1 who being the natural mother is also the guardian of the son Master Shivam as per law laid down by the Supreme Court of India. It is, however, agreed that the father petitioner shall have right of 2

 visitation only to the extent that the child Master Shivam shall be with the father, petitioner No.2, once in a fortnight from 10 AM to 6.30 PM on a Saturday. Petitioner No.2 shall collect the child Master Shivam from WZ-64, 2nd Floor Shiv Nagar Lane No.4, New Delhi-58 at 10 AM on a Saturday where the child is with his mother. And on the same day at by 6.30 PM, the petitioner No.2 would leave the child back at the same place with the mother i.e. petitioner No.1 and in case he does not do so petitioner No.1 the mother shall collect the child from petitioner No.2 on the same day. Both parties undertake before this Hon’ble Court that they would not create any obstruction in implementation of this arrangement.
The petitioner No.1 shall take adequate care of the child in respect of health, education etc., at her own cost. In case the petitioner No.1 changes her address or takes the child outside Delhi, she shall keep petitioner No.2 informed one week in advance about the address and telephone nos. and the place where the child would be staying with the mother, to enable the petitioner No.2 to remain in touch with the child.
The petitioner No.1 has received all her Stridhan and other valuables, articles and other possessions, and nothing remains due to her from the petitioner No.2. The petitioner No.1 and the child Shivam has no claim to any property or financial commitment from petitioner No.2 and all her claims are settled fully and finally".
5. Thereafter the respondent-wife filed applications dated 07.11.06 and 9.05.08 and the 3

 appellant-husband also filed applications dated 17.11.07 and 16.02.09 under Section 26 of the Act seeking modification of those terms and conditions about the custody of the child.
6. The respondent was basing her claim on the fact that she wanted to take the child with her to Australia where she was employed for gain with a request to revoke the visitation rights granted to the appellant for meeting the child. This she felt will be conducive to the paramount interest and welfare of the child. The appellant on the other hand sought permanent custody of the child under the changed circumstances alleging that it is not in the interest of the child to leave India permanently.
7. The Trial Court vide its order dated 06.04.09 took notice of the fact that in the joint petition of divorce, parties voluntarily agreed that the custody of the child shall remain with the mother and father shall have only visiting rights, in the manner indicated in the mutual divorce decree. The Court modified the terms and 4

 conditions of the custody and visitation rights of the appellant about the minor child. By its order the Trial Court had allowed the respondent to take the child with her to Australia but also directed her to bring the child back to India for allowing the father visitation rights twice in a year i.e. for two terms – between 18th of December to 26th of January and then from 26th of June to 11th of July.
8. Being aggrieved by that order of the Trial Court, the appellant appealed to the High Court. It was argued by the appellant since no decree was passed by the Court while granting mutual divorce, an application under Section 26 of the Act does not lie and in the absence of specific provision in the decree regarding the custody and visitation rights of the child, the Trial Court has no jurisdiction to entertain the petition afresh after passing of the decree.
9. The High Court took into consideration the provisions of Section 26 of the Act and was of the view that the aforesaid provision is 5

 intended to enable the Court to pass suitable orders from time to time to protect the interest of minor children. However, the High Court held that after the final order is passed in original petition of divorce for the custody of the minor child, the other party cannot file any number of fresh petitions ignoring the earlier order passed by the Court.
10. The Court took into consideration that even if the terms and conditions regarding the custody and visitation rights of the child are not specifically contained in the decree, they do form part of the petition seeking divorce by mutual consent. It was of the view that absence of the terms and conditions in the decree does not disentitle the respondent to file an application under Section 26 of the Act seeking revocation of the visitation rights of the appellant.
11. It is important to mention here that the learned Judge of the High Court had personally interviewed the child who was about 7 years old 6

 to ascertain his wishes. The child in categorical terms expressed his desire to be in the custody and guardianship of his mother, the respondent. The child appeared to be quite intelligent. The child was specifically asked if he wanted to live with his father in India but he unequivocally refused to go with or stay with him. He made it clear in his expression that he was happy with his mother and maternal grandmother and desired only to live with his mother. The aforesaid procedure was also followed by the learned Trial Court and it was also of the same view after talking with the child.
12. Being aggrieved with the judgment of the High Court the appellant has approached this Court and hence this appeal by way of Special Leave Petition.
13. We have also talked with the child in our chambers in the absence of his parents. We found him to be quite intelligent and 7

 discerning. The child is in school and from the behaviour of the child, we could make out that he is well behaved and that he is receiving proper education.
14. The child categorically stated that he wants to stay with his mother. It appears to us that the child is about 8-10 years of age and is in a very formative and impressionable stage in his life. The welfare of the child is of paramount importance in matters relating to child custody and this Court has held that welfare of the child may have a primacy even over statutory provisions [See Mausami Moitra Ganguli vs. Jayant Ganguli – (2008) 7 SCC 673, para 19, page 678]. We have considered this matter in all its aspects.
15. The argument of the learned counsel for the appellant, that in view of the provisions of Section 26 of the Act, the order of custody of the child and the visitation rights of the 8

 appellant cannot be changed as they are not reflected in the decree of mutual divorce, is far too hyper technical an objection to be considered seriously in a custody proceeding. A child is not a chattel nor is he/she an article of personal property to be shared in equal halves.
16. In a matter relating to custody of a child, this Court must remember that it is dealing with a very sensitive issue in considering the nature of care and affection that a child requires in the growing stages of his or her life. That is why custody orders are always considered interlocutory orders and by the nature of such proceedings custody orders cannot be made rigid and final. They are capable of being altered and moulded keeping in mind the needs of the child.
17. In Rosy Jacob vs. Jacob A Chakramakkal – [(1973) 1 SCC 840], a three judge Bench of 9

 this Court held that all orders relating to custody of minors were considered to be temporary orders. The learned judges made it clear that with the passage of time, the Court is entitled to modify the order in the interest of the minor child. The Court went to the extent of saying that even if orders are based on consent, those orders can also be varied if the welfare of the child so demands.
18. The aforesaid principle has again been followed in Dhanwanti Joshi vs. Madhav Unde – [(1998) 1 SCC 112].
19. Even though the aforesaid principles have been laid down in proceedings under the Guardians and Wards Act, 1890, these principles are equally applicable in dealing with the custody of a child under Section 26 of the Act since in both the situations two things are common; the first, being orders relating to custody of a growing child and 10

 secondly, the paramount consideration of the welfare of the child. Such considerations are never static nor can they be squeezed in a strait jacket. Therefore, each case has to be dealt with on the basis of its peculiar facts.
20. In this connection, the principles laid down by this Court in Gaurav Nagpal vs. Sumedha Nagpalreported in (2009) 1 SCC 42 are very pertinent. Those principles in paragraphs 42 and 43 are set out below:
"42. Section 26 of the Hindu Marriage Act, 1955 provides for custody of children and declares that in any proceeding under the said Act, the court could make, from time to time, such interim orders as it might deem just and proper with respect to custody, maintenance and education of minor children, consistently with their wishes, wherever possible.
43. The principles in relation to the custody of a minor child are well
settled. In determining the question as to who should be given custody of a minor child, the paramount consideration is the "welfare of the child" and not rights of the parents under a statute for the time being in force".
11

21. That is why this Court has all along insisted on focussing the welfare of the child and accepted it to be the paramount consideration guiding the Court’s discretion in custody order. See Thrity Hoshie Dolikuka vs. Hoshiam Shavaksha Dolikuka – [AIR 1982 SC 1276], para 17.
22. In the factual and legal background considered above, the objections raised by the appellant do not hold much water.
23. Now coming to the question of the child being taken to Australia and the consequent variations in the visitation rights of the father, this Court finds that the Respondent mother is getting a better job opportunity in Australia. Her autonomy on her personhood cannot be curtailed by Court on the ground of a prior order of custody of the child. Every person has a right to develop his or her potential. In fact a right to development is a basic human right. The respondent-mother cannot be asked to choose between her child 12

 and her career. It is clear that the child is very dear to her and she will spare no pains to ensure that the child gets proper education and training in order to develop his faculties and ultimately to become a good citizen. If the custody of the child is denied to her, she may not be able to pursue her career in Australia and that may not be conducive either to the development of her career or to the future prospects of the child. Separating the child from his mother will be disastrous to both.
24. Insofar as the father is concerned, he is already established in India and he is also financially solvent. His visitation rights have been ensured in the impugned orders of the High Court. His rights have been varied but have not been totally ignored. The appellant-father, for all these years, lived without the child and got used to it. 13

25. In the application dated 9.5.2008 filed before the Additional District Judge, Delhi, the mother made it clear in paragraph 12 that she is ready to furnish any undertaking or bond in order to ensure her return to India and to make available to the father, his visitation rights subject to the education of the child. This Court finds that so far as the order which had been passed by the High Court, affirming the order of the Trial Court, the visitation rights of the appellant-father have been so structured as to be compatible with the educational career of the child. This Court finds that in this matter judicial discretion has been properly balanced between the rights of the appellant and those of the respondent.
26. In that view of the matter, this Court refuses to interfere with the order passed by the High Court. The appeal is dismissed with the direction that the respondent-mother, 14

 before taking the child to Australia, must file an undertaking to the satisfaction of the Court of Additional District Judge-01, (West), Delhi within a period of four weeks from date. No order as to costs.
…………………..J.
(G.S.SINGHVI)
…………………..J.
(ASOK KUMAR GANGULY)
New Delhi

