LAHARI SAKHAMURI versus SOBHAN KODALI

[2019] 5 S.C.R. 240

[2019] 5 S.C.R.

LAHARI SAKHAMURI

SOBHAN KODALI

(Civil Appeal Nos. 3135-3136 of 2019)

BMARCH 15, 2019

[A. M. KHANWILKAR AND AJAY RASTOGI, JJ.]

Family Law:

Child custody – Petition for divorce and for custody of minorCchildren (US citizens) filed by wife/mother in US – Order by USCourt directing the husband/father to appear for conciliation andnot to change the residence of children – In the meantime, due tofamily urgency wife/mother when came to India, filed petition in theFamily Court seeking custody of the children – Family Court passedex parte interim injunction order restraining the husband/father fromDtaking away minor children – Emergency petition by husband/father before US Court – US Court passed order for continuingjurisdiction over custody matter and granted temporary custody tothe wife/mother with direction to return the children to thejurisdiction of US Court – Husband/father’s application objectingEto jurisdiction of Family Court rejected – Appeal to High Court –Husband/father also filed writ petition seeking writ of HabeasCorpus for producing the minor children – High Court disposed ofthe appeal and the writ petition holding that Family Court did nothave jurisdiction and that it was in the interest of the children toreturn to US – On appeal, held: In the facts of the case, High CourtFrightly rejected the application for custody of minor childrenbefore Family Court holding that the children were not ordinaryresidents of India – Taking holistic consideration of entire case, allthe criteria such as comity of courts, orders of foreign court havingjurisdiction over the matter regarding custody of children,Gcitizenship of spouse and children, intimate connect and welfareand best interest of minor children weigh in favour of the husband/father – Direction issued to the wife/mother to return to US alongwiththe children – Foreign Court – Comity of Court.

Child custody – Court has to keep in mind the best interest ofthe child as the paramount consideration while granting custody ofminor children – The crucial factors for gauging the welfare of thechildren are such as maturity and judgment; mental stability;ability to provide access to school; moral character; ability toprovide continuing involvement in the community; financialsufficiency; factors involving relationship with the child as opposedto characteristic of the parent as an individual.

Custody dispute – Negotiated resolution – Preference of, overjudicial resolution – Held: Negotiated resolution is preferable fromchild’s perspective.

Disposing of the appeals, the Court

HELD: 1. The appellant had filed application for divorceand custody of minor children in the US Court and order came tobe passed by the US Court. Despite that interim order, theappellant came to India and within 20 days of her arrival in India,filed an application for custody of minor children, in the FamilyCourt in India concealing her application for custody filed in theUS Court. She also did not disclose that an order came to bepassed by the US Court against her. In the given facts andcircumstances, the opinion of the High Court that the minorchildren were not ordinary residents of India as envisaged underSection 9(1) of the Guardians and Wards Act, 1890, is upheld.Resultantly, the application for custody of minor children filedbefore the Family Court in India is rightly rejected by the HighCourt in exercise of power under Order 7 Rule 11 of CPC. At thesame time, when the orders have been passed by the US Court,the parties cannot disregard the proceedings instituted beforethe US Court filed at the instance of the appellant who issupposed to participate in those proceedings. [Para 31][265-E-H]2.1 Child rights may be limited but they should not beignored or eliminated since children are in fact persons whereinall fundamental rights are guaranteed to them keeping in mindthe best interest of the child and the various other factors whichplay pivotal role in taking decision to which reference has beenmade taking note of the parental autonomy which courts do noteasily discard. [Para 50] [276-B]

DEF

A2.2 It is true that this Court has to keep in mind the bestinterest of the child as the paramount consideration. Theobservations of the US Court clearly show that principle of welfareof the children has been taken into consideration by the US Courtin passing of the order as it reiterates that both the parties arenecessary for proper upbringing of the children and the ultimateBdecision of custody and guardianship of the two minor childrenwill be taken by the US which has the exclusive jurisdiction totake the decision as the children happened to be the US citizensand further order been passed on the respondent’s emergencypetition with special release in custody on 9[th] March, 2018Cpermitting the respondent to apply for US passports on behalf ofthe minor children without appellant being mother’s consent. Theappellant cannot disregard the proceedings instituted at herinstance before the US Court and she must participate in thoseproceedings by engaging solicitors of her choice to espouse hercause. [Para 48] [275-D-F]D

2.3 The crucial factors which have to be kept in mind bythe Courts for gauging the welfare of the children equally for theparent’s can be inter alia, delineated, such as (1) maturity andjudgment; (2) mental stability; (3) ability to provide access toschools; (4) moral character; (5) ability to provide continuingEinvolvement in the community; (6) financial sufficiency and lastbut not the least the factors involving relationship with the child,as opposed to characteristics of the parent as an individual.[Para 49] [285-G]

2.4 The expression “best interest of child” which is alwaysFkept to be of paramount consideration is indeed wide in itsconnotation and it cannot remain the love and care of the primarycare giver, i.e., the mother in case of the infant or the child who isonly few years old. The definition of “best interest of the child”is envisaged in Section 2(9) of the Juvenile Justice (Care &GProtection) Act, 2015, as to mean “the basis for any decisiontaken regarding the child, to ensure fulfilment of his basic rightsand needs, identify, social well-being and physical, emotional andintellectual development”. [Para 43] [273-D-E]

2.5 It is not in dispute that both the minor children, fromthe very inception of their birth, till removal from the US wereliving with their parents in US. This fact was admitted by theappellant also in the guardianship petition filed before the FamilyCourt in India and also in the divorce and custody petition filedby her in US and only after hearing counsel for the parties, orderwas passed by the US Court on 22[nd] May, 2017 on the emergencycustody petition granting temporary physical custody of thechildren with further direction to the appellant to return alongwith the children to the jurisdiction of US Court on 2[nd] June, 2017.In case she was aggrieved by the order dated 22[nd] May, 2017passed by the US Court after affording an opportunity of hearingwhich she contested through her Attorney, all the courses wereavailable to her to assail the order of the Court. Since theappellant failed in returning the children to the jurisdiction of theUS Court despite order dated 22[nd] May, 2017, there was no optionleft with the respondent but to file Habeas Corpus Petition andpray that the children be repatriated back to US in compliance ofthe order of the US Court. [Para 47] [274-G-H; 275-A-C]2.6 The best interest of the children being of paramountimportance will be served if they return to US and enjoy theirnatural environment with love, care and attention of their parentsincluding grandparents and to resume their school and be withtheir teachers and peers. [Para 56] [277-F-G]

2.7 The doctrines of comity of courts, intimate connect,orders passed by foreign courts having jurisdiction in the matterregarding custody of the minor child, citizenship of the parentsand the child etc., cannot override the consideration of the bestinterest and the welfare of the child and that the direction to returnthe child to the foreign jurisdiction must not result in any physical,mental, psychological, or other harm to the child. Taking holisticconsideration of the entire case, the Court is satisfied that all thecriteria such as comity of courts, orders of foreign court havingjurisdiction over the matter regarding custody of the children,citizenship of the spouse and the children, intimate connect, andabove all, welfare and best interest of the minor children weigh

Ain favour of the respondent and that has been looked into by theHigh Court in the impugned judgment in detail. That needs nointerference under Article 136 of the Constitution of India.[Para 51] [276-C-E]

3. The judicial resolution of custody dispute mayBpermanently affect or even end the parties’ legal relationship butthe social and psychological relationship will usually continue andit seems appropriate that negotiated resolution between theparents is preferable from the child’s perspective for severalreasons. child’s future relationship with each of his parentsmay be better maintained and his existing relationship is lessCdamaged by negotiated settlement than by one imposed by acourt after adversarial proceedings. In the present case, there isevery possibility that the parties may reconcile and start overtheir relationship afresh, at least for the sake of happiness oftheir own off-spring if for no other reason. The parties are indeedDmature and sensible enough to understand that the ordinary wearand tear of married life has to be put up in within the largerinterests of their own happiness and of the healthy, normal growthand development of their offspring, whom destiny has entrustedto their joint parental care. Spouses must come over thetemperamental disharmony which usually exists in every marriage,Erather than magnifying it with impulsive desires and passions.Parents are not only caretakers, but they are instrumental in thedevelopment of their child’s social, emotional, cognitive andphysical well-being and work harmoniously to give their children

happy home to which they are justly entitled to.F[Para 54, 55] [277-B-E]

4. The appellant is directed to return to US along with boththe children, within period of six weeks. Further respondent isdirected to make all arrangements of stay and travelexpenses(including air tickets) of the appellant and both theGchildren as well as her companion, if any, in their own house or ifshe is not willing to stay for any personal reasons, make allarrangements for stay at the place of her choice at reasonablecost. In case the appellant reports that she is not inclined totravel to US along with the minor children, or do not show any

interest to accompany the children, the respondent shall deposita sum of Rs. 15 lakhs in the bank account of the appellant andproof of deposit shall be placed in the Registry of the High Courtwho shall thereupon call upon the Consulate General of the USat Hyderabad to take the custody of the minor children, alongwith their passports and other travel documents from theappellant and hand over the same to the respondent with acondition for taking the custody of the minor children for beingtaken to US and hand over to the jurisdictional Court in US untilfurther orders are passed in the pending proceedings by the USCourt. The appellant will be at liberty to utilize the moneydeposited by the respondent in connection with her visit to US, ifso desired, in future and the respondent shall not take anycoercive steps against her which in any manner may result inadverse consequences.[Para 57] [277-G-H; 278-A-D]

Nithya Anand Raghavan v. State (NCT of Delhi) andAnother (2017) 8 SCC 454: [2017] 7 SCR 281;SuryaVadanan v. State of Tamil Nadu and Others (2015) 5SCC 450 : [2015] 4 SCR 903 ;Jasmeet Kaur v. NavtejSingh (2018) 4 SCC 295 ;Surinder Kaur Sandhu v.Harbax Singh Sandhu and Anr. (1984) 3 SCC 698 :[1984] 3 SCR 422 ; Elizabeth Dinshaw v. Arvand M.Dinshaw and Another (1987) 1 SCC 42; V. RaviChandran (Dr.) v. Union of India and Others [2010] 1SCC 174 : [2009] 15 SCR 960 – relied on.

