Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION  (CRL.) NO.112/2007

Dr. V. Ravi Chandran ..Petitioner

Versus

Union of India & Ors.     ..Respondents

J U D G M E N T

R.M. LODHA, J.

Adithya is a boy of seven, born on July 1, 2002, in the  

United States of America. He is a foreign national. The petition before  

us is by the father – Dr. V . Ravi  Chandran—praying for a writ  of  

habeas corpus for the production of his minor son Adithya and for  

handing over the custody and his  passport to him.

2. On  August  28,  2009,  this  Court  passed  an   order  

requesting Director,  Central Bureau of Investigation (CBI) to  trace  

minor  Adithya and produce him before this Court.   The necessity of  

such order arose as despite efforts made by the police officers and

officials  of  different  states,  Adithya  and  his  mother  –  respondent  

no. 6—Vijayasree Voora—could  not be traced and their whereabouts  

could not  be found for  more than two years  since the notice was  

issued by this Court.   In pursuance of the order dated August 28,  

2009, CBI issued look out notices on all India basis through heads of  

police of States, Union Territories and Metropolitan Cities and also  

alert  notices  through  Deputy  Director,  Bureau  of  Immigration  

(Immigration),  Ministry  of  Home  Affairs,  New  Delhi  and  flashed  

photographs of the child Adithya and his mother Vijayasree Voora.  

Ultimately with its earnest efforts, CBI traced Adithya and his mother  

Vijayashree Voora in Chennai on October 24, 2009 and brought them  

to  Delhi  and  produced  the  child  along  with  his  mother  at  the  

residential office of one of us (Tarun Chatterjee, J.) on October 25,  

2009.  On that day, the CBI authorities were directed to keep the child  

under their custody and produce him before the Court on October 27,  

2009.  Respondent no. 6 was also directed to be produced on that  

date.  On October 27, 2009, the matter was adjourned for November  

4, 2009 since respondent no.6  wanted to  engage a lawyer and  file a  

counter affidavit.   On November 4, 2009, matter was adjourned to  

November 10, 2009 and then to November 12, 2009.  The petitioner  

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was permitted to meet the child for one hour on November 10, 2009  

and November 12, 2009.  In the meanwhile, respondent no. 6 has  

filed counter affidavit in opposition to the habeas corpus petition and  

petitioner has filed rejoinder affidavit to the counter affidavit filed by  

respondent no.6.

3. We heard Ms. Pinky Anand, learned senior  counsel  for  

the  petitioner  and  Mr.  T.L.V.  Iyer,  learned  senior  counsel  for  

respondent no. 6.  Now since minor Adithya has been produced, the  

only  question  that  remains  to  be considered is  with  regard  to  the  

prayer made by the petitioner for handing over the custody of minor  

Adithya  to him with his passport.

4. But  before  we  do  that,  it  is  necessary  to  notice  few  

material facts.  Dr. V. Ravi Chandran – petitioner – is an American  

citizen.  He and respondent no. 6 got married on December 14, 2000  

at Tirupathi,  Andhra Pradesh according to Hindu rites.  On July 1,  

2002, Adithya was born in United States of America.  In the month of  

July  2003,  respondent  no.  6  approached  the  New  York  State  

Supreme Court for divorce and dissolution of marriage.  A consent  

order  governing  the  issues  of  custody  and  guardianship  of  minor  

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Adithya was passed by the New York State Supreme Court on April  

18,  2005.   The  Court  granted  joint  custody  of  the  child  to  the  

petitioner and respondent no. 6 and it was stipulated in the order to  

keep the other party informed about the whereabouts of  the child.  

On July 28, 2005, a Separation Agreement was entered between the  

petitioner  and  respondent  no.6  for  distribution  of  marital  property,  

spouse maintenance and child support.  As regards custody of the  

minor son Adithya and parenting time, the petitioner and respondent  

no. 6  consented to the order dated April 18, 2005.  On September 8,  

2005, the marriage between the petitioner and respondent no.6 was  

dissolved by the New York State Supreme Court. Child custody order  

dated April 18, 2005 was incorporated in that order.

5. Upon the petition for modification of custody filed by the  

petitioner and the petition  for enforcement  filed by him and upon the  

petition for enforcement filed by respondent no.6 before the Family  

Court  of the  State of New York, on June 18, 2007, upon the consent  

of both parties, inter – alia,  the following order came to be passed:

“ORDERED,  the  parties  shall  share  joint  legal  and  physical custody of the minor child; and it is further

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ORDERED,  that  commencing  during  August  2007,  Adithya shall reside in Allen, Texas; and it is further

ORDERED, that the parties    acknowledge that it is  the  intention  of  the  parties  to  reside  within  the   same  community.  As such, it is the mother’s current intention to  relocate   to  Texas,  within  a forty   (40)  mile  radius of  the  father’s residence.  If the mother does relocate to a forty (40)  mile radius  of the father’s residence (which  shall be within  a twenty (20) mile radius from the child’s school),, the parties  shall equally share physical custody of Adithya.  The parties  shall alternate physical custody on a  weekly basis, with the  exchange being  on Friday, at the end of the School day, or  at the time  when school would  ordinarily let out in the event  that there is no school on Friday; ……………. …………………………………………………………… ……………………………………………………………

ORDERED, that in  the  event that the mother does  not  relocate  within  forty  (40)   miles  from  the  father’s  residence located in Allen,  Texas (and  within twenty (20)  miles of Adithya’s  school), the mother shall have custodial  time with the minor child, as  follows:

A. On Alternating  weekends from Friday, at the end of the  school  day  until  Monday,  prior  to   the  beginning  of  school,  commencing  during   the  first   week  of  September, 2007.  Such periods of custodial time shall  take  place  within  forty  (40)  miles  from   the  father’s  residence  located in Allen, Texas.  In the event that  there   is  no  school  on  the  Friday  of  the  mother’s  weekend, she shall  have custodial time with the child  beginning  at 7.00 a.m. on Friday morning, and, in the  event that there is no school on Monday of the mother’s  custodial weekend, she shall have custodial time until  5.00 p.m.  on Monday, and  

B. For ten (10) consecutive days during Spring vacation  from school; and   

C. For the entirety of the Christmas recess from School,  except  for  Christmas  Eve  and  Christmas  day,  which  shall be with the father.  In the event that  the school  recess is prior to Christmas Eve, the mother shall have  the right to have custodial time during those  recessed  

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days to long as she  produces the child at the father’s  residence for Christmas Eve and Christmas day ; and

D. During the following holidays:

i) Mother’s birthday, which is on April 25;

ii) Mother’s Day;

iii) Hindu Festival of Diwali and Deepavali;

iv) Adithya’s birthday (July 1) in alternating years;

v) Thanks giving  in alternating years (so that the  mother  has  custodial  time  during  even  –  numbered years  and the father has custodial  time during odd – numbered years);  

vi) New Year’s  Day in alternating years  (so that  the  mother  has custodial  time during even –  numbered years  and the father has custodial  time  during odd –numbered years) ;………… ……………..