Custody of Child to mother

custody of child given to mother

Custody of child given to mother
“On a careful consideration of respective contentions, this Court is of the considered view that ‘the order passed by this Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 directing the revision petitioner/wife to hand over the minor child Shreya to the respondent/husband (father) on the first and third Sunday of every month at 9.00 a.m. at a common place agreed to by both parties and that the respondent/husband is directed to hand over the child to the revision petitioner/wife on the same day at 4.00 p.m. so that it will have an influence on the mental faculty of the minor child to develop for being a grown-up personality in the near future’ is a valid one and the same does not suffer from any mistake much less an error on the face of record and the same is not an erroneous one and further this Court opines that the petitioner/husband is not entitled to file the present review application as an appeal in disguise and viewed in that perspective, rehearing of the matter is not permissible under the guise of review and resultantly, the Review Application is dismissed to prevent an aberration of justice. It is open to the petitioner/husband to seek remedy before the learned First Additional Judge, Family Court, Chennai (where the O.P.No.3556 of 2007 is pending) by establishing the proof of change of circumstances if any in regard to the custody/ visitation rights of the child Shreya (if the welfare of the ward requires variation since there is no aspect of an estoppel in such a case) in the manner known to law if so advised.”
THE HONOURABLE MR.JUSTICE M.VENUGOPAL
Review Application No.51 of 2009
R.Swaminathan … petitioner
Vs.
Sivagowri … Respondent
Review Application filed under Order XLVII Rule 1 of the Civil Procedure Code r/w.114 of C.P.C., reviewing the order passed in C.R.P.(PD).No.4091 of 2008 dated 20.1.2009.
For petitioner : Mr.I.Subramanian, S.C.
For M/s.Uma Vijayakumar
For respondent : Mrs.Sudha Ramalingam
ORDER
The petitioner/respondent/husband has filed this Review Application praying this court to review its order dated 20.01.2009 made in CRP.(PD).No.4091 of 2008.
2.Earlier, the respondent/petitioner/wife has filed C.R.P.(PD).No.4091 of 2008 before this Court as against the order dated 14.11.2008 in I.A.No.1420 of 2008 in O.P. No.3556 of 2007 passed by the learned First Additional Judge, Family Court, Chennai in directing the respondent/ wife to hand over the child to the petitioner/respondent/ husband on every Sunday at 9.00 a.m. at a common place agreed to by both and the petitioner/husband has been directed to hand over the child to the respondent/wife on the same day at 5.00 p.m. at the same place etc.
3.This court on 20.01.2009 in C.R.P.(PD).No.4091 of 2008 has passed the following order:
"One cannot ignore an important fact that a proceeding in regard to the grant of interim custody of a minor child is a proceeding indeed for the welfare of a child and not a litigation between the parties, in the considered opinion of this Court and viewed in this perspective, a direction issued by the trial Court ordering the revision petitioner/ wife to hand over the child to the respondent/husband on every Sunday at 9.00 a.m. at a common place agreed to by both and that the respondent/husband is directed to hand over the child to the revision petitioner/wife on the same day at 5.00 p.m. at the same place etc., is not for the welfare of the child. However, the visiting right of the respondent/husband (as a father of the child being an interested person) cannot be totally curtailed and therefore, this Court, looking into the facts and appreciating the social conditions and other natural conditions and on overall assessment of the cumulative circumstances of the case and considering the interest of the welfare of the child, in modification of the order passed by the trial Court as an equitable remedy, directs the revision petitioner/wife to hand over the minor child Shreya to the respondent/husband (father) on the first and third Sunday of every month at 9.00 a.m. at a common place agreed to by both parties and that the respondent/husband is directed to hand over the child to the revision petitioner/ wife on the same day at 4.00 p.m. so that it will have an influence on the mental faculty of the minor child to develop for being a grown-up personality in the near future."
4.In the grounds of review, the petitioner/husband has averred that this Court has erred in modifying the order of the Family Court passed in I.A.No.1420 of 2008 much detriment of the petitioner/review applicant’s right to visit his daughter/child for one day in a week and that the petitioner suffered both physical and mental torture at the hands of respondent/wife since the marriage has been a turbulent one and the torture so inflicted on the petitioner by the respondent/wife has been to such an extent that it traumatised the child a great deal and further that he is keen that the child must be brought up in a peaceful, serene and calm environment and the daughter has developed a parental alienation syndrome and the previous school in which she has been studying has advised the petitioner/father to take the child for a professional counseling and moreover, the petitioner’s belongings such as certificates, laptop etc. are all in respondent/wife’s custody and she has refused to give it back to the petitioner and that the child has been shifted from Vidyodaya Matriculation Academy without consulting the petitioner/husband and that the petitioner/husband has been forced to pay the donation of Rs.65,000/- for admission in the Chettinad Vidyashram School and also that the respondent/wife in order to have total control over the child has got a job as a Teacher in the same school and that the petitioner/husband is neither allowed to meet the child nor the school authorities to enquire about the child’s progress and well being and as a matter of fact, the correspondent of Vidyodaya Schools Society (the previous school where the child has been studying) has now given the petitioner a letter dated 09.2.2009 which has not been available when the order has been passed in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 and the order of the Family Court dated 14.11.2008 in I.A.No.1420 of 2008 in O.P.No.3556 of 2007 satisfied the parties who have been benefited by the same and this Court has declined to set aside the order of the Family Court in toto while passing orders in C.R.P.(PD).No.4091 of 2008 but reduce the number of times the petitioner/father can visit his daughter and the contents of the letter dated 09.02.2009 given by the Vidyodaya Schools Society may warrant review of the order passed by this Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 and restore the visitation rights of the petitioner/husband as initially granted by the Family Court etc.
5.The further pleas of the petitioner/husband are that the letter dated 09.2.2009 of the Headmistress of Vidyodaya Schools Society that the petitioner/husband has visited the school only during lunch break and that too only on the insistence of the Teacher and not as stated by the respondent/wife in her affidavit and indeed the parents have equal rights to the child/daughter and neither parties rights are superior to that of the other and that the plight of the petitioner has been deprived of the company of his precious daughter.
6.According to the learned counsel for the petitioner that the order passed in matrimonial proceedings are interlocutory orders and not the final orders and even in compromise orders a modification order can be filed and as far as the petitioner/husband is concerned, he is not interested in initiating the contempt proceedings against the respondent/wife and as per Section 6 of the Hindu Minority and Guardianship Act, the father viz., the petitioner is the natural guardian of the Hindu minor and that the statute mandates that the father is the natural guardian and in the present case before us, the child/ daughter is 8 years and there is nothing to indicate that the petitioner/father is disqualified and when the respondent/wife has floated the orders passed by this Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009, she cannot avail the benefit of the said order.
7.In support of the contention that custody orders passed by the Court in matrimonial proceedings are an interlocutory one, the learned counsel for the petitioner cites the decision in B.Suresh Babu V. Nithya 2009 (1) CTC 402 wherein this Court has held that ‘revision under Article 227 of the Constitution could be maintainable only if there is no alternative remedy available to prevent abuse of process of Court and to meet ends of justice under the supervisory power of the High Court and further it is the settled proposition of law that in case of custody of minor child, welfare of child is paramount and even orders passed on compromise has to be treated as an Interlocutory Order subject to modification and that the revision petitioner/father of the child is entitled to place all his defence to substantiate his visiting right as per compromise decree and Court below is empowered to decide the same on merits and that the respondent has to establish alleged change of circumstance warranting filing of an application and justify the relief sought for and taht the Court is not an functus officio.’
8.He also relies on the decision of Hon’ble Supreme Court in Jai Prkash Khadria V. Shyam Sunder Agarwalla and another in (2000) 6 Supreme Court Cases 598 at page 599 wherein it is held that ‘orders relating to custody of children are by their very nature not final but are interlocutory in nature and subject to modification at any future time upon proof of change of circumstances requiring change of custody but such change in custody must be proved to be in the paramount interest of the child.’
9.The learned counsel for the petitioner/husband brings it to the notice of this Court in the decision of Hon’ble Supreme Court in Nil Ratan Kundu and another V. Abhijit Kundu (2008) 9 SCC 413 wherein the Hon’ble Supreme Court has inter alia observed that ‘in regard to the issues pertaining to the custody of minor the same should be handled with love, affection, sentiments and applying human touch to the problem.’
10.It is to be borne in mind that as a general rule, the Court will appoint the father as a guardian of the minor and will not deprive him of the custody of minor if it is satisfied that having regard to the facts and circumstances of the case, the father must have the custody of the minor. In all such cases, the vital consideration in appointing the guardian ought to be the welfare of the minor child and the Court may not give custody of the minor to the father. In the decision Mohini V. Veerendrakumar AIR 1977 S.C., it is held that ‘the mother is entitled to guardianship and custody of minor son 11 years old.’
11.When the father is alive, he is the natural guardian and it is only after him the mother becomes the natural guardian. However, there can be an exceptional case where the minor can be legally represented by the mother as the natural guardian, even though the father may be alive. Where the father of the minor has been alive, but the father and mother has fallen down and the mother with whom the minor has been living and has been managing the affairs of the minor daughter for over 20 years it is held that a lease executed by the mother on behalf of the minor has been valid and binding on the minor, the mother being recorded as a natural guardian of the minor in the particular circumstances as per decision Jijabai Vithalrao Gajre V. Pathankhan AIR 1971 SC 315.
