Supreme Court Allows Mother to Keep Child in India, Overturns Delhi High Court Order

Case Background

The case revolves around a custody battle between Mrs. Kanika Goel (the appellant), the mother, and Mr. Karan Goel (respondent No. 2), the father, concerning their minor daughter, M. The father, a US citizen since 2005, and the mother, a US permanent resident and Green Card holder, were married in India in 2010. They later solemnized their marriage in the US in 2011. Their daughter, M, was born in the USA in 2014 and is a US citizen. In December 2016, the mother, under the guise of a short trip to India, took M to New Delhi and did not return to the US. She then filed for divorce in India, seeking a restraint order against the father from taking M away from the jurisdiction of Indian courts.

The father, on the other hand, filed an emergency petition in the Circuit Court of Cook County, Illinois, USA, seeking temporary sole custody of M. The US court granted an ex-parte order for interim sole custody to the father, directing M’s immediate return to the US. The mother did not comply with this order, leading the father to file a writ petition before the High Court of Delhi, seeking a writ of habeas corpus for the production of M and her return to the US.

Timeline

Course of Proceedings

The High Court of Delhi, after considering the matter, ruled in favor of the father on 16th November 2017, directing the mother to return to the USA with the minor child, emphasizing that the child’s best interest was to be in her natural environment. The High Court also issued directions to ensure the mother would not be in a hostile or disadvantageous environment upon her return to the US. Further orders were passed on 1st December 2017, detailing the financial aid and other facilities to be provided by the father. Finally, on 6th December 2017, the High Court formally disposed of the writ petition, directing the mother to return to the USA with the minor child within two weeks, failing which the custody of the child would be handed over to the father.

The mother, aggrieved by these orders, appealed to the Supreme Court of India under Article 136 of the Constitution. The Supreme Court issued a notice on 15th December 2017 and passed interim orders to maintain the visitation rights. Further interim orders were passed on 24th January 2018, clarifying the visitation rights. On 18th May 2018, a grievance was made before the Supreme Court about non-cooperation by the mother. The hearing was concluded, and the interim arrangement was to be observed until the pronouncement of the final judgment.

Legal Framework

The case primarily involves the interpretation of the writ of habeas corpus in the context of child custody disputes and the application of the principle of the child’s best interest. The mother had filed a petition under Section 13(1) of the Hindu Marriage Act, 1955, seeking dissolution of marriage on the ground of cruelty, along with an application under Section 26 of the Hindu Marriage Act, 1955, seeking a restraint order against the father from taking the child away from the jurisdiction of Indian courts. The father, on the other hand, sought a writ of habeas corpus, a legal recourse to produce a person who is detained, before the court. The Supreme Court had to reconcile the principles of comity of courts, the child’s best interest, and the mother’s right to care for her child.

The Supreme Court also considered the principles expounded in previous judgments regarding international child abduction and the approach to be taken when a child is removed from their native country. The Court emphasized that the welfare of the child is the paramount consideration, and the order of a foreign court is only one of the factors to be taken into account.

Arguments

Appellant (Mother)’s Submissions:

• The High Court overlooked the principles governing the issuance of a writ of habeas corpus when the minor child was in the lawful custody of her mother.
• The High Court misconstrued the paramount interest of the minor girl child, who was of tender age and whose primary care giver was the mother.
• The High Court failed to consider the doctrine of choice and dignity of the mother, especially in light of the exposition in K.S. Puttaswamy & Anr. Vs. Union of India & Ors. [ (2017) 10 SCC 120].
• The intimate contact of the minor child was with her mother, who was her primary care giver.
• The mother has a fundamental right to look after her minor daughter, which cannot be trivialized.
• The welfare of the minor girl child leans towards the mother, all other things being equal.
• The mother cannot be forced to stay in an unfriendly environment where she had been a victim of domestic violence.
• The High Court should have adopted a child rights-based approach, but was influenced by pre-constitutional morality standards.
• The High Court misunderstood the principles in Nithya Anand Raghavan Vs. State (NCT of Delhi) & Anr. [(2017) 8 SCC 454] and Prateek Gupta Vs. Shilpi Gupta & Ors. [(2018) 2 SCC 309].
• The High Court overlooked the mother’s autonomy, compelling her to stay in an unfriendly environment at the cost of her career and dignity.
• The marriage was solemnized in New Delhi, and the mother’s visit to the US does not change her status or nationality.

