# NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI & ANR

- **Citation:** [2017] 7 S.C.R. 281
- **Court:** Supreme Court of India
- **Decided:** 2017
- **Case number:** Criminal Appeal No. 972 of 2017
- **Bench:** Dipak Misra, A. M. Khanwilkar, Mohan M. Shantanagoudar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/nithya-anand-raghavan-v-state-of-nct-of-delhi-anr-32054
- **Pages:** 45

## Headnote

A
B
Child and Family welfare - High Court issued writ for
production of minor daughter allegedly removed by mother-appellant
C
from custody of father-respondent no.2 from U.K. - High Court
directed the mother to produce her daughter and to comply with the
order of High Court of Justice, U.K. within 3 weeks or in alternative
to handover the custody of daughter to father within 3 weeks from
date of order - Whether the return of the minor to her native state
would be in the interests of the minor - Held: The Courts in India
D
are not denuded from declining the relief to return the child to the
native state merely because of a pre-existing order of the foreign
Court of competent jurisdiction - In the instant case, the minor is
staying in India along with mother, her grandparents and other
family members and relatives unlike in the UK where she lived in a
E
nuclear family of three with no extended family - She would be
more comfortable and feel secured to live with her mother -
Moreover, it is common ground that minor is suffering from cardiac
disorder and needs periodical medical reviews and proper care and
attention - That can be given only by her mother - Respondent
no.2 (father) is employed and may not be in a position to give
F
complete attention to his daughter - In totality of the facts and
circumstances of the case, it is in the best interests of the minor to
remain in custody of her mother (appellant) else she would be
exposed to harm if separated from the mother - High Court was
unjustly impressed by the principle of comity of courts and the
obligation of the Indian Courts to comply with a pre-existing order
G
of the foreign Court for return of the child and including the "first
strike" principle.
Child and Family welfare - Wardship jurisdiction - The
concept of forum convenience has no place in wardship jurisdiction
281
H
282
SUPREME COURT REPORTS
(2017] 7 S.C.R.
A
- In exercise of summary jurisdiction, the Court must be satisfied
that the proceeding instituted before it was in close proximity and
filed promptly after the child was removed from his/her native state
and brought within its territorial jurisdiction, the child has not gained
roots here and farther that it will be in the child's welfare to return
B
c
D
E
F
to his native state because of the difference in language spoken or
social customs and contacts to which he/she has been accustomed
or such other tangible reasons - In such a case, the Court need not
resort to an elaborate inquiry into the merits of the paramount
welfare of the child but leave that inquiry to the foreign Court by
directing return of the child - In exceptional cases, the Court can
still refase to issue direction to return the child to the native state'
and more particularly inspite of a pre-existing order of the foreign
Court in that behalf. if it is satisfied that the child's return may
expose him to a grave risk of harm - This means that the Courts in
India, within whose jurisdiction the minor has been brought must
"ordinarily" consider the question on merits, bearing in mind the
welfare of the child as of paramount importance whilst reckoning
the pre-existing order of the foreign Court if any as only one of the
factors and not get fixated therewith - In either situation - be it a
summary inquiry or an elaborate inquiry - the welfare of the child
is of paramount consideration - While examining the issue the
Courts in India are free to decline the relief of return of the child
brought within its jurisdiction, if it is ·satisfied that the child is now
settled in its new environment or if it would expose the child to
physical or psychological harm or otherwise place the child in an
intolerable position or if the child is quite mature and objects to its
return - Jurisdiction.
Writ of habeas corpus - Object behind - Held: The object
underlying the writ of habeas corpus is to secure the re{ease of a
person who is illegally deprived of his liberty - The writ of habeas
corpus is a command address

## Text

_Characters 0–39,866 of 108,851. This is a partial read: ask again with offset=39866 for what follows._

[2017] 7 S.C.R. 281
NITHYA ANAND RAGHAVAN
v.
STATE OF NCT OF DELHI & ANR.
(Criminal Appeal No. 972 of 2017)
JULY03,2017
[DIPAK MISRA, A. M. KHANWILKAR AND
MOHAN M. SHANTANAGOUDAR, JJ.]
A
B
Child and Family welfare - High Court issued writ for
production of minor daughter allegedly removed by mother-appellant
C
from custody of father-respondent no.2 from U.K. - High Court
directed the mother to produce her daughter and to comply with the
order of High Court of Justice, U.K. within 3 weeks or in alternative
to handover the custody of daughter to father within 3 weeks from
date of order - Whether the return of the minor to her native state
would be in the interests of the minor - Held: The Courts in India
D
are not denuded from declining the relief to return the child to the
native state merely because of a pre-existing order of the foreign
Court of competent jurisdiction - In the instant case, the minor is
staying in India along with mother, her grandparents and other
family members and relatives unlike in the UK where she lived in a
E
nuclear family of three with no extended family - She would be
more comfortable and feel secured to live with her mother -
Moreover, it is common ground that minor is suffering from cardiac
disorder and needs periodical medical reviews and proper care and
attention - That can be given only by her mother - Respondent
no.2 (father) is employed and may not be in a position to give
F
complete attention to his daughter - In totality of the facts and
circumstances of the case, it is in the best interests of the minor to
remain in custody of her mother (appellant) else she would be
exposed to harm if separated from the mother - High Court was
unjustly impressed by the principle of comity of courts and the
obligation of the Indian Courts to comply with a pre-existing order
G
of the foreign Court for return of the child and including the "first
strike" principle.
