Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: March 19, 2013
Judgment Pronounced on: April 02, 2013
+ W.P.(CRL.) 1562/2012
PHILIP DAVID DEXTER ..... Petitioner
Represented by: Mr.Anil Malhotra, Advocate with
Mr.Rajat Bhalla, Advocate
versus
STATE NCT OF DELHI & ANR ..... Respondent
Represented by: Ms.Malavika Rajkotia, Advocate
with Ms.Arpita Rai, Advocate for
R-2
AND
FAO 29/2013
DR NEETA MISRA ..... Appellant
Represented by: Ms.Malavika Rajkotia, Advocate
with Ms.Arpita Rai, Advocate
versus
PHILIP DAVID DEXTER ..... Respondent
Represented by: Mr.Anil Malhotra, Advocate with
Mr.Rajat Bhalla, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J.
CM No. 1107/2013 in FAO No.29/2013
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 1 of 36
1. Since learned counsel for the parties had argued on the
merits of their respective stands, we dispose of CM No.1107/2013
condoning the delay in filing FAO No.29/2013.
FAO No.29/2013 and WP(Crl.) No.1562/2012
1. Dr.Neeta Misra, the appellant in FAO No.29/2012,
challenges the order dated April 03, 2012 passed by Shri K.S.Mohi,
Family Court Judge. Her petition filed under Sections 7, 8, 10 and 11 of
the Guardians and Wards Act 1890 registered as G.P.No.49/2011, for
being appointed as a guardian of the minor girl child born on June 19,
2006 to her during the subsistence of her marriage with the respondent,
Philip David Dexter, and for custody of the said minor girl child has been
dismissed. The view taken by the learned Judge, Family Court is that the
Family Court at Delhi lacks territorial jurisdiction, inasmuch as Section 9
of the Guardians and Wards Act 1890 confers territorial jurisdiction on
such District Court within jurisdiction whereof the minor ordinarily
resides. The respondent in the Appeal, Philip David Dexter is the writ
petitioner in WP(Crl.) No.1562/2012. He prays therein that the minor
daughter be directed to be produced in Court by Dr.Neeta Misra and her
custody be given to him.
2. In the appeal and the writ petition, we are therefore
concerned with a little girl child born on June 19, 2006, who would be
aged 6 years and 9 months as of date; far away from the age of
adolescence. To respect the anonymity of the child and at the same time
not to undermine her persona by labeling her with a letter, we shall give
her a name for the purpose of our decision. We shall call her: ‘ Hope ’.
3. We must confess at the outset that we had heard arguments
at length spread over the afternoon session on three days i.e. March 01,
2013, March 05, 2013 and lastly on March 19, 2013, on which date the
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 2 of 36
appeal and the writ petition were reserved for judgment as also pending
applications therein; notwithstanding that for the purposes of the appeal
we were required to adjudicate the limited point pertaining to the
jurisdiction of the Family Courts at Delhi. Thus, we were not to hear any
argument on the sustainability of the claim of Dr.Neeta Misra in
Guardianship Petition No.49/2011. But, while deciding the writ petition
filed by Philip David Dexter, and for considering the prima-facie claim
of Philip David Dexter for a direction that Dr.Neeta Misra should produce
Hope in Court and her custody be entrusted to him, it became necessary
to consider the factual aspect of the matter and thus we were compelled to
hear learned counsel for the parties at considerable length with respect to
not only the legal position, but also the factual backdrop of the litigation;
and we unhesitatingly record that learned counsel for Dr.Neeta Misra,
Ms.Malvika Rajkotia and learned counsel for Philip David Dexter,
Mr.Anil Malhotra, presented the rival viewpoints with the forensic
expertise which one would expect from lawyers appearing before Courts
of Record. We go back, therefore, to the year 2004 when Dr.Neeta
Misra married Philip David Dexter in December 2004. It was the first
marriage of Dr.Neeta Misra and the second for Philip David Dexter, who
was married for the first time in the year 1991 and was blessed with a son
aged 13 years or so as of December 2004, who was living with Philip
David Dexter after his parents obtained a divorce. From a live-in
relationship, a son was blessed who was aged around 6 years as of
December 2004 and was living with Philip David Dexter after his parents
separated. Hope came into the world of the living when Dr.Neeta Misra
and Philip David Dexter were blessed on June 19, 2006.
4. Relationship soured between Dr.Neeta Misra and Philip
David Dexter. They took recourse to legal help. The Solicitors engaged
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 3 of 36
by the two had a meaningful dialogue on the terms of separation. Both
moved an application for divorce by mutual consent to snap the
matrimonial bond; requiring Philip David Dexter to pay monthly
maintenance of 3000 Rand to Dr.Neeta Misra. The couple agreed to the
joint custody of Hope as also how Hope would share her invaluable time
with the two separated parents.
5. Divorce by mutual consent was granted on October 11, 2010
by the High Court of South Africa (Western Cape High Court), inter-alia,
binding the parties as under ( While reproducing verbatim the relevant
terms of the consent order dated October 11, 2010 to protect the
anonymity we have changed the name of the baby girl to Hope ):-
“2.1 Guardianship
It is recorded that the parents are co-guardians of
the minor child, HOPE RACHEL DEXTER , born
19 June 2006, (hereinafter referred to as
“HOPE”) as provided in sub-sections 18(2)(c),
18(4) and 18(5) of the Children‟s Act 38 of 2005.
Neither parent shall remove HOPE from the
Republic of South Africa for any purpose without
the other parent‟s written consent, which shall not
be unreasonably withheld.
X X X
2.2.4 The parents shall make joint decisions in
respect of any choice of or change in HOPE‟s
schools and tertiary education, extra-mural
activities, major medical interventions, choice of
religion, and decisions which are likely to
significantly change HOPE‟s living conditions or
to have an adverse effect on her well-being.
2.31. It is specifically recorded that both Philip
and Neeta agree in principle that it may be in
HOPE‟s best interests to reside equally with both
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 4 of 36
parents. Neeta records that she may in the future
apply for HOPE to relocate with her and Philip
records that he shall oppose any such relocation
which prejudices or affects his rights of contact.
2.3.2 The parties agree to refer the issue Philip‟s
contact to the Facilitator who shall be appointed
as per paragraph 8 below.
2.3.3 The Facilitator shall first attempt to mediate
a solution to the issue together with the parties. If
this appears to be impossible, the Facilitator shall
be requested to make a directive, with the
assistance of an expert report to be obtained, if
necessary, from a child psychologist to be
appointed by the Facilitator and paid for in equal
shares by the parties. The Facilitator may
nevertheless, following receipt of the expert report,
order that the apportionment of the costs of such
expert be paid by one or other of the parties.
