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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO.681 OF 2020

Delna Khambatta,
American Citizen, Aged about 50 yrs.,
Having her address at
365, Glinnis Road,
Northfeld, Vermont 05663, U.S.A. .... Petitioner

Vs.

1. State of Maharashtra
Through the Public Prosecutor

2. Senior Police Inspector,

Tardeo Police Station,
M.P. Mills Compound Road,
Janata Nagar, Tardeo,
Mumbai- 400 034

3. Dr. Rustum Sam Boyce,

Villa Hormuzd, 8A, Carmicheal Road,
Mumbai – 400 026 …. Respondents

---

Mr. Amir Arsiwala a/w Mr. Siddhikesh Ghosalkar and Ms.

Radhika Motiani for Petitioner.

Mrs. S.D. Shinde, APP for Respondent-State.

Mr. Anoshak Daver a/w Seth, M.S. Bhodhanwalla a/w Mr.

Sheroy M. Bodhanwalla, Ms. Sakshi Sharma i/by M/s
Bodhanwalla & Co. for Respondent No. 3.
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CORAM : S.S. SHINDE AND

MANISH PITALE, JJ.

JUDGMENT RESERVED ON : 18.02.2021

JUDGMENT PRONOUNCED ON : 24.03.2021

JUDGMENT (PER MANISH PITALE, J.)

1. The Petitioner has fled this petition seeking a writ

of habeas corpus for a direction to her husband, Respondent

No. 3, to produce their daughters before this Court, with a

further direction to hand over custody of the daughters to her.

The Petitioner claims that the Respondent No. 3 illegally took

away the daughters from shared custody as granted by a

competent court in the United States of America, thereby

rendering their custody with Respondent No.3 as illegal and in

defance of the order of the competent Court. The Respondent

No.3 has opposed such claims. Both sides rely upon various

judgments of the Supreme Court of India in support of their

respective stands.

2. The facts leading to fling of the present Writ

Petition are that on 04.12.2001, the Petitioner and

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Respondent No.3 got married at Ahmedabad in Gujarat, as per

Parsi Zoroastrian rights and customs. They have two

daughters who are now 17 years and 15 years age

respectively. All four were living in the United States of

America (USA) when on 09.08.2017, the Petitioner fled a suit

for divorce before the Superior Court at Vermont, USA, along

with interim applications. On being served with summons, the

Respondent No.3 fled a motion before the said Court at

Vermont, USA, for dismissal on the ground of jurisdiction,

claiming that the parties were governed by the provisions of

the Parsi Marriage and Divorce Act, 1936 (hereinafter referred

to as the Act of 1936), as per the provisions of which Courts

of India were competent to exercise jurisdiction.

3. On 18.10.2017, Respondent No.3 fled divorce

petition against the Petitioner, bearing Parsi Matrimonial Suit

No. 2 of 2017 before the District Court at Surat. This was

under the aforesaid Act of 1936. On 17.02.2018, the

Respondent No.3 fled an application seeking an anti-suit

injunction against the Petitioner to restrain her from

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proceeding in the matter before the Court at Vermont, USA.

On 13.03.2018, the Court at Vermont USA dismissed the

aforesaid motion fled by Respondent No.3 challenging

jurisdiction of the Court at Vermont. On 07.04.2018, the

Petitioner fled an application before the District Court at Surat

challenging jurisdiction of the said Court to adjudicate

matrimonial disputes between the parties. On 17.04.2018, the

District Court at Surat passed an order allowing the aforesaid

application of Respondent No.3, thereby granting anti-suit

injunction against the Petitioner from pursuing proceedings

fled before the Court at Vermont and from fling or pursuing

any application or proceeding before the said Court. The

Petitioner was also directed to place a copy of the said order

before the Court at Vermont. The District Court at Surat

dismissed the application fled by the Petitioner challenging

its jurisdiction.

4. Between April and June 2018, the Petitioner

continued to press the proceedings before the Court at

Vermont USA, while Respondent No.3 placed copy of the

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aforesaid order dated 17.04.2018 passed by the District Court

at Surat. The Respondent No.3 fled an application for

initiation of contempt proceedings against the Petitioner

before the District Court at Surat as she continued to press

the proceedings before the Court at Vermont USA. The said

application is still pending. In the meanwhile, the Petitioner

had fled an appeal from order before the High Court at

Gujarat to challenge the aforesaid order dated 17.04.2018

passed by the District Court at Surat, but the same was

dismissed as not maintainable with liberty to fle appropriate

proceedings. The Petitioner then fled Special Civil Application

before the High Court. In this backdrop, on 04.10.2018, the

Petitioner fled Writ Petition (Civil) No. 1335 of 2018 before the

Supreme Court of India challenging the vires of certain

Sections of the Act of 1936.