Child and Family welfare - Wardship jurisdiction - The
concept of forum convenience has no place in wardship jurisdiction
281
H
282
SUPREME COURT REPORTS
(2017] 7 S.C.R.
A
- In exercise of summary jurisdiction, the Court must be satisfied
that the proceeding instituted before it was in close proximity and
filed promptly after the child was removed from his/her native state
and brought within its territorial jurisdiction, the child has not gained
roots here and farther that it will be in the child's welfare to return
B
c
D
E
F
to his native state because of the difference in language spoken or
social customs and contacts to which he/she has been accustomed
or such other tangible reasons - In such a case, the Court need not
resort to an elaborate inquiry into the merits of the paramount
welfare of the child but leave that inquiry to the foreign Court by
directing return of the child - In exceptional cases, the Court can
still refase to issue direction to return the child to the native state'
and more particularly inspite of a pre-existing order of the foreign
Court in that behalf. if it is satisfied that the child's return may
expose him to a grave risk of harm - This means that the Courts in
India, within whose jurisdiction the minor has been brought must
"ordinarily" consider the question on merits, bearing in mind the
welfare of the child as of paramount importance whilst reckoning
the pre-existing order of the foreign Court if any as only one of the
factors and not get fixated therewith - In either situation - be it a
summary inquiry or an elaborate inquiry - the welfare of the child
is of paramount consideration - While examining the issue the
Courts in India are free to decline the relief of return of the child
brought within its jurisdiction, if it is ·satisfied that the child is now
settled in its new environment or if it would expose the child to
physical or psychological harm or otherwise place the child in an
intolerable position or if the child is quite mature and objects to its
return - Jurisdiction.
Writ of habeas corpus - Object behind - Held: The object
underlying the writ of habeas corpus is to secure the re{ease of a
person who is illegally deprived of his liberty - The writ of habeas
corpus is a command addressed to the person who is alleged to
have another in unlawful custody, requiring him to produce the
G body of such person before the Court - On production of the person
before the Court, the circumstances in which the custody of the
person concerned has been detained can be inquired into by the
Court and upon due inquiry into the alleged unlawfal restraint pass
appropriate direction as may be deemed just and proper - High
H Court in such proceedings conducts qn inquiry for immediate
NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI
283
determtliation of the right of the persons freedom and his release
A
when the detention is found to be unlawful.
Writ of habeas corpus for the production and custody of a
minor child - In a petition for issuance of a writ of habeas corpus
in relation to the custody of a minor child, the principal duty of the
Court is to ascertain whether the custody of child is unlawful or B
illegal and whether the welfare of the child requires that his present
custody should be changed and the child be handed over to the
care and custody of any other person - While doing so, the
paramount consideration must be about the welfare of the child -
The role of the High Court in examining the cases of custody of a
minor is on the touchstone of principle of parens patriae jurisdiction,
C
as the minor is within the jurisdiction of the Court - In a habeas
corpus petition, the High Court must examine at the threshold
whether the minor is in lawful or unlawful custody of another person
(private respondent named in. the writ petition).
Writ of habeas corpus for the production and custody of a D
minor child - Custody of minor child with mother - Held: In the
instant case, the private respondent was none other than the natural
guardian of the minor being her biological mother - Therefore, it
can be presumed that the custody of the minor with her mother is
lawfal - In such a case, only in exceptionable situation, the custody
E
of the minor (girl child) may be ordered to be taken away from her
mother for being given to any other person including the husband
(father of the child), in exercise of writ jurisdiction - Instead, the
other parent can be asked to resort to a substantive prescribed
remedy for getting custody of the child.
Writ of habeas corpus - High Court directed the mother to
produce her daughter and to comply with the order of High Court
of Justice, U.K. within 3 weeks or in alternative to handover the
custody of daughter to father within 3 weeks from date of order -
Whether an order passed by the foreign court, directing the mother
F
to produce the child before it, would render the custody of the minor
G
unlawful -
Held: Merely because such an order is passed by the
foreign court, the custody of the minor would not become unlawfal
per se - No doubt, the Courts of England and Wales have jurisdiction
in the matters of parental responsibility over the child pursuant to
Arts. 8 and 10 of BIIR - For that reason, it ordered that the minor
H
284
SUPREME COURT REPORTS
[2017) 7 S.C.R.
