YASHITA SAHU versus STATE OF RAJASTHAN & ORS.

[2020] 1 S.C.R. 417

YASHITA SAHU

STATE OF RAJASTHAN & ORS.

(Criminal Appeal No. 127 of 2020)

JANUARY 20, 2020

[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]

Child and Family Welfare – Child Custody – Parents in twodifferent continents – In 2016, couple got married in India –Appellant-wife accompanied the husband, working in USA – Adaughter was born in 2017 – Relationship of the couple got strained– Appellant inter alia sought sole custody of the minor child from theNorfolk Juvenile and Domestic Relations District Court– Consentorder passed inter alia making provision for shared parenting –Before the next date fixed in the Norfolk Court, the appellant alongwith the child came to India– Husband filed motion for emergencyrelief before the said Court – Ex-parte order inter alia granted himcustody of the child – Husband also filed petition for issuance ofwrit of habeas corpus before the Rajasthan High Court – High Courtinter alia directed the wife to return to USA along with minor daughter– On appeal, held: It is too late in the day to urge that writ of habeascorpus is not maintainable if the child is in the custody of anotherparent – Court can invoke its extraordinary writ jurisdiction forthe best interest of the child – Contention of the appellant that thewrit petition was not maintainable, rejected – Further, since thewife brought the minor child to India in violation of the orders ofthe jurisdictional court in USA, her custody of the child cannot besaid to be strictly legal – However, the High Court could not havedirected the appellant to go to USA – Custody of child is differentissue, but even while deciding such issue, no direction can be issuedin writ jurisdiction to the adult spouse to go and live with the otherstrained spouse – In matters of custody of child, the welfare ofthe child will always remain the paramount consideration – In caseslike the present one where the parents are in two different continents,effort should be made to give maximum visitation rights to the parent

EFG

Awho is denied custody – Directions issued in two parts– First partwill apply if the appellant is willing to go to USA on terms andconditions offered by the husband in his affidavit which is recordedas an undertaking to the Court and the husband is duty bound toabide by it– Second part to apply if she is not willing to go to USA,how should the husband be granted custody of the child – Further,Bin case if the visa/work permit of the husband is not extended andhe has to leave USA then the appellant is at liberty to move SupremeCourt for fresh directions – Constitution of India – Art.226 –Doctrine of comity of courts.

Constitution of India – Art.226 – Writ of habeas corpus –CMaintainability of, in matters of child custody – Discussed – Childand Family Welfare.

Doctrines/Principles – Doctrine of comity of courts – Held:Doctrine of comity of courts is very healthy doctrine – If courts indifferent jurisdictions do not respect the orders passed by each other,Dit will lead to contradictory orders being passed in differentjurisdictions – No hard and fast guidelines can be laid down in thisregard and each case has to be decided on its own facts– Child andFamily Welfare– Child Custody.

Child and Family Welfare – Child Custody – Visitation rights;EContact Rights – Duty of Courts – Held: It is to be ensured that theCourt weighs each and every circumstance very carefully beforedeciding how and in what manner the custody of the child shouldbe shared between both the parents – Even if the custody is given toone parent the other parent must have sufficient visitation rights toFensure that the child keeps in touch with the other parent and doesnot lose social, physical and psychological contact with any one ofthe two parents – Courts dealing with the custody matters must whiledeciding issues of custody clearly define the nature, manner andspecifics of the visitation rights – In addition to ‘Visitation Rights’,‘Contact rights’ are also important for development of the childGspecially in cases where both parents live in different states orcountries – Concept of contact rights in the modern age would becontact by telephone, e-mail or in fact, the best system of contact, ifavailable between the parties should be video calling.

Disposing of the appeal, the Court

HELD : 1.1 Whether writ of habeas corpus is maintainable?

It is too late in the day to urge that writ of habeas corpusis not maintainable if the child is in the custody of another parent.The court can invoke its extraordinary writ jurisdiction for thebest interest of the child. Therefore, the contention of theappellant-wife that the writ petition before the High Court ofRajasthan was not maintainable is rejected. In the present casesince the wife brought the minor to India in violation of the ordersof the jurisdictional court in USA, her custody of the child cannotbe said to be strictly legal. However, the High Court could nothave directed the appellant-wife to go to the USA. The wife is anadult and no court can force her to stay at place where she doesnot want to stay. Custody of child is different issue, but evenwhile deciding the issue of custody of child, no direction can beissued to the adult spouse to go and live with the other strainedspouse in writ jurisdiction. [Paras 9, 12] [427-C-D; 428-F-G]

Elizabeth Dinshaw v. Arvand M. Dinshaw & Ors. (1987)1 SCC 42 : [1987] 1 SCR 175 ; Nithya Anand Raghavanv. State (NCT of Delhi) & Anr. (2017) 8 SCC 454 : [2017]7 SCR 281 ; Lahari Sakhamuri v. Sobhan Kodali(2019) 7 SCC 311 ; Kanika Goel v. State of Delhi (2018)9 SCC 578 : [2018] 11 SCR 546 – relied on.

