Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 127 OF 2020
(@ SPECIAL LEAVE PETITION (CRL) NO. 7390 OF 2019)
YASHITA SAHU ... APPELLANT(S)
VERSUS
STATE OF RAJASTHAN & ORS. ...RESPONDENT(S)
J U D G M E N T
Deepak Gupta, J.
Leave granted.
2. Yashita Sahu (hereinafter referred to as the wife) and
Varun Varma (hereinafter referred to as the husband), got
married on 30.05.2016 in India. The husband was already
working in the United States of America (hereinafter referred to
as the USA). The wife accompanied the husband to the USA on
17.07.2016. A daughter named Kiyara Verma, was born to the
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couple on 03.05.2017. She is a citizen of the USA. The
relationship between the husband and the wife got strained and
they made various allegations and counter allegations against
each other. The wife applied for an Emergency Protection Order
on 25.08.2018 to the Norfolk Juvenile and Domestic Relations
District Court (hereinafter referred to as the Norfolk Court),
praying for her protection and an ex parte preliminary protection
order was passed against the husband. Thereafter, on
29.08.2018, the wife instituted a petition in the same Court
seeking sole custody of the minor child. She also filed a petition
praying that the husband be directed to give monetary support to
her and the minor child. The said Court passed an order on
26.09.2018 in terms of the agreement reached between the
parties. This agreement is part of the order and reads as
follows:
“Father to continue paying rent and utilities @ the
marital residence for October, 2018 and November, 2018.
Father will add mother to lease as an authorized
occupants or leaseholder. Father to pay mother
150/week for child support for October and November,
2018/ and 200/week for December, 2018. Parties to
work together to reach a resolution as to who will
continue occupy the martial residence after November,
2018. Mother to look for employment consistent with her
educational and professional experience. Mother and
father have joint legal custody of minor child and shared
physical custody of child father’s parenting time to start
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Thursday September, 27, 2018 @ noon until Saturday
September 29, 2018 @ noon. Thereafter, the parties are
to share parenting time as follows :
mother to have child every other week from Saturday @
noon until Wednesday @ noon and in alternating weeks
from Saturday @ noon until Tuesday @ noon. Father
shall have parenting time on Wednesday @ noon until
Saturday with alternating weeks two @ noon until
Saturday @ noon (i.e. 4 days on, 3 days off switching
weeks for each parent) parents shall allow whatsapp
calling with child with custodial parent at least 5 min.
per evening upon reasonable notice to other parent.
Parents shall use a third neutral party to facilitate
exchanging the child. Parties shall corporate with each
other & third party if noon exchange time is not feasible
all parties will surrender their passports, including
child’s passport, to guardian ad liten. Mother to reside @
marital residence until December 1, 2018 wherein
mother will vacate the premises or assume full
responsibility of the rent and utilities thereafter.”
As per this order, amongst other things the husband was to add
the wife as an authorised lease holder in the rented premises and
he was to pay weekly support to the child @ $150 per week for
the months of October and November, 2018 and $200 per week
for the month of December, 2018. Joint, legal custody and
shared physical custody of the child was given to the parents,
with each parent being given individual parenting time. As per
the agreement the child was also permitted to talk to the other
parent by WhatsApp calling, after reasonable notice. It is
important to note that it was clearly mentioned that the parties
shall cooperate with each other and try to reach an amicable
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settlement with the help of a neutral third party. If a settlement
was not possible then they were to surrender their passports
including the child’s passport to the guardian ad litem . The wife
was directed to reside in the marital residence till December 1,
2018, whereafter she had to vacate the premises or assume full
responsibility of the rent and utilities.
3. It is not disputed before us that the wife, along with the
child left the USA and came to India on 30.09.2018 i.e. after
26.09.2018 and before 01.10.2018, which was the next date fixed
before the Norfolk Court.
4. The husband on coming to know of the fact that his wife,
along with their child had left the USA for India, filed a motion for
emergency relief before the Norfolk Court on 02.10.2019. An ex
parte order was passed in favour of the husband whereby the
Norfolk Court granted sole legal and physical custody of the child
to the husband and directed the wife to return to the USA along
with the child. A warrant was also issued against the wife for
violating the order dated 26.09.2018 of the Norfolk Court.