X X X
8.1 In order to resolve disputes arising from the
parties exercising their parental rights and
responsibilities, maintenance or proprietary
consequences as set out herein, the parties agree
that a facilitator be appointed in accordance with
the following:
8.1.1 The facilitator shall be Astrid Martalas, or
failing her, a jointly-appointed facilitator
accredited by the Family Mediators‟ Association
of the Cape (FAMAC). Should the parties fail to
reach agreement regarding the appointment of a
facilitator, they shall approach the chairperson for
the time being of FAMAC to appoint a facilitator.
8.1.2 The facilitator shall continue to act until
he/she resigns, or both parties agree in writing
that his/her appointment shall be terminated, or
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 5 of 36
his/her appointment is terminated by an order of a
Court having jurisdiction. If the facilitator‟s
appointment is terminated or he/she resigns,
he/she shall be substituted by another facilitator
appointed in accordance with the terms of this
Agreement.
8.1.3 If the parties are unable to reach agreement
on any issue concerning HOPE‟s best interests
and/or any issue where a joint decision is required
in respect of HOPE, the dispute shall be
formulated in writing and referred to the
facilitator who shall attempt to resolve the dispute
by way of directive, as speedily as possible.
X X X
8.1.3.7 The facilitator is authorized to
appoint such other person as may be necessary in
order for the facilitator to make a decision in
respect of the issue in dispute, including the
appointment of experts if he/she deem it
appropriate or necessary.
X X X
8.6 In the event that a party fails to participate
in any facilitation despite having been requested to
do so by the facilitator, or fails to attend a
facilitation session, or fails to reply to the
facilitator‟s communications within 5 (FIVE) days,
which communications may be by telephone, email
or fax, or fails to pay the facilitator‟s costs upon
request, or fails to co-operate with the facilitation
process in any other way, the facilitator shall
proceed with the facilitation in the absence of that
party. The facilitator shall be entitled to issue a
directive and his/her decision shall be binding on
both parties as if they had both participated in
such facilitation until such decision has been
varied by a court of competent jurisdiction.
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 6 of 36
X X X
11.1 The parties hereby acknowledge that the
aforegoing constitutes a full and final settlement of
all outstanding difference between them. The
parties agree to withdraw all Protection Order
Proceedings currently instituted by them one
against the other, forthwith upon signature of this
document. Both parties further undertake and
agree to withdraw the complaints of assault which
they have laid criminally against one another and
to do all that is reasonably possible to discourage
the State from proceeding with such charges.”
6. It is apparent that Dr.Neeta Misra and Philip David Dexter
agreed to Hope‟s joint custody. They also agreed that Hope would be
with her mother, but every Wednesday at 04:00 PM she would be with
her father who would send her to school the next morning. Hope would
spend the evening and the night of Wednesday with her father. At 05:00
PM evening every alternative Friday, Hope would be in the custody of
her father, to be returned to the mother on Sunday at 04:00 PM. It was
agreed between the couple that Hope would not be removed by either
parent from the Republic of South Africa without the written consent of
the other parent. The parents agreed to take joint decisions regarding
Hope‟s school, education, extra mural activities, choice of religion, major
medical interventions etc. Expecting that there may be issues which may
arise in the future regarding Hope , which may embrace the joint custody
including relocating Hope to another city or a country, the parties agreed
that if said issue could not be amicably resolved, a facilitator named
Astrid Martalas would attempt to resolve the dispute by mediation.
Failing which, the parties could request the facilitator to make a directive
with the assistance of an expert child psychologist to be appointed by the
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 7 of 36
facilitator. The parties agreed to be bound by the directions issued by the
facilitator until the decision of the facilitator was varied by a Court of
Competent Jurisdiction ( para 8.6 ).
7. Things did not move smoothly and it appears that Philip
David Dexter had some issue with Dr.Neeta Misra not truthfully
disclosing her income in South Africa and he being required to pay 3000
Rand per month to her. He stopped making payments resulting in
Dr.Neeta Misra moving an application for warrants of attachment to be
issued to satisfy her claim for maintenance. She also filed an application
apprehending violence to her person. She was granted protection order
on March 10, 2011. Philip David Dexter moved an application on March
27, 2011 to reduce the maintenance granted to Dr.Neeta Misra.
8. In June 2011, a theft took place at the residence of Dr.Neeta
Misra and since, apart from other things, research material gathered by
Dr.Neeta Misra pertaining to the subject she was researching upon for her
Doctorate (Ph.D.) was stolen. She suspects that Philip David Dexter had
a hand in the incident.
9. Dr.Neeta Misra claimed that on September 08, 2011, a
Thursday, when she went to school to pick up Hope , she heard Hope tell
her friend Stella that she must not ask her boyfriend to suck on his pee
pee (sex organ). When she asked Hope where she had heard this. Hope
told her that while standing on the top floor of her father’s house she
heard her father ask his girlfriend Bregje to perform oral sex, and as she
quizzed for more details Hope told her that she had seen Bregje perform
oral sex on her father on more than one occasion. On September 09,
2011 Dr.Neeta Misra sent an e-mail to Astrid Martalas with a request to
refer the incident to Rob Sandenbergh, a child therapist, for the reason, if
it was true, it was indeed a serious matter since Hope was five years old
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 8 of 36
and ought not be exposed to see oral sex between two consenting adults.
Philip David Dexter claims this to be a figment of Dr.Neeta Misra’s
imagination and a ploy; the foundation of a contrivance to abduct Hope
from the Republic of South Africa and flee to India.
10. Astrid Martalas referred the issue to one Rob Sandenbergh,
a Clinical Psychologist and Child Therapist, who associated one Juana
Horn and Kate Scott, the former a Clinical Psychologist and the latter an
Educational Psychologist, and submitted, if we may say some kind of an
interim opinion in October 2011, which suggests that initially Hope
denied having told any such kind of a thing to her mother but at the
second breath said that she did, but refused to use the same phrase which
she allegedly used while conveying to her mother the oral sex escapades
which she claimed to have seen involving her father and his girlfriend.
The report records that the retracted second stage incriminating statement
was claimed to be made by Hope to her mother in a car when her friend
Stella was present i.e. the place of the narration and the child friend of
Hope i.e. Stella being present, being corroborative of what was claimed
by Dr.Neeta Misra. The report suggests that Hope could possibly have
said imaginary things about her father, because Hope had said that
everyone is „talking too much‟ about this and so saying she changed the
topic. The report concludes by noting that Rob Sandenbergh can make
no further progress because Hope was no longer in the country.
11. But something of importance had taken place prior to
October 2011, by when Rob Sandenbergh could furnish a tentative
interim report. Dr.Neeta Misra had addressed an e-mail to Philip David
Dexter seeking his permission to take Hope for a holiday to United
Kingdom informing him that her sister with her daughter were to be in
London in the first week of October 2011 and she desired that Hope
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 9 of 36
should meet her aunt and her cousin. Philip David Dexter did not give
the consent and thus Dr.Neeta Misra moved an application on September
07, 2011 in the Court seeking permission to take Hope for a holiday to
the United Kingdom requiring Hope to be absent from the Republic of
South Africa from September 27, 2011 to October 02, 2011. In the
application Dr.Neeta Misra inter-alia pleaded as under:-
“4. That insofar as Respondent‟s signature is
necessary for the purpose of obtaining a visa or any
other travel documentation, such requirement be
dispensed with and Applicant be authorized to sign
any such documentation on behalf of Respondent in
his stead.
