Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Child and Family welfare - High Court issued writ for production of minor daughter allegedly removed by mother-appellant from custody of father-respondent no.2 from U.K. |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Allowed |
Headnote | Child and Family welfare - High Court issued writ for production of minor daughter allegedly removed by mother-appellant from custody of father-respondent no.2 from U.K. - High Court directed the mother to produce her daughter and to comply with the order of High Court of Justice, U.K. within 3 weeks or in alternative to handover the custody of daughter to father within 3 weeks from date of order - Whether the return of the minor to her native state would be in the interests of the minor - Held: The Courts in India are not denuded from declining the relief to return the child to the native state merely because of a pre-existing order of the foreign Court of competent jurisdiction - In the instant case, the minor is staying in India along with mother, her grandparents and other family members and relatives unlike in the UK where she lived in a nuclear family of three with no extended family - She would be more comfortable and feel secured to live with her mother - Moreover, it is common ground that minor is suffering from cardiac disorder and needs periodical medical reviews and proper care and attention - That can be given only by her mother - Respondent no.2 (father) is employed and may not be in a position to give complete attention to his daughter - In totality of the facts and circumstances of the case, it is in the best interests of the minor to remain in custody of her mother (appellant) else she would be exposed to harm if separated from the mother - High Court was unjustly impressed by the principle of comity of courts and the obligation of the Indian Courts to comply with a pre-existing order of the foreign Court for return of the child and including the "first strike" principle. Child and Family welfare - Wardship jurisdiction - The concept of forum convenience has no place in wardship jurisdiction In exercise of summary jurisdiction, the Court must be satisfied that the proceeding instituted before it was in close proximity and filed promptly after the child was removed from his/her native state and brought within its territorial jurisdiction, the child has not gained roots here and farther that it will be in the child's welfare to return to his native state because of the difference in language spoken or social customs and contacts to which he/she has been accustomed or such other tangible reasons - In such a case, the Court need not resort to an elaborate inquiry into the merits of the paramount welfare of the child but leave that inquiry to the foreign Court by directing return of the child - In exceptional cases, the Court can still refuse to issue direction to return the child to the native state' and more particularly in spite of a pre-existing order of the foreign Court in that behalf. if it is satisfied that the child's return may expose him to a grave risk of harm - This means that the Courts in India, within whose jurisdiction the minor has been brought must "ordinarily" consider the question on merits, bearing in mind the welfare of the child as of paramount importance whilst reckoning the pre-existing order of the foreign Court if any as only one of the factors and not get fixated therewith - In either situation - be it a summary inquiry or an elaborate inquiry - the welfare of the child is of paramount consideration - While examining the issue the Courts in India are free to decline the relief of return of the child brought within its jurisdiction, if it is ·satisfied that the child is now settled in its new environment or if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return - Jurisdiction. Writ of habeas corpus - Object behind - Held: The object underlying the writ of habeas corpus is to secure the re{ease of a person who is illegally deprived of his liberty - The writ of habeas corpus is a command addressed to the person who is alleged to have another in unlawful custody, requiring him to produce the body of such person before the Court - On production of the person before the Court, the circumstances in which the custody of the person concerned has been detained can be inquired into by the Court and upon due inquiry into the alleged unlawful restraint pass appropriate direction as may be deemed just and proper - High Court in such proceedings conducts an inquiry for immediate determination of the right of the persons freedom and his release A when the detention is found to be unlawful. Writ of habeas corpus for the production and custody of a minor child - In a petition for issuance of a writ of habeas corpus in relation to the custody of a minor child, the principal duty of the Court is to ascertain whether the custody of child is unlawful or B illegal and whether the welfare of the child requires that his present custody should be changed and the child be handed over to the care and custody of any other person - While doing so, the paramount consideration must be about the welfare of the child - The role of the High Court in examining the cases of custody of a minor is on the touchstone of principle of parens patriae jurisdiction, as the minor is within the jurisdiction of the Court - In a habeas corpus petition, the High Court must examine at the threshold whether the minor is in lawful or unlawful custody of another person (private respondent named in. the writ petition). Writ of habeas corpus for the production and custody of a minor child - Custody of minor child with mother - Held: In the instant case, the private respondent was none other than the natural guardian of the minor being her biological mother - Therefore, it can be presumed that the custody of the minor with her mother is lawful - In such a case, only in exceptionable situation, the custody of the minor (girl child) may be ordered to be taken away from her mother for being given to any other person including the husband (father of the child), in exercise of writ jurisdiction - Instead, the other parent can be asked to resort to a substantive prescribed remedy for getting custody of the child. Writ of habeas corpus - High Court directed the mother to produce her daughter and to comply with the order of High Court of Justice, U.K. within 3 weeks or in alternative to handover the custody of daughter to father within 3 weeks from date of order - Whether an order passed by the foreign court, directing the mother F to produce the child before it, would render the custody of the minor unlawful - Held: Merely because such an order is passed by the foreign court, the custody of the minor would not become unlawful per se - No doubt, the Courts of England and Wales have jurisdiction in the matters of parental responsibility over the child pursuant to Arts. 8 and 10 of BIIR - For that reason, it ordered that the minor shall remain a Ward of that Court during her minority or until further order; and the mother (appellant) shall return or cause the return of the minor forthwith to England and Wales - Appellant may have violated the direction to return the minor to England, who has been ordered to be a Ward of the court during her minority and further order - However, no finding was rendered that till the minor returns to England, the custody of the minor with the mother became or would be treated as unlawful including for the purposes of considering a petition for issuance of writ of habeas corpus - The custody of the minor with the appellant, being her biological mother, will have to be presumed to be lawful. Doctrines/Principles - Principle of comity of courts cannot be given primacy or more weightage for deciding the matter of custody or for return of the child to the native state - The order of the foreign Court must yield to the welfare of the child - The remedy of writ of habeas corpus cannot be used for mere enforcement of the directions given by the foreign court against a person within its jurisdiction and convert that jurisdiction into that of an executing court - Child and family welfare. |
Judge | Hon'ble Mr. Justice A.M. Khanwilkar |
Neutral Citation | 2017 INSC 1295 |
Petitioner | Nithya Anand Raghavan |
Respondent | State Of Nct Of Delhi & Anr. |
SCR | [2017] 7 S.C.R. 281 |
Judgement Date | 2017-07-03 |
Case Number | 972 |
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