5. The husband also filed a petition for issuance of a writ of
habeas corpus before the Rajasthan High Court for production of
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his minor child. The High Court by the impugned judgment
dated 01.07.2019 directed the wife to return to the USA along
with her minor daughter within a period of 6 weeks to enable the
jurisdictional court in USA to pass further orders in this regard
in the proceedings already pending. The husband was directed
to make all arrangements for the stay and travel of the wife and
the minor child and any companion. It was further directed that
in case the wife was not willing to stay in the house of the
husband, then the petitionerhusband would make alternative
arrangements for her stay at the place of her choice at a
reasonable cost.
6. Aggrieved by this judgment of the Rajasthan High Court,
the wife has filed the present appeal.
7. We have heard Ms. Malvika Rajkotia, learned counsel for
the appellant and Mr. Prabhjit Jauhar, learned counsel for the
respondents, at length. Various contentions have been raised
before us by both sides. It has been contended by Ms. Rajkotia
that a writ of habeas corpus would not lie for the custody of the
child since she could not be said to be in illegal detention, as the
child was in the custody of the mother who is the natural
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guardian. She also contended that the High Court erred in giving
a direction to the wife to travel to the USA. Her next contention
is that the child is only about 2 ½ years old and moreover being a
girlchild requires the care, attention and protection of the
mother and, therefore, it is in the interest of the child to be
placed in custody of the mother. With regard to the proceedings
before the Norfolk Court in the USA, it is contended that the wife
was unable to comprehend the proceedings before the Norfolk
Court because of lack of knowledge of English and that too
spoken in an American accent. She also submitted that the legal
aid provided to the wife was of a lawyer who was a ‘caucasian
male’, implying that there was lack of communication between
the two. It is also contended that the wife had raised objection to
the alleged consent order vide email dated 28.09.2018. She also
submits that the order passed by the Norfolk Court is not binding
on the parties, especially the wife and, in the larger interest of the
child the writ petition filed by the husband before the Rajasthan
High Court should have been dismissed. It was also contended
by Ms. Rajkotia that the husband is working in the USA on the
basis of a work permit which is only valid till 2020 and the future
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of the wife and the child will be in jeopardy in case his visa/work
permit is not extended.
8. On the other hand, Mr. Jauhar, contends that it was the
wife who approached the Court in Norfolk and, by agreement, an
order was passed giving shared parenting to both the parents.
The wife had been specifically directed neither to leave the USA
nor take the child out of the USA, but she has violated the orders
of the jurisdictional court, which jurisdiction was invoked by the
wife herself. According to him the wife cannot be permitted to
violate the orders passed by a court in another country and then
seek protection in the Indian courts. He also submitted that in
this modern age it is a well recognised principle of parenting that
even a father can be an appropriate natural guardian for the
minor daughter. Lastly, he submitted that the husband is not
interested in divorcing the wife and his intention is to live with
the child and the wife. He also urged that the husband is willing
to make all arrangements for stay and travel for the wife and the
child, if the wife comes to the USA along with the child.
Whether a writ of habeas corpus is maintainable?
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9. It is too late in the day to urge that a writ of habeas
corpus is not maintainable if the child is in the custody of
another parent. The law in this regard has developed a lot over a
period of time but now it is a settled position that the court can
invoke its extraordinary writ jurisdiction for the best interest of
the child. This has been done in Elizabeth Dinshaw vs.
1
, vs.
Arvand M. Dinshaw & Ors. Nithya Anand Raghavan
2
State (NCT of Delhi) & Anr. and Lahari Sakhamuri vs.
3
among others. In all these cases the writ
Sobhan Kodali
petitions were entertained. Therefore, we reject the contention of
the appellantwife that the writ petition before the High Court of
Rajasthan was not maintainable.