Dhanwanti Joshi v. Madhav Unde (1998) 1 SCC 112 :[1997] 5 Suppl. SCR 30 ;Kanika Goel v. State of Delhithrough Station House Officer and Another (2018) 9SCC 578 – referred to.

L(Minors) in re (1974) 1 All ER 913(CA) ;McKee v.McKee(1951) AC 352 – referred to.

Case Law Reference

CIVIL/CRIMINAL APPELLATE JURISDICTION: Civil AppealNos.3135-3136 of 2019

CFrom the Judgment and Order dated 08.02.2018 of the High Courtof Judicature at Hyderabad for the State of Telangana and the State ofAndhra Pradesh in FCA Nos. 372 and 373 of 2017

With

Criminal Appeal No. 500 of 2019.D

Ms. Malvika Rajkotia, Ms. Akriti Tyagi, Ms. Rytim Vohra,Ms. Arpita Rai, Ms. Aashna Talwar, Mayank Grover, Ms. Trisha Gupta,Ms. Udita Singh, Vivek Singh, Lakshmi Raman Singh, Advs. for theAppellant.

EMs. M. Arora, Sr. Advocate, Prabhjit Jauhar, Ms. Sheetal Kocher,A. Ishwar Rosemary Raju, S. S. Jauhar, Advs. for the Respondents.

The Judgment of the Court was delivered by

RASTOGI, J. 1.Leave granted.2. Both the appeals although arise from two separate orders passedFby the High Court of Hyderabad for the State of Telangana and State ofAndhra Pradesh dated 8[th] February 2018 in Habeas Corpus Petitionfiled at the instance of the respondent (Sobhan Kodali) and by theappellant (Lahari Sakhamuri) under the Guardians & Wards Act, 1890primarily for the custody of the two minor children who were born in theGUnited States on 14[th] March, 2012 and 13[th] October, 2014 and are UScitizens and holding US passports. For the custody of children, tusslewas going on between the parents who are residing in US since 2004-2005. Their marriage was solemnized on 14[th] March 2008 in Hyderabadand both are green card holders and not only highly educated but wellplaced. It appears that some differences cropped up which can be aH

misunderstanding or failing to understand each other, various efforts weremade through conciliation and after the matter came to this Court throughthe process of mediation, the orders of this Court indicate that lot ofefforts were made for reconciliation and at one point of time, it reachedto final stage but unfortunately could not reach to its logical end forvarious reasons and factors.

3. The persons who are affected are the minor children who havebeen directly impacted because of the fact that their parents have notbeen able to resolve their differences. Children are very sensitive anddue to the conflict of their parents if could not be resolved at the earliest,the minor children became the victim of time for which they are not atfault but indeed the sufferers. It has to be examined in differentperspective also that rights of the child as progressive approach to thebest interest of the child and what is needed in the best interest of thechild is the one which has to be deciphered by us in the instant proceedingsthrough the manifold arguments being advanced from both sides keepingin view the principles of law on the subject but still remain guess work.

4. Before this Court may proceed to examine the question, thereare plentitude of judgments of this Court but still each case has to bedecided on its own facts and circumstances. Obviously, the ultimategoal which has to be kept in mind is the best interest of the child whichis of utmost importance and of paramount consideration.

5. The brief facts of the case which manifests from the voluminousrecord placed before us are that the appellant (Lahari Sakhamuri) andrespondent (Sobhan Kodali) are the parents of the minor children.Appellant (Lahari Sakhamuri) went to USA for her masters in September,2004 and thereafter started working in USA. She is Biomedical Engineerby profession. Respondent (Sobhan Kodali) is also highly qualified andwent to USA in July 2005 and is presently Cardiologist by profession.Their marriage was solemnized according to Hindu rites in Hyderabadon 14[th] March, 2008. From this wedlock, son, namely, Arthin and daughterNeysa were born on 14[th] March, 2012 and 13[th] October, 2014 and bothare US citizens and also hold US passports. The couple purchasedhouse in Pennsylvania on 29[th] January, 2016 in their joint names andmoved to their new home. The son started going to school in September2014 and daughter in December, 2016. Both the children being therein US from their birth, the social and cultural value of US certainly wasembedded in both of them.

A6. This fact cannot be ruled out that something certainly has gonewrong in their marital relations and it went to an extent where theappellant (Lahari Sakhamuri) took decision to file petition for divorceand custody of the minor children in US on 21[st] December, 2016 on thepremise that there was complete irretrievable breakdown of marriageunder the Divorce Code, 1980 prevalent in US. It may be relevant toBnote that along with the application filed for divorce and custody of minorchildren, there is prescribed format which has to be filled disclosingthe details of any wrong, if happened physically or abuse has beencommitted and the fact is that she was completely silent and positive inassertion in her application. Although both the parties were residingCtogether in the same house, with joint legal custody of their children whowere residing with them and there was no criminal/abuse history ever inthe past.

7. Irretrievable breakdown of marriage can be due to maritaldifficulties with no reasonable prospect of reconciliation but it appears

Dthat in the US before such matrimonial matters are taken up foradjudication on the judicial side, all efforts are being made for conciliationand mediation between the parties which is also being actively takennote of under Section 89 of Code of Civil Procedure of resolvingmatrimonial and custodial disputes through the process of mediation andwhich is very successful and effective in India as well.E

8. It reveals from the record that on the date of filing of the petitionfor divorce and custody of minor children by the appellant (LahariSakhamuri), i.e. 21[st] December, 2016 in US, the order came to be passedon the petition directing respondent (Sobhan Kodali) to appear forconciliation conference on 20[th] January, 2017 and both the parties wereFdirected not to change the residence of the children which would affectthe other party’s ability to exercise custodial rights. It may be appropriateto quote the extract of the order which came to be passed on theapplication filed by the appellant (Lahari Sakhamuri) which reads asunder:G“ORDER OF COURTF COURT COURTRTT

“ORDER OF COURTF COURT COURTRTT

You, Sobhan Kodali, Defendant/Respondent, have been suedin court to obtain shared legal and primary physical custody of thechildren, Arthin Kodali, born March 14, 2012 and Neysa SakhamuriKodali, born October 13, 2014.

You are ordered to appear in person at Room 325, LehighCounty Courthouse, 455 W. Hamilton Street, Allentown,Pennsylvania, on January 20, 2017 at 2:00 p.m. , for

If you fail to appear as provided by this Order, an order forcustody may be entered against you or the Court may issue awarrant for your arrest.

You must file with the Court verification regarding anycriminal record or abuse history regarding you and anyone livingin your household on or before the initial in-person contact withthe Court (including, but not limited to, conference with aconference officer or judge or conciliation) but not later than 30days after service of the Complaint or Petition.

No party may make change in the residence of any childwhich significantly impairs the ability of the other party to exercisecustodial rights without first complying with all of the applicableprovisions of 23 Pa.C.S. §5337 and Pa.R.C.P. No. 1915.17regarding relocation.

YOU SHOULD TAKE THIS PAPER TO YOURLAWYER AT ONCE. IF YOU DO NOT HAVE LAWYER,GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.THIS OFFICE CAN PROVIDE YOU WITH INFORMATIONABOUT HIRING LAWYER. IF YOU CANNOT AFFORDTO HIRE LAWYER, THIS OFFICE MAY BE ABLE TOPROVIDE YOU WITH INFORMATION ABOUT AGENCIESTHAT MAY OFFER LEGAL SERVICES TO ELIGIBLEPERSONS AT REDUCED FEE OR NO FEE.