…………………………………………………… ORDERED,  that  the  parties   shall  share  the  

summer recess from school so that the mother has  custodial time for a  total  of up to fifty (50) days on a  schedule so that each party has custodial time for 4  consecutive weeks, with the mother’s custodial  time  commencing on the Monday following the final day of  school……….

ORDERED,  for  the  summer  of  2007,  the  mother shall  have custodial  time from June 18 until  June  20;  the  father  shall  have  custodial  time  from  June 20 until June 24; the mother shall have custodial  time from June 25 until July 1; the  father shall have  custodial time from July 1 until July 6; and the mother  shall  then   have  custodial  time  from  July  6  until  August   3  and she shall  be solely  responsible   for  transporting  the  child  to  the  father’s  residence  in  Allen,  Texas  on  August  3.    The father  shall  have  custodial  time  until  the  commencement  of  school.  Thereafter the father shall continue  to have custodial  time until  such time as the mother either  a) returns  from  India  and/or  begins  her  alternating  weekly  

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schedule as set froth herein, or b) moves  within 40  miles  of  the  father’s  residence  in  Allen,  Texas  and  commences  her  custodial  time  during  alternating  weeks;……………………………… ……………………………………………………. …………………………………………………….

ORDERED,  that  each party  agrees  that  they  shall  provide the other parent with a phone number  and address where the child will be located at all time,  and that the other parent shall have reasonable and  regular telephone communication with the minor child;  and it is  further  

ORDERED, that each party  agrees to provide  the other party with the child’s passport during each  custodial exchange of the minor child, and that each  party  shall  sign  and  deliver  to  the  other,  whatever  written authorization may be necessary for travel with  the  child  within  the  Continental   United  States  or  abroad;”……………………………………….

6. On June 28, 2007 respondent no.6 brought minor Adithya  

to India informing the petitioner   that she would be residing with her  

parents  in  Chennai.   On August  08,  2007,  the  petitioner  filed  the  

petition  for  modification  (Custody)  and Violation  Petition  (Custody)  

before the Family Court of the State of New York on which a show  

cause notice came to be issued to respondent no.6.  On that very  

day,  the petitioner  was granted temporary sole  legal  and physical  

custody of Adithya and respondent no. 6 was directed to immediately  

turn over the minor child and his passport to the petitioner and further  

her custodial  time with the minor child was suspended and it  was  

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ordered that  the issue of custody of Adithya shall  be heard in the  

jurisdiction  of  the  United  States  Courts,  specifically,  the  Albany  

County Family Court.

7. It  transpires  that  the Family Court  of  the State of  New  

York  has  issued  child  abuse  non-bailable  warrants  against  

respondent no.6.

8. In  the  backdrop  of  the  aforenoticed  facts,  we  have  to  

consider—now since the  child has been produced—what should be  

the appropriate order in the facts and circumstances keeping in mind  

the interest of the child and the orders of the  courts of the country  of  

which the child is a national.

9. In re B—’s Settlement,1 Chancery Division was concerned  

with  an application for  custody by the father of  an infant  who had  

been made a ward of court.  The father was a Belgian national and  

the mother a British national who took Belgian nationality on marriage  

to him. The infant was born in Belgium. The mother was granted a  

divorce by a judgment of the Court  in Belgium, but the judgment was  

reversed and the father became entitled  to custody by the common  

1 {1940} Ch. 54

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law  of Belgium.  The mother, who had gone to live in England, visited  

Belgium and was by arrangement given the custody of the infant for  

some days.  She took him to England and did not return him. The  

infant had been living with mother in England for nearly two years.  

The  father  began  divorce  proceedings  in  Belgium,  and  the  Court  

appointed him guardian.  Pending the proceedings,  the Court  gave  

him the custody and ordered the mother to return the infant within  

twenty-four hours of service of the order on her.  She did not return  

the  infant.  The  Correctional  Court  in  Brussels  fined  her  for  

disobedience and sentenced her to imprisonment  should the fine be  

not paid.  The Correctional Court also confirmed the custody order.  

In the backdrop of these facts, the summons taken out by the father  

that custody of the infant be given to him came up before  Morton, J.  

who after hearing the parties and  in view of the provisions of the  

Guardianship of Infants Act, 1925 observed thus:

“…At  the  moment  my  feeling   is  very  strong  that,  even  assuming  in the father’s favour  that  there is nothing in his  character  or habits which would render him  unfitted to have  the custody of the child, the welfare of the child requires, in  all the circumstances as they exist, that he should remain in  England for the time being…………………………

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In the present case the position is that nearly two years ago,  when the child  was already  in  England, an interlocutory  order was made by the Divorce Court in Belgium giving the  custody of the child to the father   I do not know how far, if at  all,  the matter was considered on the footing of what was  best for the child  at that time, or whether  it was regarded as  a  matter of course that the father, being  the guardian by the  common law of  Belgium and the applicant  in the divorce  proceedings  and the only  parent in  Belgium, should be  given  the custody.  I cannot regard that order as  rendering  it in any way  improper or contrary to the comity of nations if I  now consider,  when the boy has  been in  this  country  for  nearly two years, what is in the best  interests of the boy.  I  do not think it  would be right for the  Court, exercising its  jurisdiction over a ward who is in this country, although he is  a  Belgian  national,  blindly  to  follow  the  order  made   in  Belgium on October 5, 1937.  I think the present case differs  from  Nugent v. Vetzera {FN10}, the case that was before  Page Wood V.-C., and it is to be observed that  even  in that  case,  and  in  the  special  circumstances  of  that  case,  the  Vice-Chancellor  guarded  himself   against  anything   like  abdication of the control  of this Court over its wards.  It does  not  appear  what  the  Vice-Chancellor’s  view   would  have  been if there had been  evidence, for example, that it would  be  most detrimental  to the health  and well-being  of the  children   if  they were removed from England and sent  to  Austria…………………………………………..

……..I ought to give due weight to any views formed by the  Courts of the country whereof the infant is a national.  But I  desire to say  quite plainly  that in my view  this Court  is  bound   in  every  case,  without   exception,   to  treat  the  welfare  of  its  ward   as  being  the  first   and  paramount  consideration, whatever orders  may have been made  by  the Courts of any other country.”……………… ……………… ………….  

10. In  Mark T.  Mc.Kee vs. Eyelyn McKee2, the Privy Council  

was concerned  with an appeal from  the Supreme Court of Canada.  

