# MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O. AND ANR

- **Citation:** [2018] 11 S.C.R. 546
- **Court:** Supreme Court of India
- **Decided:** 2018-07-20
- **Case number:** Criminal Appeal No. 635-640 of 2018
- **Bench:** Dipak Misra, A. M. Khanwilkar, Dr. D. Y. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mrs-kanika-goel-v-state-of-delhi-through-s-h-o-and-anr-32365
- **Pages:** 40

## Headnote

Custody: Custody of minor girl child - Claim of - On facts,
marriage of appellant-wife and respondent No.2-husband as per
Sikh rites and Hindu Vedic rites in New Delhi - After three months
the parties performed a civil marriage in USA - Birth of girl child
M - Appellant fled from US with the minor daughter and filed divorce
petition in Delhi - Respondent no. 2 filed custody proceeding in US
and got a custody order - However, non-compliance by the appellant
- Writ petition by respondent no. 2 for issuance of writ of habeas
corpus for production of minor daughter and direction to return
her to the jurisdiction of the court in US in compliance with the
order of the US court - Allowed by the Delhi High Court - On
appeal, held: Court must take into account the totality of the facts
and circumstances whilst ensuring the best interest of the minor
child - On facts, there is no compelling reason to direct return of
the minor child to the US nor is her stay in the company of her
mother (appellant), along with maternal grand-parents and extended
family at New Delhi, prejudicial to her in any manner, warranting
her return to the US - Instead of directing the biological mother to
return to the US along with the minor girl child, so as to appear
before the competent court in the US, the custody of the minor girl
child M to remain with the appellant until she attains the age of
majority or the Court of competent jurisdiction, trying the issue of
custody of the minor child, orders to the contrary, with visitation
and access rights to the biological father whenever he would visit
India - A fortiori, dependant on the outcome of the proceedings,
before the Family Court, New Delhi, the appellant to participate
and defend herself in the proceedings before the US Court - Her
litigation, travel expenses and stay in US to be borne by respondent
no.2 - In view thereof, order of the High Court set aside.
[2018] 11 S.C.R. 546
546
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Allowing the appeals, the Court
HELD: 1.1 It is not open to contend that the custody of the
female minor child with her biological mother would be unlawful,
for there is presumption to the contrary. In such a case, the High
Court whilst exercising jurisdiction under Article 226 for issuance
of a writ of habeas corpus need not make any further enquiry but
if it is called upon to consider the prayer for return of the minor
female child to the native country, it has the option to resort to a
summary inquiry or an elaborate inquiry, as may be necessary in
the fact situation of the given case. In the instant case, the High
Court noted that it was not inclined to undertake a detailed inquiry.
The question is, having said that whether the High Court took
into account irrelevant matters for recording its conclusion that
the minor female child, who was in custody of her biological
mother, should be returned to her native country. The Court must
take into account the totality of the facts and circumstances whilst
ensuring the best interest of the minor child. The High Court in
the instant case focused primarily on the grievances of the
appellant and while rejecting those grievances, went on to grant
relief to respondent No.2 by directing return of the minor girl
child to her native country. On the totality of the facts and
circumstances, there is nothing to indicate that the native language
(English) is not spoken or the child has been divorced from the
social customs to which she has been accustomed. Similarly, the
minor child had just entered pre-school in the USA before she
came to New Delhi along with her mother. In that sense, there
was no disruption of her education or being subjected to a foreign
system of education likely to psychologically disturb her. On the
other hand, the minor child M is under the due care of her mother
and maternal grand-parents and other relatives since her arrival
in New Delhi. If she returns to US as per the relief claimed by the
respondent No.2, she would inevitably be under the c

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SUPREME COURT REPORTS
[2018] 11 S.C.R.
MRS. KANIKA GOEL
v.
STATE OF DELHI THROUGH S.H.O. AND ANR.
(Criminal Appeal No. 635-640 of 2018)
JULY 20, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
Custody: Custody of minor girl child - Claim of - On facts,
marriage of appellant-wife and respondent No.2-husband as per
Sikh rites and Hindu Vedic rites in New Delhi - After three months
the parties performed a civil marriage in USA - Birth of girl child
M - Appellant fled from US with the minor daughter and filed divorce
petition in Delhi - Respondent no. 2 filed custody proceeding in US
and got a custody order - However, non-compliance by the appellant
- Writ petition by respondent no. 2 for issuance of writ of habeas
corpus for production of minor daughter and direction to return
her to the jurisdiction of the court in US in compliance with the
order of the US court - Allowed by the Delhi High Court - On
appeal, held: Court must take into account the totality of the facts
and circumstances whilst ensuring the best interest of the minor
child - On facts, there is no compelling reason to direct return of
the minor child to the US nor is her stay in the company of her
mother (appellant), along with maternal grand-parents and extended
family at New Delhi, prejudicial to her in any manner, warranting
her return to the US - Instead of directing the biological mother to
return to the US along with the minor girl child, so as to appear
before the competent court in the US, the custody of the minor girl
child M to remain with the appellant until she attains the age of
majority or the Court of competent jurisdiction, trying the issue of
custody of the minor child, orders to the contrary, with visitation
and access rights to the biological father whenever he would visit
India - A fortiori, dependant on the outcome of the proceedings,
before the Family Court, New Delhi, the appellant to participate
and defend herself in the proceedings before the US Court - Her
litigation, travel expenses and stay in US to be borne by respondent
no.2 - In view thereof, order of the High Court set aside.