Lehigh County Bar AssociationLawyer Referral ServiceP.O. Box 1324Allentown, PA 18105-1324Telephone: 610-433-7094

AAmericans with Disabilities Act of 1990

The Court of Common Pleas of Lehigh County is required bylaw to comply with the Americans with Disabilities Act of 1990.For information about accessible facilities and reasonableaccommodations available to disabled individuals having businessBbefore the Court, please contact the Court Administrator’s Officeat (610) 782-3014. All arrangements must be made at least 72hours prior to any hearing or business before the Court. You mustattend the scheduled conference or hearing.

BY THE COURT:

9. It reveals from the record that efforts were going on in theprocess of conciliation and the same were held on 21[st] March, 2017 andsince the parties could not arrive to any consensus regarding the custodyof their children, another conference was scheduled as agreed for 25[th]March, 2017.

E10. By the time parties could reach to final consensus by theintervention of the trained conciliators which indisputedly play verypivotal role in matrimonial matters, there was sad demise of thematernal grandmother of the appellant (Lahari Sakhamuri) and in providingstrength and support to the family, the appellant travelled to India withboth the minor children on 23[rd] March, 2017 with return tickets of 24[th]FApril, 2017 and within 20 days of coming to Hyderabad(India) whereher family reside, filed petition in the Family Court, Hyderabad on 12[th]April, 2017 seeking custody of minor children and injunction againstrespondent (Sobhan Kodali) under the Guardians and Wards Act, 1890and she was able to succeed in getting ex-parte interim injunction onG12[th] April, 2017. It would be appropriate to quote the extract of the ex-parte injunction order passed by the learned Family Court, Hyderabaddated 12[th] April, 2017 which is as follows:-

“AD INTERIM INJUNCTION

IN THE COURT OF JUDGIGE ADDITIONAL FAMILY COURT :CITY CIVIL COURT : HYDERABADI.A. No. 292 OF 2017 in OP No.433 of 2017

BETWEEN :

Smt. Lahari Sakhamuri,W/o Sobhan Kodali, Hindu,aged 34 years, R/o Plot No. 443/A-28,Road No.86, Jubilee Hills,Hyderabad T.S

… Petitioner

AND

Sobhan Kodali,S/o Dr. Jaya Ramesh Kodali, Hindu,aged about 37 years,R/o # 2C85, Bellflower Lane,Centre Valley, Lehigh County,Pennsylvania-18034, USA

… Respondent

Sobhan Kodali,S/o Dr. Jaya Ramesh Kodali,Hindu, aged about 37 years,R/o # 2C85, Bellflower Lane,Centre Valley, Lehigh County,Pennsylvania-18034, USA

UPON MOTION made unto this court by Sri K. Chaitanya,Counsel for the petitioner seeking the court to grant ad interiminjunction restraining the respondent from forcibly taking away

Athe minor children Arthin Kodali and Neysa Sakhamur from thecustody of the petitioner pending the above O.P.

Upon hearing of the arguments of the counsel for the petitionerthis court while issuing notice to respondent returnable by26.04.2017 doth order restraining respondent from taking awayBminor children namely Arthin Kodali and Neysa Sakhamur fromthe custody of the petitioner till 26.04.2017 and that petitionershould not shift the children from the jurisdiction of this court withoutpermission from the court, and that petitioner should also lookafter food, shelter and medical facilities of the children petitionstood posted to 26.04.2017.

Given under my hand and the seal of the court on this the 12[th] dayof April, 2017.

JUDGE, ADDL. FAMILY COURT CITY CIVIL COURT, HYDERABAD”

11. After few days, she also filed FIR against respondent (SobhanKodali) and his family members for offence under Section 498A IPCEi.e. on 21[st] April, 2017 but after investigation, the police filed closurereport on 1[st] November, 2017. The fact to be noticed here at this stageis that the very appellant (Lahari Sakhamuri) filed petition for divorceand custody of minor children in US on 21[st] December, 2016, there wasno whisper or an averment that there was any domestic violence orFabuse either subjected upon her or the minor children by respondent(Sobhan Kodali) and he was informed on 23[rd] April, 2017, twelve hoursbefore her flight that she would not be returning and does not have atravel date in mind. Respondent (Sobhan Kodali) and his counsel in theUS were orally informed of the ex-parte order which was received byrespondent (Sobhan Kodali) on 29[th] April, 2017 through e-mail from theGcounsel for appellant (Lahari Sakhamuri) in India.12. Immediately, on receiving the oral information, on 26[th] April,2017, emergency petition for interim orders in petition for divorce andcustody filed at the instance of the appellant (Lahari Sakhamuri) was

[RASTOGI, J.]

filed by respondent (Sobhan Kodali). The said application was contestedAby the appellant (Lahari Sakhamuri) through Attorney and in defencestated that she had only temporarily relocated to India for attending hergrandmother’s funeral and providing emotional support to her mother.After hearing the parties, the US Court passed order on 22[nd] May, 2017for continuing the jurisdiction over the custody matter and grantedBtemporary physical custody of the children to respondent (Sobhan Kodali)with further direction that children be returned to the jurisdiction of theCourt in US by 2[nd] June, 2017. It would be appropriate to quote theextract of the order passed by US Court on the emergency custodypetition filed by respondent Sobhan Kodali on 22[nd] May, 2017:-

“IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA CIVIL DIVISION

Lahari SakhamuriPlaintiff

)File No.2016-FC-1641

Sobhan KodaliDefendant

)in custody

ORDER

AND NOW, this 22[nd] May, 2017 upon consideration of theEmergency Petition for Relief Requesting an Interim order ofcustody filed 26.04.2017, by defendant and hearing conducted on22.05.2017 attended by the defendant / petitioner Sobhan Kodalirepresented by his legal counsel, Mark B. Dischell, Esquire andplaintiff/respondent, Lahari Sakhamuri having failed to appear forsaid hearing, but represented by her legal counsel, Mary J B.Eidelman Esquire;

AIT IS HEREBY ORDERED that :

1. Lehigh County, Pennsylvania, United States of America shallremain the sole home country, home state and country of theparties’ minor children, Arthin Kodali born 14.03.2012 and NeyasSakhamuri Kodali, born 13.10.2014.B

2. This Court shall have sole continuing jurisdiction of this custodymatter which was filed by the plaintiff, Lahari Sakhamuri, on21.12.2016.

3. Pending further order of court, father is granted temporaryphysical custody of the children;C4. Mother shall return the children to Lehigh County, Pennsylva-nia, United States of America, to the father’s custody on latethan 02.06.2017.

5. Until the children’s return, father shall have telephone andDvideo chat contact with the children each day;

6. Upon her return to this jurisdiction, mother shall not bepermitted to travel out of the Commonwealth of Pennsylvaniawith the minor children without further order of court;

7. The passports of the children shall be held in escrow by theEparties’ counsel or another mutually agreeable person;

8. Should the mother fail to return the children to father by02.06.2017, mother shall pay to father $1,000 each day shedoes not return the children;

9. In the event mother does not return the children to the fatherFby 02.06.2017, father and/or any of his designees being hisfather, Jayaramesh Kodali; his mother, Vijaya Bharathi; hiscousin, Chaitanya Kadiyala, shall be permitted to receive thechildren from mother in India and bring them to Lehigh County,Pennsylvania, United States of America;

G10. Until such time as mother returns to the United States, she shallbe precluded from seeking child support on behalf of thechildren;

11. certified copy of this order shall be sent to the AmericaConsulate in India and shall be registered with appropriate court/ jurisdiction in Hyderabad, India;

12. Within thirty (30) days of this order, mother shall pay father$10,000 as partial payment towards counsel fee incurred byfather in this matter. final determination on the amount ofBcounsel fees to be paid by mother to father will be made by thecourt after subsequent hearing which may be requested byeither party.

BY THE COURT :

Sd/-Daniel K. McCarthy”

13. Thereafter, the respondent (Sobhan Kodali) moved anapplication under Order 7 Rule 11 CPC in the proceedings instituted inthe Family Court, Hyderabad asserting that the Family Court, Hyderabadhas no jurisdiction to decide the application for the custody of minorchildren as they are not the ordinary resident of Hyderabad but thatcame to be rejected vide order dated 15[th] September, 2017 holding thatthe Family Court, Hyderabad is competent to exercise jurisdiction toexamine the application filed at the instance of the appellant (LahariSakhamuri) on merits.

14. At this stage, respondent (Sobhan Kodali) preferred appealto the High Court under Section 19(1) of the Family Courts Act againstthe order dated 15[th] September, 2017 passed by the learned Family Court,Hyderabad holding jurisdiction to examine the application filed by theappellant (Lahari Sakhamuri) regarding custody of the minor childrenunder Guardians and Wards Act, 1890. Simultaneously, without any lossof time, respondent (Sobhan Kodali) also filed writ petition seekingWrit of Habeas Corpus for producing the minor children in the custodyof the US Court taking note of the earlier order passed dated21[st] December, 2016 followed with order dated 22[nd] May, 2017. Theappeal and the writ petition were clubbed but were decided by the HighCourt by separate orders dated 8[th] February, 2018 holding that the Family

ACourt, Hyderabad has no jurisdiction as the children are not ordinarilyresiding within the jurisdiction of the Family Court, Hyderabad as providedunder Section 9 of the Guardians and Wards Act, 1890. In consequencethereof, application filed by the appellant (Lahari Sakhamuri) stoodrejected. At the same time, in the Habeas Corpus Petition, Order cameto be passed dated 8[th] February, 2018. The Court finally ordered asBunder:-

“36 In view of the above discussion and the legal position, we areof the considered opinion that it would be in the best interest ofthe minor children to return to the US so that they can enjoythere in the natural environment, receive the love, care andCattention of their father and paternal grandparents, resume theirschool and be with their teachers, peers and friends.