1.2 Comity of Courts

In the fast shrinking world where adults marry and shiftfrom one jurisdiction to another there are increasing issues ofjurisdiction as to which country’s courts will have jurisdiction. Inmany cases the jurisdiction may vest in two countries. The issueis important and needs to be dealt with care and sensitivity.Though the interest of the child is extremely important and is, infact, of paramount importance, the courts of one jurisdiction shouldrespect the orders of court of competent jurisdiction even if itis beyond its territories. When child is removed by one parentfrom one country to another, especially in violation of the orderspassed by court, the country to which the child is removed must

Aconsider the question of custody and decide whether the courtshould conduct an elaborate enquiry on the question of child’scustody or deal with the matter summarily, ordering the parentto return the custody of the child to the jurisdiction from whichthe child was removed, and all aspects relating to the child’swelfare be investigated in court in his/her own country. TheBdoctrine of comity of courts is very healthy doctrine. If courtsin different jurisdictions do not respect the orders passed by eachother it will lead to contradictory orders being passed in differentjurisdictions. No hard and fast guidelines can be laid down in thisregard and each case has to be decided on its own facts. TheCwelfare of the child will always remain the paramountconsideration. [Paras 13, 16] [429-A-D; 432-D]

V. Ravi Chandran (Dr.) (2) v. Union of India (UOI) andOrs. (2010) 1 SCC 174 : [2009] 15 SCR 960 – reliedon.

D1.3 Welfare of the child – the paramount consideration

While deciding matters of custody of child, primary andparamount consideration is welfare of the child. If welfare of thechild so demands then technical objections cannot come in theway. The courts should decide the issue of custody only on theEbasis of what is in the best interest of the child. child, especiallya child of tender years requires the love, affection, company,protection of both parents. This is not only the requirement ofthe child but is his/her basic human right. Just because the parentsare at war with each other, does not mean that the child shouldFbe denied the care, affection, love or protection of any one of thetwo parents. child is not an inanimate object which can be tossedfrom one parent to the other. Every separation, every re-unionmay have traumatic and psychosomatic impact on the child.Therefore, it is to be ensured that the court weighs each andevery circumstance very carefully before deciding how and inGwhat manner the custody of the child should be shared betweenboth the parents. Even if the custody is given to one parent theother parent must have sufficient visitation rights to ensure thatthe child keeps in touch with the other parent and does not losesocial, physical and psychological contact with any one of the two

parents. It is only in extreme circumstances that one parent shouldbe denied contact with the child. Reasons must be assigned ifone parent is to be denied any visitation rights or contact withthe child. Courts dealing with the custody matters must whiledeciding issues of custody clearly define the nature, manner andspecifics of the visitation rights. The concept of visitation rightsis not fully developed in India. Most courts while granting custodyto one spouse do not pass any orders granting visitation rights tothe other spouse. [Paras 17, 19 and 20] [432-E, F-H; 433-A-D]1.4 Normally, if the parents are living in the same town orarea, the spouse who has not been granted custody is givenvisitation rights over weekends only. In case the spouses areliving at distance from each other, it may not be feasible or inthe interest of the child to create impediments in the educationof the child by frequent breaks and, in such cases the visitationrights must be given over long weekends, breaks, and holidays.In cases like the present one where the parents are in twodifferent continents effort should be made to give maximumvisitation rights to the parent who is denied custody. In additionto ‘Visitation Rights’, ‘Contact rights’ are also important fordevelopment of the child specially in cases where both parentslive in different states or countries. The concept of contact rightsin the modern age would be contact by telephone, e-mail or infact, the best system of contact, if available between the partiesshould be video calling. With the increasing availability of internet,video calling is now very common and courts dealing with theissue of custody of children must ensure that the parent who isdenied custody of the child should be able to talk to her/his childas often as possible. Unless there are special circumstances totake different view, the parent who is denied custody of thechild should have the right to talk to his/her child for 5-10 minuteseveryday. This will help in maintaining and improving the bondbetween the child and the parent who is denied custody. If thatbond is maintained the child will have no difficulty in moving fromone home to another during vacations or holidays. The purposeof this is, if one happy home with two parents cannot be providedto the child then let the child have the benefit of two happy homeswith one parent each. [Paras 21-23] [433-E-H; 434-A-C]

1.5 Age of the child– The child is less than 3 years old.She is girl and, therefore, there can be no manner of doubt thatshe probably requires her mother more than her father. This is afactor in favour of the wife. [Para 24] [434-E]

1.6 Nationality of the child- The child is citizen of USA byBbirth. [Para 25] [434-F]

1.7 Proceedings in the Norfolk Court- The contentionraised on behalf of the wife that she could not understand theorder of the Norfolk Court is not agreed with. This is not the firsttime that the wife had approached the court. The wife is educated.CShe was working in Walmart in the USA. The wife is aware of herrights. Unable to agree with the contention now raised that hercounsel coerced her to enter into the agreement. In any event ifshe has any grievance with regard to the manner in which thesettlement was arrived at, the proper course was to raise theissue before the Norfolk Court. No Indian Court can sit in appealDover the orders of the Norfolk Court. Obviously, the child whois less than three years old cannot be heard in the matter butkeeping in view the facilities of education, social security etc.,which would be available in USA, the child should not be deprivedof the same only on the ground that the mother does not want toEgo back to USA. [Paras 26, 27-29] [435-C, G-H; 436-A-B]

1.8 Visa issue

The counsel for the appellant-wife laid great emphasis onthe fact that the visa/work permit of the husband is expiring in2020. That by itself is no ground to deny custody of the child toFthe husband. [Para 30] [436-C]

2.1 It is in the best interest of the child to have parentalcare of both the parents, if not joint then at least separate. If thewife is willing to go back to USA then all orders with regard tocustody, maintenance etc., must be looked into by the jurisdictionalGcourt in USA. writ court in India cannot, in proceedings likethis direct that an adult spouse should go to America. Therefore,directions are being issued in two parts. The first part will applyif the appellant-wife is willing to go to USA on terms and conditionsoffered by the husband in his affidavit. The second part would

apply if she is not willing to go to USA, how should the husbandbe granted custody of the child. [Para 32] [437-B-C]

2.2 The counsel for the appellant-wife urged that the positionwould totally change in case the work permit/visa of the husbandis not extended. This is in the realm of speculation, it cannot bepresumed whether the visa will be extended or not. Therefore,the aforesaid directions are issued but it is made clear that if thevisa/work permit of the husband is not extended and he has toleave the USA then the wife will be at liberty to move this Courtfor fresh directions. [Para 36] [440-E, F]

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 127 of 2020.