12.The learned counsel for the petitioner/husband submits that he is not seeking a review of the order passed in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 but prays for an issuance of an order to modify the order passed in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009.
13.In response, the learned counsel for the respondent/wife submits that the review application is not maintainable before this Court since there is no error apparent on the face of record in the order passed in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 and the review jurisdiction is an extraordinary remedy in limited cases and that is not similar to an appeal and under the guise of review, the petitioner ought not to be permitted to re-agitate the pleas and in fact, the petitioner has not made out a case that the order passed by this Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 suffers from an error apparent on the face of record and as such, the review application is liable to be dismissed.
14.In support of the contention that rehearing the matter for deducting an error in the earlier decision and then correcting the same do not fall within the purview of review jurisdiction, the learned counsel for the respondent /wife cites the decision of Hon’ble Supreme Court in Parsion Devi and others V. Sumitri Devi and others (1997) 8 SCC 715 at page 716 wherein it is inter alia observed as follows: "Under Order 47, Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47, Rule 1 CPC. In exercise of the jurisdiction under Order 47, Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be "an appeal in disguise".
15.Also reliance is placed on the decision in Meera Bhanja V. Nirmala Kumari Choudhury (1995) 1 SCC 170 wherein it is laid down that ‘review must be confined to error apparent on the face of the record and error must be such as would be apparent on mere looking of the record without requiring any long-drawn process of reasoning and reappraisal of the entire evidence on record for finding the error would amount to exercise of appellate jurisdiction which is permissible etc.’
16.In the additional affidavit of the petitioner/ husband it is among other things mentioned that ‘for 8 months he has been denied access to his daughter and finally the Family Court in I.A.No.1420 of 2007 granted him two hours visitation rights of Thursdays and after his daughter’s school reopened this has been reduced to one hour a week on the request of the respondent/wife before the Court and the Family Court passed final orders in I.A.No.1420 of 2007 on 14.11.2008 granting him visitation rights on all Sundays from 9.00 a.m. to 5.00 p.m. and when this has been challenged in C.R.P.(PD).No.4091 of 2008 orders have been passed reducing the visitation rights to the first and third Sundays in a month and pending adjudication of the review application, a changed circumstance has occurred and on 04.06.2009 Mr.Dilip, the junior of his wife’s counsel called and told him to pay the child’s school fees and when the authorities of the school wanted him to furnish the roll number of the child which he is not aware and the authorities after verifying the records has come back and informed him that he cannot pay the fees as they have been instructed by his wife not to entertain him at any cost or to give any access to the child or information about her progress in the school and the school authorities refuse to allow him to pay the fees and asked him to leave the school premises and he has an equal right to the welfare of the child.
17.In the counter filed (in the review application) by the respondent/wife, it is among other things stated that it is the husband who volunteered to pay school fees and donation to Chettinad Vidyashram School before the Family Court Judge and he enjoyed visitation rights on Thursdays in the child care centre at the Family Court premises and there is no need for him to visit the child in the school and disturb her in the presence of her other classmates and schoolmates and she has obeyed the orders of the Family Court and this Court except on two occasions, when her daughter has been sick and when her family has gone on a pilgrimage and even on such occasions, she informed the husband duly through the Family Court counsellor Ms.Lalitha, in whose house the child is generally handed over during visitation hours and in fact, on her instruction, her counsel’s junior has requested the husband to pay the school fees as he has already volunteered to pay for it in the Family Court and that he has not paid the fees and therefore, she has paid the same and when the child is in her custody and the husband has only visitation rights on alternative Sundays, disturbing the child at any other time violates the rights of the child and that of her to live in peace and harmony and the review petitioner/ husband has no new circumstances to substantiate his claim for review and has been engaging in vexatious litigation purely to harass her and her family.
18.In the decision of this Court in K.Jagannathan V. A.M.Vasudevan Chettiar and others (2001) 1 M.L.J. 614 it is held that ‘Admittedly the mother has not alienated the property of the minor. Under the document joint family properties were divided and the minor was represented by his mother as guardian. Though father is a natural guardian as per Sec.6, it was the father who permitted the mother to act as the guardian of the minor and he did not raise any objection.’
19.It is not out of place to point out that as per Section 26 of the Hindu Marriage Act, the Court, pending the matrimonial proceedings from time to time, may pass orders as to the interim custody of the minor child.
20.This Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 by directing the revision petitioner/wife to hand over the child Shreya to the respondent/husband (review petitioner/father) on the first and third Sunday of every month at 9.00 a.m. at a common place agreed to by both parties and that the respondent/husband is directed to hand over the child to the revision petitioner/wife on the same day at 4.00 p.m. etc. has not denied a complete access to the review petitioner/husband.
21.The power of review under Order 47 Rule 1 constitute an exception to the general rule to the effect that once a judgment is signed and delivered it cannot afterwards be altered. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for a patent error as per decision in Saravana Pillai V. A.S.Mariappan 2003 1 MLJ 693. Indeed, the ambit of review is for review of ‘error apparent’ only and not to review the judgment/order, even if the parties are placed in a situation to satisfy the Court that the order under review is an erroneous one as per decision Ahmedabad Electricity Company Limited V. State of Gujarat AIR 2003 Guj 157 (159) D.B. The aim is not to enable a Judge to write a second judgment because the first one was wrong as per decision in Krishnan V. Narayanan AIR 1951 Madras at page 660.
22.Even if a decision or an order is erroneous in law or on merits it cannot be accepted that it is an error apparent on the face of the record. Where there are two possible views regarding the interpretation or application of law vis-a-vis the particular facts of a case, taking one view, even if it is erroneous cannot be said to be an error apparent on the face of the record. There exist a distinction between a mere erroneous decision and an error apparent on the face of the record. An error can be said to be apparent on the face of record only when such an error is patent and can be found out without any detail argument without any scope for any controversy in regard to such error, which as if at a glance stares at the face. But if there is no error apparent on the face of record review petition is not maintainable as per decision Kailash Talkies V. State of Rajesthan 1998 AIHC 2401. Moreover, if a view adopted by the Court in the original order is a possible view, it cannot be an error apparent on the face of record even though another view is also possible as per decisionC.N.Ramachandra V. State AIR 1997 Kant 181, 183. In short, a review cannot repair the verdict once given if it is not an error on the face of it as per decision in Sabad Ch Deka V. Naomai Deka AIR 1985 NOC 19 (Gau).
23.A review petition has to be entertained only on the face of the error apparent on the face of record but not on any other reason in the considered opinion of this Court. The limitation of the power of a Court of law under Order 47 Rule 1 C.P.C. is akin to the jurisdiction available to the High Court while seeking review of the orders under Article 226 of the Constitution as per decisionMeera Bhanja V. Nirmal Kumar Choudhury (1995) 1 SCC at page 170. Mere possibility of two views is not a ground for review, the review Court cannot said as an Appellate Court therefore, reassessing the evidence and pointing out the defects in the order of the Court is not proper as per decision Santhosh Kumar V. Nageshwar Prasad AIR 2001 All 187. Admittedly, the power of review the hedged in by the restrictions specified in Order 47 it can be exercised on the application of an individual on the discovery of new matter of evidence which, after the exercise of due diligence has not been within its knowledge or could not be produced by him at the time when the order has been made. Suffice it for this Court to point out that a review cannot be claimed or asked for merely for a fresh hearing or an argument, or a correction on an erroneous view taken earlier, that is to say, the power of review can be exercised only for the correction of a patent error of law or fact which stares in the face without any detail arguments being required for establishing the same. The expression ‘any other sufficient reason’ employed in Order 47 Rule 1 means a reason sufficiently analogous to those mentioned in the rule.
24.Mere discovery of vital new matter or evidence is not sufficient ground for a review. A party seeking review has also to establish that such additional material has not been within its knowledge and even after the exercise of due diligence could not be produced any Court earlier. An error contemplated under Order 47 Rule 1 C.P.C. must be such which is an apparent on the face of record and not an error which has to be fished out and searched in the considered opinion of this Court A reappraisal of the evidence on record for finding out the error will amount to an exercise of appellate jurisdiction which is not permissible by the constitute.
25.The learned counsel for the respondent/wife cites the decision in Mohan Lal Bagla V. Board of Revenue AIR 2005 All 308 wherein it is held as follows:
"To argue same details as a question of fact in second inning of the matter cannot be permitted. It is under very exceptional circumstances where it can be demonstrated that on the finding and reasoning so given, there is error apparent on the face of record which can be termed to be mistake within the meaning of error apparent as that can be discovered without any argument, it may be filed by a new advocate but that too after obtaining no objection from earlier counsel. If a case is to be argued on the same set of facts by change of counsel, at several occasions, it may be possible that with imminence of the counsel, a new dimension to the augment may come on same set of facts. Skill in the argument and advocacy is to vary always from counsel to counsel. Although earlier two senior advocates of this Court namely Sri R.N. Singh and Sri V.B. Upadhyaya argued the matters on behalf of applicant at length with full vehemence at their command but now Sri V.B. Singh, learned senior advocate wants to argue the matter in his own way by placing the same record and same pleadings. On the facts of present case, this Court is of the view that filing of review petition on the ground so taken in the application cannot be said to be just and proper so as to entitle Sri Saran, learned advocate and Sri Singh, learned senior advocate to file and argue this review petition. It is thus established that change of counsel during review proceedings is a deprecated practice that is actively discouraged by the Courts. Such practice acts as a backdoor to abuse of review proceedings. With changed counsel, pleas are re-agitated as though in appeal, thereby obliterating the distinct differences in the nature of appellate and review proceedings. The present case suffers from the same malady where the Petitioner is attempting to disguise his appeal in the cloak of review proceedings complete with change of counsel."
26.The learned counsel for the petitioner/husband submits that the Correspondent of Vidyodaya Schools Society, Chennai-600 017 in her letter dated 09.02.2009 addressed to the petitioner herein inter alia stating that the petitioner has come to Vidyodaya School only during lunch time at the insistence of her teacher who felt that she has been missing you and her impression that Shreya has been happy and relieved to see him and enjoyed the treats that you have brought and further the students of Standard I being only 5 years old neither understood nor commented on any family problem and it is her impression that Shreya enjoyed being a student of Vidyodaya Matriculation Academy and access to her has always only with the permission of the school authorities and only during the lunch interval and counselling for her has been recommended because of her behaviour in class room etc. and as such, the averments of the respondent/wife in her affidavit are false which in turn is a good ground for this Court to reconsider its order passed in the main civil revision petition. However, the learned counsel for the respondent/wife contends that the letter of the school Correspondent dated 09.02.2009 addressed to the petitioner/husband cannot be relied upon as it is contrary to facts and the same has been given solely to please him and further the Correspondent is not competent or qualify to enter a judgment in regard to the mental state of the child, apart from the fact that the said letter has been issued more than a year after the child has been transferred from the said school. In effect, the letter dated 09.02.2009 of the Correspondent of the Vidyodaya Schools Society addressed to the petitioner/ husband is very much disputed on the side of the respondent /wife. In this connection, it is apt for this Court to cite the decision of Hon’ble Supreme Court in Union of India V. Paul Manickam AIR 2003 SC 4622, 4629 wherein it is held that ‘the Court will not entertain a review petition with an entirely new substratum of issues or where there is suppression of facts.’ In the decision Bahadur V. Bachai AIR 1963 All. 186 it is observed that ‘the High Court cannot set aside or recall its own decision on a review application under Order 47 of C.P.C. but it can set right the wrong committed by it in exercise of its inherent jurisdiction. The learned counsel for the respondent/wife brings it to the notice of this Court that the Delhi High Court in Krishna Bus Service (P) Ltd., V. Satvir Singh, W.P.(C).No.3275/2001 (decided on 19.03.2008) has held as follows: "Discovery of new evidence or material by itself is not sufficient to entitle a party for review of a judgment. A review is permissible on the ground of discovery of new evidence only when such an evidence is relevant and of such a character that if it had been produced earlier it might possibly have altered the judgment, further, it must be established that the applicant had acted with due diligence and that the existence of the evidence, which he has now discovered, was not within his knowledge when the order was passed. If it is found that the petitioner has not acted with the diligence then it is not open to the Court to admit evidence on the ground of sufficient cause. The party seeking a review should prove strictly the diligence he claims to have exercised. In a review application a party cannot be allowed to introduced fresh documents merely to supplement evidence which might possibly have had some effect on the result."
27.Added further, the learned counsel for the respondent/wife relies on the decision of Hon’ble Supreme Court in Tamil Nadu Electricity Board V. N.Raju Reddiar (1997) 9 SCC 736 wherein it is held as follows:
"…. except in rare cases where error of law or fact is apparent on the record, no review can be filed; that too by the advocate on record who neither appeared nor was party in the main case. It is salutary that court spends valuable time in deciding a case. Review petition is not, and should not be, an attempt for hearing the matter again on merits. Unfortunately, it has become, in recent time, a practice to file such review petitions as a routine; that too, with change of counsel, without obtaining consent of the advocate on record at earlier stage. This is not conductive to healthy practice of the Bar which has the responsibility to maintain the salutary practice of profession." Furthermore, in the aforesaid decision it is observed as follows:
"Once the petition for review is dismissed, no application for clarification should be filed, much less with the change of the Advocate-on-Record. This practice of changing the advocates and filing repeated petitions should be deprecated with a heavy hand for purity of administration of law and salutary and healthy practice.
The application is dismissed with exemplary costs of Rs.20,000 as it is an abuse of the process of Court in derogation of healthy practice. The amount should be paid to the Supreme Court Legal Aid Services Committee within four months from the date of judgment."
28.The utmost requirement under Order 47 Rule 1 of C.P.C. is that the order of which review is sought suffers from any error apparent on the face of order and permitting the order to stand will lead to failure of justice as per decision Rajendra Kumar V. Ram Bai AIR 2003 SC 2095 (2096). No wonder, the power of review is not to be confused with the appellate power which enable the appellate Court to correct all errors of Subordinate Court. A review means the act of looking, offer something again with a view to correction or improvement and that the same is also not an appeal in disguise as per decision Lily Thomas V. Union of India AIR 2000 SC 1650 (1652). Also there cannot be a reappraisal of the entire evidence on record for finding an error. It is needless to state that if there is reappraisal, it will amount to exercise of appellate jurisdiction, which is not permissible. The learned counsel for the respondent/wife refers to the decision of Hon’ble Supreme Court in Thungabhadra Industries Limited V. The Government of Andhra Pradesh, 1965 (5) SCR 174 (186) wherein it is held that ‘a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error.’ Another decision of this Court in Hindustan Photo Films Company Limited and another V. H.B. Vinobha and others AIR 1998 Madras 358 is relied on the side of the respondent/wife wherein it is held as follows: "the power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made, it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground, It may not be exercised on the ground that the decision was erroneous on merits since that would be the province of Court of Appeal and the same cannot be a ground for review. Where the very same objections were raised in review which were earlier raised and considered on the fact of information furnished by both sides while disposing of the writ petitions, the review applications would be liable to be dismissed."
29.In regard to the contention that the orders pertaining to custody of children are interlocutory in nature and subject to modification at any future time based on proof of change of circumstance and such change in custody ought to be established in the paramount interest of the child, the learned counsel for the petitioner refers to the decision of Hon’ble Supreme Court in Rosy Jacob V. Jacob A. Chakramakkal (1973) 1 SCC 840.
30.On a careful consideration of respective contentions, this Court is of the considered view that ‘the order passed by this Court in C.R.P.(PD).No.4091 of 2008 dated 20.01.2009 directing the revision petitioner/wife to hand over the minor child Shreya to the respondent/husband (father) on the first and third Sunday of every month at 9.00 a.m. at a common place agreed to by both parties and that the respondent/husband is directed to hand over the child to the revision petitioner/wife on the same day at 4.00 p.m. so that it will have an influence on the mental faculty of the minor child to develop for being a grown-up personality in the near future’ is a valid one and the same does not suffer from any mistake much less an error on the face of record and the same is not an erroneous one and further this Court opines that the petitioner/husband is not entitled to file the present review application as an appeal in disguise and viewed in that perspective, rehearing of the matter is not permissible under the guise of review and resultantly, the Review Application is dismissed to prevent an aberration of justice. It is open to the petitioner/husband to seek remedy before the learned First Additional Judge, Family Court, Chennai (where the O.P.No.3556 of 2007 is pending) by establishing the proof of change of circumstances if any in regard to the custody/ visitation rights of the child Shreya (if the welfare of the ward requires variation since there is no aspect of an estoppel in such a case) in the manner known to law if so advised.
31.In fine, the Review Application is dismissed, leaving the parties to bear their own costs. It is open to the petitioner/husband to seek remedy before the learned First Additional Judge, Family Court, Chennai (where the O.P.No.3556 of 2007 is pending) by establishing the proof of change of circumstances if any in regard to the custody/ visitation rights of the child Shreya (if the welfare of the ward requires variation since there is no aspect of an estoppel in such a case) in the manner known to law if so advised. Considering the relationship of the parties and the facts and circumstances of the case, there shall be no order as to costs. 3.08.2009
Index : Yes
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sgl
To
The I Additional Judge,
Family Court, Chennai.
M.VENUGOPAL, J.