5. On 14.11.2018, the Court at Vermont USA passed

an order granting shared parental rights and responsibilities

to the Petitioner and Respondent No.3. This was a consent

order, stating the manner in which the parties would have

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such shared custody of the daughters. On 19.11.2018, the

Supreme Court of India passed an order observing that

pendency of proceedings will not come in the way of the

parties to explore the possibilities of settlement or continuing

the proceedings before the Court in USA. On 07.05.2019, the

Gujarat High Court refused to adjourn the proceedings

pending before the District Court at Surat sine die in view of

pendency of the writ petition fled by the Petitioner before the

Supreme Court of India. The Gujarat High Court also disposed

of the Special Civil Application fled by the Petitioner. On

10.07.2019, the Supreme Court of India recorded that the

parties would attempt to settle their disputes through

mediation and that they agreed that till then the adversarial

proceedings would be kept in abeyance.

6. At this stage, in the month of July 2019, the

Respondent No.3 indicated that he desired to travel to India

with both daughters in the month of August. As per the order

of shared custody passed by the Court at Vermont USA, the

Respondent No.3 forwarded his travel itinerary to the

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Petitioner, according to which he was to travel with both the

daughters from Boston to Mumbai on 05.08.2019 and return

back to Boston with the daughters on 18.08.2019. It is an

admitted position that the Respondent No.3 and the

daughters did not return to Boston as per the said travel plan

and they have continued to reside in India till date.

7. At this stage, the Respondent No.3 fled an

application before the Court at Vermont USA, seeking

modifcation of the order of shared custody passed by the said

Court on 14.11.2018. Along with this motion, handwritten

letters allegedly written by the daughters were also placed

before the said Court, wherein they stated that they desired

to relocate to India with their father i.e. respondent No.3. On

28.08.2019, the Court at Vermont USA rejected the aforesaid

motion fled on behalf of Respondent No.3. On 29.08.2019,

the independent attorney appointed by the said Court for the

daughters, fled a motion to allow them to testify as regards

evidence of alleged abuse at the hands of the Petitioner. On

03.09.2019, the Supreme Court of India passed an order

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recording the subsequent development of the daughters

being brought to India and their alleged reluctance to go back.

It was also recorded that the issue regarding alleged violation

of orders of the Court at Vermont, USA, would be attended to

by the said Court and it was also recorded that any

proceedings initiated by the Petitioner would be subject to the

right of the Respondent No.3 to raise objection of jurisdiction

of the Court at Vermont USA, in view of the existing statutory

provision.

8. In view of the Respondent No.3 failing to bring back

the daughters to the USA, the Court at Vermont, USA, by

order dated 07.11.2019 found the Respondent No. 3 to be in

contempt of the orders of the said Court and directed that to

purge the contempt, Respondent No. 3 shall return the

daughters to Vermont as soon as possible and not later than

12.11.2019 by 5 p.m. It is relevant that on 11.10.2019, the

Court had also issued an arrest warrant against the

Respondent No. 3. In this backdrop, on 03.12.2019, the Court

at Vermont USA, passed an order awarding sole legal and

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physical parental rights and responsibilities of the daughters

to the Petitioner. On 09.12.2019, the said Court passed a

further order recording that the Respondent No.3 may purge

the contempt by returning the daughters to Vermont. The

Court also directed the Respondent No.3 to pay $ 1000 per

day from 03.9.2019 to the Petitioner as compensatory relief.

9. In the meanwhile, by order dated 19.11.2019,

Supreme Court of India referred the matter for attempting

settlement to the Supreme Court Mediation Centre, observing

that insofar as the proceedings pending before the Court at

Vermont USA were concerned, they would take their own

course. Thereafter, by order dated 24.01.2020, the Supreme

Court of India appointed Justice S. J. Vazifdar (former judge of

this High Court and retired Chief Justice of the Punjab and

Haryana High Court) as mediator.