37. Accordingly, we hereby direct the 5[th] respondent to return thechildren to the petitioner in India within four (04) weeks fromthe date of receipt of copy of this order failing which, theDConsulate General of the US at Hyderabad shall take thecustody and handover the custody of the children to the petitionerin India or in the US by making their comfortable journey toUS.

38. The 5[th] respondent is also highly educated and was gainfullyEemployed in the US for number of years. Accordingly, wehereby grant liberty to the 5[th] respondent, whenever she feelsto visit the children in US, the petitioner shall make allarrangements i.e., travel, comfortable stay at US and otherexpenses till the US Court pass directions in the petitions filedFby the 5[th] respondent or she become the gainful in any country,whichever is earlier.

39. As undertaken by the petitioner that, we direct the petitionerthat he shall not insist upon costs and fine imposed by the Courtof US upon the 5[th] respondent.

G40. We also direct the petitioner that if children are in India and 5[th]respondent happens to be in India, the children shall remainwith 5[th] respondent. He shall give all access to 5[th] respondentto chat with the children on whatsapp and video conferenceetc.”

LAHARI SAKHAMURI v. SOBHAN KODALI

[RASTOGI, J.]

15. Both the orders passed by the High Court while disposing ofthe appeal filed by the respondent (Sobhan Kodali) under Section 19(1)of the Family Courts Act as well as the Habeas Corpus Petition dated8[th] February, 2018 came to be challenged by the appellant (LahariSakhamuri) in the present appeals.

16. In the pending proceedings, in the Court of Common Pleas ofLehigh County, Pennsylvania Civil Division-Law, further order has beenpassed on 9[th] March, 2018 permitting the respondent (Sobhan Kodali) toapply for replacement of US passports on behalf of the minor children.The order is reproduced as under:-

“IN THE COURT OF COMMON PLEAS OFLEHIGH COUNTY, PENNSYLVANIACIVIL DIVISION – LAW

LAHARI SAKHAMURI,:

Plaintiff,

:NO. 2016-FC-1641

SOBHAN KODALI,:IN CUSTODY

Defendant,

ORDER OF COURT

AND NOW THIS 9[th] day of March, 2018, upon considerationof the Defendant’s Emergency Petition for Special Relief inCustody, it is hereby ORDERED and DECREED as follows:

1. Defendant’s Emergency Petition for Special Relief isGRANTED;

2. Defendant, Sobhan Kodali, is granted sole legal custody of theminor children, Arthin Kodali, born March 14, 2012, and NeysaSakhamuri Kodali, born October 13, 2014;

3. Mother’s retention of the children in India is “wrongfulretention” of the children pursuant to the Child AbductionRemedies Act, codified at 23 Pa.C.S. § 5201 et. seq.

A4. Defendant, Sobhan Kodali, shall be permitted to apply forreplacement U.S. Passports on behalf of the minor children,Arthin Kodali, born March 14, 2012, and Neysa SakhamuriKodali, born October 13, 2014, through application of Form DS-11 attached hereto as Exhibit “B”, and without Mother’s consent.

B5. The United States Department of State, upon presentation of aCertified Copy of this Order, shall issue replacement passportsto Sobhan Kodali, Father of the minor children, even thoughFather previously requested the entry of the children into theDepartment’s Child Passport Issuance Alert Program (CPIAP)and received confirmation of the entry of the children into thatCsystem on May 24, 2017, via Case Number 1536567.

BY THE COURT__________________J.”

17. Before the submissions made by the learned counsel for theparties being canvassed, it may reveal from the orders passed by thisCourt that keeping in view the personal relations of the spouse and theutmost and paramount consideration of the welfare of the children on ahigh pedestal and to find out if there is any possibility in resolving theirEmatrimonial differences through the process of mediation whichindisputably plays very pivotal role in such matters. The parties appearedin person on various dates and at one stage, it was sent for mediation asit reveals from Order dated 12[th] October 2018, the Court appointedMediator used his good office to find out an amiable solution which maybe acceptable to the parties and at one stage from Order dated 29[th]FOctober, 2018, it reveals that the parties had reached to an amicablesolution in resolving their on-going matrimonial differences by sitting acrossthe table with the intervention of the Court appointed Mediator. Butwhat happened thereafter is really very unfortunate that parties couldnot reach to any final conclusion and both the learned counsel informedGthis Court that as the mediation could not have been now possible, thematter may be heard and decided on merits.

18. Learned counsel for the appellant Ms. Malavika Rajkotia,submits that repatriation to US would not be in the best interest of thechildren and this Court has always held that the best interest of thechildren cannot be sacrificed on the principle of comity of courts or anyH

other legal principle could not plead in overcoming the best interest ofthe children which is of primary and paramount consideration. Learnedcounsel submits that there is statutory presumption in favour of themother, under the tender years doctrine and respondent (Sobhan Kodali)is unable to dispel from the pleadings on record in the instant proceedingsand she being fit mother and the best interest of the children is withmother as the primary caretaker and once the custody of the minorchildren is with mother appellant (Lahari Sakhamuri), it is in the children’sbest interest for the court to ensure the psychological well-being and thelegal rights of the mother by protecting her autonomy at the first instance,to exercise her choice of location, particularly when she is distressed inher matrimonial home.

19.Learned counsel further submitted that the prima facieassumption may be rebutted in trial but she cannot be non-suited bynot providing her an opportunity in establishing her parental competenceand the circumstances leading to protect herself and the children.Learned counsel further submitted that the appellant (Lahari Sakhamuri)and respondent (Sobhan Kodali) are Indian citizens and to separate theprimary caregiver from the children under the “best interest of child”rule constitutes invasion of her fundamental right of autonomy guaranteedto her under the law and further submitted that in giving parental rightsand privileges, what is to be ensured is the best interest of the childrenthat is admittedly difficult as it is related to their life and welfare in suchcircumstances is being called by psychologist as the “least worst option”considering that the ideal of proximity with both parents is not possible ina given situation. The children and their mother are in India and is anaccessible jurisdiction for the father being married in India and Indianlaw applies in cultural context that is well appreciated here andrespondent (Sobhan Kodali) father has means to come to India and meethis children in India.

20. Learned counsel for the appellant further submits that thoughshe has been completely silent in her proceedings instituted in the USCourt in divorce and custody petition of the children as there is aprovision in US that one can seek divorce if there is irretrievable breakdown of marriage and prospects of conciliation is reasonably ruled outhence there was no occasion for her to indicate what mentally andphysically she has suffered and how constrained it was to live due toacute mental, emotional and even physical violence and it is not in the

Ainterest of the children that their mother be pinned into an unhappy,abusive situation. It is not in the welfare of the children to be witness totheir mother being devalued. It is also not in their interest that they,witness continued toxic conflict of their parents living as family oreven in proximity of collaborative parenting. In such cases, distancewith the spouse, with the child as the only point of contact between twoBparents in their own location is the best solution.

21. Learned counsel for the appellant submits that due to theharassment meted out and humiliation suffered by her and their minorchildren at the hands of respondent (Sobhan Kodali) husband, no otheroption was left with her other than staying away from US. Further, theCchildren are admitted in the best school in Hyderabad where they arepresently studying. Learned counsel has further submitted that in Nithya1Anand RaghavanVs. State(NCT of Delhi) and another, this Courthas disagreed with the conclusions drawn in Surya Vadanan Vs. Stateof Tamil Nadu and Others2 laying down the “first strike” principleDthat weightage should be given to the order of the foreign Court whichhas jurisdiction and held that the best interest and welfare of the childrenis of paramount importance and that if handing over of the children tothe foreign Court’s jurisdiction would harm their best interest and welfare,the Court would not direct their return to the place falling within the

jurisdiction of the foreign Court. That applying the principles laid downEin the said case, the two minor children who are happily placed in thecompany of the appellant and her parents, if are entrusted to the foreigncourt’s jurisdiction, the same may not be in their best interest and welfareof the children. Learned counsel submits that Indian Courts havejurisdiction because the parties had married here and the Hindu MarriageFAct applies to Divorce and Section 26 deals with custody. What is beingpleaded by the respondent under Order 7 Rule 11 CPC is mixedquestion of law and facts and hence could be examined only during thecourse of the trial but not at this stage.