A
shall remain a Ward of that Court during her minority or until further
order; and the mother (appellant) shall return or cause the return
of the minor forthwith to England and Wales - Appellant may have
violated the direction to return the minor to England, who has been
ordered to be a Ward of the court during her minority and further
B
order - However, no finding was rendered that till the minor returns
to England, the custody of the minor with the mother became or
would be treated as unlawful including for the purposes of
considering a petition for issuance of writ of habeas corpus - The
custody of the minor with the appellant, being her biological mother,
will have to be presumed to be lawful.
C
Doctrines/Principles - Principle of comity of courts cannot
be given primacy or more weightage for deciding the matter of
custody or for return of the child to the native state - The order of
the foreign Court must yield to the welfare of the child - The remedy
of writ of habeas corpus cannot be used for mere enforcement of
D
the directions given by the foreign court against a person within its
jurisdiction and convert that jurisdiction into that of an executing
court - Child and family welfare.
Allowing the appeal, the Court
HELD: 1. The consistent view of this court is that if the
E child has been brought within India, the Courts in India may
conduct (a) summary inquiry or (b) an elaborate inquiry on the
question of custody. In the case of a summary inquiry, the Court
may deem it fit to order return of the child to the country from
where he/she was removed unless such return is shown to be
harmful to the child. In other words, even in the matter of a
F summary inquiry, it is open to the Court to decline the relief of
return of the child to the country from where he/she was removed
irrespective of a pre-existing order of return of the child by a
foreign Court. In an elaborate inquiry, the Court is obliged to
examine the merits as to where the paramount interests and
G welfare of the child lay and reckon the fact of a pre-existing order
of the foreign Court for return of the child as only one of the
circumstances. In either case, the crucial question to be
considered by the Court (in the country to which . the child is
removed) is to answer the issue according to the child's welfare.
That has to be done bearing in mind the totality of facts and
H circumstances of each case independently. [Para 26)(309-C-F)
NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI
285
2. The High Court while dealing with the petition for A
issuance of a writ of habeas corpus concerning a minor child, in a
given case, may direct return of the child or decline to change
the custody of the child keeping in mind all the attending facts
and circumstances. The decision of the Court, in each case, must
depend on the totality of the facts and circumstances of the case B
brought before it whilst considering the welfare of the child which
is of paramount consideration. The order of the foreign Court
must yield to the welfare of the child. Further, the remedy of writ
of habeas corpus cannot be used for mere enforcement of the
directions given by the foreign court against a person within its
jurisdiction and convert that jurisdiction into that of an executing C
court. [Para 29)[310-G; 311-A-B)
3. In a habeas corpus petition, the High Court must examine
at the threshold whether the minor is in lawful or unlawful custody
of another person (private respondent named in the writ petition).
For considering that issue, in a case such as the present one, it is D
enough to note that the private respondent was none other thap
the natural guardian of the minor being her biological mother:
Once that fact is ascertained, it can be presumed that the c.ustody
of the minor with his/her mother is lawful. In such a case, only in
exceptionable situation, the custody of the minor (girl child) may
be ordered to be taken away from her mother for being given to
E
any other person including the husband (father of the child), in
exercise of writ jurisdiction. Instead, the other parent can be
asked to resort to a substantive prescribed remedy for getting
custody of the child. [Para 30)[311-C-E)
4. The next question to be considered by the High Court
would be whether an order passed by the foreign court, directing
the mother to produce the child before it, would render the custody
of the minor unlawful?
F
4.1 Merely because such an order is passed by the foreign
court, the custody of the minor would not become unlawful per G
se. The order passed by the High Court of Justice, Family Division
London on s•b January, 2016 for obtaining a Wardship order is an
ex parte order passed against the mother after recording prima
facie satisfaction that the minor (a girl born on 07/08/2009) was
as on 2•d July, 2015, habitually resident in the jurisdiction of H
. ...
286
SUPREME COURT REPORTS
[2017] 7 S.C.R.
A England and Wales and was wrongfully removed from England
on 2•d July, 2015 and was wrongfully retained in India since then.
Further, the Courts of England and Wales have jurisdiction in
the matters of parental responsibility over the child pursuant to
Articles 8 and 10 of BIIR. For which reason, it was ordered that
B the minor shall remain a Ward of that Court during her minority
or until further order; and the mother (appellant) shall return or
cause the return of the minor forthwith to England and Wales in
any event not later than 22 January, 2016. Indeed, this order was
not challenged by the appellant so far nor the appellant applied
for modification thereof before the concerned court (foreign court).