That  was  a  case  where  the  parents  of  the  infant  were  American  

2 {1951} A.C. 352

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citizens. They were married in America and to whom a son was born  

in California in July 1940.   They separated in December 1940 and on  

September  4,  1941,  executed  an  agreement  which  provided,  

inter-  alia,  that  neither of them should remove the child out of the  

United  States  without  the  written  permission  of  the  other.  By  a  

judgment of  December  17, 1942, in divorce  proceedings  before the  

Superior Court of the State of California,  the custody of the child was  

awarded  to the father.  On August 1,  1945, following applications by  

the father  and the mother,  the previous order  as to  custody  was  

modified  to provide full custody of the child to the mother with right of  

reasonable  visitation  to  the  father.  Thereafter,  and  without  the  

consent or knowledge of  the  mother,  the father  went  from the  

United States of America  with the child   into the Province of Ontario.  

The mother thereupon instituted habeas corpus proceedings  in the  

Supreme Court of  Ontario seeking to have the child delivered to her.  

Wells,  J.,  before   whom  the  matter  came held  that  infant’s  best  

interests would be served in the custody of his father.  The Court of  

Appeal for Ontario dismissed  the appeal preferred by the mother.  

However,  the  Supreme  Court  of  Canada  by  majority  judgment  

allowed the appeal of the mother and set aside the order of custody  

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of child  to  the father.  On appeal from the Supreme Court of Canada  

at the instance of the father, the Privy Council  held as follows:

“……….For, after reaffirming  “the well established general  rule that in all questions relating  to the custody  of an infant  the paramount  consideration is the welfare  of  the infant”,  he  observed  that  no  case  had  been  referred  to  which  established  the proposition  that, where the facts    were  such as  he found them to exist  in the  case, the salient  features of which have been stated, a parent  by the simple  expedient of taking the  child with him across the border into  Ontario for the sole purpose  of avoiding obedience to the  judgment of the court, whose jurisdiction he himself invoked,  becomes “entitled as of right to have  the whole question  retried in our courts and to have them reach a anew and  independent judgment as  to what is best for the infant”. and  it is, in effect, because he held  that the  father  had no such  right  that the judge allowed the appeal of the mother, and  that the Supreme Court made the order already referred to. But  with  great  respect  to  the   judge,   this  was  not  the  question which had to be determined.   It is possible  that a  case might arise  in which it  appeared to a court,  before  which  the question of custody  of an infant  came, that it was  in the best  interests of  that  infant  that  it  should not   look  beyond the  circumstances  in which  its jurisdiction  was  invoked   and  for  that  reason   give  effect  to  the  foreign  judgment without further inquiry.  But it is  the  negation of  the proposition, from which every judgment  in this case has  proceeded,  namely,  that  the  infant’s  welfare   is  the  paramount  consideration, to say that where the trial judge  has  in  his  discretion  thought  fit  not  to   take  the  drastic  course  above  indicated,  but  to  examine   all  the  circumstances  and  form  an   independent  judgment,  his  decision  ought for that reason to be overruled.   Once it is  conceded  that  the   court  of  Ontario  had  jurisdiction  to  entertain the question of custody and that it need not blindly  follow an order made by a foreign court, the consequence  cannot  be  escaped   that  it  must  form  an  independent  judgment  on the question,  though in doing  so it  will  give  proper weight  to the foreign judgment.  What is the proper  weight  will depend on the circumstances  of each case.  It  may be that, if the matter  comes before the  court of Ontario  within  a very short time of the foreign judgment and there is  no new circumstance to be considered,  the weight  may be  

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so great  that such an order  as the Supreme Court made in  this  case  could  be  justified.    But  if  so,  it  would  be  not  because the court of Ontario, having assumed  jurisdiction,  then  abdicated   it,  but  because   in  the  exercise   of  its  jurisdiction it  determined what was for the  benefit   of the  infant.

It cannot be ignored that such consequences might follow as  are suggested  by Cartwright, J.  The disappointed  parent  might meet stratagem by  stratagem and, taking  the child  into the Province of Manitoba, invoke  the protection  of its  courts,  whose  duty  it  would  then  be  to   determine   the  question  of  custody.  That is  a consideration which,  with  others,  must  be  weighed   by  the  trial  judge.   It  is  not,  perhaps, a consideration which in the present case should  have weighed heavily.

It has been said  that the weight  or persuasive effect of a  foreign  judgment must  depend  on the  circumstances of  each case.  In the present case there was ample  reason for  the trial judge, in the  first place, forming  the opinion that he  should  not take the drastic course of  following it without  independent  inquiry and, in the second place, coming to a  different  conclusion  as  to  what  was  for  the   infant’s  benefit.”……………………………..               

11. The  aforesaid  two cases  came up  for  consideration  in  

Harben vs. Harben3, wherein  Sachs J.  observed as follows:

“It has always been the   practice  of this  court  to  ensure  that a parent  should not gain advantage by the use  of fraud  or force  in relation to the kidnapping  of children  from  the  care  of  the  other  spouse,  save  perhaps  where  there is some quite  overwhelming reason  in the children’s  interest  why the status  quo should not be restored by the  court before  deciding further issues.  In the present  case I  am  concerned with three young  children, two of whom are  girls   and  the  youngest   is  aged  only  three.   It  is   a  particularly  wicked thing to snatch such children  from the  care  of a mother, and, in saying that,  I have in  mind not  merely  the mother’s position but the harm  that can be  done  

3 {1957} 1. W.L.R.  261

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to the children.    No affidavit   of the  husband  tendering  either his regrets  or any vestige of excuse for his action has  been proffered.  Further, as I have already mentioned, when  first  I  asked Mr.  Syms what  was the  nature  of  the  case  which  he might  wish to make, if so minded, for depriving  these  children   of  a  mother’s  care,  he  only  spoke  of  her  association with a certain man and  never suggested that  she  had  in  any  way   whatsoever  failed  to  look  after  the  children properly.”

12. In  Kernot vs. Kernot4 , the facts were  thus: In May 1961,  

the plaintiff mother, an Italian lady, married an English man in Italy  

where both were residents. A boy was born there on March 29, 1962.  