10. We need not refer to all decisions in this regard but it
would be apposite to refer to the following observations from the
judgment in (supra):
Nithya Anand Raghavan
“ 46 . The High Court while dealing with the petition for
issuance of a writ of habeas corpus concerning a minor
child, in a given case, may direct return of the child or
decline to change the custody of the child keeping in
mind all the attending facts and circumstances including
the settled legal position referred to above. Once again,
we may hasten to add that the decision of the court, in
1 (1987) 1 SCC 42
2 (2017) 8 SCC 454
3 (2019) 7 SCC 311
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each case, must depend on the totality of the facts and
circumstances of the case brought before it whilst
considering the welfare of the child which is of
paramount consideration. The order of the foreign court
must yield to the welfare of the child. Further, the remedy
of writ of habeas corpus cannot be used for mere
enforcement of the directions given by the foreign court
against a person within its jurisdiction and convert that
jurisdiction into that of an executing court. Indubitably,
the writ petitioner can take recourse to such other
remedy as may be permissible in law for enforcement of
the order passed by the foreign court or to resort to any
other proceedings as may be permissible in law before the
Indian Court for the custody of the child, if so advised.
47 . In a habeas corpus petition as aforesaid, the High
Court must examine at the threshold whether the minor
is in lawful or unlawful custody of another person
(private Respondent named in the writ petition)…”
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11. Further, in the case of Kanika Goel vs. State of Delhi , it
was held as follows:
“ 34 . As expounded in the recent decisions of this Court,
the issue ought not to be decided on the basis of rights of
the parties claiming custody of the minor child but the
focus should constantly remain on whether the factum of
best interest of the minor child is to return to the native
country or otherwise. The fact that the minor child will
have better prospects upon return to his/her native
country, may be a relevant aspect in a substantive
proceedings for grant of custody of the minor child but
not decisive to examine the threshold issues in a habeas
corpus petition. For the purpose of habeas corpus
petition, the Court ought to focus on the obtaining
circumstances of the minor child having been removed
from the native country and taken to a place to encounter
alien environment, language, custom, etc. interfering with
his/her overall growth and grooming and whether
continuance there will be harmful…”
4 (2018) 9 SCC 578
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12. In the present case since the wife brought the minor to
India in violation of the orders of the jurisdictional court in USA,
her custody of the child cannot be said to be strictly legal.
However, we agree with the learned counsel for the appellant that
the High Court could not have directed the appellantwife to go to
the USA. The wife is an adult and no court can force her to stay
at a place where she does not want to stay. Custody of a child is
a different issue, but even while deciding the issue of custody of a
child, we are clearly of the view that no direction can be issued to
the adult spouse to go and live with the other strained spouse in
writ jurisdiction.
Comity of Courts
13. In the fast shrinking world where adults marry and shift
from one jurisdiction to another there are increasing issues of
jurisdiction as to which country’s courts will have jurisdiction. In
many cases the jurisdiction may vest in two countries. The issue
is important and needs to be dealt with care and sensitivity.
Though the interest of the child is extremely important and is, in
fact, of paramount importance, the courts of one jurisdiction
should respect the orders of a court of competent jurisdiction
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even if it is beyond its territories. When a child is removed by
one parent from one country to another, especially in violation of
the orders passed by a court, the country to which the child is
removed must consider the question of custody and decide
whether the court should conduct an elaborate enquiry on the
question of child’s custody or deal with the matter summarily,
ordering the parent to return the custody of the child to the
jurisdiction from which the child was removed, and all aspects
relating to the child’s welfare be investigated in a court in his/her
own country.
14. Reference in this regard may be made to the judgment in
Elizabeth Dinshaw (supra) wherein this Court was dealing with
a case where the wife was an American citizen whereas the
husband was a citizen of India. They got married in America and
a child was born to them in the year 1978. In 1980, differences
arose between the couple and the wife filed a petition for divorce.
The jurisdictional court in America had dissolved the marriage by
a decree of divorce on 23.04.1982 and by the same decree it was
directed that the wife would have the care, custody and control of
the child till he reaches the age of 18 years. The husband was
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given visitation rights. Taking advantage of the weekend
visitation rights, the husband picked up the child from school on
11.01.1986 and brought him to India. The wife filed a petition
under Article 32 of the Constitution of India before this Court.