C Even on a fair reading of this order, it is not possible to hold that
the custody of the minor with her mother. was declared to be
unlawful. [Para 31)(311-F; 315-C-F]
4.2 The High Court in such a situation may then examine
whether the return of the minor to his/her native state would be
D in the interests of the minor or would be harmful. While doing so,
the High Court would be well within its jurisdiction if satisfied,
that having regard to the totality of the facts and circumstances,
it would be in the interests and welfare of the minor child to decline
return of the child to the country from where he/she had been
removed; then such an order must be passed without being fixated
E with the factum of an order of the foreign Court directing return
of the child within the stipulated time, since the order of the
foreign Court must yield to the welfare of the child. For answering
this issue, there can be no strait jacket formulae or mathematical
exactitude. Nor can the fact that the other parent had already
F approached the foreign court or was successful in getting an order
from the foreign court for production of the child, be a decisive
factor. Similarly, the parent having custody of the minor has not
resorted to any substantive proceeding for custody of the child,
cannot whittle down the overarching principle of the best interests
and welfare of the child to be considered by the Court.[Para
G 32](315-H; 316-A-C]
5.
For considering the factum of interests of the child, the
court must take into account all the attending circumstances and
totality of the situation. That will have to be decided on case to
case basis. In the instant case, the father as well as mother of the
H child are of Indian origin. They were married in Chennai in India
NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI
287
according to Hindu rites and customs. The father, an Indian A
citizen, had gone to the U.K. as a student in 2003 and was working
there since 2005. After the marriage, the couple shifted to the
U.K. in early 2007 and stayed in Watford. The mother got an
employment in London in 2008, but had to come to her parents'
house in Delhi in June 2009, where she gave birth to baby girl.
B
Thus, the child is an Indian citizen by birth. She did not give up
her Indian citizenship. Indeed, the appellant, along with the
daughter, returned to the U.K. in March 2010. But from August
2010 till December 2011, because of matrimonial issues between
the appellant and respondent no.2, the appellant and her daughter
remained in India. It was only after the intervention of and C
mediation by the family members, the appellant and her daughter
went back to England in December 2011, more than a year after
they had come to India. After returning to the U.K., the daughter
was admitted to a nursery school in January 2012. An application
for grant of U.K. citizenship was made on behalf of daughter in D
September 2012 which was subsequently granted in December
2012. The father (respondent no.2) then acquired the citizenship
of the U.K. in January, 2013. After grant of citizenship of the
U.K., daughter was admitted to a primary school in the U.K. in
September 2013 and studied there only till July, 2015. Since
daughter had acquired British citizenship, the U.K. Court could
exercise jurisdiction in respect of her custody issues. Significantly,
till daughter returned to India along with her mother on 2•d July,
2015, no proceeding of any nature came to be filed in the U.K.
Court, either in relation to the matrimonial dispute between the
appellant and respondent no.2 or for the custody of daughter.
Further, daughter is staying in India along with the appellant, her
grandparents and other family members and relatives unlike in
E
F
the UK she lived in a nuclear family of the three with no extended
family. She has been schooling here for the past over one year
and has spent equal time in both the countries out of the first six
years. She would be more comfortable and feel secured to live
G
with her mother here, who can provide her love, understanding,
care and guidance for her complete development of character,
personality and talents. Being a girl child, the guardianship of
the mother is of utmost significance. Ordinarily, the custody of a
"girl" child who is around seven years of age, must ideally be
H
288
SUPREME COURT REPORTS
[2017] 7 S.C.R.
A
with her mother unless there are circumstances to indicate that
it would be harmful to the girl child to remain in custody of her
mother. No such material is forthcoming in this case except the
fact that the appellant (mother) has violated the order of the U.K.
Court directing her to return the child to the U.K. before the
B stipulated date. Admittedly, when the daughter was in the U.K.,
no restraint order was issued by any court or authority in the
U.K. in that behalf. She had travelled along with her mother from
the U.K. to India on official documents. It is a different matter
that respondent no.2 alleges that he was not informed before
daughter was removed from the U.K. and brought to India by his
C
wife (appellant). It is common ground that daughter is suffering
from cardiac disorder and needs periodical medical reviews and
proper care and attention. That can be given only by her mother.
