# LAHARI SAKHAMURI v. SOBHAN KODALI

- **Citation:** [2019] 5 S.C.R. 240
- **Court:** Supreme Court of India
- **Decided:** 2019-03-15
- **Case number:** Civil Appeal Nos. 3135-3136 of 2019
- **Bench:** A. M. Khanwilkar, Ajay Rastogi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/lahari-sakhamuri-v-sobhan-kodali-33804
- **Pages:** 39

## Headnote

Family Law:
Child custody - Petition for divorce and for custody of minor
children (US citizens) filed by wife/mother in US - Order by US
Court directing the husband/father to appear for conciliation and
not to change the residence of children - In the meantime, due to
family urgency wife/mother when came to India, filed petition in the
Family Court seeking custody of the children - Family Court passed
ex parte interim injunction order restraining the husband/father from
taking away minor children - Emergency petition by husband/
father before US Court - US Court passed order for continuing
jurisdiction over custody matter and granted temporary custody to
the wife/mother with direction to return the children to the
jurisdiction of US Court - Husband/father's application objecting
to jurisdiction of Family Court rejected - Appeal to High Court -
Husband/father also filed writ petition seeking writ of Habeas
Corpus for producing the minor children - High Court disposed of
the appeal and the writ petition holding that Family Court did not
have jurisdiction and that it was in the interest of the children to
return to US - On appeal, held: In the facts of the case, High Court
rightly rejected the application for custody of minor children
before Family Court holding that the children were not ordinary
residents of India - Taking holistic consideration of entire case, all
the criteria such as comity of courts, orders of foreign court having
jurisdiction over the matter regarding custody of children,
citizenship of spouse and children, intimate connect and welfare
and best interest of minor children weigh in favour of the husband/
father - Direction issued to the wife/mother to return to US alongwith
the children - Foreign Court - Comity of Court.
 [2019] 5 S.C.R. 240
 240
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Child custody - Court has to keep in mind the best interest of
the child as the paramount consideration while granting custody of
minor children - The crucial factors for gauging the welfare of the
children are such as maturity and judgment; mental stability;
ability to provide access to school; moral character; ability to
provide continuing involvement in the community; financial
sufficiency; factors involving relationship with the child as opposed
to characteristic of the parent as an individual.
Custody dispute - Negotiated resolution - Preference of, over
judicial resolution - Held: Negotiated resolution is preferable from
child's perspective.
Disposing of the appeals, the Court
HELD: 1. The appellant had filed application for divorce
and custody of minor children in the US Court and order came to
be passed by the US Court. Despite that interim order, the
appellant came to India and within 20 days of her arrival in India,
filed an application for custody of minor children, in the Family
Court in India concealing her application for custody filed in the
US Court. She also did not disclose that an order came to be
passed by the US Court against her. In the given facts and
circumstances, the opinion of the High Court that the minor
children were not ordinary residents of India as envisaged under
Section 9(1) of the Guardians and Wards Act, 1890, is upheld.
Resultantly, the application for custody of minor children filed
before the Family Court in India is rightly rejected by the High
Court in exercise of power under Order 7 Rule 11 of CPC. At the
same time, when the orders have been passed by the US Court,
the parties cannot disregard the proceedings instituted before
the US Court filed at the instance of the appellant who is
supposed to participate in those proceedings. [Para 31]
[265-E-H]
2.1 Child rights may be limited but they should not be
ignored or eliminated since children are in fact persons wherein
all fundamental rights are guaranteed to them keeping in mind
the best interest of the child and the various other factors which
play a pivotal role in taking decision to which reference has been
made taking note of the parental au

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SUPREME COURT REPORTS
[2019] 5 S.C.R.
LAHARI SAKHAMURI
v.
SOBHAN KODALI
(Civil Appeal Nos. 3135-3136 of 2019)
MARCH 15, 2019
[A. M. KHANWILKAR AND AJAY RASTOGI, JJ.]
Family Law:
Child custody - Petition for divorce and for custody of minor
children (US citizens) filed by wife/mother in US - Order by US
Court directing the husband/father to appear for conciliation and
not to change the residence of children - In the meantime, due to
family urgency wife/mother when came to India, filed petition in the
Family Court seeking custody of the children - Family Court passed
ex parte interim injunction order restraining the husband/father from
taking away minor children - Emergency petition by husband/
father before US Court - US Court passed order for continuing
jurisdiction over custody matter and granted temporary custody to
the wife/mother with direction to return the children to the
jurisdiction of US Court - Husband/father's application objecting
to jurisdiction of Family Court rejected - Appeal to High Court -
Husband/father also filed writ petition seeking writ of Habeas
Corpus for producing the minor children - High Court disposed of
the appeal and the writ petition holding that Family Court did not
have jurisdiction and that it was in the interest of the children to
return to US - On appeal, held: In the facts of the case, High Court
rightly rejected the application for custody of minor children
before Family Court holding that the children were not ordinary
residents of India - Taking holistic consideration of entire case, all
the criteria such as comity of courts, orders of foreign court having
jurisdiction over the matter regarding custody of children,
citizenship of spouse and children, intimate connect and welfare
and best interest of minor children weigh in favour of the husband/
father - Direction issued to the wife/mother to return to US alongwith
the children - Foreign Court - Comity of Court.
