Supreme Court prioritizes child’s welfare over comity of courts in custody battle: Nithya Anand Raghavan vs. State of NCT of Delhi (2017)

Introduction

Date of the Judgment: July 3, 2017
Citation: (2017) INSC 628
Judges: Dipak Misra, A.M. Khanwilkar, Mohan M. Shantanagoudar

When parents from different countries separate, where should their children live? The Supreme Court of India recently tackled this complex question in a case involving a mother who returned to India with her daughter, sparking a legal battle with the father in the United Kingdom. This case highlights the critical balance between respecting international court orders and ensuring a child’s well-being.

The core issue was whether the High Court of Delhi was right in directing the mother to return her daughter to the UK, based on an order passed by the UK court. The Supreme Court had to decide whether the principle of comity of courts should take precedence over the welfare of the child, who was now living in India with her mother.

The judgment was delivered by a three-judge bench comprising Justices Dipak Misra, A.M. Khanwilkar, and Mohan M. Shantanagoudar. The majority opinion was authored by Justice A.M. Khanwilkar.

Case Background

The appellant, Nithya Anand Raghavan, and respondent no. 2, Anand Raghavan, married in Chennai on November 30, 2006, according to Hindu rites. After their marriage, they moved to the UK in early 2007. Disputes arose between them, with the appellant alleging physical, mental, and psychological abuse, which the respondent denied.

The appellant worked in London and conceived around December 2008. She returned to Delhi in June 2009, where she gave birth to their daughter, Nethra, on August 7, 2009. The family moved back to the UK in March 2010, but the appellant and her daughter returned to India in August 2010 due to disputes. After legal correspondence, they returned to London in December 2011.

In September 2012, the daughter was granted UK citizenship, followed by the father in January 2013. The daughter was admitted to a primary school in the UK in September 2013. In July 2014, the appellant returned to India with her daughter, citing health issues, but returned to the UK in September 2014. In late 2014, the daughter was diagnosed with a cardiac disorder.

On July 2, 2015, the appellant returned to India with her daughter due to the alleged violent behavior of the respondent. The appellant later filed a complaint with the Crime Against Women Cell (CAWC) in Delhi in December 2015. In response, the respondent filed a custody petition in the UK on January 8, 2016, and a habeas corpus writ petition in the Delhi High Court on January 23, 2016.

Timeline:

Course of Proceedings

The High Court of Delhi directed the mother to produce her daughter and comply with the UK court’s order or hand over custody to the father. The High Court emphasized the child’s UK citizenship and the fact that she had lived there since birth, developing roots in the UK. The High Court also considered the ex-parte wardship order passed by the High Court of Justice, Family Division, London, which stated that the child was wrongfully removed from England and wrongly retained in India.

The High Court relied on several judgments, including Arathi Bandi Vs. Bandi Jagadrakshaka Rao & Ors., Surya Vadanan Vs. State of Tamil Nadu & Ors., Surinder Kaur Sandhu Vs. Harbax Singh Sandhu & Anr., Mrs. Elizabeth Dinshaw Vs. Arvand M. Dinshaw & Anr., Marggarate Maria Pulparampil Nee Feldman V. Chacko Pulparampil & Anr., Kuldeep Sidhu V. Chanan Singh & Ors., In Re: H.(Infants) and Ruchi Majoo V Sanjeev Majoo. The High Court held that the UK court had the most intimate contact with the child and that the principle of comity of courts favored the UK court’s order.

The High Court also noted that the mother had not sought custody of the child from any Indian court before the UK court’s order. The High Court concluded that it was in the child’s best interests to return to the UK, where she had spent most of her life and received her education.

Legal Framework

The case primarily revolves around the principle of comity of courts in international child custody disputes and the paramount consideration of the child’s welfare. The Supreme Court emphasized that India is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. Therefore, Indian courts are not bound to automatically enforce orders from foreign courts.

The Court referred to the principle of parens patriae jurisdiction, which gives the court the power to act as a guardian for those who cannot care for themselves, particularly children. This principle allows the court to prioritize the child’s welfare above all other considerations.