On October  19,  1963,  they obtained  in  Italian  Court  a  separation  

order by consent  providing therein that  custody of the child  would  

remain with father, with rights of  access  to the mother . On October  

29, 1963, the father brought the infant to England with intention to  

make  England  his  home.  The  mother  commenced  wardship  

proceedings in which she brought a motion for an order   that the  

father return the infant  to her in Italy.  She also prayed for restraint  

order against him from taking the infant out of her care.  Buckley, J. in  

these facts held thus:

“So that  even where a foreign  court has made an order on  the merits – which is not the present case, because the only  order which has been made was a  consent order without  any investigation of  the merits   by the Italian court  – that  domestic  court before whom the matter comes (the Ontario  

4 {1965} Ch.217

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court in the case to which  I have just referred, or this court  in the case before me)  is bound to consider what is in the  best  interests of the infant; and although the order of the  foreign   court  will  be   attended   to  as   one  of  the  circumstances  to be taken into  account  it is not conclusive  one way or the other.  How much stronger must the duty of  this court   be to entertain the case where the foreign court  has not made any order based on any investigation of the  case on its merits.”       

13. In  re  H.  (Infants)5,  the Court  of  Appeal  was  concerned  

with two American boys whose divorced parents were both citizens  

of United States of America.  On December 11, 1964, the Supreme  

Court of New York  State  made a consent order  directing  that the  

two boys whose custody had been given to the mother should be  

maintained  in her apartment in New York  and not be removed  from  

a 50 miles’ radius of Peekskill  without the prior  written consent of  

the father.  However, the  mother in March 1965 brought these boys  

to  England  and bought  a  house for  herself  and children in  June  

1965.  On June 15, 1965, the New York Court   ordered   the children  

to  be  returned  to  New  York.  The  mother  started  wardship  

proceedings in the English court.  The  father took  out motion  asking  

the mother that the two children should be delivered into his  care,  

that he should be at liberty to convey  them to New York and that the  

wardship  of the children  should be discharged.  The Trial Judge held  5 (1966) 1 W.L.R. 381 = (1966) 1 All.E.R. 886

15

that  the  justice  of  the  case  required  the  children  to  be  returned  

without delay  to the jurisdiction of the New York  court, so that  the  

question of where and with whom they should live might be decided  

as soon as possible by that court.  The mother appealed to the Court  

of Appeal.  Willmer L.J. and  Harman L.J. by their separate judgments  

affirmed the  view of the  Trial Judge and held that the  proper order  

was to  send these two boys  back to their  State of New York,  where  

they belong (and where the Supreme Court is already seized of their  

case), and more  especially  so having  regard to the fact  that they  

have  been  kept  in  flagrant   contempt  of  New York  Court’s  order.  

Willmer L.J.  agreed with the  remark of  Cross J.  where he said:

“The sudden  and unauthorized removal  of children  from  one  country to another is far too frequent nowadays, and as  it seems to me it is  the duty of all courts in all countries  to  do all they  can to ensure  that the wrongdoer does not gain  an advantage by his wrongdoing.”

Willmer L.J. went on to hold:

“The judge took the view (and I think  it was the  right    view)  that in a case such as the present  it was not necessary to  go into all the disputed questions between the parents, but  that  he ought  to send these boys back to their  own country  to be dealt with by the court of their own country, provided  that he was satisfied  (as he was satisfied, having seen the  father  himself,  and  having  had  the   benefit   of  the  view  expressed on behalf  of the Official Solicitor)  that they would  come to no harm if the father took them  back to the  United  States;  and  that  this  was  so,  even  though    it  might  

16

subsequently   turn out, after all the merits of the case had  been thoroughly  thrashed out in the court  in New York,  that  it would  perhaps   be better after all for the boys to reside in  England and see little or nothing  of their father.”

Harman L.J. in his separate judgment  held thus:

“…….But if  he chose to take  the course  which the judge  here took in the interests of the children , as he thought, of  sending  them back to the United States with no more inquiry  into the matter  than to ensure, so far as he could, that  there  was no danger to their moral or physical health in taking that  course, I am of opinion  that he was amply justified, and that  that  was the right  way in which to approach the issue.

These children  had been the subject  of an order  (it  is  true made by consent) made in the courts of their own  country in December, 1964.  It  was only three months  later  that  the  mother  flouted  that  order,  deceived   her  own  advisers and deceived the court , and brought  the children  here  with the object of taking them right out of their father’s  life and depriving him altogether of their society.  The interval  is so short that  it seems to me that the court inevitably was  bound to view the matter through those spectacles; that is to  say, that the order having been  made so shortly before, and  there being no difference  in the circumstances  in the three  months  which had elapsed , there was no justification for  the course which the mother had taken, and that she was  not  entitled to seek  to bolster her own  wrong by seeking  the assistance of this court in perpetuating that position, and  seeking to change the situation to the father’s disadvantage.”

14. In  re.  L  (minors)6,  the  Court  of  Appeal  was  

concerned with the custody of the foreign children who were  

removed from foreign jurisdiction by one parent.  That  was a  

case  where  a  German  national  domiciled  and  resident  in  

Germany married an English woman. Their matrimonial home  6 (1974) 1 All ER 913

17

was  Germany  and  the  two  children  were  born  out  of  the  

wedlock  and  brought  up  in  Germany.  The  lady  became  

unhappy in her married life and in August, 1972, she brought  

her  children  to  England  with  an  intention  of  permanently  

establishing herself and the children in England. She obtained  

residential  employment  in  the  school  in  England  and  the  

children were accommodated at  the school.  The children not  

having returned to Germany, the father came to England to find  

them.  On October 25, 1972, the mother issued an originating  

summons making them wards of court.  The trial judge found  

that  the  children  should  be  brought  up  by  their  mother  and  

treating the case as a ‘kidnapping’ class of case, approached  

the matter by observing that in such a case where the children  

were foreign children, who had moved in a foreign home, their  

life  should  continue  in  what  were  their  natural  surroundings,  

unless it appeared to the court that it would be harmful to the  

children if they were returned. He concluded that in view of the  

arrangements  which  their  father  could  make  for  them,  the  

children  would  not  be  harmed  by  being  returned.  He,  

accordingly, ordered that they be returned to Germany and that  

18

they  remain  in  their  father’s  custody  until  further  order.  The  

mother appealed, contending that in every case the welfare of  

the child was the first and paramount consideration and that the  

welfare of  the children would be best  served by staying with  

their  mother  in  England.  Buckley,  LJ  in  his  detailed  

consideration  of  the  matter,  wherein  he  referred  to  the  

aforenoticed decisions and few other decisions as well, held as  

follows :   

“…….Where  the  court  has  embarked  on  a  full-scale  investigation of that facts, the applicable principles, in my view, do  not differ from those which apply to any other wardship case. The  action of one party in kidnapping the child is doubtless one of the  circumstances  to  be  taken  into  account,  any  may  be  a  circumstance of great weight; the weight to be attributed to it must  depend on the circumstances of the particular case. The court may  conclude that  notwithstanding the conduct  of  the ‘kidnapper’  the  child should remain in his or her care (McKee v. McKee, Re E (an  infant) and Re. T.A. (infants), where the order was merely interim);  or it may conclude that the child should be returned to his or her  native country or the jurisdiction from which he or she has been  removed. Where a court makes a summary order for the return of a  child to a foreign country without investigating the merits, the same  principles, in my judgment apply, but the decision must be justified  on somewhat different grounds.