22. In support of the submission, learned counsel has placed relianceGon the decision of this Court in Jasmeet Kaur Vs. Navtej Singh3 holdingthat the jurisdiction founded on domicile is matter of trial and cannot bedecided summarily and submitted that the custody petition filed underGuardians and Wards Act, 1890 has been rejected by the High Court

1 2017(8) SCC 454 2 2015(5) SCC 450H 3 2018(4) SCC 295

without taking note of the given fact situation and the scope under Order7 Rule 11 CPC.

23. Per contra, learned senior counsel for the respondent Ms.Meenakshi Arora, referred to the decisions of this Court in SurinderKaur Sandhu Vs. Harbax Singh Sandhu and Anr.4; ElizabethDinshaw Vs. Arvand M. Dinshaw and Another5; V. Ravi6Chandran(Dr.) Vs. Union of India and Others; Nithya AnandRaghavan’s case(supra) and Surya Vadanan’s case(supra),and takingassistance thereof, submitted that two minor children were born in USand both of them are US citizens and are school goers and they enjoyedtheir schooling (which is evident from the photographs filed along withthe additional documents) and removal of children from the US despitethe Order of the US Court affects their future and the same may not bein their best interest.24. Learned counsel further submitted that the appellant (LahariSakhamuri) and respondent (Sobhan Kodali) started their matrimoniallife in the US and been there for almost 14 years, they are beingacclimatized with that culture and in their married life, except for durationon short visit to India, they spent their good time in US and removing thechildren from the US, in the given circumstances, may not be in theirbest interest. Learned counsel submitted that the appellant (LahariSakhamuri) had herself admitted that children were in shared custodywith respondent (Sobhan Kodali) and she was never subjected to domesticviolence at any given point of time and she had invoked the jurisdictionof US Court for divorce and custody of minor children based on theirresidence and, therefore, it may not be open for her to disregard theorders of US Court, more specially the order dated 22[nd] May, 2017whereby respondent (Sobhan Kodali) was granted temporary physicalcustody of the children and appellant (Lahari Sakhamuri) was directedthat minor children should be returned to the jurisdiction of US Court by2[nd] June, 2017.

25. Learned counsel submitted that from the material which hascome on record, even inference cannot be drawn that there could beany harm caused to the minor children in returning to their native state,i.e. US. Moreover, in the proceedings on behalf of the appellant (Lahari

4 1984(3) SCC 698

5 1987(1) SCC 42

6 2010(1) SCC 174

ASakhamuri) filed before the US Court, it is her own admission that therewas no domestic violence having perpetrated upon her nor she wassubjected to cruelty rather had asked for shared custody of childrenalong with respondent (Sobhan Kodali) and in the given circumstances,her unilateral decision to return to India cannot deprive the minor childrenin terms of the love, attention, care and facilities, amenities, upbringingBand environment to which they are accustomed to while in the US. Nodoubt, it is not the decision of the minor children to remain in India awayfrom their father and their school and their peers. The US Court has themost intimate contact and closest concern to decide on the issue ofminor children which has been extensively examined by the High CourtCand finding has been recorded under the impugned judgment upholdingchildren best interest.

26. Learned counsel submitted that best interest of children hasbeen sidelined while deciding to stay back in India with the minor childrenwho are admittedly US citizens and were permanently residing in US tillD23[rd] March, 2017 when they were removed from US in contravention ofthe Order dated 21[st] December, 2016 passed by the US Court and forciblyseparated from their father respondent herein and the environment inUS which children were experiencing, is their natural environment andin the given circumstances, detention of the children in India is unlawfuland in violation of Child Abduction Remedies Act of minor childrenEapplicable in US and US Court has rightly directed the appellant (LahariSakhamuri) to bring back the children to US Court by 2[nd] June, 2017 andthe findings which have been recorded by the High Court are based oncogent available material on records and needs no further interference.

27. Learned counsel further submits that the minor children areFnot ordinary residents of the jurisdiction of Family Court, Hyderabad asdefined under Section 9 of the Guardians and Wards Act, 1890 as bothare natural born US citizens and came to India only on 23[rd] March, 2017and within 20 days, application came to be filed by the appellant (LahariSakhamuri) on 12[th] April, 2017 before the Family Court, Hyderabad forGthe custody of the children with ex-parte interim injunction passed bythe learned Court and even from the pleadings, nothing is borne out thathow the Ld. Family Court, Hyderabad was having jurisdiction to entertainapplication under Guardians and Wards Act, 1890 and in the givencircumstances, the application filed by the respondent (Sobhan Kodali)under Order 7 Rule 11 CPC was arbitrarily rejected by the Ld. FamilyCourt and that was reviewed by the High Court on the material availableon record and the finding has been recorded holding that the children arenot the ordinary residents of jurisdiction of the Family Court, Hyderabadwhere an application was filed by the appellant (Lahari Sakhamuri) forcustody of the children and no error was committed by the High Court inrejecting the application filed by the appellant (Lahari Sakhamuri) underGuardians and Wards Act, 1890 for lack of jurisdiction and merely becausetheir marriage was solemnized in Hyderabad would not confer territorialjurisdiction to the Family Court, Hyderabad for the purpose of custodyof the minor children under the Guardians and Wards Act, 1890.

28. Learned counsel further submits that both the issues in respectof the custody of the minor children and rejection of an application dueto lack of territorial jurisdiction entertained by learned Family Court,Hyderabad has been discussed in detail under the two separate impugnedjudgments by the High Court and needs no further interference of thisCourt.

29. We have heard learned counsel for the parties and with theirassistance perused the record and also the plentitude of judgments citedof this Court. Before we proceed, it will be appropriate to take note ofwhat transpired between the hearing of the instant appeals. On 26[th]March, 2018, this Court directed the appellant (Lahari Sakhamuri) andrespondent (Sobhan Kodali) to remain personally present on the nextdate of hearing which was 9[th] April, 2018. During pendency of theproceedings, respondent (Sobhan Kodali) was allowed to meet childrenpossibly keeping in view the amicable solution, if possible, to be arrivedat between the parties and at one stage by Order dated 12[th] October,2018, the parties were granted liberty to resolve their issues inter seamicably and to facilitate the parties in arriving at an amicable solution,a senior counsel was requested to mediate which was voluntarily acceptedby the parties. Pursuant thereto, possibilities of settlements were exploredand at one stage, settlement was also arrived at possibly acceptable tothe parties as it reveals from the Order dated 29[th] October, 2018 of thisCourt. It will be appropriate to quote the extract of the order dated 29[th]October, 2018 followed by Order dated 27[th] November, 2018, which areas under:-

AOrderdated 29th October, 2018

“Both the respondent/husband and petitioner/wife arepresent. We are extremely happy that they have decided to forgiveeach other, forget the past and take their family life forward.

Mrs. Lahri Sakhamuri/petitioner has submitted that shewill withdraw all the cases filed by her in India and abroad andshe does not want to pursue any criminal proceedings.

Since Mr. Sobhan Kodali/respondent has to go back toUnited States tomorrow i.e. on 30.10.2018, post this matter on14.11.2018 for formal orders, on the basis of the arrangement theparties have jointly made.

We stay all the pending cases between Mrs. LahariSakhamuri and Sobhan Kodali, both civil and criminal.

We also restrain them from instituting any case againsteach other or the members of their family or filing any petition/complaint against each other or their family members, withoutexpress permission from this Court.

We record our appreciation for the strenuous efforts takenby Mr. Gurukrishna Kumar, learned senior counsel, for facilitatingthe reconciliation.”

Order dated 27th November, 2018

“Learned counsel for both sides on instructions submit thatthey will withdraw all the cases filed against each other either inIndia or in United States.

We direct the petitioner-Mrs. Lahari Sakhamuri to withdrawall the cases in both the jurisdictions within period of one weekfrom today. Let the respondent also withdraw all the cases filedboth in India or in United States within the same period of time.

Learned counsel for the respondent-husband on instructionssubmits that within 10 days, he will arrange for the passport of theminor child-Arthin from U.S. Consulate. It is also stated thathusband will take all necessary steps for resolving all issues, ifany, pertaining to the immigration and Visa status of the petitionerwithin the same period of time.

Once such issues are cleared, we direct the petitioner totravel to U.S. along with her husband and children within weekof obtaining such clearances.

We record our appreciation for the strenuous efforts takenby Shri Gurukrishna Kumar, learned senior counsel for assistingthe parties to arrive at an amicable settlement and for reunion.

List on mentioning by either side.”

30. What unfolded thereafter may not be appropriate for this Courtto take notice but the fact remains that agreement arrived at betweenthe parties could not be taken to its logical end. It would have beenbetter and in the interest of the parties themselves to amicably resolvetheir differences for their better future but as they have failed to do so,the judicial process has to intervene to decide the case on merits basedon judicial precedents.