The Court also discussed the difference between a summary inquiry and an elaborate inquiry. In a summary inquiry, the court may order the return of the child to their native country unless it would be harmful. In an elaborate inquiry, the court examines the merits of the case to determine the child’s best interests, considering the order of a foreign court as only one factor.

Arguments

Appellant’s Arguments (Mother):

• The High Court overemphasized the principle of comity of courts, disregarding the child’s paramount interests and welfare.
• The welfare of the child should override the need to enforce the principle of comity of courts.
• The respondent had been physically and verbally abusive to the appellant and had put the child at risk.
• India is not a signatory to the Hague Convention, and the UNCRC mandates that the best interests of the child should be a primary concern.
• The parens patriae jurisdiction of the court should be given greater weightage.
• The child was born and brought up in India and has deep roots here.
• The legal action by the respondent was a counter-blast to the appellant’s allegations of abuse.
• The UK court order was passed ex-parte without giving the appellant an opportunity to present her case.
• The child has serious health issues and requires specialist healthcare, which is more accessible in India.
• The appellant relied on Smt. Surinder Kaur Sandhu, Mrs. Elizabeth Dinshaw, Sarita Sharma Vs Sushil Sharma and Dr. V. Ravi Chandran Vs Union of India & Ors. to support her arguments.

Respondent’s Arguments (Father):

• The child was a British citizen and had been brought up in the UK.
• Both the appellant and respondent had intended to permanently settle in the UK.
• The UK courts had the closest concern and intimate contact with the child.
• The High Court had duly considered the welfare and interests of the child while passing the impugned judgment.
• There was no material to suggest that the repatriation of the child would result in any harm.
• The UK would have better medical facilities to treat the child.
• The respondent had offered to pay for the appellant’s accommodation and expenses.
• The UK court has jurisdiction over the alleged acts of domestic violence.
• There was no delay in filing the writ petition before the High Court of Delhi.
• The respondent relied on several cases which were placed before the Court in the form of a “List of judgments on Habeas Corpus”.

Submissions by Parties

Issues Framed by the Supreme Court

The Supreme Court framed the following key issues for consideration:

1. Whether the High Court was right in directing the mother to return the child to the UK based on the order passed by the UK court.
2. Whether the principle of comity of courts should take precedence over the welfare of the child.
3. Whether the High Court should have exercised its parens patriae jurisdiction to protect the child.

Treatment of the Issue by the Court

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

Authorities

The Supreme Court considered several cases and legal principles while deciding the matter:

On the principle of comity of courts and welfare of the child:

• Dhanwanti Joshi v Madhav Unde [1998] 1 SCC 112 – The Court discussed the principle of comity of courts and the welfare of the child in international custody disputes. It emphasized that the welfare of the child is of paramount importance.
• McKee v. McKee – The Privy Council held that the welfare and happiness of the infant was of paramount consideration and the order of a foreign court in USA as to his custody can be given due weight in the circumstances of the case, but such an order of a foreign court was only one of the facts which must be taken into consideration.
• J v. C – The House of Lords reiterated the view that the welfare of the child is of paramount consideration.
• L. (minors) (wardship : jurisdiction) – The Court of Appeal explained that the view in McKee v. McKee is still the correct view and that the limited question which arose in the latter decisions was whether the court in the country to which the child was removed could conduct (a) a summary inquiry or (b) an elaborate inquiry on the question of custody.
• R. (minors) (wardship : jurisdiction) – It was firmly held that the concept of forum convenience has no place in wardship jurisdiction.
• Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw & Anr. [1987] 1 SCC 42 – The Court directed the child to be sent back to the USA to the mother, not only because of the principle of comity but also because, on facts, it was in the interests of the child to be sent back to the native State.
• Dr. V. Ravi Chandran Vs Union of India & Ors. [2010] 1 SCC 174 – A three-judge bench of the Supreme Court held that under no circumstances can the principle of welfare of the child be eroded and that a child can seek refuge under the parens patriae jurisdiction of the Court.
• Lozano v Montoya Alvarez 572 US_(2014) = 134 S.Ct. 1224 (2014) – The United States Supreme Court stated that while the Hague Convention was intended to discourage child abduction, it was not supposed to do so at the cost of the child’s interest.
• P (A minor) (Child Abduction: Non-Convention Country) – It was held that in deciding whether to order the return of a child who has been abducted from his or her country of habitual residence, the courts’ overriding consideration must be the child’s welfare.
• A (A minor) (Abduction: Non-Convention Country) – The Court reiterated that the overriding consideration must be the child’s welfare.

