# 15 (ADDL.) S.C.R. 960 V. RAVI CHANDRAN v. UNION OF INDIA & ORS

- **Citation:** [2009] 15 S.C.R. 960
- **Court:** Supreme Court of India
- **Decided:** 2009-11-17
- **Bench:** Tarun Chatterjee, R.M. Lodha, Dr. B.S.Chauhan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/15-addl-s-c-r-960-v-ravi-chandran-v-union-of-india-ors-25248
- **Pages:** 34

## Headnote

Child Welfare - Custody and guardianship of foreign child
- Removed from foreign jurisdiction by one parent - In
c contravention of the orders of the Court - Held: In such cases
court should either conduct an elaborate enquiry on the
question of custody or to summarily direct the parent to return
the case to the court of the country from which the child was
removed to be investigated there - On facts, the case does not
warrant enquiry by the court in India - Parent who removed the
D child from the jurisdiction of the foreign country, directed to
produce the child to the competent court there, within 15 days
from the date of the order- On failure to do so, custody of the
child with his passport to be restored to the other parent.
Constitution of India, 1950 - Article 32 - Jurisdiction
· E under - Custody of foreign child decided by foreign court -
Removal of the child from foreign jurisdiction by one parent -
· ~
Petition for issuance of writ of habeas corpus by other parentHeld: Jurisdiction of Supreme Court is invokable in the facts
of the case.
F
Petitioner, an American citizen got married to
respon6dent No. 6. He obtained an order of dissolution of
marriage from the competent court in the United States of
America. Several orders were passed by the court with the
consent of the parties, regarding custody and
G guardianship of their minor child (7 years) who is also an
American Citizen. By order dated 18.6.2005, a joint custody
was given to them. Respondent No. 6 brought the child to
India informing the petitioner that she would b~ residing
with her parents in India.
H
960
V. RAVI CHANDRAN v. UNION OF INDIA & ORS.
961
~
Petitioner filed petitions before the Family court in
A
"' ....
America, whe·reby petitioner was granted temporary sole
legal and physical custody of the child, and respondent
No. 6 was directed to give the child and his passport to the
petitioner. Her custodial time with the child was
suspended. The Family Court in America issued child B
abuse non-bailable warrants against respondent No.6.
Petitioner filed writ petition under Article 32 of the
...
Constitution of India, praying for a writ of habeas corpus
for the production of his minor son and for handing over
~
the custody and his passport to him.
c
Despite the efforts made by the police of different
States, the child and respondent No. 6 could not be traced
and their whereabouts could not be found for more than
I
two years. This Court directed CBI to trace them and
produce the child before this Court. CBI traced the child
D
and respondent No. 6 and produced them before this
...
Court.
Disposing of the petition, the Court
HELD: 1.1. While dealing with a case of custody of a
child removed by a parent from one country to another in
E
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
F
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
G
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
H

V. RAVI CHANDRAN v. UNION OF INDIA & ORS.
963
also prima facie does not seem to have any merit since A
~ ,..,\
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 or for declaration that the

## Text

_Characters 0–39,962 of 72,611. This is a partial read: ask again with offset=39962 for what follows._