custody of foreign national child in India

IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRL.) NO.112/2007
Dr. V. Ravi Chandran ..Petitioner
Versus
Union of India & Ors. ..Respondents
JUDGMENT
R.M. LODHA, J.
Adithya is a boy of seven, born on July 1, 2002, in the
United States of America. He is a foreign national. The petition before
us is by the father – Dr. V . Ravi Chandran–praying for a writ of
habeas corpus for the production of his minor son Adithya and for
handing over the custody and his passport to him.
2. On August 28, 2009, this Court passed an order
requesting Director, Central Bureau of Investigation (CBI) to trace
minor Adithya and produce him before this Court. The necessity of
such order arose as despite efforts made by the police officers and 
officials of different states, Adithya and his mother – respondent
no. 6–Vijayasree Voora–could not be traced and their whereabouts
could not be found for more than two years since the notice was
issued by this Court. In pursuance of the order dated August 28,
2009, CBI issued look out notices on all India basis through heads of
police of States, Union Territories and Metropolitan Cities and also
alert notices through Deputy Director, Bureau of Immigration
(Immigration), Ministry of Home Affairs, New Delhi and flashed
photographs of the child Adithya and his mother Vijayasree Voora.
Ultimately with its earnest efforts, CBI traced Adithya and his mother
Vijayashree Voora in Chennai on October 24, 2009 and brought them
to Delhi and produced the child along with his mother at the
residential office of one of us (Tarun Chatterjee, J.) on October 25,
2009. On that day, the CBI authorities were directed to keep the child
under their custody and produce him before the Court on October 27,
2009. Respondent no. 6 was also directed to be produced on that
date. On October 27, 2009, the matter was adjourned for November
4, 2009 since respondent no.6 wanted to engage a lawyer and file a
counter affidavit. On November 4, 2009, matter was adjourned to
November 10, 2009 and then to November 12, 2009. The petitioner
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was permitted to meet the child for one hour on November 10, 2009
and November 12, 2009. In the meanwhile, respondent no. 6 has
filed counter affidavit in opposition to the habeas corpus petition and
petitioner has filed rejoinder affidavit to the counter affidavit filed by
respondent no.6.
3. We heard Ms. Pinky Anand, learned senior counsel for
the petitioner and Mr. T.L.V. Iyer, learned senior counsel for
respondent no. 6. Now since minor Adithya has been produced, the
only question that remains to be considered is with regard to the
prayer made by the petitioner for handing over the custody of minor
Adithya to him with his passport.
4. But before we do that, it is necessary to notice few
material facts. Dr. V. Ravi Chandran – petitioner – is an American
citizen. He and respondent no. 6 got married on December 14, 2000
at Tirupathi, Andhra Pradesh according to Hindu rites. On July 1,
2002, Adithya was born in United States of America. In the month of
July 2003, respondent no. 6 approached the New York State
Supreme Court for divorce and dissolution of marriage. A consent
order governing the issues of custody and guardianship of minor
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Adithya was passed by the New York State Supreme Court on April
18, 2005. 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.
On July 28, 2005, a Separation Agreement was entered between the
petitioner and respondent no.6 for distribution of marital property,
spouse maintenance and child support. As regards custody of the
minor son Adithya and parenting time, the petitioner and respondent
no. 6 consented to the order dated April 18, 2005. On September 8,
2005, the marriage between the petitioner and respondent no.6 was
dissolved by the New York State Supreme Court. Child custody order
dated April 18, 2005 was incorporated in that order.
5. Upon the petition for modification of custody filed by the
petitioner and the petition for enforcement filed by him and upon the
petition for enforcement filed by respondent no.6 before the Family
Court of the State of New York, on June 18, 2007, upon the consent
of both parties, inter – alia, the following order came to be passed:
"ORDERED, the parties shall share joint legal and physical custody of the minor child; and it is further
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 ORDERED, that commencing during August 2007,
Adithya shall reside in Allen, Texas; and it is further
ORDERED, that the parties acknowledge that it is the intention of the parties to reside within the same community. As such, it is the mother’s current intention to relocate to Texas, within a forty (40) mile radius of the father’s residence. If the mother does relocate to a forty (40) mile radius of the father’s residence (which shall be within a twenty (20) mile radius from the child’s school),, the parties shall equally share physical custody of Adithya. The parties shall alternate physical custody on a weekly basis, with the exchange being on Friday, at the end of the School day, or at the time when school would ordinarily let out in the event that there is no school on Friday; ……………. …………………………………………………………… ……………………………………………………………
ORDERED, that in the event that the mother does not relocate within forty (40) miles from the father’s residence located in Allen, Texas (and within twenty (20) miles of Adithya’s school), the mother shall have custodial time with the minor child, as follows:
A. On Alternating weekends from Friday, at the end of the school day until Monday, prior to the beginning of school, commencing during the first week of September, 2007. Such periods of custodial time shall take place within forty (40) miles from the father’s residence located in Allen, Texas. In the event that there is no school on the Friday of the mother’s weekend, she shall have custodial time with the child beginning at 7.00 a.m. on Friday morning, and, in the event that there is no school on Monday of the mother’s custodial weekend, she shall have custodial time until 5.00 p.m. on Monday, and
B. For ten (10) consecutive days during Spring vacation from school; and
C. For the entirety of the Christmas recess from School, except for Christmas Eve and Christmas day, which shall be with the father. In the event that the school recess is prior to Christmas Eve, the mother shall have the right to have custodial time during those recessed
5

 

 days to long as she produces the child at the father’s residence for Christmas Eve and Christmas day ; and
D. During the following holidays:
i) Mother’s birthday, which is on April 25;
ii) Mother’s Day;
iii) Hindu Festival of Diwali and Deepavali;
iv) Adithya’s birthday (July 1) in alternating years;
v) Thanks giving in alternating years (so that the mother has custodial time during even –
numbered years and the father has custodial
time during odd – numbered years);
vi) New Year’s Day in alternating years (so that the mother has custodial time during even –
numbered years and the father has custodial
time during odd -numbered years) ;………… ……………..
…………………………………………………… ORDERED, that the parties shall share the
summer recess from school so that the mother has custodial time for a total of up to fifty (50) days on a schedule so that each party has custodial time for 4 consecutive weeks, with the mother’s custodial time commencing on the Monday following the final day of school……….
ORDERED, for the summer of 2007, the
mother shall have custodial time from June 18 until June 20; the father shall have custodial time from June 20 until June 24; the mother shall have custodial time from June 25 until July 1; the father shall have custodial time from July 1 until July 6; and the mother shall then have custodial time from July 6 until August 3 and she shall be solely responsible for transporting the child to the father’s residence in Allen, Texas on August 3. The father shall have custodial time until the commencement of school. Thereafter the father shall continue to have custodial time until such time as the mother either a) returns from India and/or begins her alternating weekly
6

 

 schedule as set froth herein, or b) moves within 40 miles of the father’s residence in Allen, Texas and commences her custodial time during alternating weeks;………………………………
……………………………………………………. …………………………………………………….
ORDERED, that each party agrees that they
shall provide the other parent with a phone number and address where the child will be located at all time, and that the other parent shall have reasonable and regular telephone communication with the minor child; and it is further
ORDERED, that each party agrees to provide
the other party with the child’s passport during each custodial exchange of the minor child, and that each party shall sign and deliver to the other, whatever written authorization may be necessary for travel with the child within the Continental United States or abroad;"……………………………………….
6. On June 28, 2007 respondent no.6 brought minor Adithya
to India informing the petitioner that she would be residing with her
parents in Chennai. On August 08, 2007, the petitioner filed the
petition for modification (Custody) and Violation Petition (Custody)
before the Family Court of the State of New York on which a show
cause notice came to be issued to respondent no.6. On that very
day, the petitioner was granted temporary sole legal and physical
custody of Adithya and respondent no. 6 was directed to immediately
turn over the minor child and his passport to the petitioner and further
her custodial time with the minor child was suspended and it was
7

 

ordered that the issue of custody of Adithya shall be heard in the
jurisdiction of the United States Courts, specifically, the Albany
County Family Court.
7. It transpires that the Family Court of the State of New
York has issued child abuse non-bailable warrants against
respondent no.6.
8. In the backdrop of the aforenoticed facts, we have to
consider–now since the child has been produced–what should be
the appropriate order in the facts and circumstances keeping in mind
the interest of the child and the orders of the courts of the country of
which the child is a national.
9. In re B–‘s Settlement,1 Chancery Division was concerned
with an application for custody by the father of an infant who had
been made a ward of court. The father was a Belgian national and
the mother a British national who took Belgian nationality on marriage
to him. The infant was born in Belgium. The mother was granted a
divorce by a judgment of the Court in Belgium, but the judgment was
reversed and the father became entitled to custody by the common
1
{1940} Ch. 54
8

 

law of Belgium. The mother, who had gone to live in England, visited
Belgium and was by arrangement given the custody of the infant for
some days. She took him to England and did not return him. The
infant had been living with mother in England for nearly two years.
The father began divorce proceedings in Belgium, and the Court
appointed him guardian. Pending the proceedings, the Court gave
him the custody and ordered the mother to return the infant within
twenty-four hours of service of the order on her. She did not return
the infant. The Correctional Court in Brussels fined her for
disobedience and sentenced her to imprisonment should the fine be
not paid. The Correctional Court also confirmed the custody order.
In the backdrop of these facts, the summons taken out by the father
that custody of the infant be given to him came up before Morton, J.
who after hearing the parties and in view of the provisions of the
Guardianship of Infants Act, 1925 observed thus:
"…At the moment my feeling is very strong that, even assuming in the father’s favour that there is nothing in his character or habits which would render him unfitted to have the custody of the child, the welfare of the child requires, in all the circumstances as they exist, that he should remain in England for the time being…………………………
9

 

 In the present case the position is that nearly two years ago, when the child was already in England, an interlocutory order was made by the Divorce Court in Belgium giving the custody of the child to the father I do not know how far, if at all, the matter was considered on the footing of what was best for the child at that time, or whether it was regarded as a matter of course that the father, being the guardian by the common law of Belgium and the applicant in the divorce proceedings and the only parent in Belgium, should be given the custody. I cannot regard that order as rendering it in any way improper or contrary to the comity of nations if I now consider, when the boy has been in this country for nearly two years, what is in the best interests of the boy. I do not think it would be right for the Court, exercising its jurisdiction over a ward who is in this country, although he is a Belgian national, blindly to follow the order made in Belgium on October 5, 1937. I think the present case differs from Nugent v. Vetzera {FN10}, the case that was before Page Wood V.-C., and it is to be observed that even in that case, and in the special circumstances of that case, the Vice-Chancellor guarded himself against anything like abdication of the control of this Court over its wards. It does not appear what the Vice-Chancellor’s view would have been if there had been evidence, for example, that it would be most detrimental to the health and well-being of the children if they were removed from England and sent to Austria…………………………………………..
……..I ought to give due weight to any views formed by the Courts of the country whereof the infant is a national. But I desire to say quite plainly that in my view this Court is bound in every case, without exception, to treat the welfare of its ward as being the first and paramount consideration, whatever orders may have been made by the Courts of any other country."……………… ……………… ………….
10. In Mark T. Mc.Kee vs. Eyelyn McKee2, the Privy Council
was concerned with an appeal from the Supreme Court of Canada.
That was a case where the parents of the infant were American
2
{1951} A.C. 352
10