31. In the instant case, the facts on record clearly manifest thatparties were residing in US since 2004-2005 and their marriage wassolemnized in Hyderabad on 14[th] March, 2008. Both the children wereborn in US on 14[th] March, 2012 and 13[th] October, 2014 and are UScitizens with US passports. Notably, the appellant (Lahari Sakhamuri)filed application for divorce and custody of minor children in the USCourt on 21[st] December, 2016 and order came to be passed by the USCourt on 21[st] December, 2016. Despite that interim order, the appellant(Lahari Sakhamuri) came to India on 23[rd] March, 2017 and within 20days of her arrival in India, filed an application on 12[th] April, 2017 forcustody of minor children in the Family Court, Hyderabad concealingher application for custody filed in the US Court. She also did not disclosethat an order came to be passed by the US Court against her dated22[nd] May, 2017 after hearing the counsel for the parties. In the givenfacts and circumstances, we find no difficulty in upholding the opinion ofthe High Court that the minor children were not ordinary residents ofHyderabad(India) as envisaged under Section 9(1) of the Guardians andWards Act, 1890. Resultantly, the application for custody of minorchildren filed before the Family Court, Hyderabad is rightly rejected bythe High Court in exercise of power under Order 7 Rule 11 of CPC. Atthe same time, when the orders have been passed by the US Court, theparties cannot disregard the proceedings instituted before the US Courtfiled at the instance of the appellant (Lahari Sakhamuri) who is supposedto participate in those proceedings.

A32. The judgment relied upon by the learned counsel for theappellant of Jasmeet Kaur’s case(supra) may not be of any assistancefor the reason that it was case where one of the child was born inIndia which was one of the reason prevailed upon this Court to hold thatprinciple of comity of courts or principle of forum convenience cannotdetermine the threshold bar of jurisdiction and when paramountBconsideration is the best interest of the child, it can be the subject-matterof final determination in proceedings and not under Order 7 Rule 11CPC. In our considered view, the application for custody of minor childrenfiled at the instance of the appellant was rightly rejected by the HighCourt under the impugned judgment, in consequence thereof, no legalCproceedings in reference to custody of the minor children remain pendingin India.

33. The custody of minor children has been considered difficult inadjudication by the Courts apart from raising delicate issues, especiallywhen the spouses are non-resident Indians(NRIs).D

34. This Court in Surinder Kaur Sandhu’s case(supra) wasconcerned with the custody of child who was British citizen by birthwhose parents had been settled in England after their marriage. childwas removed by the husband from the house and was brought to India.The wife obtained judicial order from the UK Court whereby theEhusband was directed to hand over the custody of child to her. Thesaid order was later confirmed by Court of England and thereafter thewife came to India and filed writ petition in the High Court of Punjaband Haryana praying for custody and production of the child which cameto be dismissed against which the wife appealed to this Court. ThisCourt keeping in view the ‘welfare of the child’, ‘comity of courts’ andF‘jurisdiction of the State which has most intimate contact with the issuesarising in the case’ held thus:-

“10. We may add that the spouses had set up their matrimonialhome in England where the wife was working as clerk and thehusband as bus driver. The boy is British citizen, having beenGborn in England, and he holds British passport. It cannot becontroverted that, in these circumstances, the English Court hadjurisdiction to decide the question of his custody. The moderntheory of Conflict of Laws recognises and, in any event, prefersthe jurisdiction of the State which has the most intimate contact

with the issues arising in the case. Jurisdiction is not attracted bythe operation or creation of fortuitous circumstances such as thecircumstance as to where the child, whose custody is in issue, isbrought or for the time being lodged. To allow the assumption ofjurisdiction by another State in such circumstances will only resultin encouraging forum-shopping. Ordinarily, jurisdiction must followupon functional lines. That is to say, for example, that in mattersrelating to matrimony and custody, the law of that place mustgovern which has the closest concern with the well-being of thespouses and the welfare of the offsprings of marriage. The spousesin this case had made England their home where this boy wasborn to them. The father cannot deprive the English Court of itsjurisdiction to decide upon his custody by removing him to India,not in the normal movement of the matrimonial home but, by anact 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 tomake it reasonable and just for the courts of that State to assumejurisdiction to enforce obligations which were incurred therein bythe spouses(See International Shoe Company v. State ofWashington [90 L Ed 95 (1945) : 326 US 310] which was not amatrimonial case but which is regarded as the fountainhead ofthe subsequent developments of jurisdictional issues like the oneinvolved in the instant case.) It is our duty and function to protectthe wife against the burden of litigating in an inconvenient forumwhich she and her husband had left voluntarily in order to maketheir living in England, where they gave birth to this unfortunateboy.”

35. In Elizabeth Dinshaw’s case(supra), this Court held that it isthe duty of courts in all countries to see that parent doing wrong byremoving children out of the country does not gain any advantage by hisor her wrongdoing and was guided by the factors such as the longertime spent by the child in the US in which the child was born and becameUS citizen and also the fact that the child has not taken roots in India andwas still not accustomed and acclimatized to the conditions andenvironment obtaining in the place of his origin in the United States ofAmerica. This Court took note of the fact that the child’s presence inIndia is the result of an illegal act of abduction and the father who is

Aguilty of the said act cannot claim any advantage by stating that he hasalready put the child in some school in Pune.

36. In V. Ravi Chandran(Dr.)’s case(supra), this Court wasconcerned with the custody of the child removed by parent from onecountry to another in contravention of the orders of the Court where theBparties had set up their matrimonial home. This Court took note of theEnglish decisions, namely L(Minors) in re7and McKee Vs. McKee8and also noticed the decision of this Court in Elizabeth Dinshaw’s9case(supra) and Dhanwanti Joshi Vs. Madhav Unde keeping intoconsideration the fact that the child was left with his mother in India fornearly twelve years, this Court held that it would not exercise itsCjurisdiction summarily to return the child to the US on the ground that hisremoval from US in 1984 was contrary to the orders of US Courts. Therelevant portion is as under:-“29. While dealing with case of custody of child removed bya parent from one country to another in contravention of the ordersof the court where the parties had set up their matrimonial home,the court in the country to which the child has been removed mustfirst consider the question whether the court could conduct anelaborate enquiry on the question of custody or by dealing withthe matter summarily order parent to return custody of the childto the country from which the child was removed and all aspectsrelating to the child’s welfare be investigated in court in his owncountry. Should the court take view that an elaborate enquiry isnecessary, obviously the court is bound to consider the welfareand happiness of the child as the paramount consideration and gointo all relevant aspects of welfare of the child including stabilityand security, loving and understanding care and guidance and fulldevelopment of the child’s character, personality and talents. Whiledoing so, the order of foreign court as to his custody may begiven due weight; the weight and persuasive effect of foreignjudgment must depend on the circumstances of each case.

30. However, in case where the court decides to exercise itsjurisdiction summarily to return the child to his own country,

7(1974) 1 All ER 913(CA)

8(1951) AC 352

91998(1) SCC 112

keeping in view the jurisdiction of the court in the native countrywhich has the closest concern and the most intimate contact withthe issues arising in the case, the court may leave the aspectsrelating to the welfare of the child to be investigated by the courtin his own native country as that could be in the best interests ofthe child. The indication given in McKee v. McKee [1951 AC 352: (1951) 1 All ER 942 (PC)] that there may be cases in which it isproper for court in one jurisdiction to make an order directingthat child be returned to foreign jurisdiction without investigatingthe merits of the dispute relating to the care of the child on theground that such an order is in the best interests of the child hasbeen explained in L (Minors), In re [(1974) 1 WLR 250 : (1974)1 All ER 913 (CA)] and the said view has been approved by thisCourt in Dhanwanti Joshi [(1998) 1 SCC 112] . Similar viewtaken by the Court of Appeal in H. (Infants), In re [(1966) 1WLR 381 (Ch & CA) : (1966) 1 All ER 886 (CA)] has beenapproved by this Court in Elizabeth Dinshaw [(1987) 1 SCC 42: 1987 SCC (Cri) 13].”

37. This Court once again reiterated the principles of the closestconcern, most intimate contact with the issues arising in the case, naturalhabitat of the minor child, best interest of the child and comity of Courts.This Court eventually directed the child to be taken to US from wherehe was removed to enable the parties to establish their right in the nativestate of the child, i.e. US.

38. In Surya Vadanan’scase(supra), it was case where thespouses were of Indian origin and later the husband became the citizenof UK. They got married in India and had two daughters in UK. Thewife also became British citizen and had British passport. Aftermatrimonial dispute arose between them, the wife returned to India withher daughters and filed petition under Section 13(1)(ia) of the HinduMarriage Act, 1955 seeking divorce in the Family Court. At the sametime, husband filed petition in the High Court of Justice. The saidCourt had passed an order making the children wards of the Court duringtheir minority or until further orders of the court and the wife was directedto return the children to the jurisdiction of the foreign court. This Courtapplied the principles of (i) “the first strike”, i.e the UK Court had passedeffective and substantial order declaring the children of the parties aswards of that court, (ii) the comity of courts and (iii) the best interest and

Awelfare of the child. It also held that the “most intimate contact” doctrineand the “closest concern” laid down in Surinder Kaur Sandhu’scase(supra) are very much alive and cannot be ignored only becausetheir application might be uncomfortable in certain situations. The Courtalso reiterated that the best interest and welfare of the child are ofparamount importance which shall always be kept in mind by the courtsBwhile adjudicating the disputes.