10. At this stage, the Petitioner fled the present writ

petition before this Court, wherein on 06.02.2020, notice was

issued for fnal disposal. On 03.03.2020, this Court recorded

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the fact that the Supreme Court of India noted that the

proceedings in the present petition fled before this Court

would be kept in abeyance in view of the pending mediation

between the parties. Accordingly, the hearing of this petition

was deferred. On 26.10.2020, the Supreme Court of India

passed an order recording that report was received from the

mediator Justice S.J. Vazifdar stating that despite his best

efforts, settlement between the parties was not possible. In

this situation, the Supreme Court of India admitted the said

writ petition fled by the Petitioner challenging certain

provisions of the Act of 1936. It was also recorded that the

proceedings pending before this Court and the Court at Surat

could continue in accordance with law. Accordingly, the

present writ petition was taken up for consideration on merits.

11. In view of the multiple proceedings initiated by the

rival parties against each other before the Supreme Court of

India, High Court at Gujarat, District Court, Surat, the Court at

Vermont U.S.A. and now the present Writ Petition before this

Court, as also the slew of orders passed in these proceedings,

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the contentions raised on behalf of the parties are detailed

and vehement. Learned Counsel appearing for the Petitioner

as well as the Respondent No.3 have referred to and relied

upon series of judgments of the Supreme Court of India and

they have sought to interpret the judgments in support of

their respective contentions. The concepts of comity of

Courts, conduct of parties and the interest and welfare of the

children are brought into focus by the rival parties, in order to

support their claims. Hence, a brief reference to the

contentions raised on behalf of rival parties is necessary, in

order to consider the position of law and then to apply the

same to the facts of the present case.

12. Mr. Amir Arsiwala, learned counsel appearing for

the Petitioner made the following submissions:

(a) The Respondent No.3 by his conduct, has

demonstrated scant respect for rule of law and

he defantly fouted orders of the Court at

Vermont, USA in proceedings where he had

participated. It is submitted that the very act

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of the Respondent No. 3 in taking away the

daughters from the jurisdiction of the Court at

Vermont USA and in the face of a consent order

of shared custody, to which he was a party,

shows that the Respondent No. 3 cannot be

trusted as a person interested in what can be

held to be in the best interest of the daughters.

(b) The Respondent No.3 had submitted to the

jurisdiction of the Court at Vermont, USA, when

the consent order was drawn and shared

custody was granted to the Petitioner and

Respondent No.3. The action of the

Respondent No.3 in defantly violating the

terms of the said consent order amounted to

contempt of the Court at Vermont, USA. The

said Court had passed an order holding

Respondent No.3 in contempt and the Courts of

this country ought to respect the orders and

directions given by the Court at Vermont, USA,

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by applying the principle of comity of Courts.

This would necessarily require a direction

against the Respondent No.3 to return the

daughters back to the jurisdiction of the Court

at Vermont, USA and to join the proceedings

before the said Court. The Respondent No.3

ought not to be permitted to take advantage of

his own wrong. The learned counsel for the

Petitioner relied upon judgement of Supreme

Court of India in Surya Vadanan Vs. State of

Tamil Nadu & Ors. [(2015) 5 SCC 450], in

support of the said proposition.

(c) A perusal of the series of orders passed by the

Supreme Court of India in the writ petition fled

by the Petitioner challenging certain provisions

of the Act of 1936, would show that it was

repeatedly observed that the Court at Vermont,

USA had jurisdiction and that the proceedings

before the said Court would run their own

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Course. This was an indication that it was only

the Court at Vermont, USA, which had

jurisdiction to decide as to what was in the best

interest of the children i.e. the daughters

herein.

(d) Although the series of judgments of the

Supreme Court of India in such matters has

given paramount importance to the best

interest of the children, the relevant factors in

such cases are the place where children have

lived for a long time thereby indicating that the

Court in whose jurisdiction the children have so

lived is best suited to decide the aspect of best

interest of the children. A perusal of orders

passed by the Court at Vermont, USA, would

also show that the said Court was very much

alive to the said aspect of best interest of

children and that therefore, the children need

to be brought back to the jurisdiction of the

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said Court for a just and proper decision on the

said aspect of the matter. The learned counsel

for the Petitioner relied upon judgement of

Supreme Court of India in Nilanjan

Bhattacharya Vs. State of Karnataka

[(2020) SCC Online 928], in support of this

proposition.