The respondent no.2 (father) is employed and may not be in a
position to give complete attention to his daughter. There is force
D
in the stand taken by the appellant that if her daughter returns to
the U.K., she may not be able to get meaningful access to provide
proper care and attention. Further, she has no intention to visit
the U .K. Admittedly, the appellant has acquired the status of only
a permanent resident of the U.K., as she was staying with
E
F
respondent no.2 who is gainfully employed there. The appellant
has alleged and has produced material in support of her case that
during her stay with respondent no.2 in the U.K., she was
subjected to physical violence and mental torture. She has also
alleged that if she goes back to the U.K., she may suffer the
same ignominy. Further, the proceeding in the UK Court instituted
by the husband is a counter blast to the complaint filed by her in
Delhi about the violence inflicted on her by the husband and his
family members. Indeed, respondent no.2 has vehemently denied
and rebutted these allegations. Thcsi: are disputed questions of
facts. Taking the totality of the facts and circumstances into
account, it would be in the interests of daughter to remain in
G custody of her mother and it would cause harm to her if she returns
to the U.K. That does not mean that the appellant must disregard
the proceedings pending in the U.K. Court against her or for
custody of daughter, as the case may be. The instant appeal arises
from a writ petition filed by respondent no.2 for issuance of a writ
of habeas corpus and not to decide the issue of grant or non-grant
H
NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI
289
of custody of the minor as such. In a substantive proceeding for A
custody of the minor before the Court of competent jurisdiction
including in India if permissible, all aspects will have to be
considered on their own merit without being influenced by any
observations in this judgment. [Para 33)(316-D-H; 317-A-H; 318A-FJ
B
6. Whether it is a case of a summary inquiry or an elaborate
inquiry, the paramount consideration is the interests and welfare
of the child. Further, a pre-existing order of a foreign Court can
be reckoned only as one of the factor to be taken into
consideration. It is not relevant as to which party first approached
the Court or so to say "first strike". The invocation of first strike C
principle as a decisive factor would undermine and whittle down
the wholesome principle of the duty of the Court having jurisdiction
to consider the best interests and welfare of the child, which is of
paramount importance. If the Court is convinced in that regard,
the fact that there is already an order passed by a foreign Court D
in existence may not be so significant as it must yield to the welfare
of the child. That is only one of the factors to be taken into
consideration. The Courts in India are not denuded from declining
the relief to return the child to the native state merely because
of a pre-existing order of the foreign Court of competent
jurisdiction. In the present case, taking the totality of the facts
and circumstances of the case into account, it would be in the
best interests of the minor to remain in custody of her mother
(appellant) else she would be exposed to harm if separated from
the mother. The High Court was unjustly impressed by the
principle of comity of courts and the obligation of the Indian
Courts to comply with a pre-existing order of the foreign Court
for return of the child and including the "first strike" principle
referred to in Surya Vadanan's case. [Paras 38-42)(321-E-F, G;
322-G-H; 323-A, D, E-F)
Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC 112
: (1997) 5 Suppl. SCR 30; Surya Vadanan v. State of
Tamil Nadu & Ors. (2015) 5 SCC 450 : [2015) 4 SCR
903 - relied on.
Dr. V. Ravi Chandran v. Union of India & Ors. (2010)
1SCC174: (2009) 15 SCR 960; Arathi Bandi v. Bandi
E
F
G
H
290
SUPREME COURT REPORTS
[2017] 7 S.C.R.
A
Jagadrakshaka Rao & Ors. (2013) 15 SCC 790 -
distinguished.
B
c
7.
After the minor child attains the age of majority, she
would be free to exercise her choice to go to the UK and stay
with her father. But until she attains majority, she should remain
in the custody of her mother unless the Court of competent
jurisdiction trying the issue of custody of the child orders to the
contrary. However, the father must be given visitation rights,
whenever he visits India. The appellant shall take all such steps
to comply with the visitation rights of respondent no. 2, in its
letter and spirit. Besides, the appellant will permit the respondent
no. 2 to interact with daughter on telephone/mobile or video
conferencing, on school holidays between 5 PM to 7:30 PM IST.
The appellant cannot disregard the proceedings instituted before
the UK
Court.
She must participate in those proceedings by
engaging solicitors of her choice to espouse her cause before
D the High Court of Justice. For that, the respondent no.2 will
bear the costs of litigation and expenses to be incurred by the
appellant. In addition, respondent no.2 will make all arrangements
for the comfortable stay of the appellant and her companions at
an independent place of her choice at reasonable costs. In the
E
F
G
H
event, the appellant is required to appear in the proceedings
before the High Court of Justice in the UK, the respondent no.2
shall not initiate any coercive process against her which may result
in penal consequences for the appellant and if any such proceeding
is already pending, he must take steps to first withdraw the same
and/or undertake before the concerned Court not to pursue it
any further. That will be condition precedent to pave way for the
appellant to appear before the concerned Court in the UK. (Paras
44, 45)(324-D-H; 325-A-C)
Surinder Kaur Sandhu v. Harbax Singh Sandhu & Am:
(1984) 3 SCC 698: (1984) 3 SCR 422; Mrs. Elizabeth
Dinshaw v. Arvand M Dinshaw & Anr. (1987) 1 SCC
42 : [1987) 1 SCR 175; Marggarate Maria Pulparampil
Nee Feldman v. Chacko Pulparampil & Anr. (1970) AIR
(Ker) 1; Ku/deep Sidhu v. Chanan Singh & Ors. (1989)
AIR (Punjab and Haryana) 103; Re: H.(lnfants) (1965)
