Full Text
HIGH COURT OF DELHI
21553/2022, CRL.M.A. 8060/2023, CRL.M.A. 12478/2023, CRL.M.A. 2007/2024
AMAN KATHPAL .....Petitioner
Through: Mr. Jai Anant Dehadrai and Mr. Siddharth Sharma, Advocates
Through: Mr. Apoorv Kurup and Ms. Gauri Goburdhun, Advocates for UOI
Mr. Shadan Farassat, Senior Advocate
JUDGMENT
BRIEF FACTS
1. The present application has been filed seeking vacation of stay granted by this Court vide order dated 13.09.2022 whereby the operation of the Superior Court of New Haven (US Superior Court) order dated 13.07.2022 was stayed till the next date of hearing. The interim protection has continued since then.
SUBMISSIONS OF APPLICANT/RESPONDNET NO.2
2. Learned senior counsel for the respondent/applicant submitted that the stay granted by this Court on 13.09.2022 is liable to be vacated and confined his submissions to this point. Learned senior counsel submitted that the petitioner/non-applicant fled the jurisdiction of the US Superior Court on 09.06.2022, soon after the decree granting joint custody was passed. The petitioner - mother abducted the child to India to evade compliance with the unfavourable decree, which required her to share custody.
3. Learned senior counsel submitted that following the petitioner’s actions, the Judicial District of New Haven, US Superior Court, vide its order dated 13.07.2022, granted sole legal and physical custody of the minor child to Respondent No. 2 – father, and directed the petitionermother to return the child to Respondent No. 2 – father, or a designated family member. Learned senior counsel further submitted that the petitioner - mother has filed the present petition to re-agitate her custody claim before the Indian Court and also sought a stay of the US Superior Court order dated 13.07.2022, which this Court illegally granted on 13.09.2022.
4. Learned senior counsel submitted that Respondent No. 2 – father, has invoked the Habeas Corpus jurisdiction of this Court through Writ Petition (CRL.) 3029/2024, seeking the return of his minor daughter to the USA. Learned senior counsel submitted that the child was unlawfully removed from Connecticut without the consent or knowledge of Respondent No. 2 – father who is the Guardian ad litem (court-appointed guardian). Learned senior counsel further submitted that two days after the abduction, on 11.06.2022, the petitioner-mother emailed Respondent No. 2 – father, stating she was compelled to travel to India due to her father’s heart ailment. Learned senior counsel submitted that the petitioner has no intention of returning to the USA. It was further submitted that it is a settled principle that children must be returned to their country of habitual residence under the doctrine of 'comity of courts,' to ensure their best interests and welfare are determined appropriately. Reliance was placed on Yashita Sahu v. State of Rajasthan & Ors., (2020) 3 SCC 67
5. Learned senior counsel submitted that the appropriate forum for the petitioner-mother to address her grievances was to file an appeal before the US courts. Learned senior counsel submitted that the Connecticut Court must retain jurisdiction to adjudicate the parties' claims related to divorce, custody, maintenance, and other ancillary matters. Reliance was placed on Modi Entertainment Network v. WSG Cricket Pte Ltd., (2003) 4 SCC 341, where the Supreme Court highlighted the need for caution while granting anti-suit injunctions to minimize interference with the jurisdiction of another Court.
6. Learned senior counsel further submitted that the allegations of abuse made by the petitioner-mother were found to be fabricated following a detailed evidentiary inquiry in the USA. This inquiry was supported by expert testimonies from Kacian Fabish, Aisha Roche, and Dr. Leslie Lothstein. It was submitted that the testimony of Ms. Lauren Lavoi lacks credibility as it was based solely on her interactions with the petitioner and the child. Moreover, Ms. Lavoi was the only expert witness who had never met Respondent No. 2 – father, and the child together.
SUBMISSIONS OF NON-APPLICANT/PETITIONER
7. Per contra, Learned counsel for the petitioner has submitted that this Court, after considering the entire facts and circumstances, granted an interim order dated 13.09.2022. Learned counsel submitted that the minor girl has been residing in India for the past 29 months with her mother and maternal grandparents. During this time, she has developed roots in Indian society, is well-settled, and is regularly attending her school (Smart Wonders School) in Grade V, where her academic performance has been excellent.
8. Learned counsel for the non applicant submitted that since the age of 3 years, the minor child has repeatedly complained of sexual assault committed by Respondent No. 2 – biological father. He submitted that child therapist Ms. Lauren Lavoie extensively interacted with the child. However, the US Court failed to consider the testimony of Ms. Lauren Lavoie, the sole child therapist/expert involved, despite her unblemished career and over 15 years of experience.