5. That the Respondent forthwith hand over
possession of the said minor child‟s Sought African
passport to the Applicant‟s attorney of record,
failing with the Sherriff of the above Honourable
Court is directed and authorized to take possession
of the passport and hand it over to Applicant‟s
attorneys of record.”
12. Required to depose to an affidavit in support of the
application, Dr.Neeta Misra, inter-alia, deposed as under:-
“4. I am a citizen of the United States of America.
I am resident in the Republic of South Africa. I am a
Post Doctorate Fellow at the University of Cape
Town. I am also under contract to a local publisher
to write a book on South African Trade Unions. I
have been granted temporary residence and am
permitted to work in the Republic of South Africa
until 2013.
X X X
12. HOPE‟s school holidays commence on 28
September 2011 and end on 9 October 2011. We
are booked to leave on the evening of 27 September
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 10 of 36
2011 and to return to South Africa on 2 October
2011. She will not be missing any school time.
I annex hereto marked “NM3” a copy of our travel
itinerary as provided by the travel agent.
13. I am advised that I require Respondent‟s
consent to remove HOPE from the Republic of South
Africa in terms of sections 18(5) and 18(3) of the
Children‟s Act 38 of 2005.
X X X
20. Respondent cannot have any fears of Hope
travelling abroad, as HOPE accompanied
Respondent on a 14 day holiday to Bali, Indonesia
in January 2011. May travelled with me to New
York in December 2010. We spent two weeks in
New York. In March 2011 HOPE accompanied me
to India where we visited my family. Respondent
willingly gave his consent for these trips. Since
August 2010 HOPE has been to Durban at least six
times with Respondent.”
13. Disposing of the application filed by Dr.Neeta Misra to take
the minor child, Hope , for a holiday to United Kingdoms, the learned
Judge of the Western Cape High Court passed an order on September 15,
2011 which, inter-alia, reads as under:-
“5. The Respondent shall forthwith hand over
possession of the said minor child‟s South African
passport to the Applicant‟s attorney of record. The
Applicant shall hand over the minor child‟s Indian
and USA passports to the Applicant‟s attorneys of
record for safe keeping. The Applicant, on her
return to the Republic of South Africa shall hand
over the minor child‟s South Africa and UK
passports to her attorneys of record, who shall hold
all these passports until the parties otherwise agree
in writing.”
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 11 of 36
14. But, what did Dr.Neeta Misra do? She was obliged to hand
over Hope‟s Indian and US passport to her attorney for safe keeping. She
did not do so. As regards Hope‟s South African passport which was with
her father and who gave it to the attorney of Dr.Neeta Misra, on the
strength thereof Hope left the shores of the Republic of South Africa on
September 27, 2011 with Dr.Neeta Misra and reached Heathrow Airport
(London) the next day on September 28, 2011. She never went outside
the Airport. She took a connecting flight for Mumbai the same day and
reached Mumbai the day next i.e. September 29, 2011. The passports
would evidence that on the strength of the South African passport, Hope
flew out of Cape Town with her mother and flew out of London on the
American passport. With much hesitation, to which fact we would be
referring to a little later, Dr.Neeta Misra now admits that she had already
purchased a round trip ticket on September 21, 2011 for herself and her
daughter Hope which was used by her to reach Mumbai from London.
She contacted a lawyer at Delhi on September 30, 2011, got drafted, and
on October 05, 2011 filed a petition under the Guardians and Wards Act
1890 with which we are dealing, pleading therein that she and her minor
daughter were residing at 234, Westend Marg, Said-ul-ajab, New Delhi.
15. There are gross suppressions in the petition. There is no
reference to the joint custody order dated October 11, 2010 passed by the
competent Court at Cape Town. There is no reference to the undertaking
given by Dr.Neeta Misra to the Court in Cape Town to return to the
Republic of South Africa along with Hope on October 02, 2013 . From a
perusal of the petition it becomes clear that Dr.Neeta Misra has
complained about Philip David Dexter not paying her maintenance and
the fear of violence at his hand and for which she annexed the complaints
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 12 of 36
filed by her in the Court in South Africa and the protection order which
she had obtained as also the application filed by her to seek warrants of
attachment to realize her maintenance dues. She referred to the trauma
caused to Hope at the hands of Philip David Dexter, to whom she
attributed statements of telling Hope that he would see that Hope and her
mother were sent to jail. She referred to the fact that Philip David Dexter
has a half sister having a daughter named Hayley; a stated drug addict
and suffering from Bipolar Disorder. She made a grievance that Philip
David Dexter used to occasionally send Hope to sleep, without parental
supervision, with Hayley; thereby endangering Hope. She referred to
Hope‟s half-brother, the child born during a live-in relationship of Philip
David Dexter, slapping Hope and bullying her as also that Philip David
Dexter permitting the adolescent half-brother of Hope to sleep in the
same room with Hope . Dr.Neeta Misra pleaded that so traumatized was
she that she had to escape from the long arms of Philip David Dexter,
whom she referred to as a politician in the Republic of South Africa. She
pleaded that she left United Kingdom for a short holiday in September
2011 (date has not been mentioned by her). She claims that at the
departure, when the Immigration Authorities found that she was a
divorcee but was on a spousal visa in the Republic of South Africa, she
was told that her return to South Africa would be a problem. The reason
to reach India, as pleaded in paragraphs 38, 39 and 40 of the petition,
would be better noted by us in the language used by Dr.Neeta Misra. She
pleaded as under:-
“38. At the time of her departure the Petitioner was
shocked when the Immigration Authorities told her that
as she was living in South Africa under a spouse visa and
as her marriage with the Respondent had been dissolved
in October 2010, the Petitioner would not be entitled to
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 13 of 36
return to South Africa on the said visa. The Petitioner
has a modest grant for research till March 2012 which is
soon to expire.
39. After clearing immigration in the UK the
petitioner enquired at the South African consulate in
London and was told that it would take 4-6 months to get
a new visa and that she must return to her country of
residence to apply. In these circumstances, although, the
petitioner was in the U.K. she decided to come to India
initially to apply for a new visa to come to South Africa
which application for Visa could have been applied from
the U.S. or from the India. As the Petitioner would need
a residence permit/visa and not a tourist visa, the
Petitioner realized that she could not lose time and
needed to come to India and cancel her UK holiday as
the Petitioner has limited means and living in the US is
far more expensive than living in India. Petitioner has
thus come to India, has cancelled her return ticket to
South Africa and has decided to permanently reside in
India along with her minor Daughter Hope.