 [2019] 5 S.C.R. 240
 240
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Child custody - Court has to keep in mind the best interest of
the child as the paramount consideration while granting custody of
minor children - The crucial factors for gauging the welfare of the
children are such as maturity and judgment; mental stability;
ability to provide access to school; moral character; ability to
provide continuing involvement in the community; financial
sufficiency; factors involving relationship with the child as opposed
to characteristic of the parent as an individual.
Custody dispute - Negotiated resolution - Preference of, over
judicial resolution - Held: Negotiated resolution is preferable from
child's perspective.
Disposing of the appeals, the Court
HELD: 1. The appellant had filed application for divorce
and custody of minor children in the US Court and order came to
be passed by the US Court. Despite that interim order, the
appellant came to India and within 20 days of her arrival in India,
filed an application for custody of minor children, in the Family
Court in India concealing her application for custody filed in the
US Court. She also did not disclose that an order came to be
passed by the US Court against her. In the given facts and
circumstances, the opinion of the High Court that the minor
children were not ordinary residents of India as envisaged under
Section 9(1) of the Guardians and Wards Act, 1890, is upheld.
Resultantly, the application for custody of minor children filed
before the Family Court in India is rightly rejected by the High
Court in exercise of power under Order 7 Rule 11 of CPC. At the
same time, when the orders have been passed by the US Court,
the parties cannot disregard the proceedings instituted before
the US Court filed at the instance of the appellant who is
supposed to participate in those proceedings. [Para 31]
[265-E-H]
2.1 Child rights may be limited but they should not be
ignored or eliminated since children are in fact persons wherein
all fundamental rights are guaranteed to them keeping in mind
the best interest of the child and the various other factors which
play a pivotal role in taking decision to which reference has been
made taking note of the parental autonomy which courts do not
easily discard. [Para 50] [276-B]
LAHARI SAKHAMURI v. SOBHAN KODALI
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2.2 It is true that this Court has to keep in mind the best
interest of the child as the paramount consideration. The
observations of the US Court clearly show that principle of welfare
of the children has been taken into consideration by the US Court
in passing of the order as it reiterates that both the parties are
necessary for proper upbringing of the children and the ultimate
decision of custody and guardianship of the two minor children
will be taken by the US which has the exclusive jurisdiction to
take the decision as the children happened to be the US citizens
and further order been passed on the respondent's emergency
petition with special release in custody on 9th March, 2018
permitting the respondent to apply for US passports on behalf of
the minor children without appellant being mother's consent. The
appellant cannot disregard the proceedings instituted at her
instance before the US Court and she must participate in those
proceedings by engaging solicitors of her choice to espouse her
cause. [Para 48] [275-D-F]
2.3 The crucial factors which have to be kept in mind by
the Courts for gauging the welfare of the children equally for the
parent's can be inter alia, delineated, such as (1) maturity and
judgment; (2) mental stability; (3) ability to provide access to
schools; (4) moral character; (5) ability to provide continuing
involvement in the community; (6) financial sufficiency and last
but not the least the factors involving relationship with the child,
as opposed to characteristics of the parent as an individual.
[Para 49] [285-G]
2.4 The expression "best interest of child" which is always
kept to be of paramount consideration is indeed wide in its
connotation and it cannot remain the love and care of the primary
care giver, i.e., the mother in case of the infant or the child who is
only a few years old. The definition of "best interest of the child"
is envisaged in Section 2(9) of the Juvenile Justice (Care &
Protection) Act, 2015, as to mean "the basis for any decision
taken regarding the child, to ensure fulfilment of his basic rights
and needs, identify, social well-being and physical, emotional and
intellectual development". [Para 43] [273-D-E]
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2.5 It is not in dispute that both the minor children, from
the very inception of their birth, till removal from the US were
living with their parents in US. This fact was admitted by the
appellant also in the guardianship petition filed before the Family
Court in India and also in the divorce and custody petition filed
by her in US and only after hearing counsel for the parties, order
was passed by the US Court on 22nd May, 2017 on the emergency
custody petition granting temporary physical custody of the
children with further direction to the appellant to return along
with the children to the jurisdiction of US Court on 2nd June, 2017.
