Child Custody Jurisdiction: Supreme Court Orders Return of Children to US in Transnational Dispute (March 15, 2019)

Introduction

Date of the Judgment: March 15, 2019

Citation: Not Available

Judges: A.M. Khanwilkar, J., Ajay Rastogi, J. (authored the judgment)

Can a parent unilaterally remove children from their habitual residence and seek custody in another country? The Supreme Court of India recently addressed this complex issue, involving parents who were Indian citizens residing in the United States, and their two children who are US citizens. The core question was whether the Indian courts had jurisdiction to decide the custody of children who were habitually residing in the US, and if the children should be returned to the US where custody proceedings were already initiated. The Supreme Court bench consisted of Justices A.M. Khanwilkar and Ajay Rastogi, with Justice Rastogi authoring the judgment.

Case Background

The appellant, Lahari Sakhamuri, and the respondent, Sobhan Kodali, are the parents of two minor children, Arthin and Neysa, born in the US on March 14, 2012, and October 13, 2014, respectively. Both parents are Indian citizens who had been residing in the US since 2004-2005. They married in Hyderabad, India, on March 14, 2008. The couple purchased a house in Pennsylvania in January 2016. In December 2016, Lahari filed for divorce and custody in the US, stating there was an irretrievable breakdown of marriage. While the divorce and custody proceedings were ongoing in the US, Lahari traveled to India with the children in March 2017, ostensibly to attend her grandmother’s funeral. However, she did not return to the US with the children, and instead, filed a custody petition in the Family Court in Hyderabad in April 2017, obtaining an ex-parte interim injunction against Sobhan.

Timeline

Course of Proceedings

The Family Court in Hyderabad initially granted an ex-parte interim injunction in favor of Lahari, restraining Sobhan from taking the children. However, Sobhan challenged the jurisdiction of the Family Court, which was initially rejected. Sobhan then appealed to the High Court of Hyderabad, which set aside the Family Court’s order, holding that the Hyderabad court lacked jurisdiction as the children were not ordinary residents of India. The High Court also allowed Sobhan’s Habeas Corpus petition, directing Lahari to return the children to the US. Lahari then appealed to the Supreme Court of India against the High Court’s orders.

Legal Framework

The case primarily involves the interpretation of Section 9 of the Guardians and Wards Act, 1890, which deals with the jurisdiction of courts in matters of guardianship. The section states that a court can exercise jurisdiction if the minor “ordinarily resides” within its jurisdiction. The Supreme Court also considered principles of international child custody law, including the principle of comity of courts, the “most intimate contact” rule, and the paramount consideration of the child’s best interests. The Court also considered the Child Abduction Remedies Act of the US, which deals with the wrongful retention of children.

Arguments

Arguments by the Appellant (Lahari Sakhamuri):

• ✓ Repatriation to the US would not be in the best interest of the children. The best interest of the children cannot be sacrificed on the principle of comity of courts.
• ✓ There is a statutory presumption in favor of the mother under the tender years doctrine.
• ✓ The children’s best interest is with the mother as the primary caretaker.
• ✓ The court should protect the mother’s autonomy to choose her location, especially when distressed in her matrimonial home.
• ✓ Separating the primary caregiver from the children constitutes an invasion of her fundamental right of autonomy.
• ✓ The children and their mother are in India, an accessible jurisdiction for the father.
• ✓ She was silent in US proceedings due to the provision for divorce based on irretrievable breakdown of marriage and was constrained due to mental, emotional, and physical violence.
• ✓ It is not in the interest of the children to witness their mother being devalued or to experience toxic conflict between parents.
• ✓ The children are admitted to the best school in Hyderabad.
• ✓ Indian Courts have jurisdiction because the parties married in India and the Hindu Marriage Act applies to divorce and custody.
• ✓ The issue of jurisdiction is a mixed question of law and facts and can only be examined during trial and not at this stage.

Arguments by the Respondent (Sobhan Kodali):

• ✓ The children were born in the US, are US citizens, and are school-goers there.
• ✓ Their removal from the US affects their future and is not in their best interest.
• ✓ The couple started their matrimonial life in the US and have been there for almost 14 years.
• ✓ Lahari admitted the children were in shared custody and there was no domestic violence.
• ✓ Lahari invoked the jurisdiction of the US Court for divorce and custody.
• ✓ It is not open for her to disregard the orders of the US Court, especially the order of May 22, 2017.
• ✓ There is no evidence of any harm to the children if they return to the US.
• ✓ The US Court has the most intimate contact and closest concern to decide on the issue of minor children.
• ✓ The children are not ordinary residents of Hyderabad as defined under Section 9 of the Guardians and Wards Act, 1890.
• ✓ The Family Court, Hyderabad, lacks jurisdiction.