40. That the petitioner has the advantage of having
her mother and family on whom she can depend in her
time of need. The Petitioner has thus come to India as a
result of an emergency which came to the fore. At the
time of the Petitioner leaving South Africa for the U.K.
the Immigration Authorities warned the Petitioner that
she would not be allowed to re-enter South Africa. The
Petitioner does not know what to do. The Petitioner has
the custody of the minor daughter Hope. The Petitioner
has no objection to supervised visitation rights by the
Respondent. The Respondent is a man of low moral
value and high political influence, Petitioner cannot hope
to compete with the Respondent either in terms of money
or in any other manner.”
16. Listed before the learned Judge Family Courts on October
05, 2011; kept in the dark about the order dated October 11, 2010 passed
by the Western Cape High Court as also Dr.Neeta Misra’s undertaking to
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 14 of 36
the said Court when she was permitted to take Hope for a holiday to
United Kingdom and also kept in the dark about the order dated
September 15, 2011 passed by the Western Cape High Court, the learned
Judge Family Courts passed an order restraining Philip David Dexter to
remove the minor child from the custody of Dr.Neeta Misra. The said
injunction order was passed because Dr.Neeta Misra expressed an
apprehension that Philip David Dexter would kidnap Hope .
17. We need to highlight at this stage that the pleadings of
Dr.Neeta Misra suggest to the Court that in view of the information she
received at the departure by the Immigration Authorities and further
information received by her from the South African Consulate in London,
it was her compulsion to fly to India. She has not disclosed that she flew
to Mumbai and reached Mumbai on September 29, 2011 because her
mother resides in Mumbai. Her pleadings are suggestive as if she flew to
Delhi, meaning thereby, this was her plea to confer territorial jurisdiction
in the Courts at Delhi.
18. All this while Philip David Dexter was distressed because
Hope never crossed out from the precincts of Heathrow Airport at
London. Since Dr.Neeta Misra had indicated that she would be staying
with her sister at the house of a friend named Sameena Zaidi at 90
Exmouth Road, London, E 17, Philip David Dexter tried to locate Hope
at said address and had to contact a Solicitor in London to do the needful
who got in touch with Sameena Zaidi and received information from her
that Dr.Neeta Misra nor her daughter had reached her house. She
informed that Dr.Neeta Misra had told her of having some matrimonial
problem and took her permission to use her address limited to bring Hope
to the United Kingdom.
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 15 of 36
19. On October 07, 2011 the Solicitor of Dr.Neeta Misra at Cape
Town informed the Solicitor of Philip David Dexter that henceforth he
had no authority to act on behalf of Dr.Neeta Misra and henceforth her
attorneys in India would be doing the needful; and along with the
communication he enclosed a copy of the ex-parte ad-interim order
passed by the learned Judge, Family Courts on October 05, 2011. The
communication dated October 07, 2011 reads as under:-
“We refer to previous correspondence herein.
We have been instructed to forward a copy of the
Indian court order dated 5 October 2011 to your
offices, a copy of which has been attached hereto.
We have furthermore been instructed to advise that
we shall no longer be representing our client and
that all queries will have to be set to our client‟s
attorneys in India, who shall be making contact with
you shortly.”
20. It was followed soon thereafter by an ex-parte ad-interim
order dated October 20, 2011 obtained by Dr.Neeta Misra in
C.S.No.382/2011 wherein she sought an injunction against Philip David
Dexter to approach her and Hope , expressing a fear of physical harm.
The order restrains Philip David Dexter to be within 100 metre of
Dr.Neeta Misra and Hope . It needs to be highlighted that even in the said
suit facts pertaining to the consent orders passed by Court of Competent
Jurisdiction in Cape Town which had a bearing on Hope‟s custody and
not to be brought to India were suppressed. For record, said suit
ultimately came to be dismissed on April 24, 2012. It was held that the
matter had to be adjudicated by the Guardianship Court.
21. Pertaining to Guardianship Petition with which we are
concerned, Philip David Dexter opposed the prayers made, on merits as
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 16 of 36
well as on jurisdiction; pleading that there was contrivance by Dr.Neeta
Misra who had already made up her mind to remove Hope from the
Republic of South Africa. He pleaded that the story weaved by Dr.Neeta
Misra in paragraphs 38 to 40 of the petition was a ruse, for the reason
there was no time for Dr.Neeta Misra, as pleaded by her in paragraph 39
of her petition, to approach the South African Consulate in London
inasmuch as she never stepped out of Heathrow Airport. Flying out of
Cape Town on September 27, 2011 and reaching London the next day on
September 28, 2011, she flew out of Heathrow Airport with Hope the
same day and reached Mumbai on September 29, 2011. He pleaded that
since Dr.Neeta Misra’s mother resides at Mumbai, she reached Mumbai.
She treats Mumbai as her abode and her residence, evidenced by income
tax returns filed all these years at Mumbai. Philip David Dexter referred
to income tax returns till the assessment year 2011-2012 filed at Mumbai
showing Dr.Neeta Misra’s address at Mumbai. He drew the attention of
the Court to the documents filed by Dr.Neeta Misra and especially at
Serial No.4 to 16 of the petition, the documents being: (i) Marriage
certificate of the parties; (ii) Hope‟s birth certificate; (iii) Copy of legal
notice sent by his Solicitor to Dr.Neeta Misra on May 11, 2006; (iv) Copy
of hospital records; (v) Copy of an e-mail dated September 08, 2011; (vi)
Copy of divorce proceedings; (vii) Details of the trips made by Philip
David Dexter; (viii) Copy of profile of Philip David Dexter; (ix) Copy of
newspaper cutting in ‘THE CAPE TIMES’ pertaining to Philip David
Dexter; and (x) Copy of Domestic violence complaint filed by her, to
highlight the patent absurdity in Dr.Neeta Misra’s story for the reason as
per her she was compelled to reach Mumbai due to the Immigration
Authority at the Departure of the Airport at Cape Town telling her about
the status of her visa i.e. spousal visa and information that she could not
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 17 of 36
return to South Africa on the visa with further information received from
the South African Consulate in London. He pleaded that if Dr.Neeta
Misra was an innocent traveler as claimed by her why would she be
travelling with aforesaid documents? Obviously, she was pre-armed to
reach India and open a battlefront after abducting Hope. Territorial
jurisdiction was opposed by pleading that there was no evidence to even
prima-facie suggest that Dr.Neeta Misra and Hope had made up their
mind to have a permanent residence at Delhi and thus the sine qua non for
jurisdiction i.e. the place where the minor ordinarily resided was not
Delhi. Philip David Dexter relied upon the quick succession of events to
not only bring out contrivance but even the fact that Dr.Neeta Misra and
Hope could not claim to be ordinarily residing at Delhi. Of course, he
opposed the relief prayed on merits.
22. Unfortunately for us, the learned Judge, Family Courts, has
not discussed afore-noted facts and the evidence save and except the
proceedings at South Africa. It has been held that in his opinion it could
not be said that Hope was ordinarily a resident of Delhi.