In case she was aggrieved by the order dated 22nd May, 2017
passed by the US Court after affording an opportunity of hearing
which she contested through her Attorney, all the courses were
available to her to assail the order of the Court. Since the
appellant failed in returning the children to the jurisdiction of the
US Court despite order dated 22nd May, 2017, there was no option
left with the respondent but to file a Habeas Corpus Petition and
pray that the children be repatriated back to US in compliance of
the order of the US Court. [Para 47] [274-G-H; 275-A-C]
2.6 The best interest of the children being of paramount
importance will be served if they return to US and enjoy their
natural environment with love, care and attention of their parents
including grandparents and to resume their school and be with
their teachers and peers. [Para 56] [277-F-G]
2.7 The doctrines of comity of courts, intimate connect,
orders passed by foreign courts having jurisdiction in the matter
regarding custody of the minor child, citizenship of the parents
and the child etc., cannot override the consideration of the best
interest and the welfare of the child and that the direction to return
the child to the foreign jurisdiction must not result in any physical,
mental, psychological, or other harm to the child. Taking a holistic
consideration of the entire case, the Court is satisfied that all the
criteria such as comity of courts, orders of foreign court having
jurisdiction over the matter regarding custody of the children,
citizenship of the spouse and the children, intimate connect, and
above all, welfare and best interest of the minor children weigh
LAHARI SAKHAMURI v. SOBHAN KODALI
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in favour of the respondent and that has been looked into by the
High Court in the impugned judgment in detail. That needs no
interference under Article 136 of the Constitution of India.
[Para 51] [276-C-E]
3. The judicial resolution of a custody dispute may
permanently affect or even end the parties' legal relationship but
the social and psychological relationship will usually continue and
it seems appropriate that a negotiated resolution between the
parents is preferable from the child's perspective for several
reasons. A child's future relationship with each of his parents
may be better maintained and his existing relationship is less
damaged by a negotiated settlement than by one imposed by a
court after adversarial proceedings. In the present case, there is
every possibility that the parties may reconcile and start over
their relationship afresh, at least for the sake of happiness of
their own off-spring if for no other reason. The parties are indeed
mature and sensible enough to understand that the ordinary wear
and tear of married life has to be put up in within the larger
interests of their own happiness and of the healthy, normal growth
and development of their offspring, whom destiny has entrusted
to their joint parental care. Spouses must come over the
temperamental disharmony which usually exists in every marriage,
rather than magnifying it with impulsive desires and passions.
Parents are not only caretakers, but they are instrumental in the
development of their child's social, emotional, cognitive and
physical well-being and work harmoniously to give their children
a happy home to which they are justly entitled to.
[Para 54, 55] [277-B-E]
4. The appellant is directed to return to US along with both
the children, within a period of six weeks. Further respondent is
directed to make all arrangements of stay and travel
expenses(including air tickets) of the appellant and both the
children as well as her companion, if any, in their own house or if
she is not willing to stay for any personal reasons, make all
arrangements for stay at the place of her choice at reasonable
cost. In case the appellant reports that she is not inclined to
travel to US along with the minor children, or do not show any
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interest to accompany the children, the respondent shall deposit
a sum of Rs. 15 lakhs in the bank account of the appellant and
proof of deposit shall be placed in the Registry of the High Court
who shall thereupon call upon the Consulate General of the US
at Hyderabad to take the custody of the minor children, along
with their passports and other travel documents from the
appellant and hand over the same to the respondent with a
condition for taking the custody of the minor children for being
taken to US and hand over to the jurisdictional Court in US until
further orders are passed in the pending proceedings by the US
Court. The appellant will be at liberty to utilize the money
deposited by the respondent in connection with her visit to US, if
so desired, in future and the respondent shall not take any
coercive steps against her which in any manner may result in
adverse consequences.[Para 57] [277-G-H; 278-A-D]
Nithya Anand Raghavan v. State (NCT of Delhi) and
Another (2017) 8 SCC 454: [2017] 7 SCR 281; Surya
Vadanan v. State of Tamil Nadu and Others (2015) 5
SCC 450 : [2015] 4 SCR 903 ; Jasmeet Kaur v. Navtej
Singh (2018) 4 SCC 295 ; Surinder Kaur Sandhu v.
Harbax Singh Sandhu and Anr. (1984) 3 SCC 698 :
[1984] 3 SCR 422 ; Elizabeth Dinshaw v. Arvand M.
Dinshaw and Another (1987) 1 SCC 42; V. Ravi
Chandran (Dr.) v. Union of India and Others [2010] 1
SCC 174 : [2009] 15 SCR 960 - relied on.
Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC 112 :
[1997] 5 Suppl. SCR 30 ; Kanika Goel v. State of Delhi
through Station House Officer and Another (2018) 9
SCC 578 - referred to.
L(Minors) in re (1974) 1 All ER 913(CA) ; McKee v.
McKee (1951) AC 352 - referred to.