From the Judgment and Order dated 01.07.2019 of the High Courtof Rajasthan at Jaipur in D.B. Habeas Corpus Petition No. 229 of 2018.

Ms. Malvika Rajkotia, Ms. Akriti Tyagi, Lakshmi Raman Singh,Advs. for the Appellant.

Prabhjit Jauhar, Ms. Aishwarya, S. S. Jauhar, Vidhan Vyas,Ms. Harshita Dhingra, Nishanth Patil, Advs. for the Respondents.

The Judgment of the Court was delivered by

DEEPAK GUPTA, J. 1. Leave granted.

2. Yashita Sahu (hereinafter referred to as the wife) and VarunVarma (hereinafter referred to as the husband), got married on 30.05.2016in India. The husband was already working in the United States ofAmerica (hereinafter referred to as the USA). The wife accompaniedthe husband to the USA on 17.07.2016. daughter named Kiyara Verma,was born to the couple on 03.05.2017. She is citizen of the USA. The

Arelationship between the husband and the wife got strained and theymade various allegations and counter allegations against each other. Thewife applied for an Emergency Protection Order on 25.08.2018 to theNorfolk Juvenile and Domestic Relations District Court (hereinafterreferred to as the Norfolk Court), praying for her protection and an exparte preliminary protection order was passed against the husband.BThereafter, on 29.08.2018, the wife instituted petition in the same Courtseeking sole custody of the minor child. She also filed petition prayingthat the husband be directed to give monetary support to her and theminor child. The said Court passed an order on 26.09.2018 in terms ofthe agreement reached between the parties. This agreement is part ofCthe order and reads as follows:-

“Father to continue paying rent and utilities @ the marital residencefor October, 2018 and November, 2018. Father will add motherto lease as an authorized occupants or leaseholder. Father to paymother 150/week for child support for October and November,D2018/ and 200/week for December, 2018. Parties to work togetherto reach resolution as to who will continue occupy the martialresidence after November, 2018. Mother to look for employmentconsistent with her educational and professional experience.Mother and father have joint legal custody of minor child andshared physical custody of child father’s parenting time to startEThursday September, 27, 2018 @ noon until Saturday September29, 2018 @ noon. Thereafter, the parties are to share parentingtime as follows :

mother to have child every other week from Saturday @ noonuntil Wednesday @ noon and in alternating weeks from SaturdayF@ noon until Tuesday @ noon. Father shall have parenting timeon Wednesday @ noon until Saturday with alternating weeks two@ noon until Saturday @ noon (i.e. 4 days on, 3 days off switchingweeks for each parent) parents shall allow whatsapp calling withchild with custodial parent at least 5 min. per evening uponGreasonable notice to other parent. Parents shall use third neutralparty to facilitate exchanging the child. Parties shall corporatewith each other & third party if noon exchange time is not feasibleall parties will surrender their passports, including child’s passport,to guardian ad liten. Mother to reside @ marital residence untilDecember 1, 2018 wherein mother will vacate the premises orHassume full responsibility of the rent and utilities thereafter.”As per this order, amongst other things the husband was to addthe wife as an authorised lease holder in the rented premises and he wasto pay weekly support to the child @ $150 per week for the months ofOctober and November, 2018 and $200 per week for the month ofDecember, 2018. Joint, legal custody and shared physical custody ofthe child was given to the parents, with each parent being given individualparenting time. As per the agreement the child was also permitted totalk to the other parent by WhatsApp calling, after reasonable notice. Itis important to note that it was clearly mentioned that the parties shallcooperate with each other and try to reach an amicable settlement withthe help of neutral third party. If settlement was not possible thenthey were to surrender their passports including the child’s passport tothe guardian ad litem. The wife was directed to reside in the maritalresidence till December 1, 2018, whereafter she had to vacate thepremises or assume full responsibility of the rent and utilities.

3. It is not disputed before us that the wife, along with the childleft the USA and came to India on 30.09.2018 i.e. after 26.09.2018 andbefore 01.10.2018, which was the next date fixed before the NorfolkCourt.

4. The husband on coming to know of the fact that his wife, alongwith their child had left the USA for India, filed motion for emergencyrelief before the Norfolk Court on 02.10.2019. An ex parte order waspassed in favour of the husband whereby the Norfolk Court grantedsole legal and physical custody of the child to the husband and directedthe wife to return to the USA along with the child. warrant was alsoissued against the wife for violating the order dated 26.09.2018 of theNorfolk Court.