Not only was the petition entertained, but the same was allowed
and we would like to refer to certain important observations of
this Court in Para 8:
“ 8. Whenever a question arises before a court pertaining
to the custody of a minor child, the matter is to be
decided not on considerations of the legal rights of parties
but on the sole and predominant criterion of what would
best serve the interest and welfare of the minor. We have
twice interviewed Dustan in our chambers and talked
with him. We found him to be too tender in age and
totally immature to be able to form any independent
opinion of his own as to which parent he should stay
with. The child is an American citizen. Excepting for the
last few months that have elapsed since his being
brought to India by the process of illegal abduction by the
father, he has spent the rest of his life in the United
States of America and he was doing well in school there.
In our considered opinion it will be in the best interests
and welfare of Dustan that he should go back to the
United States of America and continue his education
there under the custody and guardianship of the mother
to whom such custody and guardianship have been
entrusted by a competent court in that country. We are
also satisfied that the petitioner who is the mother, is full
of genuine love and affection for the child and she can be
safely trusted to look after him, educate him and attend
in every possible way to his proper upbringing. The child
has not taken root in this country and he is still
accustomed and acclimatized to the conditions and
environments obtaining in the place of his origin in the
United States of America. The child’s presence in India is
the result of an illegal act of abduction and the father
who is guilty of the said act cannot claim any advantage
by stating that he has already put the child in some
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school in Pune. The conduct of the father has not been
such as to inspire confidence in us that he is a fit and
suitable person to be entrusted with the custody and
guardianship of the child for the present.”
In V. Ravi Chandran (Dr.) (2) vs. Union of India (UOI) and
5
it was held as follows:
Ors.
“ 29. While dealing with a case of custody of a child
removed by a parent from one country to another in
contravention of the orders of the court where the parties
had set up their matrimonial home, the court in the
country to which child has been removed must first
consider the question whether the court could conduct
an elaborate enquiry on the question of custody or by
dealing with the matter summarily order a parent to
return custody of the child to the country from which the
child was removed and all aspects relating to child's
welfare be investigated in a court in his own country.
Should the court take a view that an elaborate enquiry is
necessary, obviously the court is bound to consider the
welfare and happiness of the child as the paramount
consideration and go into all relevant aspects of welfare of
child including stability and security, loving and
understanding care and guidance and full development of
the child's character, personality and talents. While doing
so, the order of a foreign court as to his custody may be
given due weight; the weight and persuasive effect of a
foreign judgment must depend on the circumstances of
each case.
30. However, in a case where the court decides to
exercise its jurisdiction summarily to return the child to
his own country, keeping in view the jurisdiction of the
court in the native country which has the closest concern
and the most intimate contact with the issues arising in
the case, the court may leave the aspects relating to the
welfare of the child to be investigated by the court in his
own native country as that could be in the best interest of
the child….”
5 (2010) 1 SCC 174
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15. In Nithya Anand Raghavan (supra), this Court took the
following view:
“ 42. 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 other words, even in the matter of a summary inquiry,
it is open to the court to decline the relief of return of the
child to the country from where he/she was removed
irrespective of a preexisting order of return of the child
by a foreign court. In an elaborate inquiry, the court is
obliged to examine the merits as to where the paramount
interests and welfare of the child lay and reckon the fact
of a preexisting order of the foreign court for return of
the child as only one of the circumstances. In either case,
the crucial question to be considered by the court (in the
country to which the child is removed) is to answer the
issue according to the child’s welfare. That has to be done
bearing in mind the totality of facts and circumstances of
each case independently. Even on close scrutiny of the
several decisions pressed before us, we do not find any
contra view in this behalf. To put it differently, the
principle of comity of courts cannot be given primacy or
more weightage for deciding the matter of custody or for
return of the child to the native State.”
Thereafter, another bench of this Court in Lahari Sakhamuri
(supra), while interpreting the judgment in Nithya Anand
(supra) held as follows :
Raghavan
“ …the doctrines of comity of courts, intimate connect,
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orders passed by foreign courts having jurisdiction in the
matter regarding custody of the minor child, citizenship
of the parents and the child etc., cannot override the
consideration of the best interest and the welfare of the
child and the direction to return the child to the foreign
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jurisdiction must not result in any physical, mental,
psychological, or other harm to the child.”