Case Law Reference
[2017] 7 SCR 281
 relied on
Para 21
[2015] 4 SCR 903
 relied on
Para 21
(2018) 4 SCC 295
 relied on
Para 22
LAHARI SAKHAMURI v. SOBHAN KODALI
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[1984] 3 SCR 422
 relied on
Para 23
(1987) 1 SCC 42
 relied on
Para 23
[2009] 15 SCR 960
 relied on
Para 23
[1997] 5 Suppl. SCR 30 referred to
Para 36
(2018) 9 SCC 578
 referred to
Para 42
CIVIL/CRIMINAL APPELLATE JURISDICTION: Civil Appeal
Nos.3135-3136 of 2019
From the Judgment and Order dated 08.02.2018 of the High Court
of Judicature at Hyderabad for the State of Telangana and the State of
Andhra Pradesh in FCA Nos. 372 and 373 of 2017
With
Criminal Appeal No. 500 of 2019.
Ms. Malvika Rajkotia, Ms. Akriti Tyagi, Ms. Rytim Vohra,
Ms. Arpita Rai, Ms. Aashna Talwar, Mayank Grover, Ms. Trisha Gupta,
Ms. Udita Singh, Vivek Singh, Lakshmi Raman Singh, Advs. for the
Appellant.
Ms. M. Arora, Sr. Advocate, Prabhjit Jauhar, Ms. Sheetal Kocher,
A. Ishwar Rosemary Raju, S. S. Jauhar, Advs. for the Respondents.
The Judgment of the Court was delivered by
RASTOGI, J. 1. Leave granted.
2. Both the appeals although arise from two separate orders passed
by the High Court of Hyderabad for the State of Telangana and State of
Andhra Pradesh dated 8th February 2018 in a Habeas Corpus Petition
filed at the instance of the respondent (Sobhan Kodali) and by the
appellant (Lahari Sakhamuri) under the Guardians & Wards Act, 1890
primarily for the custody of the two minor children who were born in the
United States on 14th March, 2012 and 13th October, 2014 and are US
citizens and holding US passports. For the custody of children, a tussle
was going on between the parents who are residing in US since 20042005. Their marriage was solemnized on 14th March 2008 in Hyderabad
and both are green card holders and not only highly educated but well
placed. It appears that some differences cropped up which can be a
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misunderstanding or failing to understand each other, various efforts were
made through conciliation and after the matter came to this Court through
the process of mediation, the orders of this Court indicate that lot of
efforts were made for reconciliation and at one point of time, it reached
to a final stage but unfortunately could not reach to its logical end for
various reasons and factors.
3. The persons who are affected are the minor children who have
been directly impacted because of the fact that their parents have not
been able to resolve their differences. Children are very sensitive and
due to the conflict of their parents if could not be resolved at the earliest,
the minor children became the victim of time for which they are not at
fault but indeed the sufferers. It has to be examined in different
perspective also that rights of the child as a progressive approach to the
best interest of the child and what is needed in the best interest of the
child is the one which has to be deciphered by us in the instant proceedings
through the manifold arguments being advanced from both sides keeping
in view the principles of law on the subject but still remain a guess work.
4. Before this Court may proceed to examine the question, there
are plentitude of judgments of this Court but still each case has to be
decided on its own facts and circumstances. Obviously, the ultimate
goal which has to be kept in mind is the best interest of the child which
is of utmost importance and of a paramount consideration.
5. The brief facts of the case which manifests from the voluminous
record placed before us are that the appellant (Lahari Sakhamuri) and
respondent (Sobhan Kodali) are the parents of the minor children.
Appellant (Lahari Sakhamuri) went to USA for her masters in September,
2004 and thereafter started working in USA. She is a Biomedical Engineer
by profession. Respondent (Sobhan Kodali) is also highly qualified and
went to USA in July 2005 and is presently a Cardiologist by profession.
Their marriage was solemnized according to Hindu rites in Hyderabad
on 14th March, 2008. From this wedlock, son, namely, Arthin and daughter
Neysa were born on 14th March, 2012 and 13th October, 2014 and both
are US citizens and also hold US passports. The couple purchased
house in Pennsylvania on 29th January, 2016 in their joint names and
moved to their new home. The son started going to a school in September
2014 and a daughter in December, 2016. Both the children being there
in US from their birth, the social and cultural value of US certainly was
embedded in both of them.
LAHARI SAKHAMURI v. SOBHAN KODALI
[RASTOGI, J.]
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6. This fact cannot be ruled out that something certainly has gone
wrong in their marital relations and it went to an extent where the
appellant (Lahari Sakhamuri) took a decision to file petition for divorce
and custody of the minor children in US on 21st December, 2016 on the
premise that there was a complete irretrievable breakdown of marriage
under the Divorce Code, 1980 prevalent in US. It may be relevant to
note that along with the application filed for divorce and custody of minor
children, there is a prescribed format which has to be filled disclosing
the details of any wrong, if happened physically or abuse has been
committed and the fact is that she was completely silent and positive in
assertion in her application. Although both the parties were residing
together in the same house, with joint legal custody of their children who
were residing with them and there was no criminal/abuse history ever in
the past.