5. The husband also filed petition for issuance of writ of habeascorpus before the Rajasthan High Court for production of his minorchild. The High Court by the impugned judgment dated 01.07.2019directed the wife to return to the USA along with her minor daughterwithin period of 6 weeks to enable the jurisdictional court in USA topass further orders in this regard in the proceedings already pending.The husband was directed to make all arrangements for the stay andtravel of the wife and the minor child and any companion. It wasfurther directed that in case the wife was not willing to stay in the houseof the husband, then the petitioner-husband would make alternative

Aarrangements for her stay at the place of her choice at reasonablecost.6. Aggrieved by this judgment of the Rajasthan High Court, thewife has filed the present appeal.

7. We have heard Ms. Malvika Rajkotia, learned counsel for theBappellant and Mr. Prabhjit Jauhar, learned counsel for the respondents,at length. Various contentions have been raised before us by both sides.It has been contended by Ms. Rajkotia that writ of habeas corpuswould not lie for the custody of the child since she could not be said to bein illegal detention, as the child was in the custody of the mother who isCthe natural guardian. She also contended that the High Court erred ingiving direction to the wife to travel to the USA. Her next contentionis that the child is only about 2 ½ years old and moreover being girl-child requires the care, attention and protection of the mother and,therefore, it is in the interest of the child to be placed in custody of themother. With regard to the proceedings before the Norfolk Court in theDUSA, it is contended that the wife was unable to comprehend theproceedings before the Norfolk Court because of lack of knowledge ofEnglish and that too spoken in an American accent. She also submittedthat the legal aid provided to the wife was of lawyer who was a‘caucasian male’, implying that there was lack of communication betweenEthe two. It is also contended that the wife had raised objection to thealleged consent order vide e-mail dated 28.09.2018. She also submitsthat the order passed by the Norfolk Court is not binding on the parties,especially the wife and, in the larger interest of the child the writ petitionfiled by the husband before the Rajasthan High Court should have beendismissed. It was also contended by Ms. Rajkotia that the husband isFworking in the USA on the basis of work permit which is only valid till2020 and the future of the wife and the child will be in jeopardy in casehis visa/work permit is not extended.

8. On the other hand, Mr. Jauhar, contends that it was the wifewho approached the Court in Norfolk and, by agreement, an order wasGpassed giving shared parenting to both the parents. The wife had beenspecifically directed neither to leave the USA nor take the child out ofthe USA, but she has violated the orders of the jurisdictional court, whichjurisdiction was invoked by the wife herself. According to him the wifecannot be permitted to violate the orders passed by court in anotherHcountry and then seek protection in the Indian courts. He also submitted

that in this modern age it is well recognised principle of parenting thateven father can be an appropriate natural guardian for the minordaughter. Lastly, he submitted that the husband is not interested indivorcing the wife and his intention is to live with the child and the wife.He also urged that the husband is willing to make all arrangements forstay and travel for the wife and the child, if the wife comes to the USAalong with the child.

Whether writ of habeas corpus is maintainable?

9. It is too late in the day to urge that writ of habeas corpus isnot maintainable if the child is in the custody of another parent. The lawin this regard has developed lot over period of time but now it is asettled position that the court can invoke its extraordinary writ jurisdictionfor the best interest of the child. This has been done in ElizabethDinshaw vs. Arvand M. Dinshaw & Ors.[1], Nithya Anand Raghavanvs. State (NCT of Delhi) & Anr.[2] and Lahari Sakhamuri vs. SobhanKodali[3]among others. In all these cases the writ petitions wereentertained. Therefore, we reject the contention of the appellant-wifethat the writ petition before the High Court of Rajasthan was notmaintainable.

10. We need not refer to all decisions in this regard but it would beapposite to refer to the following observations from the judgment inNithya Anand Raghavan (supra):-

“46. The High Court while dealing with the petition for issuanceof writ of habeas corpus concerning minor child, in givencase, may direct return of the child or decline to change the custodyof the child keeping in mind all the attending facts andcircumstances including the settled legal position referred to above.Once again, we may hasten to add that the decision of the court,in each case, must depend on the totality of the facts andcircumstances of the case brought before it whilst consideringthe welfare of the child which is of paramount consideration. Theorder of the foreign court must yield to the welfare of the child.Further, the remedy of writ of habeas corpus cannot be used formere enforcement of the directions given by the foreign courtagainst person within its jurisdiction and convert that jurisdiction

1 (1987) 1 SCC 42

2 (2017) 8 SCC 454

3 (2019) 7 SCC 311

Ainto that of an executing court. Indubitably, the writ petitioner cantake recourse to such other remedy as may be permissible in lawfor enforcement of the order passed by the foreign court or toresort to any other proceedings as may be permissible in law beforethe Indian Court for the custody of the child, if so advised.

B47. In habeas corpus petition as aforesaid, the High Court mustexamine at the threshold whether the minor is in lawful or unlawfulcustody of another person (private Respondent named in the writpetition)…”

11. Further, in the case of Kanika Goel vs. State of Delhi[4], itCwas held as follows:

“34. As expounded in the recent decisions of this Court, the issueought not to be decided on the basis of rights of the parties claimingcustody of the minor child but the focus should constantly remainon whether the factum of best interest of the minor child is toDreturn to the native country or otherwise. The fact that the minorchild will have better prospects upon return to his/her nativecountry, may be relevant aspect in substantive proceedingsfor grant of custody of the minor child but not decisive to examinethe threshold issues in habeas corpus petition. For the purposeof habeas corpus petition, the Court ought to focus on the obtainingEcircumstances of the minor child having been removed from thenative country and taken to place to encounter alien environment,language, custom, etc. interfering with his/her overall growth andgrooming and whether continuance there will be harmful…”

12. In the present case since the wife brought the minor to IndiaFin violation of the orders of the jurisdictional court in USA, her custodyof the child cannot be said to be strictly legal. However, we agree withthe learned counsel for the appellant that the High Court could not havedirected the appellant-wife to go to the USA. The wife is an adult andno court can force her to stay at place where she does not want toGstay. Custody of child is different issue, but even while deciding theissue of custody of child, we are clearly of the view that no directioncan be issued to the adult spouse to go and live with the other strainedspouse in writ jurisdiction.