(e) The Respondent No.3 is not justifed in relying

upon letters allegedly written by the daughters

expressing their willingness to live only with

their father, i.e. Respondent No.3 because

there is every possibility of tutoring of the

daughters by Respondent No.3, particularly

because they are totally dependent on

Respondent No. 3 for every aspect of their life

while residing in India. In other words, it is

submitted that the Respondent No.3 has an

unreasonably high infuence over the thought

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process of the daughters and that this aspect

needs to be taken into consideration by this

Court.

(f) A proper interpretation of the judgments of the

Supreme Court of India in such cases would

show that the facts of the present case justify

the prayers made on behalf of the Petitioner

and that the petition deserves to be allowed.

13. On the other hand, Mr. Anoshak Daver, learned

counsel appearing for Respondent No. 3 submitted as follows:

(a) A proper interpretation of the orders passed by

the Court at Vermont U.S.A. and the stand

taken by the Respondent No.3 before the said

Court would show that the Respondent No.3 did

not submit to the jurisdiction of the aforesaid

Court. An objection to the jurisdiction of the

said Court was raised in the frst instance by

the Respondent No.3 and whatever

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proceedings were attended to on behalf of the

Respondent No. 3 in the said Court, were

without prejudice to the objection of

jurisdiction.

(b) In view of the fact that India is not a signatory

to the Hague Convention of 1980 on Civil

Aspects of International Child Abduction, law of

India applies in such cases, where there is a

controversy raised amongst parents with

regard to custody of children, in the backdrop

of matrimonial disputes. Once this position is

accepted, it becomes clear that the law laid

down by the Supreme Court of India in a series

of judgments applies, which protects the right

of the parents who bring their children into this

country to continue with their custody so long

as it is demonstrated that such custody is in

the best interest of the children. The learned

counsel for Respondent No.3 relied upon

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judgement of Supreme Court of India in Nithya

Anand Raghavan Vs. State (NCT of Delhi)

& Anr. [(2017) 8 SCC 454], in support of this

proposition.

(c) It has been authoritatively held and reiterated

in judgments delivered by the Supreme Court

of India that the principle of best interest of the

children shall trump all other principles,

including the principle of comity of Courts even

when an order is passed by a foreign Court in

respect of custody of such children. Thus, as

long as Respondent No.3 is able to demonstrate

that it is in the best interest of the daughters

that they continue to reside with him in India,

the contentions raised on behalf of the

Petitioner cannot be accepted. The daughters

in the present case are not minors of very

young age, who cannot form any intelligent

opinion about subject matters. The elder

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daughter is 17 years old and the younger one is

15 years old. They have placed letters on

record before the Court at Vermont, U.S.A., as

also afdavits before the Supreme Court of

India, clearly stating that they wish to live with

Respondent No.3 i.e. their father and they have

indicated abuse suffered by them at the hands

of the Petitioner. In fact, the daughters were

ready to lead evidence before the Court at

Vermont, U.S.A. on the said aspect of the

matter. Considering such material on record,

this Court cannot ignore the opinion of the

daughters, particularly when they expressed

their desire to live with Respondent No.3 even

before this Court. The learned counsel for

Respondent No.3 relied upon judgement of

Supreme Court of India in Nithya Anand

Raghavan (supra) and Prateek Gupta Vs.

Shilpi Gupta & Ors. [(2018) 2 SCC 309], in

support of this proposition.

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(d) The Respondent No. 3 is not averse to the

Petitioner having visitation rights so that she

can continue her association with the

daughters. But, forcing the daughters to go

back to the U.S.A. would not be in their interest

at all and it would not be in the interest of

justice.

(e) The Petitioner herself had violated the orders

passed by District Court at Surat in the suit

fled by Respondent No.3 and she continued

with the proceedings before the Court at

Vermont, U.S.A., despite the anti-suit injunction

granted by District Court at Surat. Although,

the Petitioner has challenged the vires of

certain provisions of the Act of 1936, which

grants exclusive jurisdiction regarding

matrimonial disputes between Parsis to specifc

Courts, so long as the said provisions remain on

the statute, they are binding on the Petitioner.

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Therefore, there is no substance in the

allegation levelled against the Respondent No.3

that he had defed the orders passed by foreign

Court i.e. Court at Vermont, U.S.A., particularly

when he had raised the objection of jurisdiction

at the outset.