Submissions Table

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section. However, the issues the court addressed were:

1. Whether the Family Court in Hyderabad had jurisdiction to entertain the custody petition filed by the appellant.
2. Whether the High Court was justified in ordering the return of the children to the US.

Treatment of the Issue by the Court

Authorities

The Supreme Court relied on the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• Surinder Kaur Sandhu [1984(3) SCC 698]:* The Court followed the principle of “most intimate contact” and that jurisdiction should follow functional lines.
• Elizabeth Dinshaw [1987(1) SCC 42]:* The Court reiterated that a parent doing wrong by removing children out of the country should not gain any advantage.
• V. Ravi Chandran(Dr.) [2010(1) SCC 174]:* The Court discussed the summary jurisdiction to return a child to their native country and the importance of the child’s welfare.
• Nithya Anand Raghavan [2017(8) SCC 454]:* The Court relied on this case to reiterate the paramount importance of the child’s welfare and disapproved the “first strike” principle.
• Surya Vadanan [2015(5) SCC 450]:* The Court considered the principles of comity of courts and best interest of the child, but partially disagreed with it based on Nithya Anand Raghavan.
• Jasmeet Kaur [2018(4) SCC 295]:* The Court distinguished this case, stating that the facts were different and that jurisdiction cannot be decided summarily in this case.
• Dhanwanti Joshi [1998(1) SCC 112]:* The Court reiterated that the court in the country to which the child is removed must bear in mind the welfare of the child as of paramount importance.
• Kanika Goel [2018(9) SCC 578]:* The Court took note of this case to emphasize that the custody of the minor girl child to remain with the appellant mother until she attains the age of majority or the court of competent jurisdiction.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

Fact:Law Ratio

The Court emphasized that the children were US citizens, had been residing in the US since birth, and were attending school there. The Court also noted that the appellant had initiated proceedings in the US court and was bound by its orders. The Court also considered the principle of comity of courts, which requires that courts respect the jurisdiction and orders of foreign courts. The Court found that the children’s best interests would be served by returning to their habitual residence in the US, where they had their social and cultural connections.

Logical Reasoning

Issue 1: Jurisdiction of Family Court, Hyderabad

Issue 2: Justification for High Court’s Order to Return Children to US

Key Takeaways

✓ The Supreme Court emphasized the importance of the “best interest of the child” principle in international child custody disputes.

✓ The Court upheld the principle of comity of courts, recognizing the jurisdiction of the US courts in this case.

✓ The Court clarified that the “ordinary residence” of a child is a crucial factor in determining jurisdiction under the Guardians and Wards Act, 1890.

✓ The Court reiterated that orders of foreign courts must be given due weight and respect.

✓ The judgment underscores that parents cannot unilaterally remove children from their habitual residence and seek custody in another country, especially when proceedings are already underway in the original jurisdiction.

✓ The Court emphasized that both parents are necessary for the proper upbringing of the children.

Directions

The Supreme Court directed the appellant to return to the US with the children within six weeks. The respondent was directed to make all arrangements for their travel and stay. If the appellant refused to travel, the respondent was directed to deposit Rs. 15 lakhs in her bank account, and the Consulate General of the US at Hyderabad would take custody of the children and hand them over to the respondent for return to the US.

Development of Law

Ratio Decidendi: The Supreme Court held that in international child custody disputes, the paramount consideration is the best interest of the child. The Court also reiterated the importance of the principle of comity of courts, the “most intimate contact” rule, and the concept of habitual residence in determining jurisdiction. The Court emphasized that a parent cannot unilaterally remove a child from their habitual residence and seek custody in another country, especially when proceedings are already underway in the original jurisdiction.

Change in Law: The judgment reinforces the principles laid down in previous cases, particularly Nithya Anand Raghavan, and clarifies that the “first strike” principle is not to be given undue weight. It emphasizes that the welfare of the child is of paramount importance and that the orders of a foreign court must yield to the welfare of the child. The court did not change any previous positions of law, but rather clarified and reaffirmed the existing principles.

Conclusion

The Supreme Court dismissed the appeals, ordering the return of the children to the US, emphasizing the importance of the child’s best interests, the principle of comity of courts, and the concept of habitual residence. The Court directed the appellant to return to the US with the children and directed the respondent to make all necessary arrangements. The Court also noted that the observations made were for the limited purpose of engaging in summary inquiry for consideration in the petition of Habeas Corpus and will be of no assistance to either party in the custody proceedings pending in the US Court, which will be decided on its own merits.