…………………………………………………………………… ………..The judge may well be persuaded that it would be better for  the child that those merits should be investigated in a court in his  native country than that he should spend in this country the period  which  must  necessarily  elapse  before  all  the  evidence  can  be  assembled for adjudication here. Anyone who has had experience  of  the  exercise  of  this  delicate  jurisdiction  knows  what  complications can result from a child developing roots in new soil,  and what conflicts this can occasion in the child’s own life. Such  roots can grow rapidly. An order that the child should be returned  forthwith to the country from which he has been removed in the  expectation that any dispute about his custody will be satisfactorily  

19

resolved  in  the  courts  of  that  country  may well  be  regarded  as  being in the best interests of the child……”

 15. In  re.  L.  (minors)6,  the  Court  of  Appeal  has  made  a  

distinction  between cases, where the court considers the facts and  

fully  investigates  the  merits  of  a  dispute,  in  a  wardship  matter  in  

which the welfare of the child concerned is not the only consideration  

but is the first  and paramount consideration,  and cases where the  

court  do  not  embark  on a  full-scale  investigation  of  the  facts  and  

make a summary order for the return of a child to a foreign country  

without investigating the merits. In this regard, Buckley, L.J. noticed  

what was indicated by the Privy Council  in  McKee v. McKee2 that  

there may be cases in which it is proper for a court in one jurisdiction  

to  make  an  order  directing  that  a  child  be  returned  to  a  foreign  

jurisdiction without investigating the merits of the dispute relating to  

the care of the child on the ground that such an order is in the best  

interest of the child.

16. This Court in Smt. Surinder Kaur Sandhu v. Harbax Singh  

Sandhu and Another7 was concerned with the custody of a child—

British citizen by birth—to the parents of Indian citizens,  who after  

7 (1984) 3 SCC 698

20

their  marriage  settled  in  England.  The  child  was  removed  by  the  

husband from the house when the wife was in the factory where she  

was working and brought him to India. The wife obtained an order  

under  Section  41(English)  Supreme  Court  Act,  1981  whereby  the  

husband was directed to handover the custody of the boy to her. The  

said order was later on confirmed by the High Court in England. The  

wife then came to India and filed a writ petition under Article 226 in  

the High Court praying for production and custody of the child. The  

High  Court  dismissed  her  writ  petition  against  which  the  wife  

appealed before this Court. Y.V. Chandrachud, C.J. (as he then was)  

speaking for the Court held thus :

“The modern theory of Conflict of Laws recognises and, in  any event, prefers the jurisdiction of the State which has the most  intimate contact with the issues arising in the case. Jurisdiction is  not  attracted  by  the  operation  or  creation  of  fortuitous  circumstances  such  as  the  circumstance  as  to  where  the  child,  whose custody is in issue, is brought or for the time being lodged.  To allow the assumption of  jurisdiction by another State in such  circumstances  will  only  result  in  encouraging  forum-shopping.  Ordinarily, jurisdiction must follow upon functional lines. That is to  say, for example, that in matters relating to matrimony and custody,  the law of that place must govern which has the closest concern  with the well-being of the spouses and the welfare of the offsprings  of  marriage.  The spouses  in  this  case  had made  England  their  home where this boy was born to them. The father cannot deprive  the English Court of its jurisdiction to decide upon his custody by  removing  him  to  India,  not  in  the  normal  movement  of  the  matrimonial home but, by an act which was gravely detrimental to  the peace of that home. The fact that the matrimonial home of the  spouses was in England, establishes sufficient contacts or ties with  that State in order to make it reasonable and just for the courts of  that State to assume jurisdiction to enforce obligations which were  

21

incurred therein by the spouses. (See International Shoe Company  v. State of Washington which was not a matrimonial case but which  is regarded as the fountainhead of the subsequent developments of  jurisdictional issues like the one involved in the instant case.) It is  our  duty  and  function  to  protect  the  wife  against  the  burden  of  litigating in an inconvenient forum which she and her husband had  left voluntarily in order to make their living in England, where they  gave birth to this unfortunate boy.”

17. In  Mrs.  Elizabeth  Dinshaw  v.  Arvand  M.  Dinshaw and  

Another8, this Court held that it was the duty of courts in all countries  

to  see that  a  parent  doing wrong by removing children out  of  the  

country does not gain any advantage by his or her wrongdoing. In  

para 9 of the report, this Court considered the decision of the Court of  

Appeal in re H.5 and approved the same in the following words:

“9. In  Re H.  (infants)  [(1966)  1  All  ER 886]  the  Court  of  Appeal in England had occasion to consider a somewhat similar  question.  That  case concerned the abduction  to  England of  two  minor boys who were American citizens. The father was a natural- born American citizen and the mother,  though of  Scottish origin,  had been resident for 20 years  in the United States of America.  They  were  divorced  in  1953  by  a  decree  in  Mexico,  which  embodied provisions entrusting the custody of the two boys to the  mother with liberal access to the father. By an amendment made in  that order in December 1964, a provision was incorporated that the  boys should reside at all times in the State of New York and should  at all times be under the control and jurisdiction of the State of New  York.  In March 1965,  the mother  removed the boys to  England,  without having obtained the approval of the New York court, and  without  having  consulted  the  father;  she  purchased  a  house  in  England with the intention of remaining there permanently and of  cutting off all contacts with the father. She ignored an order made in  June 1965, by the Supreme Court of New York State to return the  boys  there.  On  a  motion  on  notice  given  by  the  father  in  the  Chancery Division of the Court in England, the trial Judge Cross, J.  directed  that  since  the children  were American children  and the  

8 (1987) 1 SCC 42

22

American court was the proper court to decide the issue of custody,  and as it was the duty of courts in all countries to see that a parent  doing wrong by removing children out of their country did not gain  any advantage by his or her wrongdoing, the court without going  into  the  merits  of  the  question  as  to  where and with  whom the  children should live, would order that the children should go back to  America. In the appeal filed against the said judgment in the Court  of Appeal, Willmer, L.J. while dismissing the appeal extracted with  approval  the  following  passage  from  the  judgment  of  Cross,  J.  [(1965) 3 All ER at p. 912. (Ed. : Source of the second quoted para  could not be traced.)]:

“The sudden and unauthorised removal of children from one  country to another is far too frequent nowadays,  and as it  seems to me, it is the duty of all courts in all countries to do  all they can to ensure that the wrongdoer does not gain an  advantage by his wrongdoing. The courts in all countries ought, as I see it, to be careful not  to do anything to encourage this tendency. This substitution  of self-help for due process of law in this field can only harm  the interests of wards generally, and a Judge should, as I  see it, pay regard to the orders of the proper foreign court  unless he is satisfied beyond reasonable doubt that to do so  would inflict serious harm on the child.”