Comity of Courts

13. In the fast shrinking world where adults marry and shift fromone jurisdiction to another there are increasing issues of jurisdiction as towhich country’s courts will have jurisdiction. In many cases thejurisdiction may vest in two countries. The issue is important and needsto be dealt with care and sensitivity. Though the interest of the child isextremely important and is, in fact, of paramount importance, the courtsof one jurisdiction should respect the orders of court of competentjurisdiction even if it is beyond its territories. When child is removedby one parent from one country to another, especially in violation of theorders passed by court, the country to which the child is removed mustconsider the question of custody and decide whether the court shouldconduct an elaborate enquiry on the question of child’s custody or dealwith the matter summarily, ordering the parent to return the custody ofthe child to the jurisdiction from which the child was removed, and allaspects relating to the child’s welfare be investigated in court in his/her own country.

14. Reference in this regard may be made to the judgment inElizabeth Dinshaw (supra) wherein this Court was dealing with casewhere the wife was an American citizen whereas the husband was acitizen of India. They got married in America and child was born tothem in the year 1978. In 1980, differences arose between the coupleand the wife filed petition for divorce. The jurisdictional court in Americahad dissolved the marriage by decree of divorce on 23.04.1982 and bythe same decree it was directed that the wife would have the care,custody and control of the child till he reaches the age of 18 years. Thehusband was given visitation rights. Taking advantage of the weekendvisitation rights, the husband picked up the child from school on 11.01.1986and brought him to India. The wife filed petition under Article 32 ofthe Constitution of India before this Court. Not only was the petitionentertained, but the same was allowed and we would like to refer tocertain important observations of this Court in Para 8:

“8. Whenever question arises before court pertaining to thecustody of minor child, the matter is to be decided not onconsiderations of the legal rights of parties but on the sole andpredominant criterion of what would best serve the interest andwelfare of the minor. We have twice interviewed Dustan in ourchambers and talked with him. We found him to be too tender in

Aage and totally immature to be able to form any independent opinionof his own as to which parent he should stay with. The child is anAmerican citizen. Excepting for the last few months that haveelapsed since his being brought to India by the process of illegalabduction by the father, he has spent the rest of his life in theUnited States of America and he was doing well in school there.BIn our considered opinion it will be in the best interests and welfareof Dustan that he should go back to the United States of Americaand continue his education there under the custody andguardianship of the mother to whom such custody and guardianshiphave been entrusted by competent court in that country. We areCalso satisfied that the petitioner who is the mother, is full of genuinelove and affection for the child and she can be safely trusted tolook after him, educate him and attend in every possible way tohis proper upbringing. The child has not taken root in this countryand he is still accustomed and acclimatized to the conditions andenvironments obtaining in the place of his origin in the UnitedDStates of America. The child’s presence in India is the result ofan illegal act of abduction and the father who is guilty of the saidact cannot claim any advantage by stating that he has already putthe child in some school in Pune. The conduct of the father hasnot been such as to inspire confidence in us that he is fit andEsuitable person to be entrusted with the custody and guardianshipof the child for the present.”In V. Ravi Chandran (Dr.) (2) vs. Union of India (UOI) andOrs.[5] it was held as follows:

“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 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 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 welfare

H5 (2010) 1 SCC 174

and happiness of the child as the paramount consideration and gointo all relevant aspects of welfare of child including stability andsecurity, 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,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 interest ofthe child….”

15. In Nithya Anand Raghavan (supra), this Court took thefollowing view:-

“42. The consistent view of this Court is that if the child has beenbrought within India, the courts in India may conduct: (a) summaryinquiry; or (b) an elaborate inquiry on the question of custody. Inthe case of summary inquiry, the court may deem it fit to orderreturn of the child to the country from where he/she was removedunless such return is shown to be harmful to the child. In otherwords, even in the matter of summary inquiry, it is open to thecourt to decline the relief of return of the child to the country fromwhere he/she was removed irrespective of pre-existing orderof return of the child by foreign court. In an elaborate inquiry,the court is obliged to examine the merits as to where the paramountinterests and welfare of the child lay and reckon the fact of pre-existing order of the foreign court for return of the child as onlyone of the circumstances. In either case, the crucial question tobe considered by the court (in the country to which the child isremoved) is to answer the issue according to the child’s welfare.That has to be done bearing in mind the totality of facts andcircumstances of each case independently. Even on close scrutinyof the several decisions pressed before us, we do not find anycontra view in this behalf. To put it differently, the principle ofcomity of courts cannot be given primacy or more weightage for

Adeciding the matter of custody or for return of the child to thenative State.”