H. No. 2428 : (1966) 1 All ER 886; Ruchi Majoo v.
Sanjeev Majoo (2011) AIR SC 1952 : 120111 7 SCR
NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI
674; Sarita Sharma v. Sushi/ Sharma (2000) 3 SCC 14
: [2000) 1 SCR 915; Shi/pa Aggarwal v. Aviral Mittal
and Am: (2010) 1 SCC 591 : (2009) 16 SCR 287; Kanu
Sanyal \'. District Magistrate, Darjeeling & Ors. (2001)
5 SCC 247; Sayed Saleemuddin v. Dr. Rukhsana &
Ors. (2001) 5 SCC 247; Paul Mohinder Gahun v. State
of JI/CT of Delhi & Ors. 113 (2004) Delhi Law Time
823 - referred to.
Lozano v. Montoya Alvarez 572 US (2014) : 134 S.Ct.
1224 (2014) - referred to.
Case Law Reference
(2013) 15 sec 790
distinguished
Para6
[2015) 4 SCR 903
relied on
Para6
[19841 3 SCR 422
referred to
Para6
[19871 1 SCR 175
referred to
Para6
[2011] 7 SCR 674
referred to
Para6
[20001 1 SCR 915
referred to
Paras
(20091 15 SCR 960
distinguished
Para 10
[20091 16 SCR 287
referred to
Para 10
(1997) 5 Suppl. SCR 30
relied on
Para 24
c2001) 5 sec 247
referred to
Para 28
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No.
972 of 2017.
From the Judgment and Order dated 08.07 .2016 of the High Court
of Delhi at New Delhi in W. P. (Cr!.) No. 247 of2016.
Ms. Malavika Rajkotia, Ms. Arpita Rai, Ms. Saumya Maheshwari,
Lakshmi Raman Singh, Advs. for the Appellant.
S.S. Jauhar, Ms. Prabhjit Jauhar, Ms. Anita Gupta, R. K. Rathore,
Ravinder Bana, B. K. Prasad, Advs. for the Respondents.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J. 1. Leave granted.
2. This appeal arises from the final judgment and order (for short
"the Impugned Judgment") passed by the High Court of Delhi dated
8'h July, 2016 in a writ petition for issuance of a writ of habeas corpus
291
A
B
c
D
E
F
G
for production of the minor daughter Nethra, allegedly illegally removed
H
292
SUPREME COURT REPORTS
[2017] 7 S.C.R.
A by the mother-appellant on 2
11d July, 2015 from the custody of the fatherrespondent no.2 (writ petitioner) from the United Kingdom (UK), being
Writ Petition (Criminal) No. 247 of2016.
3. The High Court inter alia directed the mother to produce her
daughter Nethra and to comply with the order dated 08.01.2016 passed
B by the High Court of Justice, Family Division, Principal Registry, United
Kingdom (UK), within 3 (three) weeks from the date of the impugned
order or in the alternative to handover the custody of the daughter to the
father within 3 (three) weeks from the date of the order.
4. The appellant has assailed the aforesaid order inter alia on the
c ground that in the present scenario, the paramount interests and welfare
of the daughter, Nethra, who is presently over seven years of age, is to
remain in custody of her mother, especially because she suffers from a
cardiac disorder and that she would face immense physical and
psychological harm ifrepatriated to the custody of the father in England
in light of the alleged physical, verbal and mental abuse meted out by
D him. The appellant has also contended that the UK Court does not have
intimate contact with Nethra merely because she has acquired the
citizenship of the UK in December, 2012. The daughter has her deep
roots in India as she was born here in Delhi and has retained her Indian
E
F
citizenship. She has been schooling here for the past 12 (twelve) months
and has spent equal time in both the countries out of her first six years.
Further, Nethra has her grandparents, family and relatives here in India,
unlike in the UK where she lived in a nuclear family of the three (father,
mother and herself) with no extended family and friends. Thus, it is the
Indian Courts which have the intimate contact with the minor and including
the jurisdiction to decide the matter in issue. Furthermore, the respondent
no.2 did not initiate any action for initial six months even after knowing
that the appellant was unwilling to return along with her daughter and
until he was slapped with a notice' regarding complaint filed by the
appellant before the Women Cell at Delhi in December 2015, relating to
violence inflicted by him. As a counter blast to that notice the respondent
G no.2 rushed to the UK Court and then filed writ petition in the Delhi
High Court to pressurize the appellant to withdraw the allegations
regarding violence inflicted by him.
5. To be able to fully appreciate and analyse the issues raised
before this Court, it would be expedient to first set out the factual milieu
H from which the present case arises:
NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI
293
[A. M. KHANWILKAR, J.)
a. The appellant has a Masters' degree in communication and had worked A
in India prior to her marriage. Respondent no.2 had gone to the United
Kingdom as a student in 2003 and was working there since 2005.
