Whether bringing away of a child to India by his mother against an order of US Court would have any bearing on decision of Courts in India while deciding custody and welfare of child?

Supreme Court in Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112, one of the questions that fell for consideration was whether the bringing away of a child to India by his mother contrary to an order of US Court would have any bearing on the decision of the Courts in India while deciding about the custody and the welfare of the child. Relying upon McKee v. KcKee, 1951 AC 352 : 1951(1) All ER 942 and J. v. C. 1970 AC 668 : 1969 (1) All ER 788, this Court held that it was the duty of the Courts in the country to which a child is removed to consider the question of custody, having regard to the welfare of the child. In doing so, the order passed by the foreign court would yield to the welfare of the child and that Comity of Courts simply demanded consideration of any such order issued by foreign courts and not necessarily their enforcement. This Court further held that the conduct of a summary or elaborate inquiry on the question of custody by the Court in the country to which the child has been removed will depend upon the facts and circumstance of each case. For instance summary jurisdiction is exercised only if the court to which the child had been removed is moved promptly and quickly, for in that event, the Judge may well be persuaded to hold that it would be better for the child that the merits of the case are investigated in a court in his native country, on the expectation that an early decision in the native country would be in the interests of the child before the child could develop roots in the country to which he had been removed. So also the conduct of an elaborate inquiry may depend upon the time that had elapsed between the removal of the child and the institution of the proceedings for custody. This would mean that longer the time gap, the lesser the inclination of the Court to go for a summary inquiry. The court rejected the prayer for returning the child to the country from where he had been removed and observed:

31. The facts of the case are that when the Respondent moved the courts in India and in the proceedings of 1986 for habeas corpus and under Guardians and Wards Act, the courts in India thought it best in the interests of the child to allow it to continue with the mother in India, and those orders have also become final. The Indian courts in 1993 or 1997, when the child had lived with his mother for nearly 12 years, or more, would not exercise a summary jurisdiction to return the child to USA on the ground that its removal from USA in 1984 was contrary to orders of US courts.

In Sarita Sharma v. Sushil Sharma, (2000) 3 SCC 14 this Court was dealing with an appeal arising out of a habeas corpus petition filed before the High Court of Delhi in respect of two minor children aged 3 years and 7 years respectively. It was alleged that the children were in illegal custody of Sarita Sharma their mother. The High Court had allowed the petition and directed the mother to restore the custody of the children to Sushil Sharma who was in turn permitted to take the children to U.S.A. without any hindrance. One of the contentions that was urged before this Court was that the removal of children from U.S.A. to India was against the orders passed by the American Court, which orders had granted to the father the custody of the minor children. Allowing the appeal and setting aside the judgment of the High Court, this Court held that the order passed by the U.S. courts constituted but one of the factors which could not override the consideration of welfare of the minor children. Considering the fact that the husband was staying with his mother aged about 80 years and that there was no one else in the family to look after the children, this Court held that it was not in the interest of the children to be put in the custody of the father who was addicted to excessive alcohol. Even this case arose out of a writ petition and not a petition under the Guardians and Wards Act.

In V. Ravi Chandran (Dr.) (2) v. Union of India and Ors. (2010) 1 SCC 174 also Supreme Court was dealing with a habeas corpus petition filed directly before it under Article 32 of the Constitution. This Court held that while dealing with a case of custody of children removed by a parent from one country to another in contravention of the orders of the court where the parties had set up their matrimonial home, the court in the country to which the child has been removed must first consider whether the court could conduct an elaborate enquiry on the question of custody or deal with the matter summarily and order the parent to return the custody of the child to the country from which he/she was removed, leaving all aspects relating to child’s welfare to be investigated by Court in his own country. Court held that in case an elaborate enquiry was considered appropriate, the order passed by a foreign court may be given due weight depending upon the circumstances of each case in which such an order had been passed. Having said so, this Court directed the child to be sent back to U.S. and issued incidental directions in that regard.

In Shilpa Aggarwal (Ms.) v. Aviral Mittal and Anr., (2010) 1 SCC 591 this Court followed the same line of reasoning. That was also a case arising out of a habeas corpus petition before the High Court of Delhi filed by the father of the child. The High Court had directed the return of the child to England to join the proceedings before the courts of England and Wales failing which the child had to be handed over to the Petitioner-father to be taken to England as a measure of interim custody leaving it for the court in that country to determine which parent would be best suited to have the custody of the child. That direction was upheld by this Court with th 8:56 AM 7/28/2011e observation that since the question as to what is in the interest of the minor had to be considered by the court in U.K. in terms of the order passed by the High Court directing return of the child to the jurisdiction of the said court did not call for any interference.

In cases arising out of proceedings under the Guardian & Wards Act, the jurisdiction of the Court is determined by whether the minor ordinarily resides within the area on which the Court exercises such jurisdiction. There is thus a significant difference between the jurisdictional facts relevant to the exercise of powers by a writ court on the one hand and a court under the Guardian & Wards Act on the other. Having said that we must make it clear that no matter a Court is exercising powers under the Guardian & Wards Act it can choose to hold a summary enquiry into the matter and pass appropriate orders provided it is otherwise competent to entertain a petition for custody of the minor under Section 9(1)of the Act. This is clear from the decision of this Court in Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112, which arose out of proceedings under the Guardian & Wards Act. The following passage is in this regard apposite:

In Elizabeth Dinshaw v. Arvand M. Dinshaw (1987) 1 SCC 42 while dealing with a child removed by the father from USA contrary to the custody orders of the US Court directed that the child be sent back to USA to the mother not only because of the principle of comity but also because, on facts, — which were independently considered — it was in the interests of the child to be sent back to the native State. There the removal of the child by the father and the mother’s application in India were within six months. In that context, this Court referred to H. (infants), Re (1966) 1 ALL ER 886 which case, as pointed out by us above has been explained in L. Re (1974) 1 All ER 913, CA as a case where the Court thought it fit to exercise its summary jurisdiction in the interests of the child. Be that as it may, the general principles laid down in McKee v. McKee (1951) 1 All ER 942 and J. v. C. (1969) 1 All ER 788 and the distinction between summary and elaborate inquiries as stated in L. (infants), Re (1974) 1 All ER 913, CA are today well settled in UK, Canada, Australia and the USA. The same principles apply in our country. Therefore nothing precludes the Indian courts from considering the question on merits, having regard to the delay from 1984 — even assuming that the earlier orders passed in India do not operate as constructive res judicata.

It does not require much persuasion for us to hold that the issue whether the Court should hold a summary or a detailed enquiry would arise only if the Court finds that it has the jurisdiction to entertain the matter. If the answer to the question touching jurisdiction is in the negative the logical result has to be an order of dismissal of the proceedings or return of the application for presentation before the Court competent to entertain the same. A Court that has no jurisdiction to entertain a petition for custody cannot pass any order or issue any direction for the return of the child to the country from where he has been removed, no matter such removal is found to be in violation of an order issued by a Court in that country. The party aggrieved of such removal, may seek any other remedy legally open to it. But no redress to such a party will be permissible before the Court who finds that it has no jurisdiction to entertain the proceedings.