[2018] 11 S.C.R. 546
546
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Allowing the appeals, the Court
HELD: 1.1 It is not open to contend that the custody of the
female minor child with her biological mother would be unlawful,
for there is presumption to the contrary. In such a case, the High
Court whilst exercising jurisdiction under Article 226 for issuance
of a writ of habeas corpus need not make any further enquiry but
if it is called upon to consider the prayer for return of the minor
female child to the native country, it has the option to resort to a
summary inquiry or an elaborate inquiry, as may be necessary in
the fact situation of the given case. In the instant case, the High
Court noted that it was not inclined to undertake a detailed inquiry.
The question is, having said that whether the High Court took
into account irrelevant matters for recording its conclusion that
the minor female child, who was in custody of her biological
mother, should be returned to her native country. The Court must
take into account the totality of the facts and circumstances whilst
ensuring the best interest of the minor child. The High Court in
the instant case focused primarily on the grievances of the
appellant and while rejecting those grievances, went on to grant
relief to respondent No.2 by directing return of the minor girl
child to her native country. On the totality of the facts and
circumstances, there is nothing to indicate that the native language
(English) is not spoken or the child has been divorced from the
social customs to which she has been accustomed. Similarly, the
minor child had just entered pre-school in the USA before she
came to New Delhi along with her mother. In that sense, there
was no disruption of her education or being subjected to a foreign
system of education likely to psychologically disturb her. On the
other hand, the minor child M is under the due care of her mother
and maternal grand-parents and other relatives since her arrival
in New Delhi. If she returns to US as per the relief claimed by the
respondent No.2, she would inevitably be under the care of a
Nanny as the respondent No.2 will be away during the day time
for work and no one else from the family would be there at home
to look after her. Placing her under a trained Nanny may not be
harmful as such but it is certainly avoidable. For, there is
likelihood of the minor child being psychologically disturbed after
her separation from her mother, who is the primary care giver to
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O.
AND ANR.
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her. In other words, there is no compelling reason to direct return
of the minor child M to the US as prayed by the respondent No.2
nor is her stay in the company of her mother, along with maternal
grand-parents and extended family at New Delhi, prejudicial to
her in any manner, warranting her return to the US. [Para 22]
[580-F-H; 581-A-G]
1.2 The issue ought not to be decided on the basis of rights
of the parties claiming custody of the minor child but the focus
should constantly remain on whether the factum of best interest
of the minor child is to return to the native country or otherwise.
The fact that the minor child will have better prospects upon
return to his/her native country, may be a relevant aspect in a
substantive proceedings for grant of custody of the minor child
but not decisive to examine the threshold issues in a habeas
corpus petition. For the purpose of habeas corpus petition, the
Court ought to focus on the obtaining circumstances of the minor
child having been removed from the native country and taken to
a place to encounter alien environment, language, custom etc.
interfering with his/her overall growth and grooming and whether
continuance there will be harmful. [Para 23] [581-G-H; 582-A-B]
1.3 The minor child M is a US citizen by birth. She has
grown up in her native country for over three years before she
was brought to New Delhi by her biological mother (appellant).
She had joined a pre-school in USA. She had healthy bonding
with her father (respondent No.2). Her paternal grand-parents
used to visit her in the USA at some intervals. She was under the
care of a Nanny during the day time, as her parents were working.
Indeed, the work place of her father is near the home. The
biological father of the minor child M has acquired US citizenship.