 

citizens. They were married in America and to whom a son was born
in California in July 1940. They separated in December 1940 and on
September 4, 1941, executed an agreement which provided,
inter- alia, that neither of them should remove the child out of the
United States without the written permission of the other. By a
judgment of December 17, 1942, in divorce proceedings before the
Superior Court of the State of California, the custody of the child was
awarded to the father. On August 1, 1945, following applications by
the father and the mother, the previous order as to custody was
modified to provide full custody of the child to the mother with right of
reasonable visitation to the father. Thereafter, and without the
consent or knowledge of the mother, the father went from the
United States of America with the child into the Province of Ontario.
The mother thereupon instituted habeas corpus proceedings in the
Supreme Court of Ontario seeking to have the child delivered to her.
Wells, J., before whom the matter came held that infant’s best
interests would be served in the custody of his father. The Court of
Appeal for Ontario dismissed the appeal preferred by the mother.
However, the Supreme Court of Canada by majority judgment
allowed the appeal of the mother and set aside the order of custody
11

 

of child to the father. On appeal from the Supreme Court of Canada
at the instance of the father, the Privy Council held as follows:
"……….For, after reaffirming "the well established general rule that in all questions relating to the custody of an infant the paramount consideration is the welfare of the infant", he observed that no case had been referred to which established the proposition that, where the facts were such as he found them to exist in the case, the salient features of which have been stated, a parent by the simple expedient of taking the child with him across the border into Ontario for the sole purpose of avoiding obedience to the judgment of the court, whose jurisdiction he himself invoked, becomes "entitled as of right to have the whole question retried in our courts and to have them reach a anew and independent judgment as to what is best for the infant". and it is, in effect, because he held that the father had no such right that the judge allowed the appeal of the mother, and that the Supreme Court made the order already referred to. But with great respect to the judge, this was not the question which had to be determined. It is possible that a case might arise in which it appeared to a court, before which the question of custody of an infant came, that it was in the best interests of that infant that it should not look beyond the circumstances in which its jurisdiction was invoked and for that reason give effect to the foreign judgment without further inquiry. But it is the negation of the proposition, from which every judgment in this case has proceeded, namely, that the infant’s welfare is the paramount consideration, to say that where the trial judge has in his discretion thought fit not to take the drastic course above indicated, but to examine all the circumstances and form an independent judgment, his decision ought for that reason to be overruled. Once it is conceded that the court of Ontario had jurisdiction to entertain the question of custody and that it need not blindly follow an order made by a foreign court, the consequence cannot be escaped that it must form an independent judgment on the question, though in doing so it will give proper weight to the foreign judgment. What is the proper weight will depend on the circumstances of each case. It may be that, if the matter comes before the court of Ontario within a very short time of the foreign judgment and there is no new circumstance to be considered, the weight may be
12

 

 so great that such an order as the Supreme Court made in this case could be justified. But if so, it would be not because the court of Ontario, having assumed jurisdiction, then abdicated it, but because in the exercise of its jurisdiction it determined what was for the benefit of the infant.
It cannot be ignored that such consequences might follow as are suggested by Cartwright, J. The disappointed parent might meet stratagem by stratagem and, taking the child into the Province of Manitoba, invoke the protection of its courts, whose duty it would then be to determine the question of custody. That is a consideration which, with others, must be weighed by the trial judge. It is not, perhaps, a consideration which in the present case should have weighed heavily.
It has been said that the weight or persuasive effect of a foreign judgment must depend on the circumstances of each case. In the present case there was ample reason for the trial judge, in the first place, forming the opinion that he should not take the drastic course of following it without independent inquiry and, in the second place, coming to a different conclusion as to what was for the infant’s benefit."……………………………..
11. The aforesaid two cases came up for consideration in
Harben vs. Harben3, wherein Sachs J. observed as follows:
"It has always been the practice of this court to ensure that a parent should not gain advantage by the use of fraud or force in relation to the kidnapping of children from the care of the other spouse, save perhaps where there is some quite overwhelming reason in the children’s interest why the status quo should not be restored by the court before deciding further issues. In the present case I am concerned with three young children, two of whom are girls and the youngest is aged only three. It is a particularly wicked thing to snatch such children from the care of a mother, and, in saying that, I have in mind not merely the mother’s position but the harm that can be done 3
{1957} 1. W.L.R. 261
13

 

 to the children. No affidavit of the husband tendering either his regrets or any vestige of excuse for his action has been proffered. Further, as I have already mentioned, when first I asked Mr. Syms what was the nature of the case which he might wish to make, if so minded, for depriving these children of a mother’s care, he only spoke of her association with a certain man and never suggested that she had in any way whatsoever failed to look after the children properly."
12. In Kernot vs. Kernot4 , the facts were thus: In May 1961,
the plaintiff mother, an Italian lady, married an English man in Italy
where both were residents. A boy was born there on March 29, 1962.
On October 19, 1963, they obtained in Italian Court a separation
order by consent providing therein that custody of the child would
remain with father, with rights of access to the mother . On October
29, 1963, the father brought the infant to England with intention to
make England his home. The mother commenced wardship
proceedings in which she brought a motion for an order that the
father return the infant to her in Italy. She also prayed for restraint
order against him from taking the infant out of her care. Buckley, J. in
these facts held thus:
"So that even where a foreign court has made an order on the merits – which is not the present case, because the only order which has been made was a consent order without any investigation of the merits by the Italian court – that domestic court before whom the matter comes (the Ontario 4
{1965} Ch.217
14

 

 court in the case to which I have just referred, or this court in the case before me) is bound to consider what is in the best interests of the infant; and although the order of the foreign court will be attended to as one of the circumstances to be taken into account it is not conclusive one way or the other. How much stronger must the duty of this court be to entertain the case where the foreign court has not made any order based on any investigation of the case on its merits."
13. In re H. (Infants)5, the Court of Appeal was concerned
with two American boys whose divorced parents were both citizens
of United States of America. On December 11, 1964, the Supreme
Court of New York State made a consent order directing that the
two boys whose custody had been given to the mother should be
maintained in her apartment in New York and not be removed from
a 50 miles’ radius of Peekskill without the prior written consent of
the father. However, the mother in March 1965 brought these boys
to England and bought a house for herself and children in June
1965. On June 15, 1965, the New York Court ordered the children
to be returned to New York. The mother started wardship
proceedings in the English court. The father took out motion asking
the mother that the two children should be delivered into his care,
that he should be at liberty to convey them to New York and that the
wardship of the children should be discharged. The Trial Judge held 5
(1966) 1 W.L.R. 381 = (1966) 1 All.E.R. 886
15

 

that the justice of the case required the children to be returned
without delay to the jurisdiction of the New York court, so that the
question of where and with whom they should live might be decided
as soon as possible by that court. The mother appealed to the Court
of Appeal. Willmer L.J. and Harman L.J. by their separate judgments
affirmed the view of the Trial Judge and held that the proper order
was to send these two boys back to their State of New York, where
they belong (and where the Supreme Court is already seized of their
case), and more especially so having regard to the fact that they
have been kept in flagrant contempt of New York Court’s order.
Willmer L.J. agreed with the remark of Cross J. where he said:
"The sudden and unauthorized removal of children from one country to another is far too frequent nowadays, and as it seems to me it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing."
Willmer L.J. went on to hold:
"The judge took the view (and I think it was the right view) that in a case such as the present it was not necessary to go into all the disputed questions between the parents, but that he ought to send these boys back to their own country to be dealt with by the court of their own country, provided that he was satisfied (as he was satisfied, having seen the father himself, and having had the benefit of the view expressed on behalf of the Official Solicitor) that they would come to no harm if the father took them back to the United States; and that this was so, even though it might
16

 

 subsequently turn out, after all the merits of the case had been thoroughly thrashed out in the court in New York, that it would perhaps be better after all for the boys to reside in England and see little or nothing of their father."
Harman L.J. in his separate judgment held thus:
"…….But if he chose to take the course which the judge here took in the interests of the children , as he thought, of sending them back to the United States with no more inquiry into the matter than to ensure, so far as he could, that there was no danger to their moral or physical health in taking that course, I am of opinion that he was amply justified, and that that was the right way in which to approach the issue.
These children had been the subject of an order (it is true made by consent) made in the courts of their own country in December, 1964. It was only three months later that the mother flouted that order, deceived her own advisers and deceived the court , and brought the children here with the object of taking them right out of their father’s life and depriving him altogether of their society. The interval is so short that it seems to me that the court inevitably was bound to view the matter through those spectacles; that is to say, that the order having been made so shortly before, and there being no difference in the circumstances in the three months which had elapsed , there was no justification for the course which the mother had taken, and that she was not entitled to seek to bolster her own wrong by seeking the assistance of this court in perpetuating that position, and seeking to change the situation to the father’s disadvantage."
14. In re. L (minors)6, the Court of Appeal was
concerned with the custody of the foreign children who were
removed from foreign jurisdiction by one parent. That was a
case where a German national domiciled and resident in
Germany married an English woman. Their matrimonial home 6
(1974) 1 All ER 913
17

 

was Germany and the two children were born out of the
wedlock and brought up in Germany. The lady became
unhappy in her married life and in August, 1972, she brought
her children to England with an intention of permanently
establishing herself and the children in England. She obtained
residential employment in the school in England and the
children were accommodated at the school. The children not
having returned to Germany, the father came to England to find
them. On October 25, 1972, the mother issued an originating
summons making them wards of court. The trial judge found
that the children should be brought up by their mother and
treating the case as a `kidnapping’ class of case, approached
the matter by observing that in such a case where the children
were foreign children, who had moved in a foreign home, their
life should continue in what were their natural surroundings,
unless it appeared to the court that it would be harmful to the
children if they were returned. He concluded that in view of the
arrangements which their father could make for them, the
children would not be harmed by being returned. He,
accordingly, ordered that they be returned to Germany and that
18