Thereafter, another bench of this Court in Lahari Sakhamuri(supra), while interpreting the judgment in Nithya Anand Raghavan(supra) held as follows :-

“41…the doctrines of comity of courts, intimate connect, orderspassed by foreign courts having jurisdiction in the matter regardingcustody of the minor child, citizenship of the parents and the childetc., cannot override the consideration of the best interest and thewelfare of the child and the direction to return the child to theCforeign jurisdiction must not result in any physical, mental,psychological, or other harm to the child.”

16. We are of the considered view that the doctrine of comity ofcourts is very healthy doctrine. If courts in different jurisdictions donot respect the orders passed by each other it will lead to contradictoryDorders being passed in different jurisdictions. No hard and fast guidelinescan be laid down in this regard and each case has to be decided on itsown facts. We may however again reiterate that the welfare of thechild will always remain the paramount consideration.

Welfare of the child – the paramount consideration

E17. It is well settled law by catena of judgments that whiledeciding matters of custody of child, primary and paramountconsideration is welfare of the child. If welfare of the child so demandsthen technical objections cannot come in the way. However, whiledeciding the welfare of the child it is not the view of one spouse alonewhich has to be taken into consideration. The courts should decide theFissue of custody only on the basis of what is in the best interest of thechild.

18. The child is the victim in custody battles. In this fight of egosand increasing acrimonious battles and litigations between two spouses,our experience shows that more often than not, the parents who otherwiseGlove their child, present picture as if the other spouse is villain and heor she alone is entitled to the custody of the child. The court must thereforebe very vary of what is said by each of the spouses.

19. child, especially child of tender years requires the love,affection, company, protection of both parents. This is not only the

requirement of the child but is his/her basic human right. Just becausethe parents are at war with each other, does not mean that the childshould be denied the care, affection, love or protection of any one of thetwo parents. child is not an inanimate object which can be tossedfrom one parent to the other. Every separation, every re-union mayhave traumatic and psychosomatic impact on the child. Therefore, it isto be ensured that the court weighs each and every circumstance verycarefully before deciding how and in what manner the custody of thechild should be shared between both the parents. Even if the custody isgiven to one parent the other parent must have sufficient visitation rightsto ensure that the child keeps in touch with the other parent and does notlose social, physical and psychological contact with any one of the twoparents. It is only in extreme circumstances that one parent should bedenied contact with the child. Reasons must be assigned if one parent isto be denied any visitation rights or contact with the child. Courts dealingwith the custody matters must while deciding issues of custody clearlydefine the nature, manner and specifics of the visitation rights.

20. The concept of visitation rights is not fully developed in India.Most courts while granting custody to one spouse do not pass any ordersgranting visitation rights to the other spouse. As observed earlier, childhas human right to have the love and affection of both the parents andcourts must pass orders ensuring that the child is not totally deprived ofthe love, affection and company of one of her/his parents.

21. Normally, if the parents are living in the same town or area,the spouse who has not been granted custody is given visitation rightsover weekends only. In case the spouses are living at distance fromeach other, it may not be feasible or in the interest of the child to createimpediments in the education of the child by frequent breaks and, insuch cases the visitation rights must be given over long weekends, breaks,and holidays. In cases like the present one where the parents are in twodifferent continents effort should be made to give maximum visitationrights to the parent who is denied custody.

22. In addition to ‘Visitation Rights’, ‘Contact rights’ are alsoimportant for development of the child specially in cases where bothparents live in different states or countries. The concept of contactrights in the modern age would be contact by telephone, e-mail or infact, we feel the best system of contact, if available between the partiesshould be video calling. With the increasing availability of internet, video

Acalling is now very common and courts dealing with the issue of custodyof children must ensure that the parent who is denied custody of thechild should be able to talk to her/his child as often as possible. Unlessthere are special circumstances to take different view, the parent whois denied custody of the child should have the right to talk to his/her childfor 5-10 minutes everyday. This will help in maintaining and improvingBthe bond between the child and the parent who is denied custody. If thatbond is maintained the child will have no difficulty in moving from onehome to another during vacations or holidays. The purpose of this is, ifwe cannot provide one happy home with two parents to the child then letthe child have the benefit of two happy homes with one parent each.

23. As far as the present case is concerned, keeping in view whatwe have held above, we are not going into various allegations and counterallegations made by both the spouses. However, we record the statementof the husband that he has no intention of divorcing his wife. We canonly hope that the couple can either by themselves or through mediationDsettle their disputes which would not only be in their own interest butalso in the interest of Kiyara. Having said so, since at this stage thedispute between them remains unresolved we shall list out the factorsand weigh them in proper manner to see what is best in the interest ofthe child:-

E24.Age of the child– the child is less than 3 years old. She is agirl and, therefore, there can be no manner of doubt that she probablyrequires her mother more than her father. This is factor in favour ofthe wife.

25. Nationality of the child- The child is citizen of USA byFbirth. Her father was already working in the USA when he got married.We are told that the mother had visited the USA once before marriageand when she got married it was done with the knowledge that she mayhave to settle down there. The child was born in hospital in the USAand the mother did not come back to India for delivery which indicatesthat at that time the parents wanted the child to be citizen of USA.GSince the child is citizen of USA by birth and holds passport of thatcountry, while deciding the issue of custody we have to take this factorinto consideration.

26. Proceedings in the Norfolk Court- It is the wife whoapproached the court of competent jurisdiction, i.e. Norfolk Juvenile andH

Domestic Relations District Court, in the USA. She first applied for anemergency order and also instituted petition seeking sole legal andphysical custody of the child. After the husband put in appearance onthe basis of the agreement, consent order was passed which directedboth the parties to live in the matrimonial home till 01.12.2018. It furtherdirected that if the matter could not be settled by that date then the wifewould make her own arrangements for residence etc. Provision wasalso made for shared parenting. The wife in total violation of the saidorder brought the child back to India.