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[2009] 15 (ADDL.) S.C.R. 960
V. RAVI CHANDRAN
v.
UNION OF INDIA & ORS.
(Writ Petition (Crl.) No. 112 of 2007)
NOVEMBER 17, 2009
[TARUN CHATTERJEE, R.M. LODHA AND
DR. B.S.CHAUHAN, JJ.]
Child Welfare - Custody and guardianship of foreign child
- Removed from foreign jurisdiction by one parent - In
c contravention of the orders of the Court - Held: In such cases
court should either conduct an elaborate enquiry on the
question of custody or to summarily direct the parent to return
the case to the court of the country from which the child was
removed to be investigated there - On facts, the case does not
warrant enquiry by the court in India - Parent who removed the
D child from the jurisdiction of the foreign country, directed to
produce the child to the competent court there, within 15 days
from the date of the order- On failure to do so, custody of the
child with his passport to be restored to the other parent.
Constitution of India, 1950 - Article 32 - Jurisdiction
· E under - Custody of foreign child decided by foreign court -
Removal of the child from foreign jurisdiction by one parent -
· ~
Petition for issuance of writ of habeas corpus by other parentHeld: Jurisdiction of Supreme Court is invokable in the facts
of the case.
F
Petitioner, an American citizen got married to
respon6dent No. 6. He obtained an order of dissolution of
marriage from the competent court in the United States of
America. Several orders were passed by the court with the
consent of the parties, regarding custody and
G guardianship of their minor child (7 years) who is also an
American Citizen. By order dated 18.6.2005, a joint custody
was given to them. Respondent No. 6 brought the child to
India informing the petitioner that she would b~ residing
with her parents in India.
H
960
V. RAVI CHANDRAN v. UNION OF INDIA & ORS.
961
~
Petitioner filed petitions before the Family court in
A
"' ....
America, whe·reby petitioner was granted temporary sole
legal and physical custody of the child, and respondent
No. 6 was directed to give the child and his passport to the
petitioner. Her custodial time with the child was
suspended. The Family Court in America issued child B
abuse non-bailable warrants against respondent No.6.
Petitioner filed writ petition under Article 32 of the
...
Constitution of India, praying for a writ of habeas corpus
for the production of his minor son and for handing over
~
the custody and his passport to him.
c
Despite the efforts made by the police of different
States, the child and respondent No. 6 could not be traced
and their whereabouts could not be found for more than
I
two years. This Court directed CBI to trace them and
produce the child before this Court. CBI traced the child
D
and respondent No. 6 and produced them before this
...
Court.
Disposing of the petition, the Court
HELD: 1.1. While dealing with a case of custody of a
child removed by a parent from one country to another in
E
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
F
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
G
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
H