23. In FAO 29/2013 Dr.Neeta Misra had stood by her story as
disclosed by her in paragraphs 38 to 40 of the Guardianship Petition filed
by her, containing her reasons to leave Republic of South Africa for good
and set up residence at Delhi.
24. In WP(Crl.) No.1562/2012, an order was passed on January
21, 2013 directing Dr.Neeta Misra to deposit her and Hope‟s passport
(passports) with the Registrar General of this Court. Order dated March
12, 2013 passed in the writ petition required inspection of the passports to
be given to learned counsel for Philip David Dexter in the presence of the
counsel of Dr.Neeta Misra.
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 18 of 36
25. As noted by us herein above, we had heard arguments in the
appeal on March 01, 2013 as also March 05, 2013, on which dates
Ms.Malavika Rajkotia Advocate, has made submissions in the appeal
filed by Dr.Neeta Misra. By March 05, 2013, learned counsel for
Dr.Neeta Misra had completed submissions. The appeal and the writ
petition were adjourned for March 12, 2013, on which date arguments
could not be advanced in reply by Philip David Dexter resulting in the
matters being adjourned for March 19, 2013. On March 12, 2013,
inspection of the passports deposited with the Registrar of this Court was
granted and it was at this stage that it was revealed that Dr.Neeta Misra
had already purchased a round trip ticket on September 21, 2011 for
herself and Hope; enabling the two to travel to Mumbai and this was after
she had obtained the order on September 15, 2011 from the Court at
Western Cape Town. The passports evidenced that she and her daughter
flew out of Cape Town on September 27, 2011. They departed on the
strength of the South African passport. Reaching Heathrow Airport the
next day on September 28, 2011, the mother and daughter simply crossed
over the terminal from Heathrow Arrival to Heathrow Departure and
same day flew out to Mumbai, where they reached on September 29,
2011. Dr.Neeta Misra then realized that the cooked up story containing
reason to reach with her daughter to Mumbai was up. The cat was out of
the bag. She made a confessional statement in the form of an affidavit
deposed to by her on March 19, 2013, realizing that it would be better to
state the truth voluntarily. She did so, but not with the candour expected
of a person who wants to make a confession. She confessed in paragraph
16 of the affidavit that she had already made up her mind to be with her
mother in Mumbai to discuss the situation in which she was, to try and
find a solution, and that was the reason why she had purchased a round
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 19 of 36
ticket on September 21, 2011. But in the very next paragraph i.e.
paragraph 17, she reiterated the reason, being the fact statedly disclosed
to her at the Immigration counter before she left South Africa. She
admitted in the next paragraph i.e. paragraph 18, that landing at London
she took the flight from the Airport to Mumbai; thereby admitting that
she never had an occasion or the time to contact the South African
Consulate in London. In the next paragraph i.e. paragraph 19 of the
affidavit she stated that she came to Delhi on September 30, 2011 and
approached the Courts to ensure that her daughter was not separated from
her. But in the same breath she stated that she contacted the South
African Embassy who told her that she could obtain a non-spousal visa to
visit the Republic of South Africa where she was a fellow at the
University pursuing her Doctorate.
26. In an affidavit deposed to on March 19, 2013, after
Dr.Neeta Misra’s counsel had concluded submissions and learned counsel
for Philip David Dexter had to commence reply arguments, in paragraph
16 to 19, she disclosed as under:-
“16. I requested permission to take Hope on a
holiday to London in October, 2011 as I was entitled
to as per the divorce agreement. My former husband
refused on financial grounds. I took him to the high
court and won permission to leave the country.
Following this on 21.09.2011 I bought a round trip
ticket from London to Mumbai. I had permission to
travel to London from 27.09.2011 to 04.10.2011. I
bought a round trip ticket to Mumbai from London
leaving September 28.09.2011 to 02.10.2011 that
would allow me return to South Africa. I planned to
visit my mother who lived in Mumbai to discuss this
situation and try and find a solution.
17. As I was leaving South Africa at the
immigration counter I asked the officer if my existing
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 20 of 36
South African visa was valid and he asked me if I was
still married to a South African citizen. When I
answered in the negative he advised me that I would
need to apply for a fresh visa from my country of
residence and could not come back to South Africa on
my existing spousal visa.
18. I landed in London and got on a flight to
Mumbai. Once I got there I met with my mother and
decided together that Delhi would be the best place
for me to go to while I resolved these issues for work
reasons and my mother agreed to re-locate to Delhi
with me to give Hope support during this difficult
time.
19. Around 30.09.2011, I arrived in Delhi and
approached the courts to ensure that my daughter was
not separated from me while I investigated the issues
around my visa. It became apparent after I contacted
the South African embassy that it would almost
impossible for me to get a new visa for South Africa
and that by the time I did so my existing employment
contact would have ended and I would have no source
of income in South Africa. In any event the
Respondent has taken out an arrest warrant against
me in South Africa thus rendering me unemployable.”
27. We find that Dr.Neeta Misra’s stand that she was permitted
to reside in South Africa on a spousal visa is incorrect inasmuch as the
category of visa was changed, when permission was accorded to her to
reside in South Africa till May, 2013, to one under Section 11 of the
Immigration Act, 2002 in the Republic of South Africa. She holds a
visitors visa on the strength of her being engaged in the Republic for
research work. She can return to the Republic of South Africa.
28. In the aforesaid factual backdrop we need to consider
whether Dr.Neeta Misra has prima facie established a case warranting a
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 21 of 36
summary or a regular inquiry to be held i.e. evidence recorded to
determine whether she and her daughter are ordinarily residing at Delhi.
29. Ms.Malvika Rajkotia, with reference to the decision of the
Supreme Court reported as AIR 2011 SC 1952 Ruchi Majoo v. Sanjeev
Majoo vehemently urged that a person being ordinarily a resident in a
place is primarily a question of intention, which in turn is a question of
fact. Thus, learned counsel submitted that without holding an inquiry to
determine the fact i.e. the intention, the learned Judge of the Family Court
could not have non-suited the petitioner.
30. Blacks Law Dictionary defines the word ‘ordinary’ to mean :
Regular; usual; normal; common; often recurring; according to establish
order; settled; customary; reasonable; not characterized by peculiar or
unusual circumstances; belonging to, excercised by or characteristic of,
the normal or average individual.
31. The dictionary defines the word ‘reside’ as : live; dual,
abide, sojourn, stay, remain, lodge. The decision 129 F2d 135 Western
Knapp Engineering Co. v. Gillbank CCA defined ‘reside’ : To settle
oneself or a thing in a place, to be stationed, to remain or stay, to dwell
permanently or continuously, to have a settled abode for a time, to have
ones residence or domicile; specifically, to be in residence, to have an
abiding place, to be present as an element, to inhere as a quality, to be
vested as a right.
32. To put it simply, ‘reside’ means more than a flying visit to,
or a casual stay at a particular place.
33. What makes residence a matter of intention and hence a
matter of fact is that it relates to a person choosing to make a particular
place his/her abode.