Respondent (Father)’s Submissions:

• The High Court analyzed all relevant aspects, keeping in mind the legal principles and the best interest of the minor girl child.
• The Circuit Court of Cook County, Illinois, USA, had intimate contact with the minor girl child, who was born and domiciled within its jurisdiction.
• Both the father and the minor girl child are US citizens, and the mother is a permanent resident of the US; therefore, only the US courts have jurisdiction to decide matrimonial issues.
• The minor girl child had hardly spent any time in India, so it would be in her best interest to be taken to the US.
• The High Court’s finding that the welfare of the minor girl child would be served by returning to the US is based on tangible material on record.
• The High Court’s directions were similar to those in Nithya Anand Raghavan’s case.
• The sole consideration must be the welfare of the minor girl child, not the rights of the parents.
• The custody of the minor girl child with the appellant had become unlawful due to the US court order.
• The arguments regarding health or personal matters raised by the appellant are prejudicial and should not be considered.
• The minor girl child is staying in India without a valid visa.

Submissions Table

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a separate section, but the core issues addressed were:

1. Whether the High Court was correct in issuing a writ of habeas corpus for the production of the minor child and directing her return to the USA.
2. Whether the welfare and best interest of the minor child would be served by her return to the USA.
3. Whether the mother’s right to care for her child can be superseded by a foreign court order.
4. Whether the High Court considered all relevant factors while directing return of the child to the US.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Cases:

• K.S. Puttaswamy & Anr. Vs. Union of India & Ors. [(2017) 10 SCC 120] – Cited for the exposition on the doctrine of choice and dignity of the mother.
• Surinder Kaur Sandhu Vs. Harbax Singh Sandhu and Anr. [(1984) 3 SCC 698] – Cited by High Court to opine that the Court in the US seemed to be the most appropriate Court to decide the issue of custody of M.
• Aviral Mittal Vs. State [(2009) 112 DRJ 635] – Cited by High Court to opine that the Court in the US seemed to be the most appropriate Court to decide the issue of custody of M.
• Shilpa Aggarwal Vs. Aviral Mittal and Anr. [(2010) 1 SCC 591] – Cited by High Court to opine that the Court in the US seemed to be the most appropriate Court to decide the issue of custody of M.
• Dr. V. Ravi Chandran Vs. Union of India & Ors. [(2010) 1 SCC 174] – Cited by High Court to opine that the Court in the US seemed to be the most appropriate Court to decide the issue of custody of M.
• Nithya Anand Raghavan Vs. State (NCT of Delhi) & Anr. [(2017) 8 SCC 454] – Cited for principles on international child abduction and the approach to be taken when a child is removed from their native country. The Supreme Court also relied on this case to pass an appropriate order in the present case.
• Prateek Gupta Vs. Shilpi Gupta & Ors. [(2018) 2 SCC 309] – Cited for principles on international child abduction and the approach to be taken when a child is removed from their native country. The Supreme Court also relied on this case to pass an appropriate order in the present case.

Legal Provisions:

• Section 13(1) of the Hindu Marriage Act, 1955 – Cited as the provision under which the mother sought dissolution of marriage.
• Section 26 of the Hindu Marriage Act, 1955 – Cited as the provision under which the mother sought a restraint order against the father.
• Article 136 of the Constitution of India – Cited as the provision under which the mother appealed to the Supreme Court.
• Article 226 of the Constitution of India – Cited as the provision under which the High Court exercised its jurisdiction.
• Juvenile Justice (Care and Protection of Children) Act, 2015 – Cited by High Court while making it clear that it was conscious of the fact that the said Act may not strictly apply to the case on hand for examining the issue of best interest of the child.
• Convention on the Rights of the Child adopted by the General Assembly of the United Nations dated 20th November, 1989 – Cited by High Court.