7. Irretrievable breakdown of marriage can be due to marital
difficulties with no reasonable prospect of reconciliation but it appears
that in the US before such matrimonial matters are taken up for
adjudication on the judicial side, all efforts are being made for conciliation
and mediation between the parties which is also being actively taken
note of under Section 89 of Code of Civil Procedure of resolving
matrimonial and custodial disputes through the process of mediation and
which is very successful and effective in India as well.
8. It reveals from the record that on the date of filing of the petition
for divorce and custody of minor children by the appellant (Lahari
Sakhamuri), i.e. 21st December, 2016 in US, the order came to be passed
on the petition directing respondent (Sobhan Kodali) to appear for
conciliation conference on 20th January, 2017 and both the parties were
directed not to change the residence of the children which would affect
the other party's ability to exercise custodial rights. It may be appropriate
to quote the extract of the order which came to be passed on the
application filed by the appellant (Lahari Sakhamuri) which reads as
under:
"
 ORDER OF COURT
 You, Sobhan Kodali, Defendant/Respondent, have been sued
in court to obtain shared legal and primary physical custody of the
children, Arthin Kodali, born March 14, 2012 and Neysa Sakhamuri
Kodali, born October 13, 2014.
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 You are ordered to appear in person at Room 325, Lehigh
County Courthouse, 455 W. Hamilton Street, Allentown,
Pennsylvania, on January 20, 2017 at 2:00 p.m. , for
 If you fail to appear as provided by this Order, an order for
custody may be entered against you or the Court may issue a
warrant for your arrest.
 You must file with the Court a verification regarding any
criminal record or abuse history regarding you and anyone living
in your household on or before the initial in-person contact with
the Court (including, but not limited to, a conference with a
conference officer or judge or conciliation) but not later than 30
days after service of the Complaint or Petition.
 No party may make a change in the residence of any child
which significantly impairs the ability of the other party to exercise
custodial rights without first complying with all of the applicable
provisions of 23 Pa.C.S. §5337 and Pa.R.C.P. No. 1915.17
regarding relocation.
 YOU SHOULD TAKE THIS PAPER TO YOUR
LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER,
GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.
THIS OFFICE CAN PROVIDE YOU WITH INFORMATION
ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD
TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES
THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE
PERSONS AT A REDUCED FEE OR NO FEE.
Lehigh County Bar Association
Lawyer Referral Service
P.O. Box 1324
Allentown, PA 18105-1324
Telephone: 610-433-7094
XX
a
conciliation
or
mediation
conference.

a pretrial conference.

a hearing before the Court.

LAHARI SAKHAMURI v. SOBHAN KODALI
[RASTOGI, J.]
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Americans with Disabilities Act of 1990
The Court of Common Pleas of Lehigh County is required by
law to comply with the Americans with Disabilities Act of 1990.
For information about accessible facilities and reasonable
accommodations available to disabled individuals having business
before the Court, please contact the Court Administrator's Office
at (610) 782-3014. All arrangements must be made at least 72
hours prior to any hearing or business before the Court. You must
attend the scheduled conference or hearing.
BY THE COURT:
12/21/2016
 _________________________/RR
Date
 J."
9. It reveals from the record that efforts were going on in the
process of conciliation and the same were held on 21st March, 2017 and
since the parties could not arrive to any consensus regarding the custody
of their children, another conference was scheduled as agreed for 25th
March, 2017.
10. By the time parties could reach to a final consensus by the
intervention of the trained conciliators which indisputedly play a very
pivotal role in matrimonial matters, there was a sad demise of the
maternal grandmother of the appellant (Lahari Sakhamuri) and in providing
strength and support to the family, the appellant travelled to India with
both the minor children on 23rd March, 2017 with return tickets of 24th
April, 2017 and within 20 days of coming to Hyderabad(India) where
her family reside, filed a petition in the Family Court, Hyderabad on 12th
April, 2017 seeking custody of minor children and injunction against
respondent (Sobhan Kodali) under the Guardians and Wards Act, 1890
and she was able to succeed in getting ex-parte interim injunction on
12th April, 2017. It would be appropriate to quote the extract of the exparte injunction order passed by the learned Family Court, Hyderabad
dated 12th April, 2017 which is as follows:-
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"AD INTERIM INJUNCTION
IN THE COURT OF JUDGIGE ADDITIONAL FAMILY COURT :
CITY CIVIL COURT : HYDERABAD
I.A. No. 292 OF 2017
 in
 OP No.433 of 2017
BETWEEN :
Smt. Lahari Sakhamuri,
W/o Sobhan Kodali, Hindu,
aged 34 years, R/o Plot No. 443/A-28,
Road No.86, Jubilee Hills,
Hyderabad T.S
... Petitioner
AND
Sobhan Kodali,
S/o Dr. Jaya Ramesh Kodali, Hindu,
aged about 37 years,
R/o # 2C85, Bellflower Lane,
Centre Valley, Lehigh County,
Pennsylvania-18034, USA
 ... Respondent
To
Sobhan Kodali,
S/o Dr. Jaya Ramesh Kodali,
Hindu, aged about 37 years,
R/o # 2C85, Bellflower Lane,
Centre Valley, Lehigh County,
Pennsylvania-18034, USA
UPON MOTION made unto this court by Sri K. Chaitanya,
Counsel for the petitioner seeking the court to grant ad interim
injunction restraining the respondent from forcibly taking away
LAHARI SAKHAMURI v. SOBHAN KODALI
[RASTOGI, J.]