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 22 of 36
34. To wit : A person decides one day to seek premature
retirement. In furtherance of the intention, the person applies to the
employer, giving notice envisaged by the terms of engagement, to be
voluntarily retired from service. Anticipating acceptance, the noticee
visits a small town where he intends to reside post-retirement and
negotiates a lease for a house. He opens an account with the bank in the
said small town. He returns to the city of his work place and closes the
bank account. He surrenders the gas connection and determines the
lease. Voluntary retirement request is accepted and in the evening the
office colleagues give the farewell party. Bag and baggage, the same
evening this man leaves for the small town. He becomes an ordinary
resident of the small town the moment he reaches the town for the reason
the conduct of the person shows his intention to have his abode in the
small town.
35. If all these facts are admitted, it would be only a question of
law : Whether from the said admitted facts an intention to have the abode
in the same town stands evinced. No trial would be needed on said
admitted facts.
36. Law recognizes the difference between proof of a fact being
a matter of evidence and an inference to be drawn from a fact proved,
which would be a question of law.
37. Meaning thereby, it all depends on what facts are projected
by a party and whether or not the same are admitted. If all the facts
projected by a party are admitted by the opposite party or are not put in
dispute, no evidence whatsoever would be required; because no fact in
issue arises warranting evidence to be led. Only the question of law
would remain : Whether on the admitted facts or on the facts which are
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 23 of 36
not traversed by the opposite party, in law, one can infer that the
residence of the person is as claimed.
38. It is with this legal understanding that we proceed to
consider the undisputed facts pertaining to Dr.Neeta Misra’s claim that
she and her daughter were ordinarily residents of Delhi.
39. The facts noted by us hereinabove would reveal that
Dr.Neeta Misra had nothing to do with the city of Delhi and nor Hope.
The two left Cape Town on September 27, 2011; reaching London the
next day on September 28, 2011, the mother and daughter flew the same
day to reach Mumbai on September 29, 2011. As deposed to in her
affidavit dated March 19, 2013, contents whereof have been noted by us
in paragraph 26 above, Dr.Neeta Misra reached Delhi on September 30,
2011 to investigate issues regarding her visa and engaged a counsel who
drafted the petition which was filed on October 05, 2011. Dr.Neeta Misra
has disclosed her residential address as 234 West End Marg, Said-ul-
Ajaib, New Delhi, but has furnished no proof of having taken on rent the
premises in question. The tax returns filed by her of all these years, and
the last one being for the Assessment Year 2011-2012 would reveal that
she had been filing the tax returns at Mumbai showing herself to be a
resident of Mumbai at the flat where her mother was residing.
40. So telling are the facts which emerge from Dr.Neeta Misra’s
pleadings and the undisputed documents that no trial is warranted. The
conclusion would be that take all the facts in favour of Dr.Neeta Misra, in
law it cannot be said that the same evidence an intention to set up the
abode at Delhi.
41. Thus, on the facts of the instant case we concur with the
view taken by the learned Judge Family Court that Courts at Delhi did not
have territorial jurisdiction to entertain the petition because when the
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 24 of 36
petition was filed neither Dr.Neeta Misra nor her daughter Hope were
ordinarily residents of Delhi.
42. That would be the end of FAO No.29/2013 filed by Dr.Neeta
Misra, which we dismiss.
43. With respect to the Habeas Corpus petition filed by Philip
David Dexter, we would be constrained to discuss all relevant facts
pertaining to the custody issue of Hope and this would mean a virtual
adjudication on the merits of Dr.Neeta Misra’s claim that Courts in India
should decide the issue of Hope‟s custody. But it cannot be helped.
44. Though, the fact has to be kept in mind, but without being
blown out of proportion, that it is a case of an abducting parent
approaching the Court in India.
45. When the abducting parent is the mother, it is common for
her to claim that the matrimonial bond has broken down, and more often
than not the allegation would be ill-treatment and domestic abuse by the
male spouse. There are bound to be allegations that the conduct of the
male spouse was of a serious kind with grave likelihood of risk to the
mental or the physical health of the child born during the wedlock.
Invariably, as an excuse to abduct the child from the foreign shores, she
is bound to say that she resorted to a secret operation i.e. resorted to a
stratagem of contrivance; pulling wool over the eyes of her spouse and
even taking the Courts of that country for a ride; too afraid to do
otherwise, she was left with no option but to flee to the country where her
kith and kin by birth were available to provide her with comfort and
support.
46. We would thus not be overtly influenced by the fact that
Dr.Neeta Misra has abducted Hope and has brought her to India violating
the joint custody order dated October 11, 2010 and in the teeth of the
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 25 of 36
order dated September 15, 2011 of the High Court of South Africa
(Western Cape High Court) as also her solemn undertaking given to the
Court under an affidavit, relevant parts whereof have been noted by us in
para 12 above.
47. We do not burden ourselves with extensive case law cited by
learned counsel for the parties for the reason learned counsel agreed that
in parental abduction cases, where a spouse is residing separately or
otherwise from the opposite spouse, in a particular country, and flees
from the said country to her original home country along with the minor
child born to the parties, and the issue of custody arises in the Court
within territorial jurisdiction whereof the spouse and the minor child
ordinarily reside, post abduction, the legal principles to be kept in mind
are that irrespective of whether the country of the Court concerned is or is
not a signatory to the ‘Hague Convention on the Civil Aspects of
International Child Abduction 1980’ (popularly known as the Hague
Convention), principles embodied in the Convention must be kept in
mind. This would mean that if there is an order of a Court of competent
jurisdiction in the country wherein the abduction took place, the said
order has to be respected. The disadvantage to the other spouse has also
to be kept in view. One has to keep in mind the injury caused to the mind
of the child who is uprooted all of a sudden from a familiar surrounding;
the psychological damage caused to the child due to sudden removal from
a familiar environment to an unfamiliar environment. Injustice caused to
the opposite spouse. The welfare principle i.e. the risk of harm while
returning the child to the foreign shores; the welfare and interest of the
child.
48. The bond between a mother and her child has always been
held, especially in India, standing on a higher pedestal vis-à-vis the bond
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 26 of 36
between a father and his child. From times immemorial, the Indian ethos
gives the highest place in the life of a child to the mother, followed by the
teacher and at third place comes the father.
49. But, this is only a starting point of discussion, or to put in
legal language : The onus cast is against the father.
50. But, there are no easy solutions for the reason an organized
civil society and an orderly world order require : (i) It being the object of
every law to deter either parent from taking law into in their own hands;
and (ii) respecting the principle of comity of nations and Courts.
51. It has to be kept in mind that the principles of status quo ante
require a Court to restore parties to the same position in which they were
before one party, acting illegally and unlawfully, changed the status quo .
He who violates the law and does an act to change the status quo should
not be permitted to gain an unfair advantage. These principles of civil
law, when transposed to the family dispute of parental abduction would
mean that the object of the law and hence the legal debate would be : (i)
To deter either parent from taking the law into his/her own hand; (ii)
Restore the child as soon as possible to the home country; (iii) Status quo
ante to be restored; (iv) Abducting parent should not gain any unfair
advantage.