9. Furthermore, learned counsel has submitted that in the US Court orders dated 06.05.2022 and 13.07.2022, the Superior Court, New Haven, never declared the custody of the minor child with the petitioner to be unlawful. It was submitted that in Nithya Anand Raghavan v. State (NCT of Delhi), (2017) 8 SCC 454, it has been held that the custody of a minor child with the mother can never be termed unlawful. It was further submitted that the Supreme Court has consistently held that in custody matters, the paramount consideration for the Court is the welfare of the child. However, it has been submitted that the reunification officer of the US Court, Kacian Fabish, negligently failed to adequately bring on record the sexual incidents cited by the minor child during their interactions. Learned counsel submitted that Respondent No. 2 – father, has a history of violence and a criminal record. He further submitted that Respondent No. 2 has not paid a single penny toward child support, as directed by the order dated 06.05.2022 and it has been submitted the present application was moved approximately 15 months after the passing of the stay order, which indicates that Respondent No. 2 has no genuine concern for the child.
ANALYSIS AND FINDINGS
10. In backdrop, the present petition has been filed with the following prayers;
Petitioner and her daughter against the Decision of the Superior Court of New Haven, Connecticut, United States of America dated 06.05.2022 and Order 414024 dated 13.07.2022 of the Superior Court of New Haven, Connecticut,
11. This Court after noting down the facts of the case and service of the respondent passed an interim stay order regarding the operation of the impugned order dated 13.07.2022on 13.09.2022. Presently, the Court is concerned only with the vacation of the order granted by this Court on 13.09.2022. The contention and counter contention raised by both the parties regarding the orders passed by the US Courts or the extent of jurisdiction to be exercised by this Court is to be determined at the time of final decision of the writ petition. Therefore, any detailed discussion at this stage, would prejudice either of the parties.
12. The Supreme Court and this while hearing the custody matter has time and again held that the welfare of the child is paramount. The Court while considering these issues exercises its parens patriae jurisdiction.
13. In Ashish Ranjan v. Anupam Tandon and another(2010) 14 SCC 274, the Apex Court inter alia held as under:
14. This Court in Roxann Sharma v. Arun Sharma (2015) 8 SCC 318, opined that the child is not a chattel or ball that it is bounced to and fro. Welfare of the child is the focal point. It was inter alia held as under: “18........There can be no cavil that when a court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child’s welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the Mother and this expectation can be deviated from only for strong reasons”
15. In Nithya Anand Raghavan (supra) it was inter alia held as under; “India is not yet a signatory to the Hague Convention of 1980 on Civil Aspects of International Child Abduction. So far as non- Convention countries are concerned, the law is that the court in the country to which the child is removed while considering the question must bear in mind the welfare of the child as of paramount importance and consider the order of the foreign court as only a factor to be taken. Again the summary jurisdiction be exercised only if the court to which the child has been removed is moved promptly and quickly. The overriding consideration must be the interests and welfare of the child. In such a case the court need not resort to an elaborate inquiry into the merits of the paramount welfare of the child but leave that inquiry to the foreign court by directing return of the child. 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 pre-existing 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 pre-existing order of the foreign court for return of the child as only one of the circumstances. In exceptional cases the court can still refuse to issue direction to return the child to the native state and more particularly in spite of a pre-existing order of the foreign court in that behalf, if it is satisfied that the child's return may expose him to a grave risk of harm. This means that the courts in India, within whose jurisdiction the minor has been brought must "ordinarily" consider the question on merits, bearing in mind the welfare of the child as of paramount importance whilst reckoning the preexisting order of the foreign court if any as only one of the factors and not get fixated therewith. In either situation-be it a summary inquiry or an elaborate inquiry-the welfare of the child is of paramount consideration. Thus, while examining the issue the courts in India are free to decline the relief of return of the child brought within its jurisdiction, if it is satisfied that the child is now settled in its new environment or if it would expose the child to physical or psychological harm or otherwise place the child in an intolerable position or if the child is quite mature and objects to its return.”
16. Further, in the Lahari Sakhamuri v. Sobhan Kodali(2019) 7 SCC 311 the Apex while adjudicating the custody dispute of two minor children, inter alia held that the best interest and welfare of the child are the paramount considerations in custody matters, even in the context of conflicting orders from courts in different jurisdictions. It was inter alia held as under:
17. Thus, perusal of this makes it clear that the Court while dealing with such petition is duty bound to consider the welfare of the child as of paramount interest and foreign court orders are considered as factors but are not conclusive In the present case, it cannot be said that the child as has been divorced from the social customs or subjected to a system which could physiologically disturb the child. It is also to be taken into account that the present application seeking vacation of stay has been moved after around 15 months so it cannot be said that the same has been moved promptly and quickly. It is also pertinent to mention that in the present application, the only prayer has been made for vacation of the stay and no consequential relief has been asked for.
18. Thus, in view of the facts and circumstances, I consider that there is no ground for vacation of the stay. The question involved in the present petition concerns of welfare of child namely Ms. xx Dhingra which requires detailed deliberation and consideration. Thus, the present application is dismissed. The stay order granted vide order dated 13.09.2022 shall operate till the decision of the present petition. W.P.(CRL) 2049/2022, CRL.M.A. 17762/2022, CRL.M.A. 21553/2022, CRL.M.A. 8060/2023, CRL.M.A. 12478/2023
19. List on 10.03.2025.
DINESH KUMAR SHARMA, J DECEMBER 23, 2024 Pallavi/Smg