On Habeas Corpus and Child Custody:

• Kanu Sanyal v. District Magistrate, Darjeeling & Ors. [2001] 5 SCC 247 – The Court held that habeas corpus was essentially a procedural writ dealing with the machinery of justice.
• Sayed Saleemuddin v. Dr. Rukhsana & Ors. [2001] 5 SCC 247 – The Court held that the principal duty of the Court is to ascertain whether the custody of the child is unlawful or illegal and whether the welfare of the child requires that his present custody should be changed.
• Paul Mohinder Gahun Vs. State of NCT of Delhi & Ors. 113 (2004) Delhi Law Time 823 – The Court emphasized the principle of parens patriae jurisdiction in cases of child custody.
• Sarita Sharma Vs Sushil Sharma [2000] 3 SCC 14 – The Court held that the custody of a “girl” child who is around seven years of age, must ideally be with her mother unless there are circumstances to indicate that it would be harmful to the girl child to remain in custody of her mother.

On Guardianship and Court Proceedings:

• Section 14 of the Guardians and Wards Act, 1890 – The provision deals with simultaneous proceedings in different Courts.
• Section 10 of the Code of Civil Procedure, 1908 – The provision deals with stay of suit.

Cases Distinguished by the Court:

• Shilpa Aggarwal Vs. Aviral Mittal and Anr. [2010] 1 SCC 591 – The Court distinguished this case, noting that the child was born in England and had British citizenship, and the UK Court had not passed any order to separate the child from the mother until the final decision.
• Arathi Bandi Vs. Bandi Jagadrakshaka Rao & Ors. [2013] 15 SCC 790 – The Court distinguished this case on the grounds that the child was born in the USA and had acquired citizenship there, and the mother had expressed her intention to return to the USA.
• Surya Vadanan Vs. State of Tamil Nadu & Ors. [2015] 5 SCC 450 – The Court distinguished this case, noting that the children were British citizens by birth and had lived in the UK throughout their lives. The Court also disagreed with the “first strike” principle applied in this case.

Judgment

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

How each authority was viewed by the Court?

• The Court followed the principles laid down in Dhanwanti Joshi v Madhav Unde [1998] 1 SCC 112*, emphasizing the paramount importance of the child’s welfare and the limited role of comity of courts in non-convention countries.
• The Court cited McKee v. McKee and J v. C to reinforce the view that the welfare of the child is of paramount consideration.
• The Court used L. (minors) (wardship : jurisdiction) to distinguish between summary and elaborate inquiries, but emphasized that the welfare of the child is still the overriding factor.
• The Court distinguished Mrs. Elizabeth Dinshaw v. Arvand M. Dinshaw & Anr. [1987] 1 SCC 42*, noting that the child was sent back to the native state not only because of comity but also on the facts of the case.
• The Court relied on Dr. V. Ravi Chandran Vs Union of India & Ors. [2010] 1 SCC 174* to reinforce that the child can seek refuge under the parens patriae jurisdiction of the Court.
• The Court cited Lozano v Montoya Alvarez 572 US_(2014) = 134 S.Ct. 1224 (2014)* to support that the Hague Convention should not be at the cost of the child’s interest.
• The Court cited P (A minor) (Child Abduction: Non-Convention Country) and A (A minor) (Abduction: Non-Convention Country) to emphasize that the courts’ overriding consideration must be the child’s welfare.
• The Court used Kanu Sanyal v. District Magistrate, Darjeeling & Ors. [2001] 5 SCC 247* and Sayed Saleemuddin v. Dr. Rukhsana & Ors. [2001] 5 SCC 247* to explain the nature of habeas corpus petitions in child custody cases.
• The Court used Paul Mohinder Gahun Vs. State of NCT of Delhi & Ors. 113 (2004) Delhi Law Time 823* to emphasize the principle of parens patriae jurisdiction.
• The Court cited Sarita Sharma Vs Sushil Sharma [2000] 3 SCC 14* to highlight that the custody of a “girl” child who is around seven years of age, must ideally be with her mother.
• The Court distinguished Shilpa Aggarwal Vs. Aviral Mittal and Anr. [2010] 1 SCC 591*, Arathi Bandi Vs. Bandi Jagadrakshaka Rao & Ors. [2013] 15 SCC 790* and Surya Vadanan Vs. State of Tamil Nadu & Ors. [2015] 5 SCC 450*, noting that the facts of those cases were different and did not warrant the same outcome.