52. And the aforesaid three, to a considerable extent, shift the
onus which is cast against the father on the weight of the mother-child
bond; if the abduction is by the mother. The reason being that unilateral
action should not be permitted to pre-empt anybody’s claim and that even
the left behind parent has a legitimate interest in the future welfare of the
child : without the existence of such a person the removal can never be
wrongful. Restoring a child to the familiar surroundings is seen as likely
to be a good thing in its own right and hence the assumption that the best
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 27 of 36
interest of the child would be served by a prompt return to the country
where the child is habitually resident. And this explains a catena of
authorities where the thumb rule of a year lapsing after the abduction and
the other spouse seeking return of the child is treated as defeating the
equities and the presumptions in favour of the spouse aggrieved. The
reason is : Children are malleable and easily adjustable. They adapt to
changed environments very quickly and thus the very principle that a
child should be taken back promptly to familiar surroundings operates in
the converse i.e. the child not to be removed in the surroundings with
which the child has become familiar over the one year. Of course, all
these assumptions may be rebutted.
53. What resolves the issue of onus then?
54. Learned counsel for the parties rightly conceded that it is the
best interest of the child.
55. Now, what does that mean?
56. Children, especially of a tender age, and by that we mean
children who have not entered their teens, do not always know what is
best for them though they may have acute perception of what is going on
around them. They may profess to have authentic views about the right
and the proper way to resolve matters, but the same would be hazy.
57. When we speak about a child’s interest we understand the
same to be comprising of two distinct parts. Part I : Maintaining family
ties. Part II : Ensuring the child’s development within a sound
environment and least not such as would harm the development of the
child. It is the second which is inherent in the rule requiring a prompt
return of the abducted child, unless there is a grave risk that the child’s
return would expose the child to a physical or a psychological harm or
otherwise place the child in an intolerable situation and its converse that
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 28 of 36
if one year elapses from the date of the abduction when the aggrieved
spouse moved for return of the child, the Courts should be reluctant to
return the child.
58. Having understood what would be the interest of the child to
be kept in mind, we need to lodge a caveat. The law requires that „the
best interest of the child shall be a primary consideration.‟ The law does
not require that „the interest of the child shall be the primary
consideration.‟ The law also does not require that „the best interest of the
child shall be a paramount consideration.‟ Thus, the distinction between
„a primary consideration‟ ; „the primary consideration‟; and „the
paramount consideration‟ has to be kept in mind.
59. It is clear that where the couple, as in the instant case, have
submitted to the jurisdiction of the home country where they resided
when the matrimonial bond was intact, the burden of proof would lie on
the spouse who opposes the return of the minor child and it is for the said
spouse to produce evidence to substantiate the exception. Of course, the
standard of proof would be of the ordinary balance of probabilities.
Secondly, the inquiry has to be quick and fast, preferably summary in
nature, a long drawn out inquiry being the exception, for the reason law
presumes that the best interest of the child would be served by restoring
the child to the familiar environment i.e. the place where the child was
residing before being plucked away from the familiar environment. Thus
the need to send back the child as early as possible. Thirdly, with respect
to evidence relied upon by the spouse who opposes the return, the risk to
the child must be established not only as real but also grave. Fourthly,
the real risk, which has to be grave, may relate to a physical or a
psychological harm to the child. Fifthly, since the Court is looking to the
future, the situation in which the child will find herself on return has to be
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 29 of 36
kept in mind; and this would embrace such measures protective of the
child against the risk, if the Court decides that the child must return.
60. We clarify these are the principles to be kept in mind while
deciding a petition under Section 9 of the Guardians and Wards Act 1890
in a case of parental abduction.
61. The inquiry has ordinarily to be a summary inquiry, and if
inferences can be drawn from the facts which are brought before the
Court, no evidence whatsoever is required to be led. Further, if the nature
of factual dispute is such that the best evidence thereto would be available
in the home country, parties have to be relegated to the remedies before
the home country.
62. Dr.Neeta Misra and Philip David Dexter obtained divorce by
mutual consent on October 11, 2010. On consent terms they agreed to
Hope‟s joint custody. As per Dr.Neeta Misra, Philip David Dexter started
disobeying the consent order when he did not pay the monthly agreed
maintenance of 3000 Rand. But she has taken recourse to remedy in the
home country. Attachment warrants were obtained and the amount was
recovered. As per Dr.Neeta Misra, when she went to Hope‟s school to
pick her up on September 08, 2011 she heard Hope tell her friend Stella
that she must not ask her boyfriend to suck on his sex organ and on
quizzing Hope as to where she heard of this, was horrified to learn that
Hope had seen her father and his girlfriend perform oral sex. As per
Dr.Neeta Misra, returning Hope to the Republic of South Africa would
expose her to said psychological harm inasmuch as Philip David Dexter
has a right to Hope‟s custody every Wednesday evening and night
followed by every alternative Friday evening, the night thereof, the whole
of Saturday including night thereof till Sunday 04:00 PM. As per
Dr.Neeta Misra, Philip David Dexter sends Hope to the house of his half
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 30 of 36
sister who has a drug addict daughter and when Hope is in Philip David
Dexter’s house he permits her to sleep in a room with an adolescent half
brother of Hope . Dr.Neeta Misra claims the real risk of a physical harm
i.e. Hope being physically abused by her half brother.
63. Admittedly, Dr.Neeta Misra had sought intervention from
Astrid Martalas, the agreed facilitator, when she sent an e-mail to him on
September 09, 2011. Dr.Neeta Misra had required Astrid Martalas to
refer, what Hope allegedly told Dr.Neeta Misra on September 08, 2011,
to one Rob Sandenbergh, a child therapist, for the reason, if what Hope
told was true, it indeed was a serious matter. Admittedly, Astrid Martalas
not only referred the issue to Rob Sandenbergh but also ensured that a
Clinical Psychologist named Juana Horn and an Educational Psychologist
named Kate Scott were associated. Admittedly, all three i.e. Rob
Sandenbergh, Juana Horn and Kate Scott looked into the issue. They had
sittings with Hope and submitted an interim opinion in October 2011,
which did not rule out the possibility of Hope saying imaginary things
about her father. We highlight that the interim report is not conclusive
for the reason on September 27, 2011, Dr.Neeta Misra fled; Hope in tow
from the Republic of South Africa and thereby prevented the matter from
being taken to its logical conclusion.
64. The scattered material which Dr.Neeta Misra relies upon to
discharge the onus cast upon her to establish a real risk of grave harm to
Hope is thus not only ex-facie insufficient but more than that, and which
is of importance, is that the best evidence of whatever happened in the
Republic of South Africa is available in the Republic of South Africa.
The best evidence would be Rob Sandenbergh, Juana Horn and Kate
Scott giving expert evidence on the issue.