Both father and mother of the minor child M were of Indian origin
but domiciled in the USA after marriage. The mother is a
permanent resident of the USA-Green Card holder and has also
applied for US citizenship. In her affidavit filed before the Delhi
High Court she admits that her legal status was complicated as
she has ceased to be an Indian citizen and her status of citizenship
of the USA is in limbo. [Para 24][582-C-F]
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1.4 Given the fact that the parties performed a civil marriage
in USA and cohabited in the native country and gave birth to
minor child M who grew up in that environment for at least three
years, coupled with the fact that the father and minor child M are
US citizens and mother is a permanent resident of USA, the
closest contact and jurisdiction is possibly that of the Circuit
Court of Cook County, Illinois, USA. However, it may not be
understood to have expressed any final opinion in this regard. At
the same time, the appellant and respondent No.2 first got married
as per Sikh rites and Hindu Vedic rites and that marriage was
solemnised in New Delhi at which point of time the appellant was
admittedly a citizen of India. Presently, she is only a Green Card
holder (permanent resident) of the US. It is, therefore, debatable
whether the Family Court at New Delhi, where the appellant has
already filed a petition for dissolution of marriage, has jurisdiction
in that behalf including to decide on the question of custody and
guardianship in respect of the minor child M. For that reason, it
may be appropriate that the said proceedings are decided with
utmost promptitude in the first place before the appellant is called
upon to appear before the US Court and including to produce the
minor child M before that Court. [Para 25] [582-G-H; 583-A-C]
1.5 The appellant and minor child are presently in New
Delhi and the appellant has no intention to return to her
matrimonial home in the U.S.A. The appellant has apprehensions
and serious reservations on account of her past experience in
respect of which it is not necessary to dilate in this proceedings.
That is a matter to be considered by the Court of Competent
Jurisdiction called upon to decide the issue of dissolution of
marriage and/or grant of custody of the minor child, as the case
may be. For the time being, the parties must eschew from
pursuing parallel proceedings in two different countries. For, the
first marriage between the parties was performed in New Delhi
as per Anand Karaj Ceremony and Hindu Vedic rites and the
petition for dissolution of marriage has been filed in New Delhi.
Whereas, the civil marriage ceremony took place after four
months in USA. It was performed to complete the formalities for
facilitating the entry of the appellant into the US and to obtain US
Permanent Resident status. It is appropriate that the proceedings
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O.
AND ANR.
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pending in the Family Court at New Delhi are decided in the first
place including on the question of jurisdiction of that Court.
Depending on the outcome of the said proceedings, the parties
would be free to pursue such other remedies as may be permissible
in law before the Court of Competent Jurisdiction. [Para 26]
[583-C-G]
1.6 It is true that both respondent No.2 and also the minor
child M are US citizens. The minor girl child has a US Passport
and has travelled to India on a tenure Visa which has expired.
That does not mean that she is in unlawful custody of her biological
mother. Her custody with the appellant would nevertheless be
lawful. The appellant has already instituted divorce proceedings
in the Family Court, New Delhi. The respondent No.2 has also
filed proceedings before the Court in the US for custody of the
minor girl child, directing her return to her natural environment
in the US. In such a situation, the arrangement directed by this
Court in the case of Nithya Anand Raghavan may be of some
help to pass an appropriate order in the peculiar facts of this
case, instead of directing the biological mother to return to the
US along with the minor girl child, so as to appear before the
competent court in the US. In that, the custody of the minor girl
child M would remain with the appellant until she attains the age
of majority or the Court of competent jurisdiction, trying the issue
of custody of the minor child, orders to the contrary, with visitation
and access rights to the biological father whenever he would visit
India and in particular as delineated in the interim order. [Para
27] [583-G-H; 584-A-D]
1.7 A fortiori, dependant on the outcome of the proceedings,
before the Family Court, New Delhi, the appellant may then be
legally obliged to participate in the proceedings before the US
Court and must take all measures to effectively defend herself in
the said proceedings by engaging solicitors of her choice in the
USA to espouse her cause before the Circuit Court USA. In that
event, the respondent No.2 shall bear the cost of litigation and
expenses to be incurred by the appellant to pursue the
proceedings before the US Courts, the air fares or purchase the
tickets for the travel of the appellant and the minor child M to
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the USA and including their return journey for India, as may be
required. The respondent No.2 shall also make all suitable
arrangements for the comfortable stay of the appellant and her
companions at an independent place of her choice, at a reasonable
cost. Further, the respondent No.2 shall not initiate any coercive/
penal action against the appellant and if any such proceeding
initiated by him in that regard is pending, the same shall be
withdrawn and not pursued before the concerned Court any
further. [Para 28] [584-D-G]
1.8 The appellant and respondent No.2 must ensure early
disposal of the proceedings for grant of custody of the minor girl
child to the appellant, instituted and pending before the Family
Court, New Delhi. The impugned judgment and orders of the
High Court is set aside and writ petition is disposed of. [Para 29,
30] [584-H; 585-A-B]
K.S. Puttaswamy & Anr. v. Union of India & Ors. (2017)
10 SCC 1; Nithya Anand Raghavan v. State (NCT of
Delhi) & Anr. (2017) 8 SCC 454; Prateek Gupta v. Shilpi
Gupta & Ors. (2018) 2 SCC 309; Surinder Kaur
Sandhu v. Harbax Singh Sandhu and Anr. (1984) 3 SCC
698: [1984] 3 SCR 422; Aviral Mittal v. State (2009)
112 DRJ 635; Shilpa Aggarwal v. Aviral Mittal and
Anr. (2010) 1 SCC 591: [2009] 16 SCR 287; Dr. V.