16. We are of the considered view that the doctrine of comity
of courts is a very healthy doctrine. If courts in different
jurisdictions do not respect the orders passed by each other it
will lead to contradictory orders being passed in different
jurisdictions. No hard and fast guidelines can be laid down in
this regard and each case has to be decided on its own facts. We
may however again reiterate that the welfare of the child will
always remain the paramount consideration.
Welfare of the child – the paramount consideration
17. It is well settled law by a catena of judgments that while
deciding matters of custody of a child, primary and paramount
consideration is welfare of the child. If welfare of the child so
demands then technical objections cannot come in the way.
However, while deciding the welfare of the child it is not the view
of one spouse alone which has to be taken into consideration.
The courts should decide the issue of custody only on the basis
of what is in the best interest of the child.
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18. The child is the victim in custody battles. In this fight of
egos and increasing acrimonious battles and litigations between
two spouses, our experience shows that more often than not, the
parents who otherwise love their child, present a picture as if the
other spouse is a villain and he or she alone is entitled to the
custody of the child. The court must therefore be very vary of
what is said by each of the spouses.
19. A child, especially a child of tender years requires the
love, affection, company, protection of both parents. This is not
only the requirement of the child but is his/her basic human
right. Just because the parents are at war with each other, does
not mean that the child should be denied the care, affection, love
or protection of any one of the two parents. A child is not an
inanimate object which can be tossed from one parent to the
other. Every separation, every reunion may have a traumatic
and psychosomatic impact on the child. Therefore, it is to be
ensured that the court weighs each and every circumstance very
carefully before deciding how and in what manner the custody of
the child should be shared between both the parents. Even if the
custody is given to one parent the other parent must have
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sufficient visitation rights to ensure that the child keeps in touch
with the other parent and does not lose social, physical and
psychological contact with any one of the two parents. It is only
in extreme circumstances that one parent should be denied
contact with the child. Reasons must be assigned if one parent is
to be denied any visitation rights or contact with the child.
Courts dealing with the custody matters must while deciding
issues of custody clearly define the nature, manner and specifics
of the visitation rights.
20. The concept of visitation rights is not fully developed in
India. Most courts while granting custody to one spouse do not
pass any orders granting visitation rights to the other spouse. As
observed earlier, a child has a human right to have the love and
affection of both the parents and courts must pass orders
ensuring that the child is not totally deprived of the love,
affection and company of one of her/his parents.
21. Normally, if the parents are living in the same town or area,
the spouse who has not been granted custody is given visitation
rights over weekends only. In case the spouses are living at a
distance from each other, it may not be feasible or in the interest
of the child to create impediments in the education of the child
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by frequent breaks and, in such cases the visitation rights must
be given over long weekends, breaks, and holidays. In cases like
the present one where the parents are in two different continents
effort should be made to give maximum visitation rights to the
parent who is denied custody.
22. In addition to ‘Visitation Rights’, ‘Contact rights’ are also
important for development of the child specially in cases where
both parents live in different states or countries. The concept of
contact rights in the modern age would be contact by telephone,
email or in fact, we feel the best system of contact, if available
between the parties should be video calling. With the increasing
availability of internet, video calling is now very common and
courts dealing with the issue of custody of children must ensure
that the parent who is denied custody of the child should be able
to talk to her/his child as often as possible. Unless there are
special circumstances to take a different view, the parent who is
denied custody of the child should have the right to talk to
his/her child for 510 minutes everyday. This will help in
maintaining and improving the bond between the child and the
parent who is denied custody. If that bond is maintained the
child will have no difficulty in moving from one home to another
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during vacations or holidays. The purpose of this is, if we cannot
provide one happy home with two parents to the child then let
the child have the benefit of two happy homes with one parent
each.
23. As far as the present case is concerned, keeping in view
what we have held above, we are not going into various
allegations and counter allegations made by both the spouses.