Judgment

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

How each authority was viewed by the Court?

• K.S. Puttaswamy & Anr. Vs. Union of India & Ors. [(2017) 10 SCC 120]*: The Court upheld the principle of choice and dignity of the mother as expounded in this case.
• Surinder Kaur Sandhu Vs. Harbax Singh Sandhu and Anr. [(1984) 3 SCC 698], Aviral Mittal Vs. State [(2009) 112 DRJ 635], Shilpa Aggarwal Vs. Aviral Mittal and Anr. [(2010) 1 SCC 591], Dr. V. Ravi Chandran Vs. Union of India & Ors. [(2010) 1 SCC 174]*: The Court did not agree with the High Court’s view on these cases.
• Nithya Anand Raghavan Vs. State (NCT of Delhi) & Anr. [(2017) 8 SCC 454]*: The Court relied on this case to formulate its order, emphasizing the need to consider the welfare of the child and not just the foreign court order.
• Prateek Gupta Vs. Shilpi Gupta & Ors. [(2018) 2 SCC 309]*: The Court relied on this case to reiterate the principles regarding repatriation of a child, emphasizing the need to secure the unreserved welfare of the child.

What weighed in the mind of the Court?

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

• Lawful Custody: The Court emphasized that the minor child was in the lawful custody of her mother, and there was no compelling reason to take her away from her mother.
• Child’s Welfare: The Court prioritized the child’s welfare, noting that she was not in an alien environment in India and was well-cared for by her mother and maternal family.
• Mother’s Rights: The Court recognized the mother’s fundamental right to care for her child and that her rights could not be easily superseded by a foreign court order.
• No Compelling Reason for Return: The Court found that there was no compelling reason for the child’s return to the US, as she was not facing any immediate harm or adverse conditions in India.

Sentiment Analysis of Reasons Given by the Supreme Court:

Fact:Law Ratio

The Supreme Court’s decision was more influenced by the factual aspects of the case, such as the child’s current living situation and the mother’s circumstances, than by purely legal considerations.

Logical Reasoning

Issue 1: Whether the High Court was correct in issuing a writ of habeas corpus and directing return of child to USA.

Issue 2: Whether the welfare and best interest of the minor child would be served by her return to the USA.

Issue 3: Whether the mother’s right to care for her child can be superseded by a foreign court order.

Issue 4: Whether the High Court considered all relevant factors while directing return of the child to the US.

Judgment Reasoning

The Supreme Court, after considering the arguments and precedents, set aside the High Court’s judgment. The Court emphasized that the High Court had primarily focused on the grievances of the mother and had not properly considered the child’s welfare in the present circumstances. The Supreme Court noted that the minor child was in the lawful custody of her mother, who was her primary caregiver. The Court also highlighted that the child was not in an alien environment in India and was well-cared for by her mother and maternal family. The Court found that there was no compelling reason to direct the return of the minor child to the US, as her stay in India was not prejudicial to her in any manner.

The Supreme Court also considered the principle of comity of courts but reiterated that the welfare of the child is the paramount consideration. The Court noted that the order of a foreign court is only one of the factors to be taken into account and that the courts in India are free to decline the relief of return of the child if it is satisfied that the child is now settled in its new environment or if it would expose the child to physical or psychological harm.

The Court also considered the argument that the child’s father was a US citizen and the child was born in the US. However, the Court noted that the mother was also of Indian origin and that the marriage was solemnized in New Delhi as per Anand Karaj ceremony and Hindu Vedic rites. The Court also noted that the mother had filed a petition for dissolution of marriage in the Family Court at New Delhi, which needed to be decided with utmost promptitude.

The Court also considered the view that the minor child had a US passport and had travelled to India on a tenure Visa which had expired. The Court noted that this did not mean that she was in the unlawful custody of her biological mother, and her custody with the mother was lawful.