Ravi Chandran v. Union of India & Ors.(2010) 1 SCC
174: [2009] 15 SCR 960 - referred to.
Case Law Reference
(2017) 10 SCC 1
referred to
Para 12
(2017) 8 SCC 454
referred to
Para 12
(2018) 2 SCC 309
referred to
Para 12
[1984] 3 SCR 422
referred to
Para 16
(2009) 112 DRJ 635
referred to
Para 16
[2009] 16 SCR 287
referred to
Para 16
[2009] 15 SCR 960
referred to
Para 16
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O.
AND ANR.
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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 635-640 of 2018
From the Judgment and Order dated 16.11.2017, 01.12.2017 and
06.12.2017 of the High Court of Delhi at New Delhi in W.P. (Crl.) No.
374 of 2017 and Crl. M.A. No. 2007 of 2017.
Ms. Malavika Rajkotia, Lakshmi Raman Singh, Prabhjit Jauhar,
Ms. Upasana Goel, Ms. Aishwarya, S. S. Jauhar, Advs. for the appearing
parties.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J. 1. These appeals take exception to
the judgment and orders passed by the High Court of Delhi at New
Delhi dated 16th November, 2017, 1st December, 2017 and 6th December,
2017, in Writ Petition (Criminal) No.374 of 2017 and Criminal M.A.
No.2007 of 2017, whereby the writ petition filed by respondent No.2 for
issuing a writ of habeas corpus for production of his minor daughter M
(assumed name), who was about 3 years of age at the time of filing of
the writ petition and for a direction for return of M to the jurisdiction of
the competent Court in the United States of America in compliance with
the order dated 13th January, 2017 passed by the Circuit Court of Cook
County, Illinois, USA, came to be allowed. The Delhi High Court directed
the appellant to comply with the directions as M was in her custody, the
appellant being M's mother.
2. The respondent No.2 asserted that he was born in India but
presently is a citizen of USA since 2005. He is working as the CEO of a
Company called 'Get Set Learning'. The appellant is his wife and mother
of the minor child M. She is a US Permanent Resident and a "Green
Card" holder and has also applied for US citizenship on 2nd December,
2016. At the relevant time, she was a certified teacher in the State of
Illinois and was employed as a Special Education Classroom Assistant
in Chicago Public Schools. The respondent No.2 and the appellant got
married on 31st December, 2010 as per Sikh rites, i.e. Anand Karaj
ceremony, and Hindu Vedic rites in New Delhi. It was clearly understood
between both the parties that the appellant, after marriage, would reside
with respondent No.2 in the USA. Eventually, the appellant travelled to
the USA on a Fiance Visa and got married to respondent No.2 again on
19th March, 2011 at Cook County Court in Chicago, Illinois. Before the
marriage, the parties entered into a Pre-Nuptial Agreement dated
20th October, 2010 enforceable in accordance with the laws of the State
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of Illinois, USA. The appellant then took employment as a teacher in
Chicago Public School and also secured a US Permanent Citizen Green
Card. The appellant became pregnant and gave birth to M on 15th
February, 2014 in USA. M is thus a natural born US citizen and was
domiciled in the State of Illinois, USA from her birth till she was
clandestinely removed by the appellant in December 2016 under the
guise of undertaking a short trip to New Delhi to meet the appellant's
parents.
3. The appellant was scheduled to return to Chicago on 7th January,
2017 but she went missing and filed a petition under Section 13(1) of the
Hindu Marriage Act, 1955 (for short "the 1955 Act") being H.M.A.
Case No.27 of 2017 seeking dissolution of marriage on the ground of
cruelty, along with an application under Section 26 of the 1955 Act on 7th
January, 2017 seeking a restraint order against respondent No.2 from
taking M away from the jurisdiction of Indian Courts. A notice was
issued thereon to respondent No.2, made returnable on 11th January,
2017.
4. The respondent No.2, however, filed an emergency petition for
temporary sole allocation of parental responsibilities and parenting time
in his favour or in the alternative, an emergency order of protection for
possession of his minor daughter M, before the Circuit Court of Cook
County, Illinois on 9th January, 2017. A notice of emergency motion was
served on the appellant by e-mail, informing her of the proposed hearing
on 13th January, 2017.
5. In the meantime, on 11th January, 2017 the Family Court at
New Delhi issued a fresh notice to respondent No.2 and passed an exparte order on the application filed by the appellant under Section 151 of
the Code of Civil Procedure, restraining respondent No.2 from removing
the minor child from the jurisdiction of that Court until further orders.