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the minor children Arthin Kodali and Neysa Sakhamur from the
custody of the petitioner pending the above O.P.
Upon hearing of the arguments of the counsel for the petitioner
this court while issuing notice to respondent returnable by
26.04.2017 doth order restraining respondent from taking away
minor children namely Arthin Kodali and Neysa Sakhamur from
the custody of the petitioner till 26.04.2017 and that petitioner
should not shift the children from the jurisdiction of this court without
permission from the court, and that petitioner should also look
after food, shelter and medical facilities of the children petition
stood posted to 26.04.2017.
Given under my hand and the seal of the court on this the 12th day
of April, 2017.
 Sd/-
 JUDGE, ADDL. FAMILY COURT
 CITY CIVIL COURT, HYDERABAD"
11. After few days, she also filed a FIR against respondent (Sobhan
Kodali) and his family members for offence under Section 498A IPC
i.e. on 21st April, 2017 but after investigation, the police filed closure
report on 1st November, 2017. The fact to be noticed here at this stage
is that the very appellant (Lahari Sakhamuri) filed a petition for divorce
and custody of minor children in US on 21st December, 2016, there was
no whisper or an averment that there was any domestic violence or
abuse either subjected upon her or the minor children by respondent
(Sobhan Kodali) and he was informed on 23rd April, 2017, twelve hours
before her flight that she would not be returning and does not have a
travel date in mind. Respondent (Sobhan Kodali) and his counsel in the
US were orally informed of the ex-parte order which was received by
respondent (Sobhan Kodali) on 29th April, 2017 through e-mail from the
counsel for appellant (Lahari Sakhamuri) in India.
12. Immediately, on receiving the oral information, on 26th April,
2017, emergency petition for interim orders in petition for divorce and
custody filed at the instance of the appellant (Lahari Sakhamuri) was
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filed by respondent (Sobhan Kodali). The said application was contested
by the appellant (Lahari Sakhamuri) through Attorney and in defence
stated that she had only temporarily relocated to India for attending her
grandmother's funeral and providing emotional support to her mother.
After hearing the parties, the US Court passed order on 22nd May, 2017
for continuing the jurisdiction over the custody matter and granted
temporary physical custody of the children to respondent (Sobhan Kodali)
with a further direction that children be returned to the jurisdiction of the
Court in US by 2nd June, 2017. It would be appropriate to quote the
extract of the order passed by US Court on the emergency custody
petition filed by respondent Sobhan Kodali on 22nd May, 2017:-
"IN THE COURT OF COMMON PLEAS OF LEHIGH
 COUNTY, PENNSYLVANIA CIVIL DIVISION
Lahari Sakhamuri
)
Plaintiff
)
File No.2016-FC-1641
Vs
)
Sobhan Kodali
)
in custody
Defendant
)
ORDER
AND NOW, this 22nd May, 2017 upon consideration of the
Emergency Petition for Relief Requesting an Interim order of
custody filed 26.04.2017, by defendant and hearing conducted on
22.05.2017 attended by the defendant / petitioner Sobhan Kodali
represented by his legal counsel, Mark B. Dischell, Esquire and
plaintiff/respondent, Lahari Sakhamuri having failed to appear for
said hearing, but represented by her legal counsel, Mary J B.
Eidelman Esquire;
LAHARI SAKHAMURI v. SOBHAN KODALI
[RASTOGI, J.]
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IT IS HEREBY ORDERED that :
1. Lehigh County, Pennsylvania, United States of America shall
remain the sole home country, home state and country of the
parties' minor children, Arthin Kodali born 14.03.2012 and Neyas
Sakhamuri Kodali, born 13.10.2014.
2. This Court shall have sole continuing jurisdiction of this custody
matter which was filed by the plaintiff, Lahari Sakhamuri, on
21.12.2016.
3. Pending further order of court, father is granted temporary
physical custody of the children;
4. Mother shall return the children to Lehigh County, Pennsylvania, United States of America, to the father's custody on late
than 02.06.2017.
