Author: Shinjani Agnihotri
Mrs. Kanika Goel v. State Of Delhi Through S.H.O. & Anr.
Criminal Appeal Nos. 635-640 OF 2018
A writ of Habeas Corpus was filed by respondent in High Court for production of his minor daughter M (assumed name), who was about 3 years of age at the time of filing of the writ petition and for a direction for return of M to the jurisdiction of the competent Court in the United States of America in compliance with the order dated 13th January, 2017 passed by the Circuit Court of Cook County, Illinois, USA, came to be allowed. The Delhi High Court directed the appellant to comply with the directions as M was in her custody, the appellant being M’s mother.
The respondent No.2 asserted that he was born in India but presently is a citizen of USA since 2005. He is working as the CEO of a Company called ‘Get Set Learning’. The appellant is his wife and mother of the minor child M. She is a US Permanent Resident and a “Green Card” holder and has also applied for US citizenship on 2nd December, 2016. At the relevant time, she was a certified teacher in the State of Illinois and was employed as a Special Education Classroom Assistant in Chicago Public Schools.
The respondent and appellant got married on 31st December, 2010 in New Delhi. It was pre-decided that appellant would reside with the respjndent after marriage. Eventually, the appellant travelled to the USA on a Fiance Visa and got married to respondent No.2 again on 19th March, 2011 at Cook County Court in Chicago, Illinois. They both entered into a pre-nuptial agreement dated 20th October, 2010 enforceable in accordance with the laws of the State of Illinois, USA. The appellant then took employment as a teacher in Chicago Public School and also secured a US Permanent Citizen Green Card. The appellant gave birth to M on 15th February, 2014 and thus made M a natural born US citizen domiciled in the State of Illinois, USA from her birth till she was clandestinely removed by the appellant in December 2016 under the guise of undertaking a short trip to New Delhi to meet the appellant’s parents.
The appellant was supposed to return to Chicago on 7th January, 2017 but instead went missing and filed for dissolution of marriage on grounds of Cruelty under Section 13(1) of the Hindu Marriage Act, 1955 and filed an application of restraining order against respondent from taking M away from jurisdiction of Indian Courts.
Meanwhile the respondent filed for emergency petition for temporary sole allocation of custody of M before the Circuit Court of Cook County, Illinois on 9thJanuary, 2017. The hearing was scheduled at 13th January and the appellant was notified through email of the same.
Matter in Court
The Family Court at New Delhi passed an ex parte order of restraining the respondent from taking M outside India on 11th January. The respondent filed for missing person complaint on 13th January, 2017 before the SHO, Vasant Kunj (South), P.S. New Delhi which was acknowledged by police on 14th January. Meanwhile Circuit Court of Cook County, Illinois, USA on 13th January, 2017 passed an ex parte order granting the custody of minor child M to the father, respondent.
The appellant did not comply with the said order and thus respondent filed a writ of Habeas Corpus before High Court of New Delhi on 1st February, 2017 to produce M and take her back to the jurisdiction of Court in United States. The Hon’ble High Court passed an order dated 16th November, 2017, in favour of respondent No.2, after recording a finding that the paramount interest of the minor child was to return to USA, so that she could be in her natural environment. Since the appellant is able bodied, educated, accustomed to living in Chicago, USA, was gainfully employed and had an income before she came to India in December 2016 thus it would not be a difficulty for finding her feet in USA. The court put forward certain conditions for the respondent to follow like the expenses of appellant (mother) and M (minor child) would be borne by the respondent along with the legal expenses set out due to proceedings in US Court. This was followed by denial of permission to execute the pre-nup agreement in US until the proceedings against the same filed by appellant was adjudicated on merits according to laws in India.
Aggrieved by the said order appellant has approached Supreme Court by way of Special Leave under Article 136 of the Constitution of India. According to her the High Court has glossed over the doctrine of choice and dignity of the mother of a minor girl child emerged in K.S. Puttaswamy & Anr. Vs. Union of India & Ors.
The order passed by Hon’ble Court put the appellant and her child in danger by making them stay in an environment where they witnessed instances of domestic violence and physical abuse. She relied on Nithya Anand Raghavan V. State (NCT ofDelhi) & Anr. and Prateek Gupta Vs. Shilpi Gupta & Ors.
The court while deciding relied on Nithya Anand Raghavan v. State
“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”
In Prateek Gupta’s case, the Court noted that the adjudicative mission is the obligation to secure the unreserved welfare of the child as the paramount consideration. Further, the doctrine of “intimate and closest concern” are of persuasive relevance, only when the child is uprooted from its native country and taken to a place to encounter alien environment, language, custom etc. with the bearing hindrance on the process of its overall growth and grooming. The High Court in the present case focused primarily on the grievances of the appellant and while rejecting those grievances, went on to grant relief to respondent No.2 by directing return of the minor girl child to her native country. On the totality of the facts and circumstances of the present case, in our opinion, there is nothing to indicate that the native language (English) is not spoken or the child has been divorced from the social customs to which she has been accustomed.
The court finally held that the parties must contend their cases before Family Court at New Delhi which will be decided on merits and in accordance with the law. And according the outcome therefore the appellant may be obliged to participate in the legal proceedings of US Court where she must take all effective measures to result the outcome in her favour. In that event, the respondent shall bear the cost of everything, from providing living conditions to the legal cost incurred during proceedings.
 K.S. Puttaswamy & Anr. v. Union of India & Ors. (2017) 10 SCC 1.
 Nithya Anand Raghavan v. State (NCT ofDelhi) & Anr. (2017) 8 SCC 454.
 Prateek Gupta v. Shilpi Gupta & Ors. (2018) 2 SCC 309.
 Supra at 2.
 Supra at 3.
About the Author: Shinjani is a 2017-22 Batch student at Institute of Law, Nirma University.
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