6. The respondent No.2 on the other hand, caused to file a missing
person complaint on 13th January, 2017 before the SHO, Vasant Kunj
(South), P.S. New Delhi, which was acknowledged by the Police Station
on 14th January, 2017. Besides the said complaint, respondent No.2
moved the Circuit Court of Cook County, Illinois, USA on 13th January,
2017 when an ex-parte order was passed for interim sole custody of the
minor child. The said order reads thus:
"1) The child M born on 15.02.2014, in Chicago, Illinois and having
resided in Chicago solely for her entire life (specifically at 360
East Randolph Street, Chicago, IL 60601) is also a US citizen.
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O.
AND ANR. [A. M. KHANWILKAR, J.]
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2) The child is a habitual resident of the state of Illinois, United
States of America having never resided anywhere else. Illinois is
the home state of the child pursuant to the Uniform Child Custody
Jurisdiction Enforcement Act.
3) Karan Goel is the natural father of the minor child and granted
interim sole custody of the minor child. Child is to be immediately
returned to the residence located in Cook County, Illinois, USA by
Respondent.
4) The Cook County, Illinois Court having personal and subject
matter jurisdiction over the parties and matter.
5) All further issues regarding visitation, child support are reserved
until further Order of Court."
7. The appellant did not comply with the order of the Circuit Court
of Cook County, Illinois, therefore, respondent No.2 filed a writ petition
before the Delhi High Court on 1st February, 2017, to issue a writ of
habeas corpus and direct the appellant to produce the minor child M and
cause her return to the jurisdiction of the Court in the United States, in
compliance with the order dated 13th January, 2017 passed by the Circuit
Court of Cook County, Illinois, to enable the minor child to go back to
United States and if the appellant failed to do so within a fixed time
period, to direct the appellant to immediately hand over the custody of
the minor child to respondent No.2 (writ petitioner) to enable him to take
the minor child to the jurisdiction of the US Court.
8. This writ petition was contested by the appellant. The High
Court issued interim orders including regarding giving access of the minor
child to respondent No.2 in the presence of the appellant and her parents.
Finally, all the contentious issues between the parties were answered by
the High Court by a speaking judgment and order dated 16th November,
2017, in favour of respondent No.2, after recording a finding that the
paramount interest of the minor child was to return to USA, so that she
could be in her natural environment. To facilitate the parties to have a
working arrangement and to minimize the inconvenience, the Division
Bench of the High Court issued directions in the following terms:
"139. In the light of the aforesaid, we are more than convinced
that respondent No.2 should, in the best interest of the minor child
M, return to USA along with the child, so that she can be in her
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natural environment; receive the love, care and attention of her
father as well - apart from her grandparents, resume her school
and be with her teachers and peers. Pertinently, respondent No.2
is able-bodied, educated, accustomed to living in Chicago, USA,
was gainfully employed and had an income before she came to
India in December 2016 and, thus, she should not have any
difficulty in finding her feet in USA. She knows the systems
prevalent in that country, and adjustment for her in that
environment would certainly not be an issue. Accordingly, we
direct respondent no.2 to return to USA with the minor child M.
However, this direction is conditional on the conditions laid down
hereinafter.
140. Respondent No.2 has raised certain issues which need to be
addressed, so that when she returns to USA, she and the minor
child do not find themselves to be in a hostile or disadvantageous
environment. There can be no doubt that the return of respondent
No.2 with the minor child should be at the expense of the petitioner;
their initial stay in Chicago, USA, should also be entirely funded
and taken care of by the petitioner by providing a separate furnished
accommodation (with all basic amenities & facilities such as water,
electricity, internet connection, etc.) for the two of them in the
vicinity of the matrimonial home of the parties, wherein they have
lived till December 2016. Thus, it should be the obligation of the
petitioner to provide reasonable accommodation sufficient to cater
to the needs of respondent No.2 and the minor child. Since
respondent No.2 came to India in December 2016 and would,
therefore, not have retained her job, the petitioner should also
meet all the expenses of respondent No.2 and the minor child,
including the expenses towards their food, clothing and shelter, at
least for the initial period of six months, or till such time as
respondent No.2 finds a suitable job for herself. Even after
respondent No.2 were to find a job, it should be the responsibility
of the petitioner to meet the expenses of the minor daughter M,
including the expenses towards her schooling, other extra-curricular
activities, transportation, Attendant/ Nanny and the like, which
even earlier were being borne by the petitioner. The petitioner
should also arrange a vehicle, so that respondent No.2 is able to
move around to attend to her chores and responsibilities.
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O.
AND ANR. [A. M. KHANWILKAR, J.]