27. We are not in agreement with the contention raised on behalfof the wife that she could not understand the order of the Norfolk Court.This is not the first time that the wife had approached the court. Thewife is educated. She was working in Walmart in the USA. She hadcontacted an NGO and on 09.09.2017 had sent an e-mail to ParsipannyPolice Department against her husband. On 03.05.2018, the husbandobtained an emergency protection order against the wife. Thereafter,the wife along with the minor daughter returned to India on 16.05.2018and went back to the USA on 16.07.2018. The complaint filed by thehusband is said to have been dismissed on 26.07.2018. On 25.08.2018the wife called the Police as according to her she was scared for hersafety and that of her minor daughter. According to her she applied foran emergency protective order on 25.08.2018 which was passed in herfavour. The wife also instituted petition seeking sole legal and physicalcustody of the minor child before the Norfolk Court on 29.08.2018. On26.09.2018 the consent order was passed. It would also be pertinent tomention that even according to the wife she had been sending e-mails tothe Indian Embassy in Washington for help. The wife also applied forSupplemental Nutrition Assistance Program which, according to her is anutrition programme to help low income Americans to put food on thetable.

28. The wife is aware of her rights. She has been taking the helpof the Police, Magistrate, the Domestic Court and Federal Programmes,when the need arose. She was also working with Walmart and we areunable to accept her contention that because of lack of translator shecould not understand what was happening. We are also unable to agreewith the contention now raised that her counsel coerced her to enter intothe agreement. In any event if she has any grievance with regard to themanner in which the settlement was arrived at, the proper course was to

Araise the issue before the Norfolk Court. No Indian Court can sit inappeal over the orders of the Norfolk Court. We are clearly of the viewthat the plea she has set up is only to justify her patent violation of theorders of the Norfolk Court.

29. Obviously, the child who is less than three years old cannot beBheard in the matter but keeping in view the facilities of education, socialsecurity etc., which would be available in USA, we are of the view thatthe child should not be deprived of the same only on the ground that themother does not want to go back to USA.

30. Visa issue

CLearned counsel for the appellant-wife has laid great emphasison the fact that the visa/work permit of the husband is expiring in 2020.That by itself is no ground to deny custody of the child to the husband. Ifhis visa/work permit is extended no problem will arise but if his visa/work permit is not extended, we shall be making directions in this regardDin the latter part of the judgment. Whether the work visa/work permit ofthe husband is to be extended or not is for the authorities in the USA todecide and this Court cannot comment on the same. We cannot pass anorder presuming that the visa will not be extended.31. There are various factors to be taken into consideration whileEdeciding what is best in the interest of the child. No hard and fast rulescan be laid down and each case has to be decided on its own merits.We are also not oblivious of the fact that when two parents are at warwith each other it is impossible to provide completely peacefulenvironment to the child. The court has to decide what is in the bestinterest of the child after weighing all the pros and cons of both theFrespective parents who claim custody of the child. Obviously, any suchorder of custody cannot give perfect environment to the child becausethat perfect environment would only be available if both the parents putthe interest of the child above their own differences. Even if parentsseparate, they may reach an arrangement where the child can live in anGenvironment which is reasonably conducive to her/his development. Asfar as the present case is concerned other than the age of the childnothing is in favour of the mother. She herself approached the jurisdictionalcourt in Norfolk. She entered into an agreement on the basis of which aconsent order was passed. She has violated that order with impunity

and come back to India and, this is factor which we have to holdagainst her.

32. In view of the above discussion, we are clearly of the viewthat it is in the best interest of the child to have parental care of both theparents, if not joint then at least separate. We are clearly of the viewthat if the wife is willing to go back to USA then all orders with regard tocustody, maintenance etc., must be looked into by the jurisdictional courtin USA. writ court in India cannot, in proceedings like this direct thatan adult spouse should go to America. We are, therefore, issuingdirections in two parts. The first part will apply if the appellant-wife iswilling to go to USA on terms and conditions offered by the husband inhis affidavit. The second part would apply if she is not willing to go toUSA, how should the husband be granted custody of the child.

1st part

33. (a) At the outset we note that the husband has filed an affidavit,the relevant portion of which reads as follows:-

“(2) That I have always been calling up my wife to come back tous along with the minor child so that all of us could stay togetherin the US as happy family. In this regard I have sent her variousemails to come back and I would be willing to bear all the expensesof the travel of my wife and minor child back to US.

(3) That I further undertake that I shall make all the arrangementsof stay and travel expenses (including air tickets) of my wife andminor child in our own house which is two bedroom apartmentfor which I am paying rental of US $1500 per month.

(4) That in case my wife is not willing to stay with me for personalreasons, then I shall sift out and make arrangements to staysomewhere else.

(5) That I further undertake to take care of all expenses of day today running of the house, medical insurance for both my wife andchild, electricity, gas all other incidental expenses till the time theUS Court makes provision in this regard.

(6) That I also undertake to bear all expenses for the education ofthe minor child including the admission in nursery school in theUS which expense would be of about US $1000-$1500 per monthnot including the meals and school supplies. I also undertake that

Athe expenses of the school supplies and other requirements aspart of the minor child’s life in school would also be borne by me.