Admittedly, both appellant and respondent no.2 were Indian citizens when
they contracted marriage.
b. On 30.11.2006, the appellant and respondent no.2 were married in
B
Chennai according to Hindu rites and customs and was registered before
SDM Court Chennai the under the Hindu Marriage Act. Their traditional
marriage ceremony was performed in Chennai on 22.01.2007. After
marriage, the parties shifted to the.UK in e~rly 2007 and began living in
respondent no.2's home in Watford (UK). ·
c. After marriage, disputes and differences arose between the parties.
The appellant contends that these disputes were often violent and that
she was physically, mentally and psychologically abused, a claim
strenuously denied by respondent no.2.
c
d. The appellant eventually got a job with an advertising agency in London
D
in 2008, earning close to 25,000 pounds (GBP) per annum.
e. Having conceived in and around December 2008, the appellant left
the UK for Delhi in June 2009 to be with her parents. On 7th August,
2009, the appellant gave birth to a girl child -Nethra, in Delhi. Respondent
no.2 soon joined them in India.
E
f. After the birth of their daughter, they went back to the UK in March
2010. Subsequently in August 2010, the appellant and her daughter
returned to India after several incidents with respondent no.2.
g. After an exchange oflegal correspondence between the parties, setting
out the numerous differences which had arisen in the marriage, the
F
appellant and her daughter eventually went back to London in December
2011, more than a year after they had come to India.
h. In January 2012, the daughter was admitted to a nursery school in the
UK and attended the same till she was old enough to attend a primary
school.
G
i. In September 2012, an application was filed on behalfofthe daughter
for grant of UK citizenship, purportedly with the consent of both the
appellant and respondent no.2. The appellant, however, denies that she
gave consent for this application.
H
294
SUPREME COURT REPORTS
[2017] 7 S.C.R.
A j. In December 2012 the daughter was granted citizenship of the UK.
B
Soon thereafter in January 2013, respondent no.2 was also granted
citizenship of the UK. Subsequently, respondent no.2 purchased another
house in the UK, purportedly with the consent of the appellant, and the
parties shifted there. The appellant had acquired a driving license in the
UK around the same time.
k. In September 2013, the daughter who was around 4 (four) years old
at the time, was admitted to a primary school in the UK (and studied
there till July 2015). Respondent no.2 was paying the annual fees for the
school amounting to approximately I 0,000 GBP per annum.
c I. Subsequently, in July 2014, the appellant returned to India owing to
certain purported health problems, and also brought her daughter along
with her. Both the appellant and her daughter went back to the UK
around a month later i.e. on 61h September, 2014, purportedly at the
insistence of respondent no.2.
D
m. From late 2014 till early 2015, the daughter took ill and was eventually
diagnosed with a cardiac disorder for which she had to undergo periodical
medical reviews. According to the appellant, she was taking care of her
daughter during this period while respondent no.2 did not even bother
about the daughter's condition, a claim vehemently contested by
E
F
respondent no.2.
n. On 2
11d July, 2015, the appellant came back to India along with her
daughter because of the alleged violent behavior of respondent no.2.
Respondent no.2 asserts that soon after the appellant left for India with
their daughter, she sent an email to the school in which the daughter was
enrolled, giving the reason for her departure as 'family medical reasons'.
The appellant then allegedly sent further emails to the school, first informing
it that her daughter would remain in India for an extended duration and
finally, informing it that her daughter would not be coming back to the
UK due to her own well-being and safety.
o. On 16th December, 2015, the appellant filed a complaint with the
G
Crime Against Women Cell (CAWC), New Delhi which then issued
notice to respondent no.2 and his parents, asking them to appear before
it. On the date of hearing, neither respondent no.2 nor his parents appeared
before the CAWC.
p. As a counter blast, respondent no.2 filed a custody/wardship petition
H
on g•h January, 2016 before the High Court of Justice, Family Division,
NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI
295
[A. M. KHANWILKAR, J.]
UK, seeking the return of his daughter to the jurisdiction of the UK
A
Court. On this petition, the High Court of Justice passed an ex-parte
order inter alia directing the appellant to return the daughter to the UK
and to attend the hearing at the Royal Courts of Justice.
q. Then, on 23n1 January, 2016, respondent no.2 filed a habeas corpus
writ petition before the High Court of Delhi, seeking to have his daughter
B
produced before the Court. The High Court passed the Impugned
Judgment dated 81h July, 2016, inter alia directing the appellant to produce
her daughter and comply with the orders passed by the UK Court or
handover her daughter to respondent no.2 within 3 (three) weeks from
the date of the order.