The Supreme Court, therefore, concluded that the High Court had erred in directing the return of the minor child to the US. The Court, while setting aside the High Court’s order, directed that the custody of the minor child would remain with the mother until she attains the age of majority or until a competent court orders otherwise. The Court also directed that the father would have visitation rights whenever he visits India and as per the interim orders passed by the Supreme Court. The Court also directed the father to bear the cost of litigation and expenses incurred by the mother to pursue proceedings before the courts in the US and also to bear the cost of travel for the mother and child to the US, if required. The Court also directed that the father should not initiate any coercive/penal action against the mother and if any such proceedings were pending, the same should be withdrawn.

The Court quoted the following from the judgment:

• “The High Court has completely glossed over the autonomy of the appellant inasmuch as the directions given by the High Court would virtually subjugate all her rights and would compel her to stay in an unfriendly environment at the cost of her career and dignity.”
• “Thus, best welfare of the child, normally, would lie in living with both his/ her parents in a happy, loving and caring environment, where the parents contribute to the upbringing of the child in all spheres of life, and the child receives emotional, social, physical and material support – to name a few.”
• “The consistent view of this Court is that if the child has been brought within India, the courts in India may conduct: (a) summary inquiry; or (b) an elaborate inquiry on the question of custody. In the case of a summary inquiry, the court may deem it fit to order return of the child to the country from where he/she was removed unless such return is shown to be harmful to the child. In the case of an elaborate inquiry, the court may consider all aspects of the welfare of the child and may pass an order as it deems fit.”

Final Order

The Supreme Court passed the following final order:

1. The judgment and order passed by the High Court of Delhi dated 16th November 2017 is set aside.
2. The custody of the minor child shall remain with the mother until she attains the age of majority or until a competent court orders otherwise.
3. The father shall have visitation rights whenever he visits India and as per the interim orders passed by the Supreme Court.
4. The father shall bear the cost of litigation and expenses incurred by the mother to pursue proceedings before the courts in the US and also to bear the cost of travel for the mother and child to the US, if required.
5. The father shall not initiate any coercive/penal action against the mother and if any such proceedings are pending, the same should be withdrawn.

Impact and Implications

The Supreme Court’s judgment has significant implications for cases involving international child custody disputes and the rights of parents. The judgment reinforces the principle that the welfare of the child is the paramount consideration and that the order of a foreign court is only one of the factors to be taken into account. The judgment also emphasizes the importance of the mother’s right to care for her child and that this right cannot be easily superseded by a foreign court order.

The judgment also highlights the need for courts to consider the factual circumstances of each case and not just rely on legal principles or foreign court orders. The Supreme Court’s decision emphasizes that the courts must consider the child’s current living situation, the mother’s circumstances, and the child’s overall welfare before making any decision about custody.

The judgment also has implications for cases involving international child abduction. The Supreme Court’s decision makes it clear that the courts in India are free to decline the relief of return of the child if it is satisfied that the child is now settled in its new environment or if it would expose the child to physical or psychological harm. This means that the courts in India will not automatically order the return of a child to their native country if it is not in the child’s best interest.

Conclusion

The Supreme Court’s decision in Mrs. Kanika Goel vs. State of Delhi and Anr. is a landmark judgment in the realm of international child custody disputes. The Court overturned the Delhi High Court’s order, allowing the mother to retain custody of her child in India. The judgment underscores the paramount importance of the child’s welfare and the mother’s fundamental right to care for her child. The Supreme Court emphasized that a foreign court order is not the sole determinant in such cases and that the courts must consider all relevant factors, including the child’s current living situation and the mother’s circumstances.

The case highlights the complex interplay between international law, parental rights, and the best interests of the child. The Supreme Court’s decision provides a crucial framework for handling similar cases in the future, ensuring that the child’s welfare remains the central consideration. The Court’s reasoning demonstrates a balanced approach, taking into account both legal principles and the specific facts of the case. This judgment serves as a significant precedent for future cases involving international child custody disputes in India.