10. With respect we are in complete agreement with the aforesaid  enunciation of the principles of law to be applied by the courts in  situations such as this.”

18. In  the  case of  Dhanwanti  Joshi v.  Madhav Unde9, this  

Court was again concerned with the matter relating to removal of a  

child from one country to another contrary to custody order of  the  

court  from  where  the  child  was  removed.  This  court  considered  

English decisions, inter alia,  McKee v.  McKee2 and H. (infants),  re.5  

and also noticed the decision of this Court in Mrs. Elizabeth Dinshaw8  

and observed as follows :

9 (1998) 1 SCC 112

23

“28.  The leading case in this behalf is the one rendered by  the Privy Council in 1951, in McKee v. McKee [(1951) AC 352]. In  that case, the parties, who were American citizens, were married in  USA in  1933  and  lived  there  till  December  1946.  But  they  had  separated in December 1940. On 17-12-1941, a decree of divorce  was passed in USA and custody of the child was given to the father  and later varied in favour of the mother. At that stage, the father  took away the child to Canada. In habeas corpus proceedings by  the  mother,  though  initially  the  decisions  of  lower  courts  went  against her, the Supreme Court of Canada gave her custody but  the said Court held that the father could not have the question of  custody retried in  Canada once the question was adjudicated in  favour of  the mother in the USA earlier.  On appeal  to the Privy  Council, Lord Simonds held that in proceedings relating to custody  before the Canadian Court, the welfare and happiness of the infant  was of paramount consideration and the order of a foreign court in  USA  as  to  his  custody  can  be  given  due  weight  in  the  circumstances of the case, but such an order of a foreign court was  only one of the facts which must be taken into consideration. It was  further held that it was the duty of the Canadian Court to form an  independent judgment on the merits of the matter in regard to the  welfare of the child. The order of the foreign court in US would yield  to  the  welfare  of  the  child.  “Comity  of  courts  demanded  not  its  enforcement,  but its  grave consideration”.  This case arising from  Canada which lays down the law for Canada and U.K. has been  consistently followed in latter cases. This view was reiterated by the  House of Lords in J v. C (1970 AC 668). This is the law also in USA  (see 24  American Jurisprudence,  para 1001) and Australia. (See  Khamis v. Khamis [(1978) 4 Fam LR 410 (Full Court) (Aus)].

29. However, there is an apparent contradiction between the above  view and the one expressed in H. (infants), Re[(1966) 1 All ER 886]  and in E. (an infant), Re [(1967) 1 All ER 881] to the effect that the  court in the country to which the child is removed will send back the  child to the country from which the child has been removed. This  apparent  conflict  was  explained  and  resolved  by  the  Court  of  Appeal in 1974 in L. (minors) (wardship : jurisdiction), Re [(1974) 1   All  ER 913,  CA] and in  R. (minors)  (wardship :  jurisdiction),  Re  [(1981) 2 FLR 416 (CA)]. It was held by the Court of Appeal in L.,   Re [(1974) 1 All  ER 913, CA] that the view in  McKee v.  McKee  [1951 A.C. 352 : (1951) All ER 942]  is still the correct view and that  the limited question which arose in the latter decisions was whether  the  court  in  the  country  to  which  the  child  was  removed  could  conduct (a) a summary inquiry or (b) an elaborate inquiry on the  question of custody. In the case of (a) a summary inquiry, the court  would  return  custody  to  the  country  from  which  the  child  was  

24

removed unless such return could be shown to be harmful to the  child. In the case of (b) an elaborate inquiry, the court could go into  the merits as to where the permanent welfare lay and ignore the  order of the foreign court or treat the fact of removal of the child  from another country as only one of the circumstances. The crucial  question as to whether the Court (in the country to which the child  is removed) would exercise the summary or elaborate procedure is  to be determined according to the child’s welfare.  The  summary  jurisdiction to return the child is invoked, for example, if the child  had been removed from its native land and removed to another  country where, maybe, his native language is not spoken, or the  child gets divorced from the social customs and contacts to which  he has been accustomed, or if its education in his native land is  interrupted and the child is being subjected to a foreign system of  education,  — for  these  are  all  acts  which  could  psychologically  disturb the child. Again the summary jurisdiction is exercised only if  the court to which the child has been removed is moved promptly  and quickly, for in that event, the Judge may well be persuaded that  it  would  be  better  for  the  child  that  those  merits  should  be  investigated in a court in his native country on the expectation that  an early decision in the native country could be in the interests of  the  child  before  the  child  could  develop  roots  in  the  country  to  which  he  had  been removed.  Alternatively,  the  said  court  might  think of conducting an elaborate inquiry on merits and have regard  to the other facts of the case and the time that has lapsed after the  removal of the child and consider if it would be in the interests of  the child not to have it returned to the country from which it had  been removed. In that event, the unauthorised removal of the child  from the native country would not come in the way of the court in  the country  to  which the child  has been removed,  to  ignore the  removal and independently consider whether the sending back of  the child to its native country would be in the paramount interests of  the child. (See Rayden & Jackson, 15th Edn., 1988, pp. 1477-79;  Bromley, Family law,  7th Edn., 1987.) In  R. (minors) (wardship :   jurisdiction), Re [(1981) 2 FLR 416 (CA)]   it has been firmly held  that  the  concept  of  forum conveniens has no place in  wardship  jurisdiction.

30.  We may here  state  that  this  Court  in  Elizabeth  Dinshaw v.  Arvand M. Dinshaw [(1987) 1 SCC 42 : 1987 SCC (Crl.) 13] 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  

25

application  in  India  were within  six  months.  In  that  context,  this  Court referred to H. (infants), Re which case, as pointed out by us  above has been explained in  L.  Re 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 and J v. C and the distinction between summary  and elaborate inquiries as stated in  L. (infants), Re 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.”

However, in view of the fact that the child had lived with his  

mother in India for nearly twelve years, this Court held that it would  

not  exercise  a  summary  jurisdiction  to  return  the  child  to  United  

States of America on the ground that its removal from USA in 1984  

was contrary to orders of U.S. Courts. It was also held that whenever  

a question arises before a court pertaining to the custody of a minor  

child, matter is to be decided not on considerations of the legal rights  

of the parties but on the sole and predominant criterion of what would  

best serve the interest of the minor.  