(f) Keeping the paramount consideration of best

interest of the children in mind, this Court

ought to dismiss the Writ Petition.

14. Mrs. S.D. Shinde, learned A.P.P. appeared for

Respondent Nos. 1 and 2. Since this is essentially a contested

litigation between the Petitioner and the Respondent No. 3,

the learned A.P.P. submitted that this Court may pass

appropriate orders, in the interest of justice.

15. Before we consider rival submissions made on

behalf of the contesting parties, it is necessary to refer to the

position of law as it emerges from the judgments of the

Supreme Court of India in such matters. The learned counsel

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appearing for the rival parties, referred to and sought to

interpret the following judgments of the Supreme Court of

India:

Sr. Particulars Citation

No
.
1. Gohar Begam Vs, Suggi Alias (1960) 1 SCR 597
Nazma Begam & Ors.
2. Elizabeth Dinshaw Vs. Arvand (1987) 1 SCC 42
M. Dinshaw & Anr.
3. Sarita Sharma Vs. Sushil (2000) 3 SCC 14
Sharma
4. V. Ravi Chandran Vs. Union of (2010) 1 SCC 174
India & Ors.
5 Ruchi Majoo Vs. Sajeev Majoo (2011) 6 SCC 479
6. Arathi Bandi Vs. Bandi (2013) 15 SCC 790
Jagadrakshaka Rao & Ors.
7. Surya Vadanan Vs. State of (2015) 5 SCC 450
Tamil Nadu & Ors.
8. Nithya Anand Raghavan Vs. (2017) 8 SCC 454
State (NCT of Delhi) & Anr.
9. Prateek Gupta Vs. Shilpi (2018) 2 SCC 309
Gupta & Ors.
10. Lahari Sakhamuri Vs. Sobhan (2019) 7 SCC 311
Kodali
11. Yashita Sahu Vs. State of (2020) 3 SCC 67
Rajasthan & Ors.
12. Nilanjan Bhattacharya Vs. (2020) SCC Online
State of Karnataka 928
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16. A perusal of the aforesaid judgments shows that

the Petitioner is indeed entitled to maintain the present writ

petition seeking a writ of habeas corpus and for consequential

directions. This is evident from the position of law clarifed by

the Supreme Court of India right from the judgment in the

case of Gohar Begam Vs, Suggi Alias Nazma Begam &

Ors. (supra) and followed thereafter. The learned counsel for

the Respondent No.3 did not raise any serious objection with

regard to the maintainability of the present writ petition at the

behest of the Petitioner, in view of the settled position of law.

But, the principle of comity of Courts, paramount importance

of the best interest of the child, the nature of enquiry either

summary or elaborate required to be conducted in the facts of

the present case, desire of the children to live with a

particular parent and the doctrine of intimate contact and

closest concern assume great importance while deciding such

cases. These principles have been referred to and interplay

between them has been appreciated, in the aforesaid

judgments of Supreme Court of India, in the light of facts of

individual cases.
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17. In the case of Nithya Anand Raghavan Vs.

State (NCT of Delhi) & Anr.(supra), a Bench of three

Hon’ble Judges of the Supreme Court of India took into

consideration all the aforesaid principles and their application,

so as to lay down as to what needs to be considered by the

Court while considering the competing claims made by the

parents of children for their custody in the backdrop of

acrimonious matrimonial disputes. Having considered series

of judgments delivered till that point of time in such cases,

the Supreme Court of India held as follows:

“42. The consistent view of this Court is that if

the 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 ft 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 summary inquiry,
it is open to the Court to decline the
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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 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 circumstances of each case
independently. Even on close scrutiny of
the several decisions pressed before us,
we do not fnd any contra view in this
behalf. To put it differently, the 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.”
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18. It is relevant that the Supreme Court of India made

a reference to the Hague Convention of 1980 on Civil Aspects

of International Child Abduction and in that context held as

follows:

“40. The Court has noted that India is not yet

a signatory to the Hague Convention of 1980
on “Civil Aspects of International Child
Abduction”. As regards the non-convention
countries, the law is that the Court in the
country to which the child has been removed
must consider the question on merits bearing
the welfare of the child as of paramount
importance and reckon the order of the foreign
Court as only a factor to be taken into
consideration, unless the Court thinks it ft to
exercise summary jurisdiction in the interests
of the child and its prompt return is for its
welfare. In exercise of summary jurisdiction,
the Court must be satisfed and of the opinion
that the proceeding instituted before it was in
close proximity and fled 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 further
that it will be in the child’s welfare to return to
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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. Be it noted that in exceptional
cases the Court can still refuse 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
satisfed 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 fxated therewith. In
either situation – be it a summary inquiry or an
elaborate inquiry - the welfare of the child is of
paramount consideration. Thus, while
examining the issue the Courts in India are
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free to decline the relief of return of the child

brought within its jurisdiction, if it is satisfed
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. We are in respectful agreement with
the aforementioned exposition.”