However, we record the statement of the husband that he has no
intention of divorcing his wife. We can only hope that the couple
can either by themselves or through mediation settle their
disputes which would not only be in their own interest but also
in the interest of Kiyara. Having said so, since at this stage the
dispute between them remains unresolved we shall list out the
factors and weigh them in a proper manner to see what is best in
the interest of the child:
24. Age of the child – the child is less than 3 years old. She
is a girl and, therefore, there can be no manner of doubt that she
probably requires her mother more than her father. This is a
factor in favour of the wife.
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25. Nationality of the child The child is a citizen of USA by
birth. Her father was already working in the USA when he got
married. We are told that the mother had visited the USA once
before marriage and when she got married it was done with the
knowledge that she may have to settle down there. The child was
born in a hospital in the USA and the mother did not come back
to India for delivery which indicates that at that time the parents
wanted the child to be a citizen of USA. Since the child is a
citizen of USA by birth and holds a passport of that country,
while deciding the issue of custody we have to take this factor
into consideration.
26. Proceedings in the Norfolk Court It is the wife who
approached the court of competent jurisdiction, i.e. Norfolk
Juvenile and Domestic Relations District Court, in the USA. She
first applied for an emergency order and also instituted a petition
seeking sole legal and physical custody of the child. After the
husband put in appearance on the basis of the agreement, a
consent order was passed which directed both the parties to live
in the matrimonial home till 01.12.2018. It further directed that
if the matter could not be settled by that date then the wife would
20
make her own arrangements for residence etc. Provision was
also made for shared parenting. The wife in total violation of the
said order brought the child back to India.
27. We are not in agreement with the contention raised on
behalf of the wife that she could not understand the order of
the Norfolk Court. This is not the first time that the wife had
approached the court. The wife is educated. She was working
in Walmart in the USA. She had contacted an NGO and on
09.09.2017 had sent an email to Parsipanny Police
Department against her husband. On 03.05.2018, the
husband obtained an emergency protection order against the
wife. Thereafter, the wife along with the minor daughter
returned to India on 16.05.2018 and went back to the USA on
16.07.2018. The complaint filed by the husband is said to have
been dismissed on 26.07.2018. On 25.08.2018 the wife called
the Police as according to her she was scared for her safety and
that of her minor daughter. According to her she applied for an
emergency protective order on 25.08.2018 which was passed in
her favour. The wife also instituted a petition seeking sole legal
and physical custody of the minor child before the Norfolk
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Court on 29.08.2018. On 26.09.2018 the consent order was
passed. It would also be pertinent to mention that even
according to the wife she had been sending emails to the
Indian Embassy in Washington for help. The wife also applied
for Supplemental Nutrition Assistance Program which,
according to her is a nutrition programme to help low income
Americans to put food on the table.
28. The wife is aware of her rights. She has been taking the
help of the Police, Magistrate, the Domestic Court and Federal
Programmes, when the need arose. She was also working with
Walmart and we are unable to accept her contention that
because of lack of translator she could not understand what
was happening. We are also unable to agree with the
contention now raised that her counsel coerced her to enter
into the agreement. In any event if she has any grievance with
regard to the manner in which the settlement was arrived at,
the proper course was to raise the issue before the Norfolk
Court. No Indian Court can sit in appeal over the orders of the
Norfolk Court. We are clearly of the view that the plea she has
22
set up is only to justify her patent violation of the orders of the
Norfolk Court.
29. Obviously, the child who is less than three years old cannot
be heard in the matter but keeping in view the facilities of
education, social security etc., which would be available in USA,
we are of the view that the child should not be deprived of the
same only on the ground that the mother does not want to go
back to USA.
30. Visa issue
Learned counsel for the appellantwife has laid great emphasis
on the fact that the visa/work permit of the husband is expiring
in 2020. That by itself is no ground to deny custody of the child
to the husband. If his visa/work permit is extended no problem
will arise but if his visa/work permit is not extended, we shall be
making directions in this regard in the latter part of the
judgment. Whether the work visa/work permit of the husband is
to be extended or not is for the authorities in the USA to decide
and this Court cannot comment on the same. We cannot pass an
order presuming that the visa will not be extended.