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141. Considering that the petitioner had initiated proceedings in
USA and the respondent No.2 has been asked to appear before
the Court to defend those proceedings, the petitioner should also
meet the legal expenses that respondent No.2 may incur, till the
time she is not able to find a suitable job for herself. However, if
respondent no.2 is entitled to legal aid/assurance from the State,
to the extent the legal aid is provided to her, the legal expenses
may not be borne by the petitioner.
142. The petitioner should also undertake that after the return of
the minor child M with respondent No.2 to USA, the custody of
M shall remain with respondent No.2 and that he shall not take
the minor child out of the said custody by use of force. He should
also undertake that after respondent No.2 lands in Chicago, USA,
the visitation and custody rights qua the parties, as may be
determined by the competent Court in USA, shall be honoured.
143. Respondent No.2 has also expressed apprehension that the
petitioner would seek to enforce the terms of the Pre-Nuptial
Agreement entered into between the parties. Since the said
agreement has been entered into in India, its validity has to be
tested as per the Indian law. Respondent No.2 has already initiated
suit for declaration and permanent injunction to challenge the said
Pre-Nuptial Agreement dated 22.10.2010. We have perused the
said agreement and we are of the view the petitioner should not
be permitted to enforce the terms of this agreement in USA, at
least till the said suit preferred by the respondent No.2 is decided.
The petitioner should, therefore, give an undertaking to this Court,
not to rely upon or enforce the said Pre-Nuptial Agreement to the
detriment of respondent No.2 in any proceedings either in USA,
or in India. The undertaking shall remain in force till the decision
in the suit for declaration and injunction filed by respondent No.2
challenging validity of the Pre-Nuptial Agreement. This undertaking
shall, however, not come in the way of the petitioner while
defending the said suit of the respondent No.2.
144. With the aforesaid arrangements and directions, in our view,
respondent No.2 can possibly have no objection to return to USA
with M. The comfort that we have sought to provide to respondent
No.2, as aforesaid, is to enable her to have a soft landing when
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she reaches the shores of USA, so that the initial period of at
least six months is taken care of for her, during which period she
could find her feet and live on her own, or under an arrangement
as may be determined by the competent Courts in USA during
this period. At this stage, we are not inclined to direct that the
custody of M be given to the petitioner so that he takes her back
to USA. M is a small child less than 4 years of age, and that too,
is a female child. Though she may be attached to the petitioner -
her father, she is bound to need her mother - respondent no.2
more. In our view, once M returns to USA with her mother, i.e.
respondent No.2, orders for custody or co-parenting should be
obtained by the parties from the competent Courts in USA.
Moreover, it would be for the Courts in USA to eventually rule on
the aspect concerning the financial obligations and responsibilities
of the parties towards each other and towards the minor child M
- for upbringing the minor child - M independent of any directions
issued by this Court in this regard.
145. The petitioner is directed to file his affidavit of undertaking in
terms of paras 140 to 144 above within ten days with advance
copy of the respondents. The matter be listed on 01.12.2017 for
our perusal of the affidavit of undertaking, and for passing of final
orders."
9. By this judgment and order passed by the High Court and the
directions issued, as reproduced hitherto, the substantive issues inter se
the parties were answered against the appellant to the extent indicated.
In continuation of the aforementioned directions, a further order was
passed on 1st December, 2017 by the High Court which reads thus:
"1. In terms of the directions contained in our judgment dated
16.11.2017, the petitioner Karan Goel has filed the affidavit dated
20.11.2017. A perusal of the affidavit shows that the petitioner
has undertaken and consented to abide by all the conditions imposed
upon him, so that respondent no.2 could return to USA with the
minor child.
2. Respondent no.2 has also filed a counter-affidavit to the said
affidavit of the petitioner. Respondent no.2 has raised the issue
that the petitioner has not particularized the amounts and facilities
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O.
AND ANR. [A. M. KHANWILKAR, J.]
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that the petitioner would provide in case respondent no. 2 were to
return to USA with the minor child.
3. The petitioner is present in Court with his parents. The petitioner
has tendered in Court the details/particulars of the proposed
financial aid in terms of our judgment. The said details/ particulars
read as follows:
'1. Upon Respondent No.2 giving a date/this Hon'ble Court
fixing a date on which she and minor child M will depart from
Delhi for Chicago, Illinois, USA, the Petitioner shall do the
following at least 3 [three] days prior to their departure date:-
(i) Book airline tickets on United Airlines with a non-stop flight
from Delhi to USA for minor child M and Respondent No.2;
(ii) Provide a hotel room at The Hyatt Regency (located ~7
minute walk from minor child M's preschool) for the first seven
(7) days after landing in Chicago to enable Respondent No.2
to sign leases for (a) accommodation and (b) a car; and
2. The Petitioner is/ was already paying [directly out of his
salary] the following amounts for minor child M and shall
continue to do so in compliance of the directions of this Hon'ble
Court (all amounts in US Dollars = USD):-
(i) ~$2,100/month Preschool tuition at Bright Horizons
Lakeshore East where she was enrolled five days a week;
and
(ii) ~$232/month for health insurance via Blue Cross Blue
Shield of Illinois.