19. This position of law was followed and reiterated by

a Bench of two Hon’ble Judges of the Supreme Court of India

in the case of Prateek Gupta Vs. Shilpi Gupta & Ors.

(supra). It was held in the said judgment as follows:

“49. The gravamen of the judicial enunciation

on the issue of repatriation of a child removed
from its native country is clearly founded on
the predominant imperative of its overall well-
being, the principle of comity of courts, and
the doctrines of “intimate contact and closest
concern” notwithstanding. Though the
principle of comity of courts and the
aforementioned doctrines qua a foreign court
from the territory of which a child is removed
are factors which deserve notice in deciding
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the issue of custody and repatriation of the

child, it is no longer res integra that the ever
overriding determinant would be the welfare
and interest of the child. In other words, the
invocation of these principles/doctrines has to
be judged on the touchstone of myriad
attendant facts and circumstances of each
case, the ultimate live concern being the
welfare of the child, other factors being
acknowledgeably subservient thereto. Though
in the process of adjudication of the issue of
repatriation, a court can elect to adopt a
summary inquiry and order immediate
restoration of the child to its native country, if
the applicant/parent is prompt and alert in his/
her initiative and the existing circumstances
ex facie justify such course again in the
overwhelming exigency of the welfare of the
child, such a course could be approvable in
law, if an effortless discernment of the
relevant factors testify irreversible, adverse
and prejudicial impact on its physical, mental,
psychological, social, cultural existence, thus
exposing it to visible, continuing and
irreparable detrimental and nihilistic
attenuations. On the other hand, if the
Dusane 30/41 Cri. WP 681.2020-FINAL.doc

applicant/parent is slack and there is a

considerable time lag between the removal of
the child from the native country and the
steps taken for its repatriation thereto, the
court would prefer an elaborate enquiry into
all relevant aspects bearing on the child, as
meanwhile with the passage of time, it
expectedly had grown roots in the country and
its characteristic milieu, thus casting its
infuence on the process of its grooming in its
fold.”

20. Even in recent pronouncements of the Supreme

Court of India in the case of Yashita Sahu Vs. State of

Rajasthan & Ors. (supra) and Nilanjan Bhattacharya Vs.

State of Karnataka (supra), the Supreme Court of India

gave primary consideration to welfare of the child. On facts of

these cases, the Supreme Court of India directed the children

to be sent back to the foreign country from where they had

been brought to India, reaching fndings to the effect that it

was in the best interest of the children that they are so sent

back. Therefore, it becomes clear that in so far as the law

applicable in such cases in India is concerned, the Court has

Dusane 31/41 Cri. WP 681.2020-FINAL.doc

conclude on the facts and circumstances of each case as to

what would be in the best interest of the children. It is

signifcant that in both the said cases, the Court found that a

summary inquiry was warranted as the children had been

recently brought to India and they deserved to be sent back in

their interest. We are of the opinion that the facts in the

present case are distinguishable, as the daughters arrived in

India as far back as in August, 2018.

21. The rival contentions of the parties need to be

considered in the backdrop of the said position of law. The

admitted position on facts in the present case is that the

children i.e. two daughters of the Petitioner and Respondent

No.3 have lived during growing up years in the U.S.A. They

came to India in August, 2018, when the Respondent No.3

brought them ostensibly for about two weeks during their

holidays. It is an admitted position that the daughters have

continued to reside in India from August, 2018 till date and

that they are undergoing schooling in India since the time of

their arrival.
Dusane 32/41 Cri. WP 681.2020-FINAL.doc

22. Although the daughters are minors, considering the

fact that the elder daughter would soon attain the age of

majority i.e. 18 years and the younger daughter is more than

15 years old, both of them do have the capacity to form their

own intelligent opinions. This fact is signifcant in the present

case because this Court is not called upon to deal with a

situation where the children are minors of such young age

that they cannot be expected to have the capacity to form

their own opinions. The risk of tutoring would abate with the

age of children nearing the age of majority. When we

interacted with both daughters, they were emphatic that they

desired to live with their father i.e. Respondent No.3 in India.