5. Until the children's return, father shall have telephone and
video chat contact with the children each day;
6. Upon her return to this jurisdiction, mother shall not be
permitted to travel out of the Commonwealth of Pennsylvania
with the minor children without further order of court;
7. The passports of the children shall be held in escrow by the
parties' counsel or another mutually agreeable person;
8. Should the mother fail to return the children to father by
02.06.2017, mother shall pay to father $1,000 each day she
does not return the children;
9. In the event mother does not return the children to the father
by 02.06.2017, father and/or any of his designees being his
father, Jayaramesh Kodali; his mother, Vijaya Bharathi; his
cousin, Chaitanya Kadiyala, shall be permitted to receive the
children from mother in India and bring them to Lehigh County,
Pennsylvania, United States of America;
10. Until such time as mother returns to the United States, she shall
be precluded from seeking child support on behalf of the
children;
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11. A certified copy of this order shall be sent to the America
Consulate in India and shall be registered with appropriate court
/ jurisdiction in Hyderabad, India;
12. Within thirty (30) days of this order, mother shall pay father
$10,000 as partial payment towards counsel fee incurred by
father in this matter. A final determination on the amount of
counsel fees to be paid by mother to father will be made by the
court after subsequent hearing which may be requested by
either party.
 BY THE COURT :
 Sd/-
Daniel K. McCarthy"
13. Thereafter, the respondent (Sobhan Kodali) moved an
application under Order 7 Rule 11 CPC in the proceedings instituted in
the Family Court, Hyderabad asserting that the Family Court, Hyderabad
has no jurisdiction to decide the application for the custody of minor
children as they are not the ordinary resident of Hyderabad but that
came to be rejected vide order dated 15th September, 2017 holding that
the Family Court, Hyderabad is competent to exercise jurisdiction to
examine the application filed at the instance of the appellant (Lahari
Sakhamuri) on merits.
14. At this stage, respondent (Sobhan Kodali) preferred appeal
to the High Court under Section 19(1) of the Family Courts Act against
the order dated 15th September, 2017 passed by the learned Family Court,
Hyderabad holding jurisdiction to examine the application filed by the
appellant (Lahari Sakhamuri) regarding custody of the minor children
under Guardians and Wards Act, 1890. Simultaneously, without any loss
of time, respondent (Sobhan Kodali) also filed a writ petition seeking
Writ of Habeas Corpus for producing the minor children in the custody
of the US Court taking note of the earlier order passed dated
21st December, 2016 followed with order dated 22nd May, 2017. The
appeal and the writ petition were clubbed but were decided by the High
Court by separate orders dated 8th February, 2018 holding that the Family
LAHARI SAKHAMURI v. SOBHAN KODALI
[RASTOGI, J.]
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SUPREME COURT REPORTS
[2019] 5 S.C.R.
Court, Hyderabad has no jurisdiction as the children are not ordinarily
residing within the jurisdiction of the Family Court, Hyderabad as provided
under Section 9 of the Guardians and Wards Act, 1890. In consequence
thereof, application filed by the appellant (Lahari Sakhamuri) stood
rejected. At the same time, in the Habeas Corpus Petition, Order came
to be passed dated 8th February, 2018. The Court finally ordered as
under:-
"36 In view of the above discussion and the legal position, we are
of the considered opinion that it would be in the best interest of
the minor children to return to the US so that they can enjoy
there in the natural environment, receive the love, care and
attention of their father and paternal grandparents, resume their
school and be with their teachers, peers and friends.
37. Accordingly, we hereby direct the 5th respondent to return the
children to the petitioner in India within four (04) weeks from
the date of receipt of a copy of this order failing which, the
Consulate General of the US at Hyderabad shall take the
custody and handover the custody of the children to the petitioner
in India or in the US by making their comfortable journey to
US.
38. The 5th respondent is also highly educated and was gainfully
employed in the US for number of years. Accordingly, we
hereby grant liberty to the 5th respondent, whenever she feels
to visit the children in US, the petitioner shall make all
arrangements i.e., travel, comfortable stay at US and other
expenses till the US Court pass directions in the petitions filed
by the 5th respondent or she become the gainful in any country,
whichever is earlier.
39. As undertaken by the petitioner that, we direct the petitioner
that he shall not insist upon costs and fine imposed by the Court
of US upon the 5th respondent.
40. We also direct the petitioner that if children are in India and 5th
respondent happens to be in India, the children shall remain
with 5th respondent. He shall give all access to 5th respondent
to chat with the children on whatsapp and video conference
etc."
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15. Both the orders passed by the High Court while disposing of
the appeal filed by the respondent (Sobhan Kodali) under Section 19(1)
of the Family Courts Act as well as the Habeas Corpus Petition dated
8th February, 2018 came to be challenged by the appellant (Lahari
Sakhamuri) in the present appeals.