c
6. The High Court, while ordering that the mother-appellant return
to the UK with the child and produce her before the UK Court, set out
and examined the factual aspects of the case. The High Court held that
the child, having lived in the UK since the time of her birth in 2009, had
developed roots there. Further, the child was a permanent citizen of the
UK and held a British passport. The High Court also examined the
D
wardship order passed ex-parte by the High Court of Justice, Family
Division, London on 81h January, 2016. In the said order, the UK Court
inter alia recorded that the child had been wrongfully removed from
England in July 2015 and wrongly retained in India since then. The UK
Court also recorded the father's willingness to bear the expenses for the
E
transport and stay of the mother and the child to the UK. The UK Court
held that it had the jurisdiction to hear the matter and directed that the
child would become a ward of the court during her minority or until
further orders and that the mother would have to return the child to
England by 22
11d January, 2016. The High Court opined that in light of
the order by the UK Court, the mother would not face any financial
F
hardship and further, the order of the UK Court had attained finality due
to lapse of time. The High Court then examined the law as propounded
in several judgments, including Arathi Bandi Vs. Bandi
Jagadrakshaka Rao & Ors. 1, Surya Vadanan Vs. State of Tamil
Nadu & Ors.2, Surinder Kaur Sandhu Vs. Harbax Singh Sandhu &
G
Anr. 3, Mrs. Elizabeth Dinshaw Vs. Arvand M. Dinshaw & Anr.4,
Marggarate Maria Pulparampil Nee Feldman V. Chacko
1 (2013) 15 sec 790
'(2015) 5 sec 450
'(1984) 3 sec 698
• (1987) 1 sec 42
H
296
SUPREME COURT REPORTS
(2017) 7 S.C.R.
A Pulparampil & Anr.5, Ku/deep Sidhu V. Chanan Singh & Ors. 6, In
Re: H.(lnfants)7 and Ruchi Majoo V Sanjeev Majoo6• The High Court
held that since the mother had not sought custody of the child by
approaching any competent Indian Court prior to the passing of the order
by the UK Court, therefore, the first, effective order/direction had been
B passed by the UK/foreign court and, applying the principle expounded in
Surya Vadanan (supra) of comity of courts, the balance offavour would
lie with the UK Court. Since the child had spent most of her life in the
UK and studied there, it would be in the best interests of the child that
she be returned to the UK. After analyzing the principles deduced from
c
the aforesaid judgments, the High Court was of the opinion that:
a. The foreign court having the most intimate contact with the child
would be better placed to appreciate the social and cultural milieu in
which the child had been brought up;
b. The principle of comity of courts should not be discarded except for
special and compelling reasons. Especially when interim or interlocutory
D orders have been passed by foreign courts;
c. If a foreign court has jurisdiction to hear the matter, then an interim/
interlocutory order passed by such court should be given due weightage
and respect. If such jurisdiction is not in doubt, then the "first strike"
principle i.e. a substantive order passed by a foreign court prior to a
E substantive order passed by another foreign or domestic court, becomes
applicable. Due respect and weight ought to be given to the earlier
substantive order as compared to the latter order;
F
d. A foreign court passing an interim/interlocutory order can make prima
facie adjudications, similar to a domestic court;
e. Merely because a parent has violated an order of a foreign court does
not mean that the parent should be penalized for the same. While the
conduct of the parent may be taken into account while passing the final
order, the said conduct should not have a penalising result;
G f. A court may either hold an elaborate inquiry to decide whether a child
should be repatriated to a foreign country or a summary inquiry without
going into the merits of the dispute, relating to the best interests and
'(1970) AIR (Ker) I
6 (1989) AIR (Punjab and Haryana) 103
7 (1965) H. No.2428 = (1966) 1 All ER 886
H
'(2011) AIR SC 1952
NITHYA ANAND RAGHAVAN v. STATE OF NCT OF DELHI
297
[A. M. KHANWILKAR, J.]
welfare of the child. If, however, there exists a pre-existing order of a A
foreign Court of competent jurisdiction, then a domestic court must have
special reasons to hold an elaborate inquiry. It must consider various
factors such as the nature of the interim order passed by the foreign
court, the likelihood of harm caused to the child, if any, when repatriated,
the alacrity with which the parent moves the foreign court etc.
B
7. The High Court essentially applied the exposition in the case of
Surya Vadanan (supra) and held that there was no special or compelling
reason to ignore the interim order passed by the UK Court and that the
child was accustomed-to and well adapted to the culture in the UK.
Further, the High Court opined that there was no force in the mother's
allegation that she was a victim of domestic abuse since she had not
C
made a single complaint to the authorities while she was staying with the
respondent no.2 in the UK. In addition, there was no documentary
evidence to support such a claim either. Finally, the High Court rejected
the contention, that the child ought to be medically treated only in Delhi
for her heart condition and not in the UK, as baseless.
D
8. Advocate Malavika Rajkotia, learned counsel for the Appellant,
first submits that the High Court has given undue emphasis to the principle
of comity of courts in complete disregard to the paramount interests and
welfare of the child.