39. This was followed by three Judge Bench of this Court inNithya Anand Raghavan’s case(supra) in which one of us(JusticeKhanwilkar) was party. In that case, the couple married on 30[th]November, 2006 at Chennai and shifted to UK in early 2007. DisputesCarose between the spouse. The wife had conceived in December, 2008came to New Delhi in June 2009 and stayed there with her parents andshe gave birth to girl child in August, 2009 at Delhi. After the husbandarrived in India, the couple went back to UK in March, 2010 and followingcertain unsavoury events, the wife and the daughter returned to India inDAugust 2010. After exchange of legal correspondence, the wife andher daughter went back to London in December 2011. In July, 2014, thewife returned to India along with her daughter and early 2015 the childbecame ill and was diagnosed with cardiac disorder and due to the allegedviolent behavior of her husband filed complaint against him at the GAW

Cell, New Delhi. In 2016, husband filed custody/wardship petition inEUK to seek return of the child. He also filed habeas corpus petition in2017 in Delhi High Court which was allowed. The matter was broughtbefore this Court by the wife. This Court heavily relied upon its earlierjudgment in Dhanwanti Joshi’s case(supra) which in turn referred toMckee’s case(supra) where the Privy Council held that the order ofFforeign court would yield to the welfare of the child and that the comityof courts demanded not its enforcement, but its grave consideration.This Court also relied upon the judgment in V. Ravi Chandran’scase(supra) and held that the role of the High Court in examining thecases of custody of minor is on the touchstone of principle of parentspatriae jurisdiction, as the minor is within the jurisdiction of the Court.GThis Court further held that the High Court while dealing with the petitionfor issuance of habeas corpus concerning minor child in given case,may direct return of the child or decline to change the custody of thechild keeping in mind all the attending facts and circumstances intoconsideration. It was held further by this Court that each case mustH

depend on the totality of the facts and circumstances brought before itwhile considering the welfare of the child which is of paramountconsideration and the order of the foreign Court must yield to the welfareof the child and the remedy of writ of habeas corpus cannot be used formere enforcement of the directions given by the foreign court against aperson within its jurisdiction and convert that jurisdiction into that of anexecuting court. It was further observed that writ petitioner can takerecourse to such other remedy as may be permissible in law forenforcement of the order passed by the foreign court or resort to anyproceedings as may be permissible in law before the Indian Court forthe custody of the child, if so advised. This Court has disapprovedparagraph 56 (a) to (d) in Surya Vadanan’s case(supra) which readsas follows:-

“56. However, if there is pre-existing order of foreign courtof competent jurisdiction and the domestic court decides to conductan elaborate inquiry (as against summary inquiry), it must havespecial reasons to do so. An elaborate inquiry should not be orderedas matter of course. While deciding whether summary or anelaborate inquiry should be conducted, the domestic court musttake into consideration:

(a) The nature and effect of the interim or interlocutory orderpassed by the foreign court.

(b) The existence of special reasons for repatriating or notrepatriating the child to the jurisdiction of the foreign court.

(c) The repatriation of the child does not cause any moral orphysical or social or cultural or psychological harm to the child,nor should it cause any legal harm to the parent with whom thechild is in India. There are instances where the order of theforeign court may result in the arrest of the parent on his or herreturn to the foreign country. [Arathi Bandi v. BandiJagadrakshaka Rao, (2013) 15 SCC 790 : (2014) 5 SCC (Civ)475] In such cases, the domestic court is also obliged to ensurethe physical safety of the parent.

(d) The alacrity with which the parent moves the foreign courtconcerned or the domestic court concerned, is also relevant. Ifthe time gap is unusually large and is not reasonably explainable

Aand the child has developed firm roots in India, the domestic courtmay be well advised to conduct an elaborate inquiry.”

40. As regards clauses (a) to (c) of paragraph 56 above, thisCourt termed the same as tending to drift away from the exposition inDhanwanti Joshi’s case(supra) and V. Ravi Chandran’s case(supra)and with regard to clause (d), this Court disagreed with the same, and itwas finally concluded as under:-

“69. We once again reiterate that the exposition in DhanwantiJoshi [Dhanwanti Joshi v. Madhav Unde, (1998) 1 SCC 112]is good law and has been quoted with approval by three-JudgeCBench of this Court in V. Ravi Chandran (2) [V. Ravi Chandran(2) v. Union of India, (2010) 1 SCC 174 : (2010) 1 SCC (Civ)44] . We approve the view taken in Dhanwanti Joshi, inter alia,in para 33 that so far as non-Convention countries are concerned,the law is that the court in the country to which the child is removedwhile considering the question must bear in mind the welfare ofDthe child as of paramount importance and consider the order ofthe foreign court as only factor to be taken into consideration.The summary jurisdiction to return the child be exercised in caseswhere the child had been removed from its native land andremoved to another country where, may be, his native language isEnot spoken, or the child gets divorced from the social customs andcontacts to which he has been accustomed, or if its education inhis native land is interrupted and the child is being subjected to aforeign system of education, for these are all acts which couldpsychologically disturb the child. Again the summary jurisdictionbe exercised only if the court to which the child has been removedFis moved promptly and quickly. The overriding consideration mustbe the interests and welfare of the child.”

41. The essence of the judgment in Nithya Anand Raghavan’scase(supra) is that the doctrines of comity of courts, intimate connect,orders passed by foreign courts having jurisdiction in the matter regardingcustody of the minor child, citizenship of the parents and the child etc.cannot override the consideration of the best interest and the welfare ofthe child and that the direction to return the child to the foreign jurisdictionmust not result in any physical, mental, psychological, or other harm tothe child.

H10 2018(9) SCC 578

42. In Kanika Goel Vs. State of Delhi through Station HouseOfficer and another10 in which one of us(Justice Khanwilkar) is amember, the marriage of the couple was solemnized in New Delhi andaccordingly girl child was born in US in 2014. The mother along withthe child came to India in December, 2016 with their return ticket toChicago in January 2017. She filed divorce petition after coming toIndia in Delhi and husband filed emergency custody petition in US Court.Wife obtained an ex-parte order from Family Court, Delhi restraininghusband from removing the child from India on 11[th] January, 2017.Husband obtained ex-parte order for interim sole custody on 13[th] January,2017 from foreign Court. At the same time, husband filed Habeas CorpusPetition in Delhi High Court which ordered the mother to comply withthe order of UK Court. This Court, after taking into consideration totalityof facts and circumstances, observed that the custody of the minor girlchild to remain with the appellant mother until she attains the age ofmajority or the court of competent jurisdiction, trying the issue of custodyof the minor.

43. The expression “best interest of child” which is always keptto be of paramount consideration is indeed wide in its connotation and itcannot remain the love and care of the primary care giver, i.e., the motherin case of the infant or the child who is only few years old. Thedefinition of “best interest of the child” is envisaged in Section 2(9) ofthe Juvenile Justice (Care & Protection) Act, 2015, as to mean “thebasis for any decision taken regarding the child, to ensure fulfilment ofhis basic rights and needs, identify, social well-being and physical,”emotional and intellectual development.

44. We shall now consider as to whether the facts andcircumstances of the present case warrant summary enquiry into thequestion of custody of minor children, namely, Arthin and Neysa (as nolegal proceedings between the parties remain pending in India) or whetheran elaborate enquiry procedure will be necessary for entrustment ofcustody of the two minor children to the appellant (Lahari Sakhamuri)until they are produced before the US Court.

45. Indisputedly, the appellant (Lahari Sakhamuri) and respondent(Sobhan Kodali) both were residing in US since 2004-2005 and are welleducated as the appellant (Lahari Sakhamuri) did Biomedical Engineeringand the respondent (Sobhan Kodali) is Cardiologist by profession. Theirmarriage was solemnized on 14[th] March, 2008 and two loving children

Anamely, Arthin and Neysa, were born from this wedlock in US on 14[th]March, 2012 and 13[th] October 2014. Both have started going to school.They purchased house in their joint name and moved to the new housein January, 2016. Something must have been gone wrong between themwhich compelled the appellant (Lahari Sakhamuri) in filing divorceand custody petition of the minor children in the Court of Common PleasBof Lehigh County, Pennsylvania Civil Division on 21[st] December, 2016,seeking divorce, equitable distribution of marital property, primary physicaland shared legal custody of the minor children. In the divorce petition,the appellant (Lahari Sakhamuri) made specific averment about thepermanent residence in US for both the parties and securing children’sCcustody and also admitted that both the minor children were residing inUS. It was also admitted that both the children were in joint custody ofthe appellant (Lahari Sakhamuri) and respondent (Sobhan Kodali) andthey resided at 2085, Bellflower Lane, Canter Valley, Pennsylvania 18034.