3. In addition to point 2 above, the Petitioner shall pay the
following amounts (all amounts in US Dollars =USD) for a
total of $4,200/month to Respondent No.2 in advance for the
first month [by transferring the said amount into a joint account
prior to Respondent No.2 and minor child M taking off from
Delhi] and thereafter by the 28th of every month for the
subsequent month [for the initial period of six months]:-
(i) $2,600/month as rent for a fully furnished apartment with
high-speed internet, air conditioning and heating, water, garbage
disposal, and parking for a vehicle;
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(ii) $400/month for Respondent No. 2's health insurance;
(iii) $1,000/month in expenses for food, shelter, and clothing
for minor child M and Respondent No. 2; and
(iv) $200/month for a car lease and car insurance.
4. In case legal aid / assurance is not available / provided to
Respondent No.2, the Petitioner shall give an additional amount
of $1,500/ month to Respondent No.2 for her legal expenses
for the first six months after her and minor child M's return to
Chicago, Illinois, USA'.
4. We have also separately recorded the statement of petitioner
on oath, wherein he has undertaken to this Court to abide by the
offer made by him in terms of our decision. He has also undertaken
that in case of any breach of the said stipulation, respondent no.2
may enforce the same before the competent Court in USA.
5. To ensure compliance of the aforesaid obligation, the petitioner
has offered that he shall deposit an amount US$ 25,000 in an
escrow account, which shall be operated upon orders of the
competent Court in Cook County, Illinois, USA. The said account
shall be operatable at the instance of respondent no.2 in case of
non compliance of any of the condition and to the extent it becomes
necessary, under the orders of the said Court.
6. The petitioner seeks a short adjournment to produce the relevant
documents in that regard before this Court.
7. Since the petitioner and his parents are in India, and it is submitted
that the petitioner has not met his minor daughter since March
2017, it is agreed that the petitioner and his parents shall be allowed
to meet the minor child M today, tomorrow and day after tomorrow
at DLF Promenade Mall, Vasant Kunj, New Delhi.
8. Today's meeting shall take place between 6:00 p.m. to 8:00
p.m., and on Saturday and Sunday, the meeting shall take place
from 11:00 a.m. to 2:00 p.m. The petitioner has desired that the
meeting may take place exclusively.
9. Since respondent no.2 has apprehensions, the petitioner has
offered to and has deposited his American Passport with the Court
Master. The Court Master shall seal the same in Court and
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O.
AND ANR. [A. M. KHANWILKAR, J.]
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thereafter the same be handed over to the Deputy Registrar
concerned to be kept in safe custody. The same shall not be parted
with unless so ordered by this Court.
10. The petitioner has assured that the child shall not be taken
away unauthorisedly and shall be duly returned to respondent no.2
at the end of the meeting on each date.
11. List on 06.12.2017 for further directions. On the next date, the
child may be brought to the Court so that the petitioner and his
parents are able to meet the child in the Children's Room at the
Mediation Centre between 2:30 p.m. to 4:30 p.m.
12. Order dasti under the signatures of the Court Master."
10. Again, on 6th December, 2017, another order was passed to
formally dispose of the writ petition finally in the following terms:
1. "Mr. Jauhar has tendered in Court the affidavit of undertaking
sworn by the petitioner along with three annexures, which are:
(i) A statement from Citibank, USA in respect of joint account
held by the petitioner and respondent No.2;
(ii) An affidavit of Molshree A., Sharma, ESQ., a partner at the
law firm of Mandel, Lipton, Roseborough & Sharma Ltd., based
in Chicago; and
(iii) Documents to show deposit of US$25,000 in an escrow
account operated by the aforesaid law firm.
2. The petitioner has stated that he has already deposited
US$25,000 into his attorney's escrow account. The affidavit of
Molshree A., Sharma affirms that the said escrow account may
be operated by respondent No.2/ Kanika Goel in the event of
failure of the petitioner/ Karan Goel in meeting his obligations as
per his undertaking given to this Court.
3. We are satisfied with the aforesaid arrangement made by the
petitioner to secure the interests of respondent No.2 and the minor
child in terms of our decision dated 16.11.2017.
4. In these circumstances, we now direct respondent No.2 to
return to USA along with the minor child M within two weeks
from today, failing which the minor child M shall be handed over
to the petitioner, to be taken to USA.