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 31 of 36
65. Further, Dr.Neeta Misra has no explanation as to why she
did not move the Court in the Republic of South Africa to vary the joint
custody order. And we must confess that the system in place in the
Republic of South Africa on future custody issues, in the form of an
agreed facilitator being appointed to find a solution firstly by mediation
and lastly be a directive for which he has to obtain assistance of Child
Psychologist is far better than what we have in India, in the form of Court
adjudications. What we intend to say is that Dr.Neeta Misra had a better
forum available for resolution of the issue in the Republic of South
Africa.
66. Contrivance on her part is writ large. Her pleadings that at
the Immigration at Cape Town she learnt about her spousal visa and
hence not being permitted to return has now been accepted by her to be a
ruse. She admits in the affidavit deposed to by her on March 19, 2013
that she had much earlier made up her mind to flee from the Republic of
South Africa with Hope and find a solution to the problem in India after
consulting her mother. She has perjured herself when she pleaded on
oath that when she reached London on September 28, 2011 she received
further information from the South African Consulate in London that it
would take her a few months to obtain a visa which would entitle her to
return. She now admits of never having left the precincts of Heathrow
Airport where she landed on September 28, 2011 and flew out the same
day to Mumbai. We find that the visa with her is a non-spousal visa
entitling her to return to the Republic of South Africa.
67. We have noted suppression of relevant facts by Dr.Neeta
Misra, which disentitle her to any discretionary relief.
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 32 of 36
68. Any issue which Dr.Neeta Misra had which affected the
physical or the psychological condition of Hope could certainly have
been brought before the Court at Cape Town.
69. In our opinion Dr.Neeta Misra, for the moment, has no
evidence to prima-facie justify risk of grave danger which Hope would be
facing on return to the Republic of South Africa. By her act of
contrivance, Dr.Neeta Misra has prevented the three experts : Rob
Sandenbergh, Juana Horn and Kate Scott to interact further with Hope
and identify the truth. Having aborted the inquiry by the three, she
cannot claim the benefit of any scattered evidence which she projects.
70. It may be true that more than one year has elapsed since
Hope came to India, but the scheming design of Dr.Neeta Misra has
prevented Philip David Dexter from taking recourse to the Habeas Corpus
Petition filed by him. By suppressing relevant facts she not only obtained
the interim custody order from the Family Court on October 05, 2011 but
also obtained an ex-parte ad-interim order on October 20, 2011
preventing Philip David Dexter to be within 100 metre of herself and
Hope , and in respect of which order, Philip David Dexter had an
apprehension that if he visited India for legal help to recover his daughter,
Dr.Neeta Misra would sue him for contempt by falsely alleging that he
had tried to breach the line of security i.e. 100 metre distance from herself
and Hope . The suit came to be ultimately dismissed on April 24, 2012.
Thereafter, WP(Crl.) 1562/2012 was filed by Philip David Dexter.
71. Hope must therefore return to the Republic of South Africa.
72. Learned counsel Ms.Malavika Rajkotia had repeatedly
requested us to have a chamber hearing with Hope. We declined to do so
for the reason Hope is aged 6 years and 9 months as of today. She is far
away from the age of adolescence. She may have an acute perception of
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 33 of 36
what is going on around her and may have her own views about the right
and proper way to resolve matters concerning her, but in our opinion she
would not know what is best for her. Besides, the possibility of her being
tutored by her mother was looming large in the realm.
73. We have kept in mind the entire family situation, the factual,
emotional, psychological and other material placed before us. We have
to strike a fair balance between the competing interests of Hope : to
return her to her familiar surroundings in the Republic of South Africa as
also the alleged grave risk which she may be exposed to if required to be
returned. Finding evidence of the latter being scanty, further finding
Dr.Neeta Misra to have prevented a fair inquiry by the three experts after
having sittings with Hope, noting further the walls created by Dr.Neeta
Misra which prevented Philip David Dexter to seek redressal within one
year of Hope‟s parental abduction, respecting the comity of Courts, we
find case made out in favour of Philip David Dexter in WP(Crl.)
No.1562/2012.
74. But a preventive measure has to be put in place. When
Dr.Neeta Misra returns to the Republic of South Africa and takes
recourse to legal remedies there, a warrant of her arrest having been
obtained by Philip David Dexter for having violated undertaking
submitted by her to the Court in the Republic of South Africa when she
filed the application seeking permission to take Hope for a holiday to
United Kingdom, she should be protected lest she is handicapped in
taking recourse to her judicial remedies.
75. Accordingly, we direct that upon Dr.Neeta Misra returning
to the Republic of South Africa, Philip David Dexter would not move for
the warrants of arrest to be executed for at least a period of two months to
enable Dr.Neeta Misra to seek cancellation thereof.
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 34 of 36
76. We dismiss FAO No.29/2013.
77. We allow WP(Crl.) No.1562/2012 and issue a direction to
Dr.Neeta Misra to produce Hope before the Registrar General of this
Court on April 30, 2013. Hope‟s custody would be handed over by the
Registrar General of this Court to Philip David Dexter. This direction
would not be carried out if within two weeks from today Dr.Neeta Misra
files an affidavit containing an undertaking that she would return to the
Republic of South Africa with Hope, and along with the said affidavit she
would furnish proof of having purchased return tickets to fly back to
Republic of South Africa for not only herself but even Hope. In said
eventuality the passports deposited by Dr.Neeta Misra pursuant to the
order dated January 21, 2013 passed in WP(Crl.) No.1562/2012 shall be
returned to her. Failing which the passports of Hope shall be handed over
to Philip Davit Dexter.
78. WP(Crl.) No.1562/2012 was listed before us on being
transferred by the Roster Bench since we were seized of FAO
No.29/2013. Since the appeal has been dismissed, we direct that should
an application be filed by either party in WP(Crl.) No.1562/2012 the
same be listed before the Roster Bench.
79. Noting gross suppression of facts by Dr.Neeta Misra and
acts of contrivance, one would have been constrained to impose heavy
costs on her, but we refrain from so doing because we are of the opinion
that she has been led into the desert of folly by wrong legal advice given
to her by her counsel in India who have chosen to suppress relevant
information which Dr.Neeta Misra must have provided them while
drafting pleadings on behalf of Dr.Neeta Misra. We give her the benefit
of doubt. Therefore, there shall be no order as to costs.
Crl.M.A.No.18499/2012
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 35 of 36
The application stands disposed of as infructuous since
directions regarding passports have already been issued herein above
while deciding WP(Crl.) No.1562/2012 and as regards access to Hope we
direct that till mandamus issued in the writ petition is complied with,
Philip David Dexter would continue to have the benefit of the consent
order dated November 05, 2012.
Crl.M.A.No.1908/2013
The application is dismissed as infructuous since directions
have been passed while deciding the writ petition pertaining to Hope‟s
passport.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
APRIL 02, 2013
dk
W.P.(Crl.) No.1562/12 & FAO 29/13 Page 36 of 36