(7) That I undertake that I will be available for any MedicalEmergency and Vaccination during weekdays for my wife- Yashitaand the minor child- Kiyara. I undertake that for any other errands,BI will be available after the office or on weekends.

(8) That I also state that for each time that the minor child hasvisited in terms of an order of shared parenting, I have takenwork from home to ensure that all my time is spent around thechild and I undertake that even after the minor child’s admissionCto nursery school (Kindergarten), during her school hours I wouldgo to my office and after school hours I will take work from homeand avail parenting time with her. I undertake that should needarises, I will call my mother to help us in the US.

(8) That I also undertake to pay US $200 towards the upkeep andDmaintenance of the minor child apart from all other expenses.”

We record this as an undertaking to the Court and the husband isduty bound to abide by this undertaking.

(b) We feel that it will be in the interest of the child if the motherherself accompanies the child to USA. The appellant-wife may like toElive in USA or not, and this is personal choice of the appellant-wife.However, if she goes back to USA along with the child, then she mustcomply with the orders of the Norfolk Court. Obviously, she can applyfor modification/vacation of the order, if so advised;

(c) In case the wife goes back to USA it shall be the responsibilityFof the husband to pay reasonable expenses for her entire travel andstay. The wife must within one week of the passing of this order intimatecounsel for the husband whether she is willing to go back to USA or not.In case she expresses her willingness to do so, the husband shall purchasetickets for travel of the wife, and the minor child to USA, which journeymust be performed on or before 20.02.2020. We make it clear that itGwill be the wife’s responsibility to obtain the requisite travel documentsrequired by her to travel to the USA by the said date;

(d) In case the wife is willing to go back to USA but is not willingto live with the husband, in view of the undertaking given by the husband,we direct that the husband shall make alternative arrangements for hisH

own stay and hand over the possession of the apartment now in hispossession to the wife;

(e) The husband in terms of the undertaking is directed to takecare of all expenses of day to day running of the house, medical insurancefor both wife and child, electricity, gas and all other incidental expensestill the time the jurisdictional court in USA makes provision in thisregard;

(f) The husband shall not initiate any coercive or penal actionagainst the wife in the USA and if such action has already been initiatedby him or any proceedings in that regard are pending, then the sameshall be withdrawn and not pursued any further by the husband. Thiswill be precondition to facilitate the wife’s appearance before theconcerned Courts in the USA to effectively represent and defend herselfin all matters relating to the matrimonial dispute (including custody andguardianship issues of the minor child) between the husband and thewife.

34. We, however, clarify that this arrangement will only continueup to 30.04.2020 before which date the parties must get proper directionsfrom the jurisdictional court in USA. Once the jurisdictional Court inUSA passes the order then this portion of the order shall cease to operate.In addition, we also direct that the husband shall pay US $250 per weekto the wife for her personal expenses in USA till 30.04.2020 or till thejurisdictional court in USA passes orders in this regard. This amount isan addition to the US $200 per week that the husband has undertaken topay for the upkeep and maintenance of the minor child.

2nd part

35. In case the wife does not inform the counsel for the husbandwithin one week from today that she is willing to go back to USA then itshall be presumed that she has no intention to go to USA along with thechild. In that event we issue the following directions :-

(a) The wife shall handover custody of minor Kiyara to the husbandor if the husband is unable to travel to India, then to the mother of thehusband, before the Registrar General/Registrar(Judicial), of the HighCourt of Rajasthan on 03.02.2020 at 11.00 A.M. Thereafter, the husbandshall make necessary arrangements for taking the child to USAaccompanied by at least one of the husband’s parents;

A(b) In case the child goes to USA with the husband or either of hisparents, the husband shall ensure that the child talks to her mother throughvideo calling facilities such as WhatsApp, Skype etc., everyday at 8.30P.M. Eastern Standard Time on weekdays (Monday-Thursday) for atleast 10 minutes each day and on weekends (Friday-Sunday) he shallensure that the child talks to the mother at the same time or any otherBtime mutually settled between the parties through video calling for atleast 15 minutes.

(c) We further direct that if the wife visits USA hereafter and isstaying in the same town where the husband resides, she will be permittedcustody of the child on all weekends from 6.00 P.M. on Friday till 6.00CP.M. on Sunday.

(d) Even if the mother does not visit USA, the father shall ensurethat the child visits India at least twice year, once during the summervacations and once during the winter break, as per the child’s schoolschedule. It will be his responsibility to ensure that the child comes toDIndia accompanied either by him or one of the grandparents of the child.During this period the child shall remain exclusively with the mother.However, in case the husband is also visiting with the child then duringthe period when the child is in India, the husband will have the custodyof the child for 2 days per week, preferably on weekends or on otherEsuitable days as settled by the parties.

36. Mr. Rajkotia, learned counsel for the appellant-wife had urgedthat the position would totally change in case the work permit/visa of thehusband is not extended. This is in the realm of speculation, we cannotpresume whether the visa will be extended or not. We have, therefore,issued the aforesaid directions but make it clear that if the visa/workFpermit of the husband is not extended and he has to leave the USA thenthe wife will be at liberty to move this Court for fresh directions.

37. The appeal is disposed of in the aforesaid terms. Pendingapplication(s), if any, stand(s) disposed of. The Registrar (Judicial) ofGthe Registry of the Supreme Court of India, is directed to send copy ofthis judgment to the Registrar General/Registrar (Judicial) of the HighCourt of Rajasthan.

Divya Pandey

Appeal disposed of.