 

they remain in their father’s custody until further order. The
mother appealed, contending that in every case the welfare of
the child was the first and paramount consideration and that the
welfare of the children would be best served by staying with
their mother in England. Buckley, LJ in his detailed
consideration of the matter, wherein he referred to the
aforenoticed decisions and few other decisions as well, held as
follows :
"…….Where the court has embarked on a full-scale investigation of that facts, the applicable principles, in my view, do not differ from those which apply to any other wardship case. The action of one party in kidnapping the child is doubtless one of the circumstances to be taken into account, any may be a circumstance of great weight; the weight to be attributed to it must depend on the circumstances of the particular case. The court may conclude that notwithstanding the conduct of the `kidnapper’ the child should remain in his or her care (McKee v. McKee, Re E (an infant) and Re. T.A. (infants), where the order was merely interim); or it may conclude that the child should be returned to his or her native country or the jurisdiction from which he or she has been removed. Where a court makes a summary order for the return of a child to a foreign country without investigating the merits, the same principles, in my judgment apply, but the decision must be justified on somewhat different grounds.
…………………………………………………………………… ………..The judge may well be persuaded that it would be better for the child that those merits should be investigated in a court in his native country than that he should spend in this country the period which must necessarily elapse before all the evidence can be assembled for adjudication here. Anyone who has had experience of the exercise of this delicate jurisdiction knows what complications can result from a child developing roots in new soil, and what conflicts this can occasion in the child’s own life. Such roots can grow rapidly. An order that the child should be returned forthwith to the country from which he has been removed in the expectation that any dispute about his custody will be satisfactorily
19

 

 resolved in the courts of that country may well be regarded as being in the best interests of the child……"
15. In re. L. (minors)6, the Court of Appeal has made a
distinction between cases, where the court considers the facts and
fully investigates the merits of a dispute, in a wardship matter in
which the welfare of the child concerned is not the only consideration
but is the first and paramount consideration, and cases where the
court do not embark on a full-scale investigation of the facts and
make a summary order for the return of a child to a foreign country
without investigating the merits. In this regard, Buckley, L.J. noticed
what was indicated by the Privy Council in McKee v. McKee2 that
there may be cases in which it is proper for a court in one jurisdiction
to make an order directing that a child be returned to a foreign
jurisdiction without investigating the merits of the dispute relating to
the care of the child on the ground that such an order is in the best
interest of the child.
16. This Court in Smt. Surinder Kaur Sandhu v. Harbax Singh
Sandhu and Another7 was concerned with the custody of a child–
British citizen by birth–to the parents of Indian citizens, who after
7
(1984) 3 SCC 698
20

 

their marriage settled in England. The child was removed by the
husband from the house when the wife was in the factory where she
was working and brought him to India. The wife obtained an order
under Section 41(English) Supreme Court Act, 1981 whereby the
husband was directed to handover the custody of the boy to her. The
said order was later on confirmed by the High Court in England. The
wife then came to India and filed a writ petition under Article 226 in
the High Court praying for production and custody of the child. The
High Court dismissed her writ petition against which the wife
appealed before this Court. Y.V. Chandrachud, C.J. (as he then was)
speaking for the Court held thus :
"The modern theory of Conflict of Laws recognises and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. Jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstance as to where the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result in encouraging forum-shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offsprings of marriage. The spouses in this case had made England their home where this boy was born to them. The father cannot deprive the English Court of its jurisdiction to decide upon his custody by removing him to India, not in the normal movement of the matrimonial home but, by an act which was gravely detrimental to the peace of that home. The fact that the matrimonial home of the spouses was in England, establishes sufficient contacts or ties with that State in order to make it reasonable and just for the courts of that State to assume jurisdiction to enforce obligations which were
21

 

 incurred therein by the spouses. (See International Shoe Company v. State of Washington which was not a matrimonial case but which is regarded as the fountainhead of the subsequent developments of jurisdictional issues like the one involved in the instant case.) It is our duty and function to protect the wife against the burden of litigating in an inconvenient forum which she and her husband had left voluntarily in order to make their living in England, where they gave birth to this unfortunate boy."
17. In Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw and
Another8, this Court held that it was the duty of courts in all countries
to see that a parent doing wrong by removing children out of the
country does not gain any advantage by his or her wrongdoing. In
para 9 of the report, this Court considered the decision of the Court of
Appeal in re H.5 and approved the same in the following words:
"9. In Re H. (infants) [(1966) 1 All ER 886] the Court of Appeal in England had occasion to consider a somewhat similar question. That case concerned the abduction to England of two minor boys who were American citizens. The father was a natural- born American citizen and the mother, though of Scottish origin, had been resident for 20 years in the United States of America. They were divorced in 1953 by a decree in Mexico, which embodied provisions entrusting the custody of the two boys to the mother with liberal access to the father. By an amendment made in that order in December 1964, a provision was incorporated that the boys should reside at all times in the State of New York and should at all times be under the control and jurisdiction of the State of New York. In March 1965, the mother removed the boys to England, without having obtained the approval of the New York court, and without having consulted the father; she purchased a house in England with the intention of remaining there permanently and of cutting off all contacts with the father. She ignored an order made in June 1965, by the Supreme Court of New York State to return the boys there. On a motion on notice given by the father in the Chancery Division of the Court in England, the trial Judge Cross, J. directed that since the children were American children and the 8
(1987) 1 SCC 42
22

 

 American court was the proper court to decide the issue of custody, and as it was the duty of courts in all countries to see that a parent doing wrong by removing children out of their country did not gain any advantage by his or her wrongdoing, the court without going into the merits of the question as to where and with whom the children should live, would order that the children should go back to America. In the appeal filed against the said judgment in the Court of Appeal, Willmer, L.J. while dismissing the appeal extracted with approval the following passage from the judgment of Cross, J. [(1965) 3 All ER at p. 912. (Ed. : Source of the second quoted para could not be traced.)]:
"The sudden and unauthorised removal of children from one country to another is far too frequent nowadays, and as it seems to me, it is the duty of all courts in all countries to do all they can to ensure that the wrongdoer does not gain an advantage by his wrongdoing.
The courts in all countries ought, as I see it, to be careful not to do anything to encourage this tendency. This substitution of self-help for due process of law in this field can only harm the interests of wards generally, and a Judge should, as I see it, pay regard to the orders of the proper foreign court unless he is satisfied beyond reasonable doubt that to do so would inflict serious harm on the child."
10. With respect we are in complete agreement with the aforesaid enunciation of the principles of law to be applied by the courts in situations such as this."
18. In the case of Dhanwanti Joshi v. Madhav Unde9, this
Court was again concerned with the matter relating to removal of a
child from one country to another contrary to custody order of the
court from where the child was removed. This court considered
English decisions, inter alia, McKee v. McKee2 and H. (infants), re.5
and also noticed the decision of this Court in Mrs. Elizabeth Dinshaw8
and observed as follows :
9
(1998) 1 SCC 112
23
 "28. The leading case in this behalf is the one rendered by the Privy Council in 1951, in McKee v. McKee [(1951) AC 352]. In that case, the parties, who were American citizens, were married in USA in 1933 and lived there till December 1946. But they had separated in December 1940. On 17-12-1941, a decree of divorce was passed in USA and custody of the child was given to the father and later varied in favour of the mother. At that stage, the father took away the child to Canada. In habeas corpus proceedings by the mother, though initially the decisions of lower courts went against her, the Supreme Court of Canada gave her custody but the said Court held that the father could not have the question of custody retried in Canada once the question was adjudicated in favour of the mother in the USA earlier. On appeal to the Privy Council, Lord Simonds held that in proceedings relating to custody before the Canadian Court, the welfare and happiness of the infant was of paramount consideration and the order of a foreign court in USA as to his custody can be given due weight in the circumstances of the case, but such an order of a foreign court was only one of the facts which must be taken into consideration. It was further held that it was the duty of the Canadian Court to form an independent judgment on the merits of the matter in regard to the welfare of the child. The order of the foreign court in US would yield to the welfare of the child. "Comity of courts demanded not its enforcement, but its grave consideration". This case arising from Canada which lays down the law for Canada and U.K. has been consistently followed in latter cases. This view was reiterated by the House of Lords in J v. C (1970 AC 668). This is the law also in USA (see 24 American Jurisprudence, para 1001) and Australia. (See Khamis v. Khamis [(1978) 4 Fam LR 410 (Full Court) (Aus)].
29. However, there is an apparent contradiction between the above view and the one expressed in H. (infants), Re[(1966) 1 All ER 886] and in E. (an infant), Re [(1967) 1 All ER 881] to the effect that the court in the country to which the child is removed will send back the child to the country from which the child has been removed. This apparent conflict was explained and resolved by the Court of Appeal in 1974 in L. (minors) (wardship : jurisdiction), Re [(1974) 1 All ER 913, CA] and in R. (minors) (wardship : jurisdiction), Re [(1981) 2 FLR 416 (CA)]. It was held by the Court of Appeal in L., Re [(1974) 1 All ER 913, CA] that the view in McKee v. McKee [1951 A.C. 352 : (1951) All ER 942] is still the correct view and that the limited question which arose in the latter decisions was whether the court in the country to which the child was removed could conduct (a) a summary inquiry or (b) an elaborate inquiry on the question of custody. In the case of (a) a summary inquiry, the court would return custody to the country from which the child was
24