V. RAVI CHANDRAN v. UNION OF INDIA & ORS.
963
also prima facie does not seem to have any merit since A
~ ,..,\
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 or for declaration that the orders passed by the
American courts concerning the custody of minor child are
8
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 leave no manner of doubt that merely
because the child has been brought to India by c
~·
respondent No. 6, the custody issue concerning the minor
child 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 · D
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.[Para 21] [990-8-E]
E
1.5. 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
'"""'\
J.
made promptly and quickly after the child has been
removed. This is so because any delay may result in child
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developing roots in the country to which he has been
removed. From the counter affidavitfiled by respondent
No. 6, it is apparent that in last two years the child did not
have education at one place. He has moved from one
school to another. Respondent No. 6 and the child have
G
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 the minor child ever since they
left in September, 2007. In these circumstances, there has
H
964
SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
A
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 respondent No. 6 has been moving from one
State to another and her whereabouts were not known, the
B notice could not be served and child could not be
produced for more than two years. [Para 22] [990-F-H; 991A-C]
r
1.6. It is ordered that respondent No. 6 shall act as per
the consent order dated June 18, 2007 passed by the
.,,
c Family Court of the State of New York till such time any
further order is passed on the petition that may be moved
r.
by the parties henceforth and, accordingly, she will take
the child of her own to the United States of America within
fifteen days from the date of the judgment and report to
, that court. The petitioner shall bear all the traveling
D expenses and make arrangements for their residence in
the United States of America till further orders are passe~
"'
by the competent court. The petitioner shall request the
authorities that the warrants against respondent No. 6 be
dropped. He shall not file or pursue any criminal charges
E for violation by respondent No. 6 of the consent order in
the United States of America. Respondent No. 6 shall
furnish her address and contact number in India to the CBI
iauthorities and also inform them in advance the date and
·,-
flight details of her departure along with the child for
United States of America.In the event of respondent No. 6
~
~
..
F not taking the child to United States of America within the
•"
stipulated time, the child with his passport shall be
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
G 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. [Para 26] (992-D-G; 993-A-B]
4,.,
Smt. Surinder Kaur Sandhu v. Harbax Singh Sandhu and
~·
Anr. (1984) 3 SCC 698; Mrs. Elizabeth Dinshaw vs. Arvand M.
H Dinshaw and Anr. (1987) 1 SCC 42; Dhanwanti Joshi vs.
V. RAVI CHANDRAN v. UNION OF INDIA & ORS.
965
.,,
....
Madhav Unde (1998) 1 SCC 112; Sarita S~c:rma vs. Sushi/
A
Sharma (2000) 3 SCC 14, relied on.
In re B's Settlement (1940) Ch. 54; Mark T. Mc.Kee vs.
EyelynMcKee (1951) A.C. 352; Harben vs. Harben (1957) 1.
·I
W.L.R. 261; Kemotvs. Kemot(1965) Ch. 217; In re H. (Infants)
(1966) 1 W.L.R. 381; In re. L. (minors) (1974) 1 All ER 913,
B
referred to.
'
..
2. In the peculiar facts and circumstances of the case
invocation of jurisdiction of this Court under Article 32 of
the Constitution of India cannot be said to be
:
inappropriate. [Para 24] (992-8]
c
Case Law Reference :
(1940) Ch. 54
Referred to.
Para 9
(1951) A.C. 352
Referred to.
Para 10
(1957) 1. W.L.R. 261
Referred to.
Para 11
_.
(1965) Ch. 217
Referred to.
Para 12
D
(1966) 1 W.L.R. 381
Referred to.
Para 13
(1974) 1 All ER 913
Referred to.
Para 14
(1984) 3 sec 698
Relied on.
Para 16
(1987) 1 sec 42
Relied on.
Para 17
(1998) 1sec112
Relied on.
Para 18
E
(2000) 3 sec 14
Relied on.
Para 19
CIRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.)
......
No. 112 of 2007 .
'-
Under Article 32 of the Constitution of India
F
Ms. Pinky Anand, T.L.V. Iyer, D.N. Goburdhan, Arrin S.
Rastogi, Prabal Bagchi, V.G. Pragasam, A.T.M. Sampath, T.S.
Shanthi, P.N. Ramalingam, Kamini Jaiswal, D. Bharathi Reddy,
Anitha Shenoy, S. Thananjayan, Subhash Kaushik, P.K. Dey, M.
Tatia, AK. Sharma, Sudarshan Rajan, K.L.N.V. Veeranjaneyulu,
G
Merusagar Samantaray, Ms. Chandan Ramamurthi, for the
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appearing parties .
. 1..
The Judgment of the Court was delivered by
R.M. LODHA, J. 1. Adithya is a boy· of seven, born on July
1, 2002, in the United States of America. He is a foreign national.
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SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
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The petition before us is by the father - Dr. V. Ravi Chandranpraying 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
B 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
c
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--
D 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
E 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
_,
..
'
F 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 was permitted to meet the child for one hour
on November 10, 2009 and November 12, 200S. In the
meanwhile, respondent no. 6 has filed counter affidavit in
G 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
4
respondent no. 6. Now since minor Adithya has been produced,
H tne only question that remains to be considered is with regard
V. RAVI CHANDRAN v. UNION OF INOIA & ORS.
967
[R.M. LODHA, J.]
-...(
-.t
to the prayer made by the petitioner for handing over the custody
A
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
B
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 Adithya was passed by c
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
0
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, 20Q5. On September
8, 2005, the marriage between the petitioner and respondent
no.6 was dissolved by the New York State Supreme Court. Child
E
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_9ourt of the State of New York, on June 18, 2007, upon
F
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
ORDERED, that commencing during August 2007,
G
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.
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968
SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
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
sch_ool 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 follo~s:
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 scho'ol on Monday of the
mother's custodial weekend, she shall have
custodial time until 5.00 p.m. on Monday, and -
8.
For ten (10) consecutive days during Spring vacation
from school; and
C.
For the entirety of the Christmas reces$ f~vm School,
except for Christmas Eve and Christmas day, which
shalt 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 days to long as she produces the child at
the father's residence for Christmas Eve and
Christmas day ; and