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5. We may observe that learned counsel for respondent No.2 has
sought more time on the ground that respondent No.2 wishes to
assail the decision dated 16.11.2017 and that the Supreme Court
shall be closed for Winter Vacation in later part of December,
2017 and early part of January, 2018. However, we are not inclined
to grant any further time for the reason that it is imperative for
respondent No.2 to return to USA on or before 23.12.2017, and if
she does not so return, her return may not be permitted by the
Immigration Department of USA without further compliance being
made by her. We cannot permit a situation to arise where
respondent No.2 is able to defeat the direction issued by this Court
on account of her own acts & omissions.
6. The passport of the petitioner deposited in this Court is directed
to be returned forthwith. The said passport be returned to Mr.
Prabhjit Jauhar, larned counsel for the petitioner. The said passport
shall be retained by Mr. Jauhar so as to enable the petitioner and
his parents to meet the child M, while they are in New Delhi,
India. Mr. Jauhar shall return the passport to the petitioner only at
the time when the petitioner has to return to USA, after ensuring
that the custody of the child is with respondent No. 2.
7. The meeting between the petitioner and his parents, on the one
hand, and the child, on the other hand, shall be undertaken as per
the arrangement worked out by us earlier, i.e. two hours every
working day, and three hours at the weekends, as mutually agreed
between the parties.
8. The petition stands disposed of in the aforesaid terms."
11. Being aggrieved by the aforesaid judgment and orders, the
appellant, being the mother of the minor child M, has approached this
Court by way of Special Leave under Article 136 of the Constitution of
India. This Court issued notice on 15th December, 2017, when it passed
the following interim order:
"O R D E R
 Issue notice.
 As Dr. Abhishek Manu Singhvi and Mr. R.S. Suri, learned
senior counsel along with Mr. Prabhjit Jauhar, learned counsel
has entered appearance for the respondent No.2, no further notice
need be issued.
MRS. KANIKA GOEL v. STATE OF DELHI THROUGH S.H.O.
AND ANR. [A. M. KHANWILKAR, J.]
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 Counter affidavit be filed within two weeks. Rejoinder
affidavit, if any, be filed within a week therefrom.
 Let the matter be listed on 24th January, 2018.
 As an interim measure, it is directed that the arrangements
made by the High Court for the visitation rights shall remain in
force. The petitioner-wife shall not create any kind of impediment
in the meeting of the father with the child.
 In the course of hearing, we have also been apprised by Dr.
Singhvi that the Green Card issued in favour of the petitionerwife is going to expire on 22nd December, 2017. Be that as it
may, If, eventually, the petitioner loses in this proceeding and the
respondent No.2 succeeds, the expiration of the Green Card cannot
be a ground to deny the custody of the child to the father. Needless
to say, if the petitioner wife intends to go to United States of
America and gets the Green Card renewed, it is open for her to
do so. We may also record that the husband has acceded to, as
stated by the learned counsel for the respondent No.2, that he
shall not implicate her in any criminal proceeding."
In continuation of the aforementioned interim arrangement, a further
order was passed by this Court on 24th January, 2018, which reads thus:
"O R D E R
 Heard Mr. Kapil Sibal, learned senior counsel along with Ms.
Malavika Rajkotia, learned counsel for the petitioner and Dr.
A.M.Singhvi, learned senior counsel along with Mr. Prabhjit
Jauhar, learned counsel for the respondents.
 Though, we are not inclined to interfere with the interim
arrangement made by the High Court yet, regard being had to
some grievances of both the parties, we intend to pass an order
clarifying the position.
 Having heard learned counsel for the parties, it is directed as
follows:
(i) Whenever respondent No.2 is available in India, he shall
intimate the petitioner by E-mail and also forward a copy of
the said E-mail to the counsel for the petitioner so that she can
make the child available for meeting with the father at
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Promenade Mall, Vasant Kunj between 5.30 P.M. to 7.30 P.M.
on weekdays and 11.00 A.M. to 2.00 P.M. on holidays when
the school is closed.
(ii) When the father will be meeting the child, they shall meet
without any supervision.
(iii) When the father is not in India, there can be communication/
interaction through Skype at about 7.30 P.M.(Indian Standard
Time) or any other mode on line.
(iv) The passport of the child, which is presently with the father,
shall be handed over to the mother for a period of one week so
that she can take appropriate steps to complete certain
formalities for admission of the child in a school. This direction
is without prejudice to the final result in the special leave petition.
The passport shall be returned by Ms.Malavika Rajkotia, learned
counsel for the petitioner to Mr.Prabhjit Jauhar, learned counsel
for the respondents.
 Let the matter be listed on 19.02.2018 at 2.00 P.M. for final
disposal."
These are the relevant interim orders, which were to operate until the
final disposal of the appeals.