 

removed unless such return could be shown to be harmful to the child. In the case of (b) an elaborate inquiry, the court could go into the merits as to where the permanent welfare lay and ignore the order of the foreign court or treat the fact of removal of the child from another country as only one of the circumstances. The crucial question as to whether the Court (in the country to which the child is removed) would exercise the summary or elaborate procedure is to be determined according to the child’s welfare. The summary jurisdiction to return the child is invoked, for example, if the child had been removed from its native land and removed to another country where, maybe, his native language is not spoken, or the child gets divorced from the social customs and contacts to which he has been accustomed, or if its education in his native land is interrupted and the child is being subjected to a foreign system of education, — for these are all acts which could psychologically disturb the child. Again the summary jurisdiction is exercised only if the court to which the child has been removed is moved promptly and quickly, for in that event, the Judge may well be persuaded that it would be better for the child that those merits should be investigated in a court in his native country on the expectation that an early decision in the native country could be in the interests of the child before the child could develop roots in the country to which he had been removed. Alternatively, the said court might think of conducting an elaborate inquiry on merits and have regard to the other facts of the case and the time that has lapsed after the removal of the child and consider if it would be in the interests of the child not to have it returned to the country from which it had been removed. In that event, the unauthorised removal of the child from the native country would not come in the way of the court in the country to which the child has been removed, to ignore the removal and independently consider whether the sending back of the child to its native country would be in the paramount interests of the child. (See Rayden & Jackson, 15th Edn., 1988, pp. 1477-79; Bromley, Family law, 7th Edn., 1987.) In R. (minors) (wardship : jurisdiction), Re [(1981) 2 FLR 416 (CA)] it has been firmly held that the concept of forum conveniens has no place in wardship jurisdiction.
30. We may here state that this Court in Elizabeth Dinshaw v. Arvand M. Dinshaw [(1987) 1 SCC 42 : 1987 SCC (Crl.) 13] while dealing with a child removed by the father from USA contrary to the custody orders of the US Court directed that the child be sent back to USA to the mother not only because of the principle of comity but also because, on facts, — which were independently considered — it was in the interests of the child to be sent back to the native State. There the removal of the child by the father and the mother’s
25

 

 application in India were within six months. In that context, this Court referred to H. (infants), Re which case, as pointed out by us above has been explained in L. Re as a case where the Court thought it fit to exercise its summary jurisdiction in the interests of the child. Be that as it may, the general principles laid down in McKee v. McKee and J v. C and the distinction between summary and elaborate inquiries as stated in L. (infants), Re are today well settled in UK, Canada, Australia and the USA. The same principles apply in our country. Therefore nothing precludes the Indian courts from considering the question on merits, having regard to the delay from 1984 — even assuming that the earlier orders passed in India do not operate as constructive res judicata."
However, in view of the fact that the child had lived with his
mother in India for nearly twelve years, this Court held that it would
not exercise a summary jurisdiction to return the child to United
States of America on the ground that its removal from USA in 1984
was contrary to orders of U.S. Courts. It was also held that whenever
a question arises before a court pertaining to the custody of a minor
child, matter is to be decided not on considerations of the legal rights
of the parties but on the sole and predominant criterion of what would
best serve the interest of the minor.
19. In the case of Sarita Sharma v. Sushil Sharma10, this
Court was seized with a matter where the mother had removed the
children from U.S.A. despite the order of the American Court. It was
held :
10
(2000) 3 SCC 14
26
 "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 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. Ordinarily, a female child should be allowed to remain with the mother so that she can be properly looked after. It is also not desirable that two children are separated from each other. If a female child has to stay with the mother, it will be in the interest of both the children that they both stay with the mother. Here in India also proper care of the children is taken and they are at present studying in good schools. We have not found the appellant wanting in taking proper care of the children. Both the children have a desire to stay with the mother. At the same time it must be said that the son, who is elder then the daughter, has good feelings for his father also. Considering all the aspects relating to the welfare of the children, we are of the opinion that in spite of the order passed by the Court in U.S.A. it was not proper for the High Court to have allowed the habeas corpus writ petition and directed the appellant to hand over custody of the children to the respondent and permit him to take them away to U.S.A. What would be in the interest of the children requires a full and thorough inquiry and, therefore, the High Court should have directed the respondent to initiate appropriate proceedings in which such an inquiry can be held. Still there is some possibility of the mother returning to U.S.A. in the interest of the children. Therefore, we do not desire to say anything more regarding entitlement of the custody of the children. The chances of the appellant returning to U.S.A. with the children would depend upon the joint efforts of the appellant and the respondent to get the arrest warrant cancelled by explaining to the Court in U.S.A. the circumstances under which she had left U.S.A. with the children without taking permission of the Court. There is a possibility that both of them may thereafter be able to approach the Court which passed the decree to suitably modify the order with respect to the custody of the children and visitation rights."
27

 

20. While dealing with a case of custody of a child removed
by a parent from one country to another in contravention to the orders
of the court where the parties had set up their matrimonial home, the
court in the country to which child has been removed must first
consider the question whether the court could conduct an elaborate
enquiry on the question of custody or by dealing with the matter
summarily order a parent to return custody of the child to the country
from which the child was removed and all aspects relating to child’s
welfare be investigated in a court in his own country. Should the court
take a view that an elaborate enquiry is necessary, obviously the
court is bound to consider the welfare and happiness of the child as
the paramount consideration and go into all relevant aspects of
welfare of child including stability and security, loving and
understanding care and guidance and full development of the child’s
character, personality and talents. While doing so, the order of a
foreign court as to his custody may be given due weight; the weight
and persuasive effect of a foreign judgment must depend on the
circumstances of each case. However, in a case where the court
decides to exercise its jurisdiction summarily to return the child to his
own country, keeping in view the jurisdiction of the Court in the native
28

 

country which has the closest concern and the most intimate contact
with the issues arising in the case, the court may leave the aspects
relating to the welfare of the child to be investigated by the court in
his own native country as that could be in the best interest of the
child. The indication given in McKee v. McKee2 that there may be
cases in which it is proper for a court in one jurisdiction to make an
order directing that a child be returned to a foreign jurisdiction without
investigating the merits of the dispute relating to the care of the child
on the ground that such an order is in the best interest of the child
has been explained in re. L (minors)6 and the said view has been
approved by this Court in Dhanwanti Joshi9. Similar view taken by the
Court of Appeal in re. H5 has been approved by this Court in
Elizabeth Dinshaw8.
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
29

 

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
30

 

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
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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.
22. It is true that child Adithya has been in India for almost
two years since he was removed by the mother–respondent 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
32

 

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. Moreover, the present habeas corpus petition
has been filed by the petitioner promptly and without any delay, but
since the respondent no. 6 has been moving from one State to
another and her whereabouts were not known, the notice could not
be served and child could not be produced for more than two years.
23. In a case such as the present one, we are satisfied that
return of minor Adithya to United States of America, for the time
being, from where he has been removed and brought here would be
33

 

in the best interest of the child and also such order is justified in view
of the assurances given by the petitioner that he would bear all the
traveling expenses and make living arrangements for respondent no.
6 in the United Sates of America till the necessary orders are passed
by the competent court; that the petitioner would comply with the
custody/parenting rights as per consent order dated June 18, 2007 till
such time as the competent court in United States of America takes a
further decision; that the petitioner will request that the warrants
against respondent no. 6 be dropped; that the petitioner will not file or
pursue any criminal charges for violation by respondent no. 6 of the
consent order in the United States of America and that if any
application is filed by respondent no. 6 in the competent court in
United States of America, the petitioner shall cooperate in expeditious
hearing of such application. The petitioner has also stated that he has
obtained confirmation from Martha Hunt Elementary School, Murphy,
Texas, 75094, that minor son Adithya will be admitted to school
forthwith.
24. The learned Senior Counsel for respondent no. 6 sought
to raise an objection regarding the maintainability of habeas corpus
petition under Article 32 of the Constitution before this Court but we
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are not persuaded to accept the same. Suffice it to say that in the
peculiar facts and circumstances of the case which have already
been noticed above and the order that we intend to pass, invocation
of jurisdiction of this Court under Article 32 cannot be said to be
inappropriate.
25. We record our appreciation for the work done by the
concerned officers/officials of CBI in tracing the minor child Adithya
and producing him in less than two months of the order passed by
this Court, although, the Police Officers and Officials of different
States failed in tracing the child Adithya and respondent no. 6 for
more than two years. But for the earnest efforts on the part of the CBI
authorities, it would not have been possible for this Court to hear and
decide this habeas corpus petition involving the sensitive issue
concerning a child of seven years who is a foreign national.
26. In the result and for the reasons stated, we pass the
following order :
(i) The respondent no. 6 shall act as per the consent
order dated June 18, 2007 passed by the Family Court of the
State of New York till such time any further order is passed on
35

 

the petition that may be moved by the parties henceforth and,
accordingly, she will take the child Adithya of her own to the
United States of America within fifteen days from today and
report to that court.
(ii) The petitioner shall bear all the traveling expenses
of the respondent no. 6 and minor child Adithya and make
arrangements for the residence of respondent no. 6 in the
United States of America till further orders are passed by the
competent court.
(iii) The petitioner shall request the authorities that the
warrants against respondent no. 6 be dropped. He shall not file
or pursue any criminal charges for violation by respondent no. 6
of the consent order in the United States of America.
(iv) The respondent no. 6 shall furnish her address and
contact number in India to the CBI authorities and also inform
them in advance the date and flight details of her departure
along with child Adithya for United States of America.
(v) In the event of respondent no. 6 not taking the child
Adithya of her own to United States of America within fifteen
days from today, child Adithya with his passport shall be
36

 

 restored to the custody of the petitioner to be taken to United
States of America. The child will be a ward of the concerned
court that passed the consent order dated June 18, 2007. It will
be open to respondent no. 6 to move that court for a review of
the custody of the child, if so advised.
(vi) The parties shall bear their own costs.
………………
……J (Tarun Chatterjee)
……………….
…..J
(R. M. Lodha)
……………………J
(Dr. B.S. Chauhan)
New Delhi
November 17, 2009