19. In  the  case  of  Sarita  Sharma v.  Sushil  Sharma10,  this  

Court was seized with a matter where the mother had removed the  

children from U.S.A. despite the order of the American Court. It was  

held :  

10 (2000) 3 SCC 14  

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“6. Therefore, it will not be proper to be guided entirely by  the fact  that  the appellant  Sarita  had removed the children from  U.S.A. despite the order of the Court of that country. So also, in  view of the facts and circumstances of the case, the decree passed  by the American Court though a relevant factor, cannot override the  consideration  of  welfare of  the  minor  children.  We have already  stated earlier that in U.S.A. respondent Sushil is staying along with  his mother aged about 80 years. There is no one else in the family.  The  respondent  appears  to  be  in  the  habit  of  taking  excessive  alcohol.  Though  it  is  true  that  both  the  children  have  American  citizenship and there is a possibility that in U.S.A they may be able  to get better education, it is doubtful if the respondent will be in a  position to take proper care of the children when they are so young.  Out  of  them, one is a female child.  She is  aged about  5 years.  Ordinarily,  a  female  child  should  be  allowed  to  remain  with  the  mother  so  that  she  can  be  properly  looked  after.  It  is  also  not  desirable  that  two  children  are  separated  from each  other.  If  a  female child has to stay with the mother, it will be in the interest of  both the children that they both stay with the mother. Here in India  also proper care of the children is taken and they are at present  studying in good schools. We have not found the appellant wanting  in  taking  proper  care  of  the  children.  Both  the  children  have  a  desire to stay with the mother. At the same time it must be said that  the son, who is elder then the daughter, has good feelings for his  father also. Considering all the aspects relating to the welfare of the  children, we are of the opinion that in spite of the order passed by  the Court in U.S.A. it  was not proper for the High Court to have  allowed the habeas corpus writ petition and directed the appellant  to hand over custody of the children to the respondent and permit  him to take them away to U.S.A. What would be in the interest of  the children requires a full and thorough inquiry and, therefore, the  High  Court  should  have  directed  the  respondent  to  initiate  appropriate proceedings in which such an inquiry can be held. Still  there is some possibility of the mother returning to U.S.A. in the  interest of the children. Therefore, we do not desire to say anything  more  regarding  entitlement  of  the  custody  of  the  children.  The  chances of the appellant returning to U.S.A. with the children would  depend upon the joint efforts of the appellant and the respondent to  get the arrest warrant cancelled by explaining to the Court in U.S.A.  the circumstances under which she had left U.S.A. with the children  without taking permission of the Court.  There is a possibility that  both of them may thereafter be able to approach the Court which  passed the decree to suitably modify the order with respect to the  custody of the children and visitation rights.”

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20. While dealing with a case of custody of a child removed  

by a parent from one country to another in contravention to the orders  

of the court where the parties had set up their matrimonial home, the  

court  in  the  country  to  which  child  has  been  removed  must  first  

consider the question whether the court could conduct an elaborate  

enquiry  on  the  question  of  custody  or  by  dealing  with  the  matter  

summarily order a parent to return custody of the child to the country  

from which the child was removed and all aspects relating to child’s  

welfare be investigated in a court in his own country. Should the court  

take  a  view that  an elaborate  enquiry  is  necessary,  obviously  the  

court is bound to consider the welfare and happiness of the child as  

the  paramount  consideration  and  go  into  all  relevant  aspects  of  

welfare  of  child  including  stability  and  security,  loving  and  

understanding care and guidance and full development of the child’s  

character,  personality  and  talents.  While  doing  so,  the  order  of  a  

foreign court as to his custody may be given due weight; the weight  

and  persuasive  effect  of  a  foreign  judgment  must  depend  on  the  

circumstances  of  each case.  However,  in  a  case where the court  

decides to exercise its jurisdiction summarily to return the child to his  

own country, keeping in view the jurisdiction of the Court in the native  

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country which has the closest concern and the most intimate contact  

with the issues arising in the case, the court may leave the aspects  

relating to the welfare of the child to be investigated by the court in  

his own native country as that could be in the best interest of the  

child.  The indication given in  McKee v.  McKee2 that there may be  

cases in which it is proper for a court in one jurisdiction to make an  

order directing that a child be returned to a foreign jurisdiction without  

investigating the merits of the dispute relating to the care of the child  

on the ground that such an order is in the best interest of the child  

has been explained in  re. L (minors)6 and the said view has been  

approved by this Court in Dhanwanti Joshi9. Similar view taken by the  

Court  of  Appeal  in re.  H5 has  been  approved  by  this  Court  in  

Elizabeth Dinshaw8.         

21. Do  the  facts  and  circumstances  of  the  present  case  

warrant an elaborate enquiry into the question of custody of minor  

Adithya and should the parties be relegated to the said procedure  

before  appropriate  forum  in  this  country  in  this  regard?  In  our  

judgment,  this  is  not  required.  Admittedly,  Adithya  is  an American  

citizen,  born and brought  up in United States of  America.  He has  

spent his initial years there. The natural habitat of Adithya is in United  

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States of America. As a matter of fact, keeping in view the welfare  

and happiness of the child and in his best interest, the parties have  

obtained series of consent orders concerning his custody/parenting  

rights, maintenance etc. from the competent courts of jurisdiction in  

America. Initially,  on April 18, 2005, a consent order governing the  

issues of custody and guardianship of minor Adithya was passed by  

the New York State Supreme Court  whereunder the court  granted  

joint custody of the child to the petitioner and respondent no. 6 and it  

was stipulated in the order to keep the other party informed about the  

whereabouts  of  the  child.  In  a  separation  agreement  entered  into  

between the parties on July 28, 2005, the consent order dated April  

18,  2005  regarding  custody  of  minor  son  Adithya  continued.  In  

September  8,  2005  order  whereby  the  marriage  between  the  

petitioner and respondent no. 6 was dissolved by the New York State  

Supreme Court, again the child custody order dated April 18, 2005  

was incorporated. Then the petitioner and respondent no. 6 agreed  

for  modification  of  the  custody  order  and,  accordingly,  the  Family  

Court of the State of New York on June 18, 2007 ordered that the  

parties  shall  share  joint  legal  and  physical  custody  of  the  minor  

Adithya and, in this regard, a comprehensive arrangement in respect  

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of the custody of the child has been made. The fact that all orders  

concerning the custody of the minor child Adithya have been passed  

by  American  courts  by  consent  of  the  parties  shows  that  the  

objections  raised  by  respondent  no.  6  in  counter  affidavit  about  

deprivation of basic rights of the child by the petitioner in the past;  