The Supreme Court of India has laid down in the above quoted

judgment in the case of Nithya Anand Raghavan Vs. State

(NCT of Delhi) (supra) that the Courts in India are free to

decline the relief of return of child brought within its

jurisdiction, if the child is quite mature and objects to its

return.
Dusane 33/41 Cri. WP 681.2020-FINAL.doc

23. The daughters also hinted at the nature of

relationship that they had with the Petitioner i.e. their mother

and how they are apprehensive about living in her company.

This is in tune with what they stated in letters addressed to

the Court at Vermont, U.S.A. as also afdavits fled before the

Supreme Court of India. The contents of such afdavits being

sworn by children, who have not attained the age of majority

may not be considered relevant in law, nonetheless the

daughters did express their apprehensions when we

interacted with them.

24. We do not propose to make any comments on such

apprehensions or whether such apprehensions are based on

any concrete material, but the opinion expressed by the

daughters in the facts of the present case is of some

relevance.

25. It is reasonable to expect that the Court having

intimate contact with the children, considering the number of

years they have lived in jurisdiction of such Court, would be

Dusane 34/41 Cri. WP 681.2020-FINAL.doc

appropriately placed to appreciate closest concern of such

children. But, it cannot be said that this aspect would rule out

the jurisdiction of this Court to reach a fnding as regards best

interests of the daughters.

26. The best interests of children include their ordinary

comfort, contentment, health, education, physical moral and

intellectual development and ethical upbringing, so as to

ensure that they grow up as well-rounded individuals. The

economic capacity and fnancial well-being of the parents also

assumes signifcance. It is also required to be ascertained if

any kind of physical, mental or psychological harm may fall

upon the children if they are directed to be sent back to a

particular parent. Thus, fnding on the best interest of

children involves various aspects, which need to be

determined with sensitivity and human touch.

27. As noted above, in the judgments rendered by the

Supreme Court of India in such cases, the concept of best

interest of children has been given paramount importance

Dusane 35/41 Cri. WP 681.2020-FINAL.doc

over and above all other concepts, including the concept of

comity of Courts. It is also signifcant that when the children

can be said to have developed roots in the country where

they have been brought, it becomes a relevant factor for

determining as to what would be in their interest.

28. Applying the aforesaid principles to the facts of the

present case, it becomes clear that the contentions raised on

behalf of the Petitioner against Respondent No.3 on the basis

of his defance towards orders passed by the Court at

Vermont, U.S.A., pale into insignifcance. It is also relevant

that even though the Respondent No. 3 was party to the

consent order regarding shared custody passed by the Court

at Vermont, U.S.A., he had indeed raised objection as regards

jurisdiction of the said Court at the outset. Even if his

objection was rejected and orders were passed by the Court

at Vermont, U.S.A., only for that reason this Court cannot

ignore as to what would be in the best interest of the children

i.e. daughters herein.

Dusane 36/41 Cri. WP 681.2020-FINAL.doc

29. Equally, the Petitioner had also suffered adverse

orders passed by the District Court at Surat in the suit fled by

Respondent No. 3, as per the provisions of Act of 1936. There

were orders passed against the Petitioner injuncting her from

proceeding with the matter in the Court at Vermont, U.S.A.

and yet not only did she continue with the proceedings but

she insisted on repeated adverse orders being passed against

Respondent No.3. In such acrimonious matrimonial disputes,

it is found that the children are victims of circumstances. In

such a situation, this Court needs to exercise its parens

patriae jurisdiction to ascertain as to what would be in the

best interest of such children, who are indeed victims of

circumstances.

30. The facts of present case show that the daughters

were ready to lead evidence before the Court at Vermont,

U.S.A. as regards alleged abuse that they had suffered at the

hands of the Petitioner. Such an application was indeed made

on their behalf by the attorney appointed for them in those

proceedings. This is recorded in the proceedings before the

Dusane 37/41 Cri. WP 681.2020-FINAL.doc

said Court. The daughters clearly expressed their desire

before us to continue to stay with their father i.e. Respondent

No. 3 in India, despite the fact that they have lived for

substantial part of their life in the U.S.A. Although the desire

of the daughters cannot be the clinching factor in the present

case, it is certainly relevant, particularly when the daughters

are nearing the age of majority. The desire of the daughters

to continue to live with their father in India cannot be

completely ignored when this Court is called upon to decide

as to what would be in their best interest. There is no dispute

about the fact that they are undergoing education in a proper

school and there are no doubts raised about the fnancial

capacity of their father to take care of their requirements.