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31. There are various factors to be taken into consideration
while deciding what is best in the interest of the child. No hard
and fast rules can be laid down and each case has to be decided
on its own merits. We are also not oblivious of the fact that when
two parents are at war with each other it is impossible to provide
a completely peaceful environment to the child. The court has to
decide what is in the best interest of the child after weighing all
the pros and cons of both the respective parents who claim
custody of the child. Obviously, any such order of custody
cannot give a perfect environment to the child because that
perfect environment would only be available if both the parents
put the interest of the child above their own differences. Even if
parents separate, they may reach an arrangement where the
child can live in an environment which is reasonably conducive
to her/his development. As far as the present case is concerned
other than the age of the child nothing is in favour of the mother.
She herself approached the jurisdictional court in Norfolk. She
entered into an agreement on the basis of which a consent order
was passed. She has violated that order with impunity and come
back to India and, this is a factor which we have to hold
against her.
24
32. In view of the above discussion, we are clearly of the view
that it is in the best interest of the child to have parental care of
both the parents, if not joint then at least separate. We are
clearly of the view that if the wife is willing to go back to USA
then all orders with regard to custody, maintenance etc., must be
looked into by the jurisdictional court in USA. A writ court in
India cannot, in proceedings like this direct that an adult spouse
should go to America. We are, therefore, issuing directions in
two parts. The first part will apply if the appellantwife is willing
to go to USA on terms and conditions offered by the husband in
his affidavit. The second part would apply if she is not willing to
go to USA, how should the husband be granted custody of the
child.
st
1 part
33. (a) At the outset we note that the husband has filed an
affidavit, the relevant portion of which reads as follows:
“(2) That I have always been calling up my wife to come
back to us along with the minor child so that all of us
could stay together in the US as a happy family. In this
regard I have sent her various emails to come back and I
would be willing to bear all the expenses of the travel of
my wife and minor child back to US.
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(3) That I further undertake that I shall make all the
arrangements of stay and travel expenses (including air
tickets) of my wife and minor child in our own house
which is a two bedroom apartment for which I am paying
a rental of US $1500 per month.
(4) That in case my wife is not willing to stay with me for
personal reasons, then I shall sift out and make
arrangements to stay somewhere else.
(5) That I further undertake to take care of all expenses of
day to day running of the house, medical insurance for
both my wife and child, electricity, gas all other incidental
expenses till the time the US Court makes a provision in
this regard.
(6) That I also undertake to bear all expenses for the
education of the minor child including the admission in a
nursery school in the US which expense would be of
about US $1000$1500 per month not including the
meals and school supplies. I also undertake that the
expenses of the school supplies and other requirements
as part of the minor child’s life in school would also be
borne by me.
(7) That I undertake that I will be available for any
Medical Emergency and Vaccination during weekdays for
my wife Yashita and the minor child Kiyara. I
undertake that for any other errands, I will be available
after the office or on weekends.
(8) That I also state that for each time that the minor
child has visited in terms of an order of shared parenting,
I have taken work from home to ensure that all my time
is spent around the child and I undertake that even after
the minor child’s admission to nursery school
(Kindergarten), during her school hours I would go to my
office and after school hours I will take work from home
and avail parenting time with her. I undertake that
should need arises, I will call my mother to help us in the
US.
(8) That I also undertake to pay US $200 towards the
upkeep and maintenance of the minor child apart from
all other expenses.”
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We record this as an undertaking to the Court and the husband
is duty bound to abide by this undertaking.
(b) We feel that it will be in the interest of the child if the
mother herself accompanies the child to USA. The appellantwife
may like to live in USA or not, and this is a personal choice of the
appellantwife. However, if she goes back to USA along with the
child, then she must comply with the orders of the Norfolk Court.