failure of petitioner to give medication to the child; denial of education  

to  the  minor  child;  deprivation  of  stable  environment  to  the  minor  

child; and child abuse  are hollow  and without  any substance. The  

objection raised by the respondent no. 6 in the counter affidavit that  

the  American  courts  which  passed  the  order/decree  had  no  

jurisdiction and being inconsistent to Indian laws cannot be executed  

in  India  also  prima  facie  does  not  seem to  have  any merit  since  

despite the fact that the respondent no. 6 has been staying in India  

for more than two years,  she has not pursued any legal proceeding  

for the sole custody of the minor Adithya or for declaration that the  

orders  passed  by  the  American  courts  concerning  the  custody  of  

minor child Adithya are null and void and without jurisdiction. Rather  

it transpires from the counter affidavit that initially respondent no. 6  

initiated the proceedings under Guardianship and Wards Act but later  

on withdrew the same. The facts and circumstances noticed above  

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leave no manner of doubt that merely because the child has been  

brought to India by respondent no. 6, the custody issue concerning  

minor child Adithya does not deserve to be gone into by the courts in  

India and it would be in accord with principles of comity as well as on  

facts to return the child back to the United States of America from  

where he has been removed and enable the parties to establish the  

case before the courts  in  the native State of  the child,  i.e.  United  

States  of  America  for  modification  of  the  existing  custody  orders.  

There is nothing on record which may even  remotely suggest that it  

would be harmful for the child to be returned to his native country.

22. It is true that child Adithya has been in India for almost  

two years since he was removed by the mother—respondent   no. 6

—contrary to the custody orders of the U.S. court passed by consent  

of the parties. It is also true that one of the factors to be kept in mind  

in  exercise  of  summary  jurisdiction  in  the  interest  of  child  is  that  

application  for  custody/return  of  the  child  is  made  promptly  and  

quickly after the child has been removed.  This is so because any  

delay may result in child developing roots in the country to which he  

has been removed. From the counter affidavit that has been filed by  

respondent no. 6, it is apparent that in last two years child Adithya did  

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not have education at one place. He has moved from one school to  

another. He was admitted in school at Dehradun by respondent no. 6  

but then removed within few months. In the month of June, 2009, the  

child has been admitted in some school at Chennai. As a matter of  

fact, the minor child Adithya and respondent no. 6 could not be traced  

and their whereabouts could not be found for more than two years  

since the notice was issued by this Court. The respondent no. 6 and  

the child has been moving from one State to another. The parents of  

respondent no. 6 have filed an affidavit before this Court denying any  

knowledge or awareness of the whereabouts of respondent no. 6 and  

minor child Adithya ever since they left in September, 2007. In these  

circumstances, there has been no occasion for the child developing  

roots in this country. Moreover, the present habeas corpus petition  

has been filed by the petitioner promptly and without any delay, but  

since  the  respondent  no.  6  has  been  moving  from  one  State  to  

another and her whereabouts were not known, the notice could not  

be served and child could not be produced for more than two years.

23. In a case such as the present one, we are satisfied that  

return  of  minor  Adithya  to  United  States  of  America,  for  the  time  

being,  from where he has been removed and brought here would be  

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in the best interest of the child and also such order is justified in view  

of the assurances given by the petitioner that he would bear all the  

traveling expenses and make living arrangements for respondent no.  

6 in the United Sates of America till the necessary orders are passed  

by the  competent  court;  that  the  petitioner  would  comply  with  the  

custody/parenting rights as per consent order dated June 18, 2007 till  

such time as the competent court in United States of America takes a  

further  decision;  that  the  petitioner  will  request  that  the  warrants  

against respondent no. 6 be dropped; that the petitioner will not file or  

pursue any criminal charges for violation by respondent no. 6 of the  

consent  order  in  the  United  States  of  America  and  that  if  any  

application  is  filed  by respondent  no.  6  in  the  competent  court  in  

United States of America, the petitioner shall cooperate in expeditious  

hearing of such application. The petitioner has also stated that he has  

obtained confirmation from Martha Hunt Elementary School, Murphy,  

Texas,  75094,  that  minor  son  Adithya  will  be  admitted  to  school  

forthwith.  

24. The learned Senior Counsel for respondent no. 6 sought  

to raise an objection regarding the maintainability of habeas corpus  

petition under Article 32 of the Constitution before this Court but we  

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are not persuaded  to accept  the same. Suffice it to say that in the  

peculiar  facts  and  circumstances  of  the  case  which  have  already  

been noticed above and the order that we intend to pass, invocation  

of  jurisdiction  of  this  Court  under  Article  32 cannot  be said  to  be  

inappropriate.

25. We  record  our  appreciation  for  the  work  done  by  the  

concerned officers/officials of CBI in tracing  the minor child Adithya  

and producing him in less than two months of the order passed by  

this  Court,  although,  the  Police  Officers  and  Officials  of  different  

States failed in tracing the child Adithya and respondent no.  6 for  

more than two years. But for the earnest efforts on the part of the CBI  

authorities, it would not have been possible for this Court to hear and  

decide  this  habeas  corpus  petition  involving  the  sensitive  issue  

concerning a child of seven years who is a foreign national.

26. In  the  result  and  for  the  reasons  stated,  we  pass  the  

following order :

(i) The respondent no. 6 shall act as per the consent  

order dated June 18, 2007  passed by the Family Court of the  

State of New York till such time any further order is passed on  

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the petition that may be moved by the parties henceforth and,  

accordingly, she will  take the child Adithya of her own to the  

United States of America within  fifteen days from today and  

report  to that court.

(ii) The petitioner shall bear all the traveling expenses  

of  the  respondent  no.  6  and  minor  child  Adithya  and  make  

arrangements  for  the  residence  of  respondent  no.  6  in  the  

United States of America till further orders are passed by the  

competent court.

(iii) The petitioner shall request the authorities that the  

warrants against respondent no. 6 be dropped. He shall not file  

or pursue any criminal charges for violation by respondent no. 6  

of the consent order in the United States of America.

(iv) The respondent no. 6 shall furnish her address and  

contact number in India to the CBI authorities and also inform  

them in advance the date  and flight  details of her departure  

along with  child  Adithya  for United States of America.

(v) In the event of respondent no. 6 not taking the child  

Adithya of her own to United States of America within fifteen  

days  from  today,  child  Adithya  with  his  passport  shall  be  

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restored to the custody of the petitioner to be taken to United  

States of America. The child will  be a ward of the concerned  

court that passed the consent order dated June 18, 2007. It will  

be open to respondent no. 6 to move that court for a review of  

the custody of the child, if so advised.

(vi) The parties shall bear their own costs.  

     ……………… ……J (Tarun Chatterjee)

…….………… …..J

    (R. M. Lodha)

…….……………..J      (Dr. B.S. Chauhan)

New Delhi November 17, 2009.

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