What weighed in the mind of the Court?

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

• The child’s welfare was of paramount importance.
• The child was born in India, is an Indian citizen, and has deep roots here.
• The child was a girl child of around seven years of age, whose custody should ideally be with her mother.
• The mother had alleged domestic violence and mental torture, which could put the child at risk if returned to the UK.
• The UK court order was passed ex-parte without giving the mother an opportunity to present her case.
• The child’s health condition required proper care and attention, which could be better provided by her mother in India.

Sentiment Analysis of Reasons Given by the Supreme Court

Fact:Law Ratio

The Court emphasized the factual aspects of the case, such as the child’s Indian citizenship, her roots in India, and the mother’s allegations of domestic violence, while also considering the legal principles of comity of courts and the welfare of the child.

Logical Reasoning:

Decision

The Supreme Court set aside the judgment of the High Court and held that the welfare of the child is of paramount importance. The Court emphasized that the principle of comity of courts cannot override the child’s best interests. The Court allowed the mother to retain custody of the child in India.

The Court further directed the Family Court in Delhi to consider the custody petition filed by the mother on its own merits, without being influenced by the High Court’s judgment or the order of the UK court. The Court also directed the Family Court to give due weight to the fact that the child was born in India, is an Indian citizen, and has spent a considerable amount of time here.

The Court also held that the principle of “first strike” or “closest connection” cannot be the sole consideration in deciding child custody matters. The Court emphasized that the child’s welfare is the paramount consideration.

Final Order

The Supreme Court passed the following final orders:

1. The judgment of the High Court of Delhi was set aside.
2. The mother was allowed to retain custody of the child in India.
3. The Family Court in Delhi was directed to consider the custody petition filed by the mother on its own merits, without being influenced by the High Court’s judgment or the order of the UK court.
4. The Family Court was directed to give due weight to the fact that the child was born in India, is an Indian citizen, and has spent a considerable amount of time here.

Implications

This judgment has significant implications for international child custody disputes, particularly in cases where one parent has moved to India with the child from a country that is not a signatory to the Hague Convention. The Supreme Court has made it clear that the welfare of the child is the paramount consideration and that the principle of comity of courts cannot override the child’s best interests.

The judgment emphasizes that Indian courts have the power to exercise their parens patriae jurisdiction to protect the child and that they are not bound to automatically enforce orders from foreign courts. The judgment also highlights the importance of considering the child’s connection to India, including their citizenship and the time they have spent in the country.

This decision reinforces that in cases of child custody, the focus should always be on what is best for the child, rather than on legal technicalities or international comity.

Conclusion

The Supreme Court’s decision in Nithya Anand Raghavan vs. State of NCT of Delhi & Anr. is a landmark judgment that reaffirms the paramount importance of the child’s welfare in international child custody disputes. The Court has made it clear that Indian courts will not hesitate to prioritize the child’s best interests over the principle of comity of courts.

The judgment has significant implications for cases where a parent has moved to India with their child from a foreign country. It provides a clear legal framework for courts to consider the child’s welfare as the primary concern, while also taking into account the child’s connection to India and the circumstances of the case.

This case serves as a reminder that in child custody disputes, the focus should always be on what is best for the child, and that the courts will act as guardians to protect the child’s rights and welfare.