16. In the pending proceedings, in the Court of Common Pleas of
Lehigh County, Pennsylvania Civil Division-Law, further order has been
passed on 9th March, 2018 permitting the respondent (Sobhan Kodali) to
apply for replacement of US passports on behalf of the minor children.
The order is reproduced as under:-
"IN THE COURT OF COMMON PLEAS OF
LEHIGH COUNTY, PENNSYLVANIA
CIVIL DIVISION - LAW
LAHARI SAKHAMURI,
:
Plaintiff,
:
NO. 2016-FC-1641
Vs.
:
SOBHAN KODALI,
:
IN CUSTODY
Defendant,
:
ORDER OF COURT
AND NOW THIS 9th day of March, 2018, upon consideration
of the Defendant's Emergency Petition for Special Relief in
Custody, it is hereby ORDERED and DECREED as follows:
1. Defendant's Emergency Petition for Special Relief is
GRANTED;
2. Defendant, Sobhan Kodali, is granted sole legal custody of the
minor children, Arthin Kodali, born March 14, 2012, and Neysa
Sakhamuri Kodali, born October 13, 2014;
3. Mother's retention of the children in India is a "wrongful
retention" of the children pursuant to the Child Abduction
Remedies Act, codified at 23 Pa.C.S. § 5201 et. seq.
LAHARI SAKHAMURI v. SOBHAN KODALI
[RASTOGI, J.]
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4. Defendant, Sobhan Kodali, shall be permitted to apply for
replacement U.S. Passports on behalf of the minor children,
Arthin Kodali, born March 14, 2012, and Neysa Sakhamuri
Kodali, born October 13, 2014, through application of Form DS11 attached hereto as Exhibit "B", and without Mother's consent.
5. The United States Department of State, upon presentation of a
Certified Copy of this Order, shall issue replacement passports
to Sobhan Kodali, Father of the minor children, even though
Father previously requested the entry of the children into the
Department's Child Passport Issuance Alert Program (CPIAP)
and received confirmation of the entry of the children into that
system on May 24, 2017, via Case Number 1536567.
 BY THE COURT
__________________J."
17. Before the submissions made by the learned counsel for the
parties being canvassed, it may reveal from the orders passed by this
Court that keeping in view the personal relations of the spouse and the
utmost and paramount consideration of the welfare of the children on a
high pedestal and to find out if there is any possibility in resolving their
matrimonial differences through the process of mediation which
indisputably plays a very pivotal role in such matters. The parties appeared
in person on various dates and at one stage, it was sent for mediation as
it reveals from Order dated 12th October 2018, the Court appointed
Mediator used his good office to find out an amiable solution which may
be acceptable to the parties and at one stage from Order dated 29th
October, 2018, it reveals that the parties had reached to an amicable
solution in resolving their on-going matrimonial differences by sitting across
the table with the intervention of the Court appointed Mediator. But
what happened thereafter is really very unfortunate that parties could
not reach to any final conclusion and both the learned counsel informed
this Court that as the mediation could not have been now possible, the
matter may be heard and decided on merits.
18. Learned counsel for the appellant Ms. Malavika Rajkotia,
submits that repatriation to US would not be in the best interest of the
children and this Court has always held that the best interest of the
children cannot be sacrificed on the principle of comity of courts or any
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other legal principle could not plead in overcoming the best interest of
the children which is of primary and paramount consideration. Learned
counsel submits that there is a statutory presumption in favour of the
mother, under the tender years doctrine and respondent (Sobhan Kodali)
is unable to dispel from the pleadings on record in the instant proceedings
and she being a fit mother and the best interest of the children is with
mother as the primary caretaker and once the custody of the minor
children is with mother appellant (Lahari Sakhamuri), it is in the children's
best interest for the court to ensure the psychological well-being and the
legal rights of the mother by protecting her autonomy at the first instance,
to exercise her choice of location, particularly when she is distressed in
her matrimonial home.
19.Learned counsel further submitted that the prima facie
assumption may be rebutted in a trial but she cannot be non-suited by
not providing her an opportunity in establishing her parental competence
and the circumstances leading to protect herself and the children.
Learned counsel further submitted that the appellant (Lahari Sakhamuri)
and respondent (Sobhan Kodali) are Indian citizens and to separate the
primary caregiver from the children under the "best interest of child"
rule constitutes invasion of her fundamental right of autonomy guaranteed
to her under the law and further submitted that in giving parental rights
and privileges, what is to be ensured is the best interest of the children
that is admittedly difficult as it is related to their life and welfare in such
circumstances is being called by a psychologist as the "least worst option"
considering that the ideal of proximity with both parents is not possible in
a given situation. The children and their mother are in India and is an
accessible jurisdiction for the father being married in India and Indian
law applies in a cultural context that is well appreciated here and
respondent (Sobhan Kodali) father has means to come to India and meet
his children in India.
20.