46. It was her own admission in the declaration form annexed toDthe application that no mode of domestic violence or abuse was eversubjected upon her or upon the minor children by the respondent (SobhanKodali). The respondent (Sobhan Kodali) had purchased to and frotickets of the appellant (Lahari Sakhamuri) and of minor children as alsoof his mother in law who was staying together in their matrimonial home,

US with return tickets of 24[th] April, 2017 but after coming to India onE23[rd] March, 2017, because of the alleged death of her maternalgrandmother, the appellant (Lahari Sakhamuri) refused to return backand was advised to file Guardianship Petition before the Family Court,Hyderabad on 12[th] April, 2017 and took the ex-parte order concealingthe material facts from the Family Court that such petition is pendingFin US filed at her instance and there was an order passed on 21[st]December, 2016 restraining both the parties not to change residence ofthe children which would affect the other parties ability to exercisecustodial rights.

47. It is not in dispute that both the minor children, from the veryGinception of their birth, till removal from the US on 23[rd] March, 2017were living with their parents in US. This fact was admitted by theappellant (Lahari Sakhamuri) also in the guardianship petition filed beforethe Family Court, Hyderabad and also in the divorce and custody petitionfiled by her in US and only after hearing learned counsel for the parties,order was passed by the US Court on 22[nd] May, 2017 on the emergencyH

custody petition granting temporary physical custody of the children withfurther direction to the appellant (Lahari Sakhamuri) to return along withthe children to the jurisdiction of US Court on 2[nd] June, 2017. In caseshe was aggrieved by the order dated 22[nd] May, 2017 passed by the USCourt after affording an opportunity of hearing which she contestedthrough her Attorney, all the courses were available to her to assail theorder of the Court. Since the appellant (Lahari Sakhamuri) failed inreturning the children to the jurisdiction of the US Court despite orderdated 22[nd] May, 2017, there was no option left with the respondent(Sobhan Kodali) but to file Habeas Corpus Petition and pray that thechildren be repatriated back to US in compliance of the order of the USCourt.

48. It is true that this Court has to keep in mind the best interest ofthe child as the paramount consideration. The observations of the USCourt clearly show that principle of welfare of the children has beentaken into consideration by the US Court in passing of the order as itreiterates that both the parties are necessary for proper upbringing ofthe children and the ultimate decision of custody and guardianship of thetwo minor children will be taken by the US which has the exclusivejurisdiction to take the decision as the children happened to be the UScitizens and further order been passed on the respondent’s emergencypetition with special release in custody on 9[th] March, 2018 permitting therespondent (Sobhan Kodali) to apply for US passports on behalf of theminor children without appellant (Lahari Sakhamuri) being mother’sconsent. The appellant (Lahari Sakhamuri) cannot disregard theproceedings instituted at her instance before the US Court and she mustparticipate in those proceedings by engaging solicitors of her choice toespouse her cause.

49. The crucial factors which have to be kept in mind by theCourts for gauging the welfare of the children equally for the parent’scan be inter alia, delineated, such as (1) maturity and judgment; (2) mentalstability; (3) ability to provide access to schools; (4) moral character; (5)ability to provide continuing involvement in the community; (6) financialsufficiency and last but not the least the factors involving relationshipwith the child, as opposed to characteristics of the parent as an individual.

50. While dealing with the younger tender year doctrine, JanuszKorczar famous Polish-Jewish educator & children’s author observed“children cannot wait too long and they are not people of tomorrow, but

Aare people of today. They have right to be taken seriously, and to betreated with tenderness and respect. They should be allowed to growinto whoever they are meant to be - the unknown person inside each ofthem is our hope for the future.” Child rights may be limited but theyshould not be ignored or eliminated since children are in fact personswherein all fundamental rights are guaranteed to them keeping in mindBthe best interest of the child and the various other factors which play apivotal role in taking decision to which reference has been made takingnote of the parental autonomy which courts do not easily discard.

51. The doctrines of comity of courts, intimate connect, orderspassed by foreign courts having jurisdiction in the matter regarding custodyCof the minor child, citizenship of the parents and the child etc., cannotoverride the consideration of the best interest and the welfare of thechild and that the direction to return the child to the foreign jurisdictionmust not result in any physical, mental, psychological, or other harm tothe child. Taking holistic consideration of the entire case, we areDsatisfied that all the criteria such as comity of courts, orders of foreigncourt having jurisdiction over the matter regarding custody of the children,citizenship of the spouse and the children, intimate connect, and aboveall, welfare and best interest of the minor children weigh in favour of therespondent (Sobhan Kodali) and that has been looked into by the High

Court in the impugned judgment in detail. That needs no interferenceEunder Article 136 of the Constitution of India.

52. Before we conclude, we would like to observe that it is muchrequired to express our deep concern on the issue. Divorce and custodybattles can become quagmire and it is heart wrenching to see that theinnocent child is the ultimate sufferer who gets caught up in the legalFand psychological battle between the parents. The eventful agreementabout custody may often be reflection of the parents’ interests, ratherthan the child’s. The issue in child custody dispute is what will becomeof the child, but ordinarily the child is not true participant in the process.While the best-interests principle requires that the primary focus be onGthe interests of the child, the child ordinarily does not define those interestshimself or does he have representation in the ordinary sense.

53. The child’s psychological balance is deeply affected throughthe marital disruption and adjustment for changes is affected by the wayparents continue positive relationships with their children. To focus onHthe child rights in case of parental conflict is proactive step towards

looking into this special situation demanding specific articulation ofchild rights.

54. The judicial resolution of custody dispute may permanentlyaffect or even end the parties’ legal relationship but the social andpsychological relationship will usually continue and it seems appropriatethat negotiated resolution between the parents is preferable from thechild’s perspective for several reasons. child’s future relationshipwith each of his parents may be better maintained and his existingrelationship is less damaged by negotiated settlement than by oneimposed by court after adversarial proceedings.55. In the present case, there is every possibility that the partiesmay reconcile and start over their relationship afresh, at least for thesake of happiness of their own off-spring if for no other reason. Theparties are indeed mature and sensible enough to understand that theordinary wear and tear of married life has to be put up in within thelarger interests of their own happiness and of the healthy, normal growthand development of their offspring, whom destiny has entrusted to theirjoint parental care. Spouses must come over the temperamentaldisharmony which usually exists in every marriage, rather than magnifyingit with impulsive desires and passions. Parents are not only caretakers,but they are instrumental in the development of their child’s social,emotional, cognitive and physical well-being and work harmoniously togive their children happy home to which they are justly entitled to. Wehope and trust that the parties will forget and forgive their differencesand join hands together in providing the congenial atmosphere whichmay be good not for themselves but also for the development of theirminor children.

56. In our view, the best interest of the children being of paramountimportance will be served if they return to US and enjoy their naturalenvironment with love, care and attention of their parents includinggrandparents and to resume their school and be with their teachers andpeers.

57. We accordingly direct the appellant (Lahari Sakhamuri) toreturn to US along with both the children, namely, Arthin and Neysa,within period of six weeks from today. We further direct respondent(Sobhan Kodali) to make all arrangements of stay and travelexpenses(including air tickets) of the appellant (Lahari Sakhamuri) and

Aboth the children as well as her companion, if any, in their own house orif she is not willing to stay for any personal reasons, make all arrangementsfor stay at the place of her choice at reasonable cost. In case theappellant (Lahari Sakhamuri) reports that she is not inclined to travel toUS along with the minor children, or do not show any interest toaccompany the children, the respondent (Sobhan Kodali) shall deposit aBsum of Rs. 15 lakhs in the bank account of the appellant (LahariSakhamuri) and proof of deposit shall be placed in the Registry of theHigh Court of Andhra Pradesh who shall thereupon call upon the ConsulateGeneral of the US at Hyderabad to take the custody of the minor children,namely, Arthin and Neysa, along with their passports and other travelCdocuments from the appellant (Lahari Sakhamuri) and hand over thesame to the respondent (Sobhan Kodali) with condition for taking thecustody of the minor children (Arthin and Neysa) for being taken to USand hand over to the jurisdictional Court in US until further orders arepassed in the pending proceedings by the US Court. The appellant (LahariSakhamuri) will be at liberty to utilize the money deposited by theDrespondent (Sobhan Kodali) in connection with her visit to US, if sodesired, in future and the respondent (Sobhan Kodali) shall not take anycoercive steps against her which in any manner may result in adverseconsequences.

58. It is further made clear that the observations which has beenEmade by us are only for the limited purpose of engaging in summaryinquiry for consideration in the petition of Habeas Corpus and will be ofno assistance to either party in the custody proceedings pending in theUS Court which indeed will be decided on its own merits.

59. While parting, we express our word of gratitude for the sincereFefforts put in by Mr. Gurukrishna Kumar, Senior Advocate, in persuadingthe parties to arrive at an amicable settlement.

60. Consequently, Civil Appeals arising out of SLP(Civil) Nos.15892-15893 of 2018 are dismissed. No costs.G61. The Criminal Appeal arising out of SLP(Crl.) No. 2316 of2018 stands disposed of in the above terms.

62. Pending application(s), if any, stand disposed of.

Kalpana K. Tripathy

Appeals disposed of.