31. In this backdrop, as noted above, the emphasis

placed on behalf of the Petitioner on the defant attitude of

Respondent No. 3 in the face of the adverse orders passed by

the Court at Vermont, U.S.A., cannot take case of the

Petitioner any further. The learned counsel appearing for the

Petitioner has attempted to demonstrate, by placing much

Dusane 38/41 Cri. WP 681.2020-FINAL.doc

emphasis on judgments of the Supreme Court of India, in the

cases of Yashita Sahu Vs. State of Rajasthan (supra) and

Nilanjan Bhattacharya Vs. State of Karnataka (supra),

which according to him could be said to be closer on facts to

the instant case, that in those cases the Supreme Court of

India directed that the children be sent back to the parent in

foreign jurisdiction. We are of the opinion that facts of each

case differ and no straight jacket formula can be applied in

such cases. In the case of Yashita Sahu Vs. State of

Rajasthan (supra), the child was only 3 ½ years old and in

the case of Nilanjan Bhattacharya Vs. State of

Karnataka (supra) the child was only about 4 years old.

Besides, in those cases the petitioner before the Court

invoking writ jurisdiction had immediately instituted the

proceedings and, in the facts and circumstances of those

cases, the Court found it ft to conduct only a summary

inquiry. Thus, the said judgements are clearly distinguishable

on facts, as the daughters in the present case are 17 years

and 15 years old, capable of forming intelligent opinion about

matters and they have been in India since August 2018.

Dusane 39/41 Cri. WP 681.2020-FINAL.doc

32. We are of the opinion that even though the

Petitioner is the mother of the children in the present case,

that alone cannot be a factor for passing an order in her

favour. The daughters have been in India now for better part

of three years and one of the daughters would soon be

attaining the age of majority. Taking an overall view of the

facts of the present case, we are of the opinion that it would

be in the best interest of the daughters of the Petitioner and

Respondent No. 3, that the prayers made on behalf of the

Petitioner in this Writ Petition are not granted. In the light of

the discussion in the foregoing paragraphs, we are unable to

persuade ourselves to hold that the daughters are in improper

or illegal custody of respondent no.3. There can be no doubt

about the fact that this opinion, which we have expressed,

cannot have any effect on the right that the Petitioner may

assert as regards custody of the daughters in appropriate

proceedings, which would have to be decided in accordance

with law. Hence, we are of the opinion that the Writ Petition

deserves to be dismissed. But there can be no doubt about

the fact that being their mother, the Petitioner certainly has
Dusane 40/41 Cri. WP 681.2020-FINAL.doc

every right to continue to associate with them, for which she

is entitled to visitation rights.

33. Therefore, it is held that the Petitioner shall have

visitation rights to meet and associate with her daughters. To

facilitate this, the Respondent No. 3 is directed to ensure that

when the Petitioner desires to visit India to meet the

daughters, he shall extend full co-operation for the same,

including arranging for stay of the Petitioner in India for at

least a period of two weeks during her visit and facilitating her

meeting with the daughters, so that association between the

mother and daughters continues unabated. The Petitioner

and Respondent No.3 may mutually agree upon further details

of such visitation rights of the Petitioner, including interaction

between the petitioner and daughters through video

conferencing during school holidays at mutually convenient

timings. Till such mutual agreement is arrived at the

petitioner shall be granted access to the daughters through

video conferencing on Saturday and Sunday between 7 PM to

8 PM IST.
 Dusane 41/41 Cri. WP 681.2020-FINAL.doc

34. The Writ Petition stands dismissed with the

aforesaid directions. Needless to say, the observations made

hereinabove are restricted to the present proceedings only

and they will have no bearing on other proceedings pending

between the parties.

Balaji G.
Panchal ( MANISH PITALE, J.) (S.S. SHINDE, J.)
Digitally signed by
Balaji G. Panchal
Date: 2021.03.24
15:01:54 +0530