V. RAVI CHANDRAN v. UNION OF INDIA & .ORS.
969
[RM. LODHA, J.]
D.
During the following holidays:
A
(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;
8
(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
C
the mother has custodial time during even -
numbered years and the father has custodial
time during odd -numbered years)
, ............................ .
D
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
E
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
F
the child to the father's residence in Allen, Texas on
G
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 schedule as set froth
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SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
herein, orb) 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 not'ice 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 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
•.
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)..
...
... .
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V. RAVI CHANDRAN v. UNION OF INDIA & ORS.
971
[R.M. LODHA, J.]
be the appropriate order in the facts and circumstances keeping
A
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,/
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 fathe·r 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
8
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 law of Belgium. The mother, c
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 0
custody and ordered the mother to return the infant within twentyfour 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 E
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
F"
•
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 ..............................
G
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
1.
{1940} Ch. 54.
ti
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B
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SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
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
vs. Vetzera {FN 1 O}, 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. Eye/yn McKee2, the Privy Council
was concerned with an appeal from the Supreme Court of
G Canada. That was a case where the parents of the infant were
American 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- a/ia, that neither of them should
H 2.
{1951} A.C. 352.
V. RAVI CHANDRAN v. UNION OF INDIA & ORS.
973
[R.M. LODHA, J.]
remove the child out of the United States without the written
A
;,
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 8
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, c
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 ~other.
However, the Supreme Court of Canada by majority ju gment
allowed the appeal of the mother and set aside the order of b
custody of child to the father. On appeal from the Supreme Court
I
..
of Canada at the instance of the father, the Privy Council held
a~' follows:
" .......... For, after reaffirming "the well established general
rule that in all questions relating to the custody of an infant
E
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
F
..
. 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 forthe infant". and it is, in effect,
GI
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 po%;01e that a case might
H
A
B
c
D
E
F
G
H
974
SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
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
pr9per 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
so great that such an order as the Supreme Court niade 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 Gonsideration
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
... •
V. RAVI CHANDRAN v. UNION OF INDIA & ORS.
975
[R.M. LODHA, J.]
the trial judge, in the first place, forming the opinion that he
A
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
8
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
C
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 concerneg
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
D
saying that, I have in mind not merely the mother's position
I
but the harm that can be done 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
E
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,
F
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
G
. On October 29, 1963, the father brought the infant to England
with intention to make England his home. The mother
commenced wardship procetedings in which she brought a
3.
{1957} 1. W.L.R. 261
4.
{1965}Ch.217.
H
976
SUPREME COURT REPORTS [20D9] 15 (ADDL.) S.C.R.
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
B
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
COL!rt 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
c
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."
D
13. In re H. (lnfants)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
E 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
,...,.
F mother started wardship proceedings in the English court. The
,.
father took out motion asking the mother that the tw~ 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 that the justice of the,
G 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
A.,.
possible by that court. The mother appealed to the Court of
.,_
Appeal. Willmer L.J. and Harman L.J. by their separate
---
H 5.
(1966) 1 W.L.R. 381=(19960 1 All.E.R. 886.
•
V. RAVI CHANDRAN v. UNION OF INDIA & ORS.
977
[R.M. LODHA, J.]
judgments affirmed the view of the Trial Judge and held that the
A
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
8
of Cross J. where he said:
"The sudden and unauthorized removal of children from one
country to ar)other is far too frequent nowadays, and as it
seems to me it is th~ duty of ~II courts in all countries to do
all they can to ensure that the wrongdoer does not gain an
advantage by his wrongdoing."
C
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
D
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
E ·
States; and that this was so, even though it might
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
Englanckmd 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
G
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
H
978 · SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.
A
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,
B
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 taμn, and that she was not entitled
to seek to bolster her own wrong by seeking the assistance
c
of this court in· perpetuating that position, and seeking to
change the situation to th'e father's disadvantage.ii
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
"'"' l
D German national domiciled and resident in Germany married an
English woman. Their matrimonJal home 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
E 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 haying 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
·-
..
F 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
G 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
H 6.
{1974} 1 All ER 913.
• >
V. RAVI CHANDRAN v. UNION OF INDIA & ORS.
979
[R.M. LODHA, J.]
they remain in theirfather's custody until further order. The mother
A
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
B
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
C
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.