Obviously, she can apply for modification/vacation of the order, if
so advised;
(c) In case the wife goes back to USA it shall be the
responsibility of the husband to pay reasonable expenses for her
entire travel and stay. The wife must within one week of the
passing of this order intimate counsel for the husband whether
she is willing to go back to USA or not. In case she expresses her
willingness to do so, the husband shall purchase tickets for travel
of the wife, and the minor child to USA, which journey must be
performed on or before 20.02.2020. We make it clear that it will
be the wife’s responsibility to obtain the requisite travel
documents required by her to travel to the USA by the said date;
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(d) In case the wife is willing to go back to USA but is not
willing to live with the husband, in view of the undertaking given
by the husband, we direct that the husband shall make
alternative arrangements for his own stay and hand over the
possession of the apartment now in his possession to the wife;
(e) The husband in terms of the undertaking is directed to
take care of all expenses of day to day running of the house,
medical insurance for both wife and child, electricity, gas and all
other incidental expenses till the time the jurisdictional court in
USA makes a provision in this regard;
(f) The husband shall not initiate any coercive or penal
action against the wife in the USA and if such action has already
been initiated by him or any proceedings in that regard are
pending, then the same shall be withdrawn and not pursued any
further by the husband. This will be a precondition to facilitate
the wife’s appearance before the concerned Courts in the USA to
effectively represent and defend herself in all matters relating to
the matrimonial dispute (including custody and guardianship
issues of the minor child) between the husband and the wife.
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34. We, however, clarify that this arrangement will only
continue up to 30.04.2020 before which date the parties must get
proper directions from the jurisdictional court in USA. Once the
jurisdictional Court in USA passes the order then this portion of
the order shall cease to operate. In addition, we also direct that
the husband shall pay US $250 per week to the wife for her
personal expenses in USA till 30.04.2020 or till the jurisdictional
court in USA passes orders in this regard. This amount is an
addition to the US $200 per week that the husband has
undertaken to pay for the upkeep and maintenance of the minor
child.
nd
2 part
35. In case the wife does not inform the counsel for the
husband within one week from today that she is willing to go
back to USA then it shall be presumed that she has no intention
to go to USA along with the child. In that event we issue the
following directions :
(a) The wife shall handover custody of minor Kiyara to the
husband or if the husband is unable to travel to India, then to
the mother of the husband, before the Registrar
29
General/Registrar(Judicial), of the High Court of Rajasthan on
03.02.2020 at 11.00 A.M. Thereafter, the husband shall make
necessary arrangements for taking the child to USA accompanied
by at least one of the husband’s parents;
(b) In case the child goes to USA with the husband or
either of his parents, the husband shall ensure that the child
talks to her mother through video calling facilities such as
WhatsApp, Skype etc., everyday at 8.30 P.M. Eastern Standard
Time on weekdays (MondayThursday) for at least 10 minutes
each day and on weekends (FridaySunday) he shall ensure that
the child talks to the mother at the same time or any other time
mutually settled between the parties through video calling for at
least 15 minutes.
(c) We further direct that if the wife visits USA hereafter
and is staying in the same town where the husband resides, she
will be permitted custody of the child on all weekends from 6.00
P.M. on Friday till 6.00 P.M. on Sunday.
(d) Even if the mother does not visit USA, the father shall
ensure that the child visits India at least twice a year, once
during the summer vacations and once during the winter break,
as per the child’s school schedule. It will be his responsibility to
30
ensure that the child comes to India accompanied either by him
or one of the grandparents of the child. During this period the
child shall remain exclusively with the mother. However, in case
the husband is also visiting with the child then during the period
when the child is in India, the husband will have the custody of
the child for 2 days per week, preferably on weekends or on other
suitable days as settled by the parties.
36. Mr. Rajkotia, learned counsel for the appellantwife had
urged that the position would totally change in case the work
permit/visa of the husband is not extended. This is in the realm
of speculation, we cannot presume whether the visa will be
extended or not. We have, therefore, issued the aforesaid
directions but make it clear that if the visa/work permit of the
husband is not extended and he has to leave the USA then the
wife will be at liberty to move this Court for fresh directions.
37. The appeal is disposed of in the aforesaid terms. Pending
application(s), if any, stand(s) disposed of. The Registrar
(Judicial) of the Registry of the Supreme Court of India, is
directed to send a copy of this judgment to the Registrar
General/Registrar (Judicial) of the High Court of Rajasthan.
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.......................................J.
(Deepak Gupta)
.......................................J.
(Aniruddha Bose)
New Delhi,
January 20, 2020
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